The owners and managers of the Goodwood Mall in Cape Town have been found “personally at fault” by the Supreme Court of Appeal (SCA) for failing to take reasonable action to prevent harm after a woman was injured while frequenting the shopping centre.
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Naheel Investments and Cenprop, the mall’s owners and managers, respectively, appealed the matter after the Western Cape High Court gave the injured woman, Nicolene Holtzhausen, the go-ahead to seek damages.
The incident happened on 1 June 2013, when Holtzhausen had gone to the mall to use the ATM.
It had been raining on the day in question and signs had been put up at the entrances warning shoppers that the floors may be slippery when wet.
According to Holtzhausen, she walked carefully but slipped in water in her rubber-soled low-heeled boots.
In an attempt to protect the baby she was carrying, Holtzhausen put an arm out to break her fall, fracturing the right proximal radius and neck of her elbow in the process.
Holtzhausen testified that she slipped because of rainwater that had been carried in, via rain jackets and umbrellas, by other visitors to the mall and maintained that the owners should have known of the potential risk posed by the wet floors.
However, in December 2019, the court dismissed her application for damages arising from her injuries, a ruling she appealed to the full court, which ruled in her favour by substituting the trial court’s order with an order granting the claim.
Naheel and Cenprop denied negligence on their part, saying that Holtzhausen’s injuries were caused solely by her own negligence.
In its appeal, the defendants stated that they had paid due diligence, with Naheel arguing that it had employed Cenprop as a competent, independent contractor, specialising in property management, to manage and physically inspect the premises on a regular basis after any contractors had done work.
It argued Cenprop appointed a professional cleaning company, JKL Cleaning Solutions CC, to “spot clean daily any spillage in walkways with warning signage”.
The owners argued that through these contractors, they had taken adequate steps to ensure the safety of members of the public and prevent people from slipping and falling as alleged.
In handing down judgement, acting Judge Daisy Sekao Molefe dismissed the application, saying the owners of the mall had been negligent and adding that the owners had not taken all necessary steps to make the disclaimer board visible to shoppers as it had been obstructed by other obstacles.
She said no one did anything to remove that obstruction.
“Therefore, the disclaimer defence cannot stand,” Molefe ruled, adding:
“It is clear from the evidence that there was no basis on which it could be said that the respondent [Holtzhausen] was negligent. The appellants [Naheel said Cenprop] were negligent, as they were personally at fault by failing to take reasonable steps to prevent harm that was reasonably foreseeable.”
“Accordingly,” she said, “the defence that Cenprop employed a cleaning company does not come to their assistance.”
“Further, assuming the disclaimer notices were displayed at the mall during the period of the incident, such were not visibly displayed so as to come to the attention of customers, let alone the respondent.”
Molefe said there was no reason to interfere with the decision of the full court.
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