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Slip and Trip … when can you sue?

It has become the popular perception that if you fall or slip while on someone else’s property you can sue. The reality is that the law requires a quid pro quo from property owners and the public.  Firstly that property owners must take reasonable care in minimizing or preventing harm occurring to people passing through their premises. Secondly, the general public equally, must take reasonable and appropriate care when entering into, walking across and leaving another’s premises. This is best described in a case study below.

X, while shopping for grimagesoceries at a supermarket is busy replying to a message on his cell phone not paying attention to where he is going. X steps into a small puddle of water lying on the shop floor, slips and falls backwards badly knocking his head on the floor. For a few days he suffers headaches until he is diagnosed by his doctor as having incurred a serious case of whiplash from the fall.

The core of a successful slip and fall claim depends on whether the injured party has proven that his negligence did not exceed that of the owner and that there is cause for a claim. In proving liability for negligence, the test as laid down by our courts is the following: Would a reasonable person in the position of the defendant foresee the reasonable possibility that his conduct could injure another and cause damage and take reasonable steps to guard against its occurrence; and the defendant failed to take such steps.

In the case of Checkers Supermarket v Lindsay the court stated that in determining the reasonability of the shop owner, the correct question to ask was whether the shop owner “had a proper system in place to promptly deal with spillages”. The plaintiff can refute this by demonstrating a lack of suitable warning signs, etc. The following questions can assist to help determine the merits of a claim:

  1. Does the property owner regularly clean, examine or repair his premises or equipment?
  2. Could there have been warning signs or barriers implemented in order to prevent slips/trips?
  3. Is the owner of the business also the owner of the property?
  4. Who can be sued as defendant in the claim? Can your own negligence have contributed to the accident?
  5. Would a reasonable person have been on the lookout for any spillages or any dangerous objects that could cause the slip/trip?
  6. Were you distracted or engaged in any distracting activity that could have led to your inability to notice the danger?

The case of Green v C-Way Computers CC, heard in the North Gauteng High Court, deals with omission liability of a man falling into an uncovered manhole. The learned judge quoted from the case of Van Eeden v Minister of Safety and Security that an omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm suffered by the plaintiff. The test is one of reasonableness. A defendant is under a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent the harm.

Furthermore, the courts are required to balance several factors namely:

  1. Foreseeability and the extent of the harm.
  2. The degree of risk that the harm will materialise.
  3. The interests of the defendant and the community.
  4. Constitutional obligations.
  5. Who was in control of the situation?
  6. The availability of practical preventative measures and the chance of success.
  7. Whether the cost of preventing the harm is reasonably proportional to harm.
  8. Whether or not other practical and effective remedies are available.

For legal advice and/or assistance in the above, please contact:

Henno Bothma and Keegan Kolbe | Abrahams & Gross Attorneys

t    021 422 1323    |    e   info@abgross.co.za

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