Some of our readers, like the author, will have experienced a near-miss from a descending boom at a carpark entrance. In an October 2021 judgment, the plaintiff successfully claimed for personal injuries sustained when the boom at the carpark operated by the defendant descended and struck her.
The plaintiff alleged that her injuries were caused by the sole negligence of the defendant in that the boom was positioned immediately adjacent to a popular pedestrian walkway; its descent mechanism operated without due regard to the presence of pedestrians and there was no warning sign or sound to alert pedestrians to its operating danger. The plaintiff argued that the defendant should reasonably have foreseen the possibility that the boom could cause injury to persons frequenting the shopping centre and failed to take steps to guard against that occurrence.
On appeal it was conceded that the plaintiff had established that a reasonable person in the position of the defendant would have foreseen the reasonable possibility of the boom descending and striking a person.
It was also conceded that shoppers with trolleys usually walked on the same section of road where the boom was in operation and the plaintiff had been injured, that there was no warning sign in the vicinity drawing attention to the danger of the boom, and that the route taken by the plaintiff to get to the parking area was the route of choice for shoppers.
About three months prior to the incident the boom had struck another pedestrian who fortunately sustained no injuries. As a result of this incident a prominent four-sided warning sign was to be erected at the entrance to the shopping centre and next to the yellow box of the boom so that persons approaching the boom from either side would be alerted to it and which read “Caution Boom Overhead”.
The “Caution” was in red lettering against a white background and “Boom Overhead” in white lettering against a red background. The sign had however not been erected by the time when the plaintiff was injured.
The defendant argued that the risk of injury was negligible such that a reasonable person in the position of the defendant would not have foreseen the possibility of injury being caused. The boom was made of lightweight aluminium material and designed to reverse upon touching an obstacle.
The court on analysis of previous judgments said that the true criterion for determining negligence is whether in the particular circumstances the conduct complained of fell short of the standard of the reasonable person. There is no universally applicable formula which would prove to be appropriate in every case. Where there is clearly foreseeability, courts are free to focus on whether the defendant took the appropriate steps that were expected of them.
In this specific case the question was whether in the particular circumstances the defendant took appropriate steps to avoid injury to pedestrians. After considering the expert evidence the court said that it could not be inferred from the control tests referred to, with an expectation that the boom would impact a person on a particular part of their body, that the risk of injury to members of the public was negligible and that consequently the defendant was not required to take appropriate steps to protect them from injury.
The defendant was required to take reasonable steps grounded in common sense and illustrated by the facts of the very case. A boom weighing 2.5kgs coming from its raise to its lowered position over a distance of some 3 metres in two seconds and which strikes a pedestrian without warning is likely to cause injury.
Pending erection of the warning signs reasonable steps would have at least required that a person operate the boom at the exit to the parking (where the boom was positioned). A person was already operating the boom for entry to the parking area.
The path taken by the plaintiff was the route of choice for shoppers with trolleys. There was no vehicle near the boom when it struck the plaintiff. It was inevitable that a trolley would activate the boom and inattentive pedestrians or those engaging in conversation would be unaware of the boom in a raised position for a number of seconds particularly in the absence of a vehicle.
After the incident the vehicle-sensing loop at the exit of the parking area was decommissioned. Operation of the boom at the exit was then no longer automated but remotely controlled by a security guard as was the case at the entrance to the parking area. After the event the speed of rising and lowering of the boom was also decreased. It was conceded that the slower lowering speed was much safer and would give a person in its path an opportunity of avoiding a slower descending boom. The court said that the defendant would never have taken those steps in they considered the risk of injury to members of the public was negligible.
The defendant did benefit from the High Court judgment which determined that the plaintiff had been inattentive and had failed to observe or pay proper attention to the boom and that she could have avoided it and was accordingly contributorily negligent. The defendant was ordered to pay sixty percent of the plaintiff’s proved or agreed damages.
The judgment is that of the Supreme Court of Appeal Pick ‘n Pay Retailers (Pty) Limited v Cherylene Sarah Pillay