The plaintiff failed in her action against a takeaway restaurant for damages resulting from her slipping and falling while walking down a tiled ramp at the restaurant’s exit. The court, besides applying the disclaimer notice, was not satisfied that the plaintiff had discharged the onus resting upon her to prove that the restaurant had failed to take the steps incumbent on it to guard against harm to the public.    

The plaintiff alleged that the restaurant had failed in its legal duty to ensure that the exit of its premises was clear of wet, slippery, and possibly dangerous surfaces, to take all the reasonable steps to ensure the safety of the public, and to warn the public of the existence of a dangerous situation.   

The restaurant admitted that it owed the plaintiff, as a visitor of the premises, a general duty of care to take all reasonable steps to ensure that its premises were generally safe and also relied on the terms of its prominently displayed disclaimer notice.  Discussion on the court’s findings on the disclaimer notice can be found here.

During the trial, video footage showed the plaintiff slipping on the ramp the moment her foot left the rubber carpet that partially covered the ramp area, and stepping on the tiled area.  She alleged both were wet.

The defendant restaurant’s witness, the hostess of the restaurant, testified that the tile was rough and not inherently slippery.  She testified that the area on which the plaintiff slipped and fell was not wet.  She, an experienced cleaner, could distinguish a wet tile from a dry one without touching it.  

The court rejected the plaintiff’s version of events and found that it was neither accurate nor true, as the plaintiff had not in fact touched the exact spot on which she fell, rather the top area where her upper body lay after the fall.  The court further found that the plaintiff’s submission that the ramp was an inherently dangerous area was based on her own experience and the plaintiff ought to have led expert evidence to prove her case.

While the case ultimately turned on the applicability of the disclaimer notice, the court rejected the plaintiff’s arguments relating to the restaurant’s duties and its alleged failure to comply with these duties. 

It is noteworthy that the hostess, who was tasked with walking through the restaurant to ensure that it was clean and neat, did so every 30 minutes when the restaurant was quiet, and every 15 minutes when the restaurant was busy.  The court considered this cleaning routine to be acceptable. 

Lombard v McDonald’s Wingtip (38117/2020) [2022] ZAGPPHC 877 (14 November 2022)