Does a store have a duty to keep its premises safe for shoppers?

2016-05-31 09:05
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Pietermaritzburg - Durban nurse Jabu Mhlongo is suing Woolworths for R5 million in damages after she allegedly injured her hand in the company’s West Street store.

In papers filed in the Durban high court, Mhlongo, whose initial complaint against the retailer was highlighted in this column last year, says that she cut her hand on a protruding metal strip on a freezer in the store while it was undergoing renovations in August 2014.

Woolworths has filed a plea in defence, denying Mhlongo’s allegation that it was negligent in not ensuring the store was safe for shoppers.

Mhlongo has claimed R5 million in damages for loss of future earnings, pain and suffering and contumelia, medical expenses and loss of earnings already incurred, and for future medical expenses.

Mhlongo’s attorney Kirsty Smith alleged in court papers that the metal strip on the freezer lacerated Mhlongo’s right palm, severing the ulnar nerve and causing “serious injury” to her hand and arm. She alleged that the retailer failed in its duty of care to make sure that its premises were safe for use and free of objects that could pose a hazard to shoppers.

“The defendant, by virtue of the fact that it operates as a grocery store, owed patrons a duty of care, such that patrons would not be exposed to any potential hazard arising from an act or commission caused by the defendant,” she said.

She claimed in court papers that Woolworths was negligent “in that it failed to foresee the possibility of harm arising out of its conduct”, and by not taking “reasonable steps to guard against such possibility”.

Smith alleged that as a result of this, Mhlongo has suffered injury from a “severely severed nerve on her right hand resulting in limited use of her fingers and hand, chronic pain requiring daily administration of pain medication, limited use of the right arm due to severed nerve” and that she has to take schedule six and seven medication to assist with regrowth of the severed nerve.

But in its defence plea, Woolworths’ attorney Lucas de Swardt said the retailer blames Mhlongo for her injury, alleging that it was due to her own negligence.

De Swardt argued in the plea that its duty to keep its premises safe is “not a duty to make the premises absolutely safe but only to take reasonable precautions to render the premises safe”.

De Swardt denied that Woolworths was negligent, saying its employees carried out their duty and at all times kept the premises safe with regular inspections to safeguard customers against hazards and risks. He argued in the plea that the injury was caused by a “shelf edge strip that was slightly curled upwards” and that “the risk posed by the shelf was not detectable”, and as such the retailer could not guard against the risk. “It was not foreseeable that a member of the public would press on the strip, thereby causing injury to herself,” he said in the defence plea.

“The Defendant avers that the injury was caused solely through the negligence of the plaintiff who was negligent in one or all of the following respects: She failed to keep a proper lookout. She failed to avoid injury to herself, when through the exercise of reasonable care she could have done so,” he said.

Smith said the matter is awaiting a trial date.

Mhlongo said she is continuing to suffer as a result of her injury and that she has been in and out of hospital for surgery since the incident. She said Woolworths initially offered her a R30 000 settlement, which was “peanuts” as the amount did not even cover her loss of income at the time of the injury. “I am still going to hospital. I have been off work and seeing doctors. I am going to have to leave my job. My hand and my arm are not right,” Mhlongo said.

A Woolworths spokesperson said yesterday that the company is currently in discussions with Mhlongo’s legal team.

“We sincerely hope that the outcome of the discussions will be mutually acceptable for both parties,” she said.

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