|Mr Bradley Russel Stearns, a 51-year-old man (the “Plaintiff”) sued Robispec (Pty) Ltd (the “Defendant”) in respect of an accident that occurred in a Pick n Pay store which is owned and manged by the Defendant (“the Store”). On 03 April 2017 the Plaintiff ruptured his left bicep as a result of a poorly maintained rack in the Store, which the plaintiff bumped into with his trolley as he was turning into the next aisle.|
Witnesses were called by both parties in order to testify at the hearing of the matter. The Plaintiff called a shelving installer and project manager employed by Storeworks (Pty) Ltd and a mechanical engineer. The Defendant called the manager of the Store.
The shelving installer Witness called by the Plaintiff, after a careful analysis of the photographs presented to him of certain racks in the abovementioned store, stated that in his view the racks were not installed properly. The mechanical engineer, was called to express an opinion on the probable causes for the collapse of the rack on the day in question. He testified that since it is expected that shopping trolleys will make contact with racks and shelves, such racks and shelves should be designed to withstand regular impact or bump from a shopping trolley. He further stated if the rack in question was secured, a large impact would be required to cause it to collapse. The mechanical engineer was therefore of the opinion that the rack was not properly installed and therefore not secured at the time of the accident. Lastly, the store manager admitted that an accident of this nature has never occurred since the store was opened. He testified that the store conducts general maintenance and there is no formal procedure in place in respect to the inspection of the racks and shelves.
The Defendant admitted that it had breached its duty of care to the members of the public. Furthermore, the Defendant contended contributory negligence on the part of the Plaintiff in causing his bodily injuries. This is due to the fact that the Plaintiff admitted that once he realised that the rack was falling, he impulsively attempted to grab it so that it would not reach the floor, therefore, causing him to suffer bodily injuries. The Defendant further contended that the causal link between its negligence and the harm suffered by the Plaintiff was too tenuous to justify the imposition of delictual liability on the Defendant for the harm caused to the Plaintiff. In addition, the Defendant relied on the notice containing a disclaimer placed outside the entrance if the store as a defence.
The court held that the evidence establishes on a balance of probabilities that some of the racks in the store were in a poor condition even before the accident took place as can be seen from the photographs
The Court held that the Defendant negligently breached its legal duty of care owed to the members of the public. The Court stated that a reasonable person in the Defendant’s position, would foresee the reasonable possibility of its conduct, in not adequately inspecting the racks and shelves for defects regularly and therefore, causing harm resulting in patrimonial loss to a person entering the store. The Court further held that the Defendant failed to take reasonable steps to avert the risk of such harm. The Court stated that the general nature of the harm that took place was reasonably foreseeable. The harm suffered by the Plaintiff was of a general nature that is reasonably foreseeable if a rack loaded with products collapses. The Court confirmed that the reasonable measures that the Defendant should have taken to prevent or minimise harm, include having formal procedures to inspect the racks and shelves on a regular basis. The Court therefore held that the Defendant is negligent with regard to the harm that the plaintiff has suffered.
With regards to whether there was contributory negligence on the part of the Plaintiff, the Court held that there is no factual basis to conclude that a reasonable person in the position of the Plaintiff would foresee the reasonable possibility of bumping the rack slightly with his empty shopping trolley, causing bodily injuries resulting in patrimonial loss. Furthermore, the Court held that an inference of negligence cannot be drawn from the Plaintiff’s act in attempting to stop the rack from falling onto the floor.
On the issue of whether a causal link existed between the Defendant’s negligence and harm suffered by the Plaintiff, the Court held that factual causation is not the real issue. In considering the aspect of legal causation, the Defendant contended that the act of the Plaintiff in attempting to catch and hold the falling rack intervened between the negligent act and harmful consequences. The Court held that if it were to accept the Defendant’s contention, this would require a strict and dogmatic application, this would lead to an unfair and unjust outcome.
|Members of the public are entitled to expect well secured and maintained racks when entering a grocery store. Therefore, the Court held that the principles of reasonableness, justice andfairness do not dictate that the Defendant should not be held liable for the harm suffered by the Plaintiff. |
Lastly, on the issue of the notice displayed outside the store containing a disclaimer of liability for negligence. The Court held, that although the notices are prominently displayed, the Court is not satisfied that the Defendant took reasonable steps to bring the disclaimer to the attention of customers and that a contract subject to the terms of the disclaimer was concluded by the Plaintiff upon entering the store.
The Court held that the Defendant is liable for damages.
|The case highlights the legal duty of care that grocery stores owe to the members of the public. Furthermore, although a grocery store may have a notice which contains a disclaimer of liability for negligence, the store must take reasonable steps to bring such notice to the attention of its customers.|
Written by Jeannique Booysen and Snazo Tuswa