In September 2024 the High Court dismissed a claimant’s delictual claim for damages arising from an incident in which the claimant allegedly tripped and fell over a metal skirting at the premises managed by the property owner.  The claimant alleged that she tripped over metal skirting that was hanging loose.  The court found that the claimant failed to prove the existence of a foreseeable risk and negligence on the part of the property owner.

The claimant argued that the property owner failed to take reasonable steps to ensure the safety of the premises, thereby breaching their duty of care. The property owner denied any negligence and contended that the skirting was properly affixed to the wall and the premises were reasonably safe. The court also considered the effect of the disclaimer notices that were prominently displayed at various entrances and pillars in the property owner’s premises, which exempted the property owner from liability for any injury or harm to any person or property on the premises.

In considering the property owner’s negligence, the court applied the test for negligence as set out in Kruger v Coetzee, which requires the claimant to show that a reasonable person in the position of the property owner would have foreseen the possibility of harm and taken reasonable steps to prevent it, and that the property owner failed to do so. 

The court found that the claimant did not tender any evidence to illustrate the alleged risk posed by the metal skirting, which was not visibly damaged, loose or protruding before the incident, contrary to the claimant’s evidence.  The court accepted the evidence of the property owner’s witness, who was a security manager at the premises and who inspected the area before and after the incident, and who testified that nothing was out of place or unusual that morning.  The court also viewed the video footage of the incident, which showed that the claimant cut the corner and moved too close to the edge of the skirting as if distracted, and that the skirting was not in the condition alleged by the claimant immediately prior to the incident.

Turning to the effect of the disclaimer notices, the court found that the claimant had sufficient time to read the various disclaimer notices, particularly the one in the proximity of her store, during the two years of her employment there before the incident.  The court held that the claimant did not deny having noticed the signs or that she had read them, and that she understood the consequences of the disclaimer signs.  The court concluded that the claimant assented to the terms and conditions of her presence at the centre, and that the property owner was entitled to assume that any of its customers would notice the signs.

The court distinguished the cases cited by the claimant’s counsel, which involved different factual scenarios and different types of risks, such as wet tiles, a loading zone, and flour on the floor.  The court held that in this case, there was no risk present at the property owner’s premises, despite the occurrence of the incident, and that the claimant did not prove foreseeability or negligence on the side of the property owner.

A reminder to property owners that prominently displayed disclaimer notices which are written in clear and unambiguous terms are legally enforceable. Furthermore, property owners should conduct regular inspections of their premises and maintain detailed records of reparations and improvements done to the property to ensure the safety of the public.  When any incident happens, photographs of the scene should be taken immediately and video footage preserved.

Ngwenya v Accelerate Property Fund Gauteng High Court, case no 2022/13159