Vonnisbespreking: Die jongste “gly-en-val” uitspraak teen ’n winkeleienaar: ’n ontkenning van die Chartaprops-verweer?

Abstract

Abstract The most recent “slip-and-trip” judgment against a shop owner: A denial of the Chartaprops defence? In 1991, in Langley Fox Building Partnership (Pty) Ltd v De Valence, the Supreme Court of Appeal held that the employer of an independent contractor is not liable for the delicts of the employees of the latter, unless the conduct of the employer or his or her employees had also conformed to the requirements for delictual liability. Notwithstanding, courts have since then not always followed that important judgment, particularly in claims arising from injuries sustained by shoppers who tripped and fell on slippery floors in shopping malls and supermarkets, where shop owners and/or managers had engaged independent cleaning firms to keep floors clean and safe (e.g. Probst v Pick ’n Pay Retailers (Pty) Ltd handed down by the full Johannesburg High Court in 1998). However, in 2009 the Supreme Court of Appeal held that it would be a valid defence for a shop or mall owner or manager to plead that an independent contractor had been appointed for floor cleaning, and that the latter would normally be delictually liable where a shopper had sustained injuries, effectively confirming Langley Fox. In the case under discussion, the plaintiff slipped and fell on a slippery patch in one aisle of the defendant’s supermarket. The court approached delictual liability by applying the res ipsa loquitur maxim on the authority of Probst. Consequently, an inference of negligence on the defendant’s part, following by applying the maxim, was established. The court ultimately decided that the defendant had failed to rebut such inference and also that no negligence had been established on the plaintiff’s part. Notwithstanding its reference to the “Chartaprops defence”, the court did not apply it properly and consequently held the defendant liable. At no point did the court enquire about the possible negligence of the independent contractor’s employees, although the facts overwhelmingly point towards such a probability. The reason for this omission is probably to be found because the court ordered the independent contractor to indemnify the defendant in terms of an indemnity clause in their cleaning service agreement. As a result, the effect of this judgment is that the pre-Chartaprops legal approach to “slip-and-trip” cases – in terms of which a shop owner could incur delictual liability for the civil wrongs of an independent contractor’s employees as if they were his employees – was reinstated. One can fully agree with the court that a reasonable person in the defendant’s position would have foreseen the type of damage that had occurred in casu, and would have taken reasonable steps to avoid such harm. However, the court’s finding that the steps taken by the defendant in appointing a cleaning service contractor had been ineffective, does not necessarily imply that those steps had been inadequate, considering the surrounding facts and circumstances. Keywords: foreseeability; independent contractor; legal duty; omission; negligence; shop floor; shop owner; shop manager; “slip and trip” injury; spillage; wrongfulness