It has become the popular perception that if you fall while on someone else’s property you can sue. The reality is that the law requires a quid pro quo from property owners and the public. That property owners must take reasonable care in minimizing or preventing harm occurring to people passing through their premises and the general public equally, must take reasonable and appropriate care when entering into, walking across and leaving another’s premises.

Thando, while shopping for a few groceries at a local supermarket is busy replying to a work email on his new IPhone. Not paying attention to where he is going, he inadvertently steps into a small puddle of water lying on the shop floor, slips and falls backwards, badly knocking his head on the floor. For a few days he suffers headaches until after a number of tests he is diagnosed by his doctor as having incurred a serious case of whiplash from the fall. Can Thando claim damages for his medical expenses and pain and suffering arising from the fall?

On the one hand, Thando failed to watch where he was going and could easily have skirted past the small puddle of water. On the other hand, the argument can be raised that the supermarket failed to keep its aisles clean and free of slippery substances. So the question is: who is liable for the damages he sustained? Does Thando have a case, or does his own carelessness mean that he cannot claim damages?

Our courts have found that the law does not require a shopper in a supermarket to examine the floor or whether his/her footing would be safe for each step he makes, and that a shopper is entitled to move about freely while focusing on the shelves and the products on offer. That being said, proving liability on the part of the property owner is not necessarily straightforward and a number of factors need to be taken into account. The crux of a successful slip and fall claim depends on whether the plaintiff (injured party) has proven that his negligence did not exceed that of the defendant (owner) and that there is thus cause for a claim.

In proving liability for negligence, the test as laid down by our courts is the following:

1. Would a reasonable person in the position of the defendant foresee the reasonable possibility that his conduct could injure another and cause damage and take reasonable steps to guard against its occurrence;  and
2. The defendant failed to take such steps.

When the courts determine what steps would be reasonable, there are no hard and fast rules as reasonability will always depend on the particular circumstances of each case. In the case of Checkers Supermarket v Lindsay the court stated that in determining the reasonability of the shop owner, the correct question to ask was whether the shop owner “had a proper system in place to promptly deal with spillages”. The plaintiff can refuted this by demonstrating for example a lack of suitable warning signs, a lack of documentary evidence proving the regularity of maintenance or cleaning schedule, photographs of the scene etc.

Accordingly, before pursuing legal action in the event of a slip and fall accident, an examination of the following questions can assist to help determine the merits of a claim:

• Does the property owner regularly clean, examine or repair his premises or equipment? Is there proof of such regular processes undertaken by the owner?
• Could there have been warning signs or barriers implemented in order to prevent slips/trips?
• Is the owner of the business also the owner of the property? Who can be sued/cited as defendant in the claim?
• Can your own negligence have contributed to the accident? Is the negligence so extensive as to override your claim?
• Would a careful person, have been on the lookout for any spillages or any dangerous objects that could cause the slip/trip?
• Were you distracted or engaged in any distracting activity that could have led to your inability to notice the danger?

Many people do not report accidents until later when the injuries make themselves obvious. This also increases the difficulty in proving the accident was the cause of the injuries. Accordingly, should an unfortunate accident occur, the best thing to do is to seek treatment immediately, clearly document the incident and the prevailing conditions and see a legal representative who can guide you through the process of claiming for the damages suffered.