Robbed in a supermarket? Where does liability lie?
Here’s an interesting question for South Africans.
If you were robbed at gunpoint of your personal belongings by intruders while shopping in a supermarket or retail store, or while eating at a restaurant, would you hold the establishment liable for your losses?
In the past two weeks, three people who have lost their belongings in this way have written to Consumer Watch for advice, having been told by the respective companies that they were not going to be reimbursed the value of the goods they lost.
The first victim was robbed of his wallet and the cash he had in his hand as he went to pay for items at a small electronics store one Saturday morning last month.
The other two were both victims of the same supermarket robbery in Sunningdale, Durban, early on the Sunday morning before last.
The owner of the electronics shop apparently gave the victim initial hope of getting his money back by saying he’d contact the company’s insurance company.
“What are my son’s rights as a customer robbed at gun point while at the counter in that shop?” the victim’s mother asked.
“He has a bank statement to prove that he’d just drawn that R1 200. He went straight from the ATM to that shop.”
As for the supermarket robbery victims, one was robbed of his cellphone and his watch, and the other of unspecified “personal belongings”.
The former approached his short-term insurance company and was told that because the stolen goods were not itemised on his policy, they were not covered.
“They went on to say they would pay me out for my R500 watch, but my excess would be R1 000!”
The other victim wrote: “Please can you advise as to whose responsibility is it to reimburse us for our losses incurred during the robbery?
“I ask because I was told by the supermarket’s management that they are not liable for our losses and can only assist with trauma counselling.”
I turned to Umhlanga-based consumer attorney Salina Govindsamy of Gavin Gow Inc attorneys for a legal opinion.
First, in the case of the customer who was about to hand over that cash to pay for goods in the electronics store, Govindsamy said that had he already handed the money over to the cashier at the time of the robbery, it would have been the store’s loss, but as it was still in his possession, it’s his loss.
So the timing was bad from the customer’s perspective, but the robbers may well have robbed him of whatever he’d bought, had they burst in a few seconds later, and that would have been his loss.
As for customers being robbed of their personal possessions during an in-store robbery, in general, the attorney said, unless the store management or their employees had committed a “wrongful act” which allowed the robbery to take place, the company would not be liable for the customers’ losses.
“But if, for example, it was found that the security guard had assisted in the robbery, his employer may be held liable for the damage/loss suffered by third parties, provided that certain requirements have been met,” she said.
“But generally, in my opinion, it seems unlikely that a shop owner will be held liable for the cost of personal effects stolen from customers in a store. These losses would have to be claimed by the consumer from their all risks insurance.”
So if you have a short-term insurance policy, you may want to check that the items you usually carry with you when go shopping or out to eat are listed on it.
And if you don’t have these items insured, you may want to weigh up the cost of the risk versus the cost of a monthly insurance premium.