Slip, Trip & Fall Accidents – A Matter of Personal Injury Law in Zimbabwe
By: Prince Kanokanga
Quite often people from abroad praise Zimbabweans for their humanity and hospitality. Paulson J in O’Leary v Coenen (1977) 251 N.W. 2d, 716 said that, ‘human society is of great importance than a land occupier’s unrestricted freedom.’
The preservation of life is important. With this in mind this memorandum has been prepared to highlight an interesting area of law, known as personal injury law, a subject covered in delict or tort law. It is an important subject which deals with person injury and compensation ‘which is fair in the eyes of society’ (see Edgar Mafemera v Zac Chidavaenzi & Anor HH116-12) to the victim given ‘the state of economic development’ and ‘current economic conditions of the country’ (see in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC) at pp 7-8
Development of the Law
This important law is not a novel in Zimbabwe. The courts have dealt with such cases and developed personal injury jurisprudence in Zimbabwe in their determination of such cases as Murray v Bulawayo Municipality (1952) (4) SA 575 (S.R), City of Salisbury v King (1970) (1) RLR 71 and Mangate v City of Harare & Ors HH 328-16 to mention a few. However, the prosecution or litigation of such cases is extremely low as compared to other jurisdictions.
Slip, trip and fall injuries are common. They may even be occurring on a daily basis. Many people have fallen victim and suffered personal injury. We all know at least one colleague, friend or relative who has sustained a slip and fall injury.
As people go about their business, callings, professions and trade, they frequent ‘high risk zones’, a term used to describe a high level of pedestrian traffic at restaurants and taverns, hospitals and clinics, public transportation terminus’, retail shopping establishments and other commercial establishments.
Some of the commercial establishment’s in our beloved nation do not match their original architectural drawing designs anymore, whilst some establishments have inadequate or poor lighting, if any, and some establishments are littered with cracks and holes.
Duty of Care
In terms of the law, there is a duty of care that is placed on the owners of commercial premises or its property managers to take reasonable steps to prevent injuries and preserve the safety of the general public on their premises. This duty of care extends to such areas as entryways and approaches, stairways and steps, elevators and escalators of commercial establishments.
What is Negligence?
It is essential to note that proving negligence in general is not as easy as taking a walk in the park. However, in order to deal with the difficulty of proving negligence, the courts often use a simple formula or ordinary test for establishing the existence or otherwise of negligence as articulated in the leading case of Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G in the following terms:
‘For the purposes of liability culpa arises if −
- a diligens paterfamilias in the position of the defendant −
- would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
- would take reasonable steps to guard against such occurrence; and
- the defendant failed to take such steps.
This has been constantly stated by this Court for some 50 years. Requirement (a) (ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down.’
It is submitted that whilst the property owners must take reasonable steps in minimizing harm, the customer or guest, equally has to take such reasonable and appropriate care not get injured whilst on another’s property. In Zimbabwe, through social observation, the typical ‘slip, trip and fall’ incident occurs more in supermarkets as opposed to restaurants and hotels, hospitals or parking lots or at the regional and international airports. However, this does not in any sense indicate that there are no ‘slip, trip and fall’ accidents that occur at the aforementioned and or other busy places such as commercial banks.
What is a Supermarket?
With regards to supermarkets, it is important to know that the term ‘supermarket’ according to its colloquial and grammatical meaning comprises the large self-service store, inclusive of its trading area as well as its ancillary storage, refrigeration, cooking and ablution facilities.
Patel J as he then was in the case of Old Mutual Property Investments v Metro International (Pvt) Ltd & Anor HH53-2006 had this to say:
“What emerges from these definitions is that a supermarket is a large commercial establishment where goods are stored in bulk and where goods, and possibly services, are retailed to members of the public. Obviously, the space where goods are displayed and paid for, viz. the trading area, is unquestionably an essential part of a supermarket. Moreover, the definitions cited above indicate that the storage facilities of a supermarket, as well as the areas where services are provided, form as much an integral part of the supermarket as its trading area. Taking this conception further, it seems to me difficult to separate the other amenities and facilities that are usually attached to a supermarket from its trading area per se. In other words, a supermarket in its totality must be viewed as comprising not only its trading area but also its ancillary warehousing, refrigeration and ablution facilities. In my view, the latter constitute intrinsic facets of the notion of a supermarket.
