The High Court has held that the owner and manager of a supermarket negligently breached the duty of care it owed to a shopper who was injured trying to stop a loose rack from falling.

The customer’s claim arose out of an incident in which he sustained a ruptured bicep when he was shopping at the store. In turning into an aisle, the plaintiff bumped his empty shopping trolley slightly against a steel tube attached to a rack, on which batteries were displayed. As the rack began to fall, the plaintiff lunged forward over his trolley in an attempt to prevent the rack from falling to the floor and tore his bicep.

In answer to the question why the plaintiff even attempted to grab the falling rack, the court said that ‘wisdom of hindsight revealed that he would not have been injured by the rack falling onto the floor had he simply stood still, nor anyone else’, but the plaintiff had testified that he ‘could not make that decision at the time; it was too quick’.

The store owner admitted that it owed members of the public a duty of care to take reasonable steps to ensure that its premises are kept in a condition that is reasonably safe for customers entering the premises.

The judgment correctly sets out the foreseeability test as ‘a reasonable person in the defendant’s position:

  • would foresee the reasonable possibility of its conduct – in not adequately inspecting the racks and shelves for defects regularly and in not having any defects found repaired promptly by appropriately qualified technicians in circumstances where the racks and shelves in such a store are subjected to wear and tear – causing harm resulting in patrimonial loss to a person entering the store;
  • would take reasonable steps to avert the risk of such harm; and
  • the defendant failed to take such steps’.

The foreseeability test does not mean that the exact nature and extent of the actual harm which occurs is foreseeable, nor does it require reasonable foreseeability of the exact manner in which the harm actually manifests. It is enough that the general nature of the harm that occurs and the general manner in which it occurs is reasonably foreseeable. Bodily injury is a logically foreseeable consequence of a loaded falling rack.

Reasonable measures could have been taken to prevent the harm from materialising, including having a formal procedure in place for regular safety inspections of the racks and shelves, and having a maintenance system in place by which any defects found are promptly repaired by appropriately qualified technicians. Having failed to implement these measures, the defendant was held to be negligent.

The defence alleged contributory negligence on the part of the plaintiff in causing his bodily injuries. The court held that a finding that the plaintiff’s reaction to the accident was contributorily negligent would be unreasonable and amount to an ‘over-critical ex post facto armchair approach’.

The defendant alleged that the causal link between its negligence and the harm suffered by the plaintiff was too negligible to justify a finding of liability on behalf of the defendant. It was correctly held that factual causation was not contentious because, but for the rack collapsing, the plaintiff would not have been injured. The defendant argued that the plaintiff’s conduct was not foreseeable in the context of legal causation, was unreasonable, and severed the causality between any negligence on its part and the consequent harm suffered. It was held that an acceptance of the defendant’s contention would disregard the established flexible approach to legal causation.

The court’s decision upholds the delictual law principles of foreseeability and causation in finding that the defendant failed to adhere to its duty of care as owed to the plaintiff. The store owner was therefore liable for all of the customer’s proved damages.

The case is Stearns v Robispec (Pty) Ltd.