Folley v Pick 'n Pay Retailers (Pty) Ltd and Others (15559/2009) [2017] ZAWCHC 86 (23 August 2017)

Folley v Pick 'n Pay Retailers (Pty) Ltd and Others (15559/2009) [2017] ZAWCHC 86 (23 August 2017)

The plaintiff failed to discharge the onus of proving that her fall was caused by a damp or moist floor created by the cleaners. The evidence was insufficient and contradictory regarding the presence and cause of moisture, the actions of the cleaners, and the location of the alleged slippery patch. The video footage was inconclusive, and neither the plaintiff nor her witness could reliably establish that the cleaners created a hazard without warning. The mere fact of slipping does not establish negligence. Consequently, no delictual liability was established against either the defendant or the third party. The court condoned the plaintiff's non-compliance with Rule 13(3)(b) regarding...

Citation
[2017] ZAWCHC 86
Parties
Plaintiff: Jacqueline Folley; Defendant: Pick 'n Pay Retailers (Pty) Ltd; Third Party: Moonstone Investments (Pty) Ltd t/a Zama Cleaning Services
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 August 2017
Case Number
15559/2009
Procedural Posture
Civil Trial / Final Judgment After Trial on Liability and Costs
Outcome
Plaintiff's claim against the defendant and third party is dismissed.
Judges
N P Boqwana
Legal Topics
Slip and Fall, Negligence, Onus of Proof, Vicarious Liability, Third Party Procedure, Amendment of Pleadings
Delict Civil Procedure Slip and Fall Negligence Onus of Proof Vicarious Liability Third Party Procedure Amendment of Pleadings

Case Brief

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Parties

Jacqueline Folley

Plaintiff

Pick 'n Pay Retailers (Pty) Ltd

Defendant

Moonstone Investments (Pty) Ltd t/a Zama Cleaning Services

Third Party

Procedural Posture

Civil Trial / Final Judgment After Trial on Liability and Costs

Legal Issues

  1. 1 Has the plaintiff discharged the onus of proving that her fall was caused by a damp or moist floor created by the cleaners?
  2. 2 Was there negligence on the part of the defendant or third party in failing to prevent the plaintiff's fall?
  3. 3 Was the third party properly joined in terms of Rule 13(3)(b) and should condonation be granted for non-compliance?

Ratio Decidendi

The plaintiff failed to discharge the onus of proving that her fall was caused by a damp or moist floor created by the cleaners. The evidence was insufficient and contradictory regarding the presence and cause of moisture, the actions of the cleaners, and the location of the alleged slippery patch. The video footage was inconclusive, and neither the plaintiff nor her witness could reliably establish that the cleaners created a hazard without warning. The mere fact of slipping does not establish negligence. Consequently, no delictual liability was established against either the defendant or the third party. The court condoned the plaintiff's non-compliance with Rule 13(3)(b) regarding...

Court Disposition

Plaintiff's claim against the defendant and third party is dismissed.

Orders

  • The plaintiff's claim against the defendant and the third party is dismissed.
  • Each party is to pay its own costs regarding the defendant's application to amend its plea.