- Pick n Pay remains legally responsible for customer safety even after appointing an independent cleaning contractor.
- The court finds that weak supervision and flawed monitoring systems allowed a hazardous spillage to remain on the floor.
- Leave to appeal is finally refused, with the SCA warning against using reconsideration as a second appeal.
When a shopper slips on a supermarket floor, responsibility is often quietly shifted to the cleaner who was meant to be on duty.
However, the Supreme Court of Appeal has now made it clear that this approach is legally untenable. Retailers who invite the public into their stores remain fully responsible for customer safety, even where cleaning has been outsourced to an independent contractor.
Acting Judge of Appeal DV Dlodlo confirmed that Pick n Pay must compensate a shopper who slipped and fell on an oily substance in one of its Cape Town stores. The court rejected the retailer’s attempt to escape liability by pointing to its cleaning contractor, holding that the duty to keep premises reasonably safe is not delegable in law.
The fall that triggered a legal battle
Maria Williams was shopping at the Pick n Pay store at N1 City Mall in Goodwood in November 2017 when she remembered that she had forgotten to collect an item. As she walked briskly back along the aisle, she slipped and fell heavily to the floor. When she stood up, she noticed that the sole of her shoe was coated in an oily orange substance.
She suffered injuries to her left hip and shoulder and was assisted by Pick n Pay staff, who arranged for her transport to the hospital. Williams later testified that she had not seen any cleaner in the aisle at the time of her fall and that the spillage covered an area far larger than a small coin.
Pick n Pay initially undertook to pay her medical expenses but failed to honour that promise. Williams then sued for damages, claiming past and future medical costs, loss of earnings and general damages for pain and suffering.
Pick n Pay accepted that it owed a general duty of care to shoppers but denied negligence. It argued that it had acted reasonably by appointing Tradesoon 1020 trading as Bluedot to perform cleaning services and that any fault lay with the contractor alone. In the alternative, it alleged that Williams had been contributorily negligent for failing to keep a proper lookout.
The Western Cape High Court rejected these defences and held Pick n Pay fully liable for the damages she would later prove. It also declared that Bluedot must indemnify Pick n Pay for any loss, but that contractual arrangement did not affect Williams’s claim.
When both the High Court and the Supreme Court of Appeal refused leave to appeal, Pick n Pay turned to the reconsideration procedure under Section 17(2)(f) of the Superior Courts Act, arguing that a grave failure of justice would occur if the refusal stood.
Why the court found Pick n Pay negligent
In his judgment, Justice Dlodlo returned to the classic negligence test in Kruger v Coetzeeand applied it to the realities of supermarket operations. Spillages, he said, are plainly foreseeable in busy retail environments, and shop owners must take reasonable steps to guard against the resulting risk of harm.
The court accepted that Pick n Pay had recognised this risk by appointing cleaners and introducing an internal inspection routine known as the mule train, which required employees to walk the aisles checking cleanliness, expiry dates and price accuracy. The difficulty, however, lay in how this system operated in practice.
No Pick n Pay employee was present in the aisle when Williams fell. The spillage was not discovered by store staff but by a third party who alerted management. Cleaning logbooks kept by Bluedot were never reviewed by Pick n Pay, and there was no evidence of active supervision of the contractor’s work.
“The presence of the hazardous substance, coupled with the absence of any warning or remedial action, constituted negligence,” Judge Dlodlo held.
Crucially, the court rejected the argument that appointing an independent contractor discharged Pick n Pay’s legal duty. Drawing on earlier authority, the court stressed that while performance of duties may be delegated, responsibility for their proper execution cannot.
“It was not enough, based on the circumstances of this case, for Pick n Pay to merely hire out the cleaning services of Bluedot,” the judgment stated. The duty resting on the retailer was “a duty not merely to take care, but a duty to provide that care is taken”.
The court found that Pick n Pay had failed to implement a sufficiently robust monitoring system, had not ensured that its own staff checked areas after cleaning, and had placed blind reliance on a contractor without meaningful oversight.
“A reasonable person in the position of Pick n Pay would have definitely acted differently under these circumstances,” Judge Dlodlo concluded. “They would have ensured that a Pick n Pay employee was immediately available to conduct spot floor checks once the cleaning staff had finished cleaning aisle 5.”
On the facts, Williams had shown that she walked carefully, that the spillage caused her fall and that it had remained unattended for long enough to justify an inference of negligence. “Pick n Pay failed in its duty of care owed to lawful patrons of the premises,” the court held.
No second chance through reconsideration
Pick n Pay’s final attempt to reopen the case met an even firmer response. Section 17(2)(f) allows reconsideration only where a grave failure of justice would otherwise result, or the administration of justice would be brought into disrepute. The court emphasised that this is not a parallel appeal process for disappointed litigants.
Quoting the Constitutional Court, Judge Dlodlo warned that the provision is not intended to give parties additional bites at the appeal cherry.
Pick n Pay argued that the High Court had misdirected itself on the duration of the spillage and the value of certain witnesses. However, the court was unmoved. It held that no unusual facts or novel issues justified intervention, and there was no realistic prospect that another court would reach a different conclusion.
“The applicant’s petition amounts to a mere attempt to reargue the merits of its case,” the court said before dismissing the application with costs.
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