Cape Town - A woman who slipped and fell in the Goodwood Mall, fracturing her elbow, has won an appeal against a previous judgment that had dismissed the case.
Judge Mark Sher granted an as yet undetermined amount in damages to Nicolene Holtzhausen from both Cenprop Real Estate Ltd, the management company in charge of the mall, and the mall’s owner, Naheel Investments Ltd.
Judge Sher said: “The appeal is upheld with costs. The defendants shall be liable jointly and severally, the one paying the other to be absolved, for such damages as the plaintiff may prove, or as may be agreed, she suffered as a result of an incident after slipping and falling in the Goodwood Mall.”
The incident occurred on Saturday June 1, 2013 when Holtzhausen, a 37-year-old clerk employed by the City, visited the Goodwood Mall to draw money.
According to Holtzhausen’s testimony, it was raining at the time and she was wearing rubber-soled, low-heeled winter boots. She was accompanied by her daughter and her nephew, and was carrying her 11-month-old baby.
There was a yellow, wet floor warning sign standing on the tiled floor, between the two sets of doors, and Holtzhausen noted that the floor was wet and slippery. She made her way slowly and about 14 metres from the entrance her feet suddenly gave way from under her, and she fell.
Holtzhausen testified that in order to break her fall and shield her baby she extended her right arm, and landed on it, fracturing the elbow.
Holtzhausen said she fell because the tiles were wet and slippery as a result of rain which had been carried in via the rain jackets, umbrellas and shoes of persons entering the mall.
Expert witness Michael Bester, an architect, testified that he had been involved in the design of various shopping centres over the years and that the tiles used in the Goodwood Mall were not appropriate for their intended application because they lacked sufficient non-slip qualities.
The original ruling found that neither Cenprop nor Naheel were liable, however in his judgment Judge Mark Sher ordered them to pay the costs of the suit, including Bester’s costs.
Judge Sher said the original court made a mistake in deciding that the legal duty to take reasonable steps to safeguard Holtzhausen from harm that day ultimately fell on the company contracted to clean the mall.
Judge Sher said: “That duty was one which fell primarily and squarely on Naheel as owner of the mall, and in the second place on Cenprop, the management company which it had contracted to manage the mall on its behalf.
“It would be a startling state of affairs if independent cleaning contractors in shopping malls who are only contracted to keep floors clean became saddled with a duty to safeguard those who frequent the mall premises, and became liable to them on this basis in the event that they failed to comply with their contractual cleaning duties.”
Cape Argus