Supreme Court of Appeal of South Africa considers shopper’s claim against supermarket for injury by a parking boom

The Supreme Court of Appeal (SCA) recently considered Pick ‘n Pay’s liability for the injury of a shopper struck by a descending parking boom in its parking area. Based on a similar incident having occurred a few months prior, as well as the post incident conduct of Pick ‘n Pay, the SCA concluded that Pick ‘n Pay was negligent. In this article, we review the case and provide commentary on the SCA’s approach to assessing negligence.

The facts

In November 2015, Ms Pillay and her colleague, Ms Leach, had finished their shopping at the Pick ‘n Pay Hypermarket in Durban North and were walking to Ms Leach’s vehicle, engaged in conversation. Ms Pillay was in a rush and admittedly not paying attention to her surroundings. They were both struck by an automated parking boom which controlled the exit of vehicles from the hypermarket’s parking area.

The boom is located on a sidewalk, opposite the entrance to the hypermarket. A pedestrian sidewalk runs along the hypermarket, adjacent to the entrance and parallel to the road to which the boom controls access. The boom is painted red and white and its mechanism is contained in a bright yellow box. Bollards between the road and the sidewalk are installed to discourage pedestrians from walking in the road.

Ms Pillay was struck on her head and suffered a concussion. She was hospitalised on two occasions after the incident, diagnosed with a spinal injury and requires future medical treatment.

The allegations

When Ms Pillay instituted action against Pick ‘n Pay, she alleged that it was negligent because:

• the boom was positioned adjacent to a popular pedestrian walkway;
• the boom’s descent mechanism operated without due regard to pedestrians;
• there was no warning sign or sound to alert pedestrians to the danger of the boom; and
• Pick ‘n Pay should reasonably have foreseen the possibility that the boom could cause injury to persons visiting the hypermarket and failed to guard against such occurrence.

Pick ‘n Pay denied these allegations. It alleged, amongst other things, that it had reasonable systems in place to ensure the parking area was safe for the public. It also alleged that any negligence on its part did not cause the incident, alternatively, that Ms Pillay was contributorily negligent.

Initial findings

The Magistrates’ Court dismissed Ms Pillay’s claim, finding that she failed to prove her injury as well as Pick ‘n Pay’s negligence. The Kwa-Zulu Natal Division of the High Court, Pietermaritzburg overturned that decision, finding Pick ‘n Pay negligent. It also found Ms Pillay contributorily negligent in that she had been inattentive and failed to pay attention to the boom. The High Court ordered Pick ‘n Pay to pay 60% of Ms Pillay’s proved or agreed damages. Pick ‘n Pay was granted leave by the SCA to appeal the negligence finding against it. There was no cross appeal in relation to the finding of contributory negligence on Ms Pillay’s part.

Arguments and findings on appeal

On appeal, Pick ‘n Pay conceded that a reasonable person in its position would have foreseen the reasonable possibility of the boom descending onto a person. The SCA agreed with the concession, because there was no warning in place and the route taken by Ms Pillay to the parking area was the route of choice for shoppers. Also, three months prior to the incident, the boom struck another shopper, breaking the frame of his glasses. A prominent four-sided warning sign was ordered but it had not yet been installed when Ms Pillay was injured.

Pick ‘n Pay alleged that despite the risk of the boom striking a person being reasonably foreseeable, it was not negligent since the risk of injury was negligible, equating the force of being struck by the boom to a firm ‘pat on the shoulder’. Pick ‘n Pay emphasised the lightweight aluminium construction of the boom and that it was designed to reverse its course upon contact with an obstacle.

In assessing Pick ‘n Pay’s negligence, the SCA referred to the classical test for negligence laid out in Kruger v Coetzee 1966 (2) SA 428 (A) which states that:

“For the purposes of liability culpa arises if:

1. A diligens paterfamilias in the position of the defendant-

1. Would foresee the possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
2. Would take reasonable steps to guard against such occurrence; and

2. The defendant failed to take such steps”;

but supported its prior approach in Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 (SCA) where it remarked that the two-stage enquiry is merely a guide and that the true criterion to determine negligence is whether the conduct complained of fell short of the standard of the reasonable person in the circumstances. It agreed with Midgley and van der Walt’s observations in LAWSA that because the test in Kruger v Coetzee is only a guide which does not require strict adherence, courts may assume foreseeability and focus on whether the defendant took the appropriate steps expected of him or her.

In considering whether Pick ‘n Pay took appropriate steps to prevent injury to pedestrians, the SCA took the following into account,

• The boom, which operated automatically using a metal sensing loop, would close only after metal had been detected and then cleared from the metal-sensing safety loop beneath the pole (or, seemingly, after remaining elevated for 15-20 seconds).
• Generally, it took two seconds for the boom to descend, covering a distance of about three metres along a curve.
• Mr Parbhoo, a project manager at the company which had installed the boom, had tested its operation upon installation, including with his body, but he used his shoulder and an outstretched arm for these tests. When testing the boom with his shoulder, he described its impact as a ‘firm pat on the shoulder’, and confirmed that the boom reverted to its fully raised position upon impact. The SCA declined to infer from these tests that risk of injury was negligible as Pick ‘n Pay contended. The SCA found it notable that Mr Parbhoo did not place his head under the boom, and found that a boom weighing 2.4kg, moving from a raised to a lowered position in two seconds along a curve of three metres is likely to cause injury.
• The previous incident in which the boom struck another pedestrian. Pick ‘n Pay only ordered and waited for a warning sign which was subsequently erected. Pedestrians (including Ms Pillay) were not protected in any other way prior to the sign’s erection. Considering that a security guard operated the boom at the entrance of the parking area, the SCA held that reasonable steps to prevent injury would require a security guard to do the same at the exit until the warning sign was installed.
• The route taken by Ms Pillay was a popular route for shoppers, whose metal trolleys could activate the boom. The SCA believed it inevitable that an inattentive pedestrian would not observe a raised boom, especially in the absence of vehicular traffic.
• After the incident, the metal sensing loop was decommissioned and the descent speed was increased to 4.6 seconds. Such steps would never have been taken had Pick ‘n Pay considered the risk of injury posed by the boom to members of the public to be negligible.

The SCA concluded that Pick ‘n Pay appreciated that the risk of injury was significant and that its conduct fell short of the standard of a reasonable person, dismissing its appeal with costs.

Comment

A previous incident as well as the post-incident conduct of Pick ‘n Pay weighed heavily in the SCA’s assessment of whether Pick ‘n Pay was negligent. The SCA emphasised that the test for negligence in Kruger v Coetzee is only a guideline and that the ultimate test is whether the conduct complained of fell short of that of a reasonable person. Whilst it may only be a guide, the test remains instructive in our view. The SCA’s decision does not, therefore, change the legal position, and simply provides another useful practical example of the law’s application to the facts of a personal injury matter involving a shopping centre.

A copy of the judgment, which will be of interest to the operators of shopping and similar establishments, and their insurers, can be accessed here.