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Delictual liability of an owner and/or manager in a “spillage” case

The recent case of Holtzhausen vs Cenprop Real Estate (Pty) Ltd and Another [2021] 2 All SA 457 (WCC) has cast doubt on the legal position of an owner or manager of premises in a so-called spillage case. A spillage case typically occurs when a visitor to a mall, supermarket or other public place slips on a liquid that has been lying on a floor. The fall causes the visitor to sustain injuries, which results in a delictual claim against the property owner and/or the management company managing the property and/or the cleaning company that cleans the property.

Our courts have adjudicated several spillage cases in the last 25 years, and until recently, the principles of liability in these cases appeared to have been clearly laid out. In Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W), the court held that the defendant supermarket owner owed a duty to persons entering its supermarket during trading hours to take reasonable steps to ensure that the floor was kept in a condition that was reasonably safe for shoppers. It had to be borne in mind that shoppers would spend much of their time in the shop with their attention focused on goods displayed on the shelves, or in their trolleys, and not looking at the floor to ensure that every step they took was safe. The court held further that, although the defendant supermarket owner engaged a firm of cleaners to perform cleaning duties, it nevertheless remained liable for any negligent failure on the part of the cleaners to perform the duties with due care.

In Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (E), the court held that a reasonable person in the position of the defendant supermarket owner would have foreseen and guarded against the possibility of the plaintiff slipping and falling on the water which had found its way onto the floor of the supermarket and which caused the plaintiff to slip, injuring herself in the process. The court held further that the mere fact that there was an independent contractor appointed to clean the supermarket did not absolve the defendant from its responsibility to take reasonable steps to prevent injury to the plaintiff.

In Chartaprops 16 (Pty) Ltd and Another v Silberman 2009 (1) SA 265 (SCA), the majority, per Ponnan JA, went in the opposite direction to the findings in the abovementioned cases. Ponnan JA explained that a mall owner could conceivably be held liable for the wrongs committed by an independent contractor if the owner negligently failed to take reasonable steps to prevent the risk of harm. However, in this case, the mall owner had engaged a competent cleaning company to ensure that the floors remained safe, and had no means of knowing that the work of the independent cleaning company was defective. Since the owner had done everything that a reasonable person could do to ensure that that the floors of the shopping mall were safe, it could not be held liable for the plaintiff’s injuries.

This judgment represented a turnaround in our law because the court was content to hold the cleaning company liable for the harm suffered to the plaintiff without holding the owner and/or management company liable for the harm suffered by the plaintiff. After this significant turnaround by the SCA, future courts could be forgiven for following the majority decision in Chartaprops, even though it was unprecedented in our law. This is exactly what happened in Holtzhausen v Cenprop Real Estate (Pty) Ltd and Another [2020] 1 All SA 767 (WCC).

The facts of Holtzhausen were that the plaintiff slipped and fell soon after she entered a mall from the outside where it had been raining. It appeared that water from the outside had been carried in by visitors to the mall, and this accounted for the floor being slippery. In a joint plea, the owner alleged that it had discharged its legal duty to the plaintiff by appointing a management company to manage the property, which included physically inspecting the property on a regular basis and maintaining the buildings and grounds which were situated thereon in good condition. In turn, the management company alleged that it had discharged its legal duty to the plaintiff by appointing a professional cleaning company which was required to spot clean daily, including mopping up any spillage in the walkways and putting up warning signs.

On behalf of the court a quo, Gamble J felt constrained to follow the majority decision in Chartaprops, and reached the conclusion that the defendants were not liable to the plaintiff because the mall owner had properly discharged his duty to keep the mall floors safe by engaging a management company, and the management company had properly discharged its duty to keep the mall floors safe by engaging a cleaning company. As a result, it had not been shown that either defendant (the owner or the management company) was negligent in relation to the injuries sustained by the plaintiff. Gamble J pointed out that, for some inexplicable reason, the cleaning company, which should have been held accountable, had not been cited as a defendant in the matter.

The matter then proceeded on appeal to a full bench of the Western Cape High Court. See Holtzhausen v Cenprop Real Estate (Pty) Ltd and Another [2021] 2 All SA 457 (WCC). In a very creative application of the law, the full bench distinguished Chartaprops on the basis that the rainwater brought into the mall by visitors on the day in question was not a “spillage” and therefore this was not a “spillage” case. This meant that the court did not have to pronounce on the adequacy of the cleaning company’s cleaning system, or the failure by the cleaning company to mop up the water promptly.

According to the full bench, the fault, if any, could only lie with the owner and the manager of the mall (the two defendants in the matter). The defendants had a legal duty to take reasonable steps to ensure that the mall floors remained safe to users. This could have been done by contracting the cleaning company to dry the sections of the floor that became wet when it rained, or to close the entrances that were exposed to the rain every time it rained. Since neither of these steps was taken, the defendants were negligent and were liable to the plaintiff for her damages.


Closing Thoughts

When one considers the completely artificial (and arguably specious) distinction by the full bench in Holtzhausen between water that spills on the floor from rain brought in by visitors, and liquid that spills on the floor from the actions of a shopper or an employee, the reason why the full bench had to resort to this artifice becomes clear. The full bench was attempting to circumvent the majority decision in Chartaprops.

Returning to the majority decision in Chartaprops, Ponnan JA had based his decision on the policy that the SCA should impose the economic cost on the party immediately responsible for the wrong (i.e. the cleaning company), and not on the owner or manager who was only indirectly responsible for the wrong. It is submitted that this is not the correct policy for the imposition of delictual liability on a negligent party. The correct policy is the one Nugent JA articulated on behalf of the minority in Chartaprops: an owner or manager of a shopping mall who invites the public to frequent that mall will be expected to ensure that the floors of the premises are reasonably safe. The reason is that a visitor to the mall is entirely reliant upon the person in control of the premises to ensure that reasonable precautions are taken.

The net result of Holtzhausen is that it casts doubt on the majority finding in Chartaprops, a very undesirable situation for a prospective plaintiff trying to decide whether to pursue a claim against a mall owner, manager, or cleaning company that has been implicated in a spillage case.

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Ivor Heyman is an advocate at the Johannesburg Bar. He publishes articles of interest to attorneys and their clients. For questions or comments you can reach him at adv.heyman@gmail.com or 061-120-8740.