Claims resulting from slip and trip incidents have not only increased exponentially in the years following the COVID-19 Pandemic, but so has the quantum attached to them, the highest of which being R7,100,000.00. This can be attributed to individuals becoming increasingly aware of their personal injury rights as well as the low evidentiary burden generally placed on the plaintiffs in such claims. 

The plaintiff in the recent case of Pieterse v FLM (SA) (Pty) Ltd (994/2019) [2024] ZAFSHC 15 is one such individual. However, in a judgment which should serve as a reminder of the burden of proof and the power of the elements of delict in such cases, she was not so fortunate as to be awarded any damages. 


The plaintiff alleged that she sustained approximately R434,000.00 in damages when she tripped and fell as a result of a raised paving stone on the passageway leading to the entrance of a Food Lover’s Market situated at Showgate Centre in Bloemfontein (FLM). 

The plaintiff alleged that FLM and the trustees of the Michael Family Trust (the owner of building) owed a legal duty to lawful entrants to FLM to ensure that the passageways were kept in a safe condition, warn and caution patrons to any potential dangers that may exist in the passageway and that they ought to have foreseen that failure to maintain the passageway could result in injuries and damages being sustained by patrons. The plaintiff alleged further that the defendants failed to discharge the aforesaid legal duty and that such failure was negligent and was the direct cause of the incident which resulted in her alleged injuries and subsequent damages. 

In its defence, FLM argued that its contractual obligations limited its legal duty to the interior of the store whilst the trustees were obligated to maintain the exterior. In their defence, the trustees relied on the prominently displayed disclaimer notice which provided that “the Trust was exempt from any claim of whatsoever nature in respect of loss, damage, expense, injury, or death howsoever caused” and that the plaintiff expressly or tacitly accepted these terms when she utilised the passageway.  

FLM and the trustees also pleaded that the plaintiff was the sole cause of the incident, alternatively that she was contributorily negligent. The matter proceeded only on the merits. 

The Law

The Bloemfontein High Court stated that although the pavement was uneven, FLM was correct in its contention that it was not liable for the maintenance of the passageway. Furthermore, that the plaintiff failed to place sufficient evidence before the Court establishing a legal duty on the part of FLM to repair the uneven paving stone and warn the patrons that the premises consisted of uneven paving stones. 

With regard to the trustees, the Court considered the plaintiff’s testimony, along with various photographs depicting the uneven paving and found that the plaintiff’s version pertaining to the exact location of her fall was shrouded in uncertainty. The Court further emphasised the applicability of the requirement that members of the public have due regard to their own safety when traversing any area, even municipal roads and pavements. 

The Court further considered the lack of prior complaints pertaining to this pavement and that FLM and the trustees had an adequate maintenance and repair system in place when the alleged incident took place. 

Having regard to the above, the Court held that the plaintiff failed to prove causation and negligence on the part of the defendants, furthermore, that she was negligent in her own version given her acceptance of the terms of the disclaimer notices, her unconvincing testimony as well as her failure to have due regard for her own safety in traversing the passageway. 

To consider

This case serves as a reminder of the burden of proof which rests on the party who makes the allegation. Claimants in matters such as this usually have little to no evidence pertaining to the alleged incident, aside from their own testimony. This lack of evidence could entice a defendant to seek to disprove these allegations prematurely, but we are reminded here that the onus of proof rests on the plaintiff and not the defendant. 

It has also appeared that the judicial system tends to be sympathetic towards plaintiffs which has resulted in claimants managing to recover some award where defendants prefer to settle such claims in order to avoid costly litigation. This case reminds us that the plaintiff must prove all five elements of delict and that where they fail to do so, their claim will be dismissed. 

Disclaimer notices have also been treated as an after-thought and the plaintiff’s tacit acceptance thereof by entering the premises has been minimised in the broader analysis of claimants’ contributory negligence and conduct generally. In this case, we are reminded that where the disclaimer notices are prominently displayed and the acceptance thereof by the plaintiff cannot be denied, the defendant should not attract liability resulting from the very conduct from which the notice protects them. 

Finally, a further consideration for shopkeepers and property owners alike arising from this matter is that of record keeping and the display of prominent disclaimer notices. The trustees and FLM had kept comprehensive records of their maintenance systems and the application thereof. Shopkeepers should endeavour to keep a record of the above as well as any records of investigations into incidents such as this as well the CCTV footage thereof and witness statements etc. for at least three years (unless minor children are involved in which case they should be kept for longer) in order to improve their prospects of success when such claims arise.

In closing, this case should encourage defendants and their insurers alike to refuse to roll over and accept these claims, but rather, to insist that the plaintiffs discharge their burden of proof and satisfy each and every element of the claim.