Is it enough for a mall/shopping centre owner or management company to escape liability and discharge its duty of taking care and responsibility of its shoppers by appointing an independent cleaning company in so-called “spillage cases”? And what constitutes a spillage?

This question of liability amid spillage cases has never been fully settled in our law until recently when the case of Holtzhausen v Cenprop Real Estate (Pty) Ltd and Another [2021] 2 All SA 457 (WCC) created some doubts on the legal position of an owner or manager of a shopping mall in “spillage cases”. Spillage cases refer to instances where a floor becomes unsafe when something is accidentally spilt onto it. These cases help determine who is responsible if an injury is sustained as a result of the spillage, who should pay for the consequent medical costs, and who will be liable in a potential civil claim for additional patrimonial damages.

In the Cenprop case, the plaintiff had instituted a legal action against the defendants: the mall owner and the management company[RV1] . The plaintiff sustained injuries after she had taken a fall in the Goodwood Mall (which is owned by the first defendant and managed by the second defendant) due to slippery floors in the mall. The slippery floors were caused by  rainfall on the day of the incident and the patrons of the mall tracking water into the mall as they entered.  The plaintiff argued that the defendants were negligent in that they knew, or ought to have known, that the area on which the plaintiff had taken a fall was slippery when it became wet and therefore should have taken steps to prevent injuries to patrons.

The first defendant, the mall’s owner, denied these allegations by pointing out that it had discharged its legal duty by appointing a competent and professional contractor (the second defendant) to maintain, clean and check the mall to ensure that the mall was kept clean and would not be a danger to patrons. In turn, the second defendant, the management company, had acquired the services of a cleaning company and a security company to ensure that the mall was safe for its patrons.

Applicable law in regard to spillage cases

In the case of Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W), the court made it clear that the owner or the entity in control of a shopping mall has a legal duty to take reasonable steps to ensure that the mall is reasonably safe for its patrons. Such a person or entity could be held liable where steps were not taken to ensure the safety of its patrons. The court further held that, although the owners or management of a mall may obtain the services of a cleaning company, the former still remains liable for any negligence on the part of the cleaning company to perform its duties with due care and in the event of a failure of its cleaning system.

Furthermore, in the case of Chartaprops 16 (Pty) Ltd and Another v Silberman [2009] (1) SA 265 (SCA), the Supreme Court of Appeal held and confirmed that a mall owner could conceivably be held liable for the wrongs committed by an independent contractor if the owner failed to take reasonable steps to prevent the risk of harm. In this case, the mall owner had acquired the services of a cleaning company and the owner had no knowledge of the services of the cleaning company being defective. The court held that the mall owner had taken all steps a reasonable person should have taken to ensure that the mall was safe for its patrons.

Thus, considering the above cases, the owner, person, or entity in control of a mall would only be liable for harm or danger that was foreseeable to the hypothetical reasonable man in its position, and is obliged to take no more than reasonable steps to guard against such harm occurring.

Court a quo

The court a quo in the Cenprop case held that the mall owner was exempt from liability as he had appointed a duly qualified management company to attend to the daily running and maintenance of the mall. In turn, the management company had appointed a competent cleaning contractor to keep the premises clean and free of spillages and, in addition, security guards were tasked to be on the lookout for potential risks and to call the cleaners if they were needed. Therefore, the court was of the opinion that the first and second defendant had done all they could reasonably be expected to do.

The court further held that if any party had to be held accountable for the injuries sustained by the plaintiff, it would be the cleaning company as it bore the ultimate responsibility of ensuring that the mall was safe for its patrons.

Appeal court

The court a quo’s judgment was taken on appeal to the full bench of the Western Cape High Court (Appeal Court), which overturned the finding of the court a quo. First of all, the Appeal Court held that the court a quo erred in holding that the cleaning company bore the ultimate responsibility. The Appeal Court, while referring to case law, made it clear that the mall owner, or the person or entity who may be in control of the mall, bears the ultimate responsibility of taking reasonable steps to safeguard patrons to a mall and to ensure that the floors are safe.

Spillage cases refer to instances where a floor which would in the ordinary course of normal everyday use be safe, becomes unsafe when something is accidentally spilt onto it. The Appeal Court came to the conclusion that this case did not fall within the ambit of so-called spillage cases as the rainwater brought into the mall by its patrons could not be considered a spillage and, secondly, the type of tile that was used on the floor was slippery when wet, and such risk could not be passed on to the cleaning company.

Therefore, the Appeal Court did not have to decide whether the cleaning company had an efficient cleaning system in place or whether its failure to mop up the water created liability for the cleaning company.

The Appeal court found that the defendants were negligent because they had failed to take reasonable steps to ensure that the floors remained safe for its patrons when it rained. The Appeal Court pointed out that the defendants could have contracted the cleaning company to dry the sections of the floor that became wet when it rained, or could have closed the entrances that were exposed to the rain, but because such steps were not taken, the fault could only lie with the defendants.

This case clearly points out that even where a mall owner or management company employs the services of a cleaning company to attend to spillages and the like, the former bears the ultimate responsibility of ensuring the mall is safe for its patrons, be it in spillage cases or otherwise.

Mall owners and management companies need to be extra cautious in protecting patrons so as to avoid liability for patrons falling and injuring themselves when frequenting a mall.