It is common practice for shop owners to outsource their cleaning duties by concluding a service level agreement with a cleaning company. The service level agreement often contains an indemnity clause in terms of which the cleaning company indemnifies the shop owner for any liability of the shop owner resulting from a breach of their cleaning duties. In such circumstances, a shop owner will seek to enforce the indemnity clause where it is sued for a slip and trip incident and is found liable to the claimant.

In Williams v Pick ‘n Pay Retailers 2023 ZAWCHC 229, the claimant sued the shop owner for damages that she sustained as a result of slipping on a spillage. The shop owner outsourced the cleaning duties to a cleaning company. In terms of the service level agreement, the parties agreed that the cleaning company “would be liable to anyone injured as a consequence of its failure to properly discharge its cleaning function”. In this case, the indemnity clause was enforced.

It was common cause that the claimant had slipped as a result of a spillage. The shop owner accepted that it had a general duty of care to ensure that it afforded its customers a safe environment within the store. However, it denied any liability on its part and alleged that the claimant was negligent, alternatively, contributory negligent, in that she failed to, amongst other things, keep a proper lookout. The shop owner joined the cleaning company to the legal proceedings and sought to enforce the indemnity clause.

The cleaning company denied any liability on its part. It alleged that, the shop owner failed to ensure that the area in which merchandise was being packed was kept safe and did not cause any danger to the customers at the store.

The question before the court was whether the shop owner could avoid liability to the claimant based on the alleged reasonable steps taken by the shop owner in engaging the services of a cleaning company. In making its decision, the court considered the duration of the spillage on the floor.

The court found that the shop owner did not present sufficient evidence to prove that the spillage had been on the floor for a short period of time and that it had taken reasonable steps to avoid any harm to the claimant. As a result, the court concluded that:

• The cleaning company did not clean up the spillage which caused the claimant’s fall for an appreciable period of time.
• Had the shop owner complied with its legal duty of care towards its customers, its staff would have detected the spillage, alerted the cleaners to the potential hazard, and caused the spillage to be cleaned by the cleaners.

The court decided that the shop owner was liable to the claimant for the damages that she had sustained. However, the court enforced the indemnity clause between the shop owner and the cleaning company. The shop owner was therefore granted a declaratory order which confirmed that the cleaning company was liable to indemnify the shop owner in accordance with their service level agreement.

The case serves as a reminder that even in circumstances where a shop owner has engaged the services of a cleaning company, it can still be found liable. A shop owner should take the necessary steps to ensure that the cleaning company is fulfilling its cleaning duties and that there is an enforceable indemnity clause in the service level agreement if a slip and trip incident arises. The absence of the evidence regarding the spillage was a significant reason for the judge.

Shop owners should investigate every slip and trip incident immediately to ascertain the nature of the spillage and its source (with photographs) and take a statement from the relevant cleaner/s and factual witnesses.