I am confident that the view that I have taken is consonant with ordinary colloquial usage and the popular perception of a supermarket. A comparison of other commercial enterprises is also illustrative and instructive in this regard. Thus, a restaurant, bakery, bottle-store, pharmacy and butchery would ordinarily contain facilities and areas to which the public are denied access. These would include, inter alia, kitchens, storerooms, dispensaries, cold-rooms and cutting-rooms. It would, I think, be absurd to suggest that these facilities should be divorced from the trading areas to which they are necessarily and intimately attached in determining what constitutes the relevant commercial enterprise under consideration. Each such enterprise must surely be regarded as being inclusive of all the amenities that are necessary for conducting the particular business of that enterprise.”
There is a duty of care placed on owners or property owners or lessors of commercial establishments to ensure that their establishments are clean, dry and do not pose a threat to society. It is imperative for such establishment to put in place adequate systems to ensure compliance with the municipal by-laws as well as the national laws, and in other cases in compliance with franchise agreements viz, health and public safety issues.
Hazard in Public Places
It is important for commercial establishments to regularly clean, examine and or repair their machinery and or equipment which may be suspected to have holes or cracks or potentially cause leakages and spillages.
It is equally important to ensure that there is adequate lighting so as to assist customers and guests with their shopping or movement in commercial establishments. During rainy seasons it may be important to ensure that at entry and exist points are mats or other materials on which people can wipe their feet, so as to minimize the risk of causing a dangerous condition.
Slippery / Wet Floor
The most common type of incident that results in ‘slip, trip and fall’ is the slippery and or wet floor. Even where an independent cleaning contractor has hired to provide periodic cleaning services, adequate checks and balances by management are required to ensure compliance with internal health and safety issues as well as ensuring that all floors or surfaces are clean and dry and that they do not pose any danger or hazard.
There is a plethora of legal cases that deal with slip and fall incidents. It is submitted that more attention should be given on placed to ‘high risk zones’ that is the places with a higher passage of pedestrian traffic, which include the vegetable section, the tills and refrigerators. In addition to the aforesaid, warning signs, or visible signs, must be displayed whenever there is work or cleaning in progress to curtail danger, failure of which, negligence can be adduced by the court.
This is what the court said in the matter of Probst v Pick ‘n Pay Retailers (Pty) Ltd  2 All SA 186 (W), Probst had slipped as a result of some cooking oil which had spilled on the floor. The court held that Pick ‘n Pay did not have a proper system to cover the shop floor at reasonable intervals and this had led to a situation in which it could take hours to discover a spillage. As a result of this Pick n’ Pay was found to be negligent and liable for Probst’s damages.
In another similar incident the court in the case of Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (E) in which Brauns whilst shopping in Shoprite Checkers fell on a slippery floor. It transpired that there was a quantity of water on the floor at the place where she fell. It was established that the water had been there for half an hour or longer before the plaintiff fell, and that Shoprite Checkers had been forewarned of the potential hazard by customers but had taken no steps to warn the customers of the water on the floor or to have the water cleaned up. Shoprite Checkers was found to have been negligent and liable for damages.
In Avonmore Supermarket CC v Venter  ZASCA 42 the South African Supreme Court dealing with a matter on ‘Delict – negligence – shopper slipping and falling and sustaining injuries – claim for damages against owner of the supermarket’ the court at paragraph 20 stated that:
“I accept that there is a need to mop the floors of a store to ensure that it is clean. However, the manner of execution of that task is crucial. It is clear that the appellant’s conduct caused the danger. The routine cleaning operation was done during a busy period. The cleaner left behind him a damp floor. That should not have happened. The cleaning operation should have been conducted in such a manner that the cleaner ought to have worked on a small area and ensured that the area was dry before moving on. In my view that would not have placed an onerous burden on him or his supervisor. This routine cleaning operation created a potential hazard to customers and in particular the respondent. The appellant had a duty to regulate its conduct in order to minimise or eliminate the risk of harm. I accordingly conclude that negligence has been established.”
Disclaimer: While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.Next Step