Pick 'n Pay Retailers (Pty) Ltd v Pillay

On 10 December 2015, Ms Cherylene Pillay (the respondent/plaintiff) and her colleague Ms Geraldine Leach were walking on a road towards the parking area at Pick 'n Pay Hypermarket in Durban North after shopping. The respondent was engaged in conversation, in a hurry, and not paying attention to her surroundings. She did not see an automated Centurion Sector boom gate in its vertical position. The boom descended and struck both the respondent and Ms Leach simultaneously. The respondent sustained an axial impact injury to her head, suffered concussion, was disoriented, and was hospitalized on two separate occasions in 2015 and 2016. She was diagnosed with moderate concussion and a strain-sprain injury to her cervical spine, requiring physiotherapy and pain medication. The boom consisted of a three-metre aluminium pole weighing 2.4 kg, painted white and red. It was located on a sidewalk directly opposite a shopping centre entrance. The boom controlled egress from a parking area for persons with special needs and parents with small children. At the time of the incident, there was no warning sign alerting pedestrians to the danger of the boom. In September 2015, about three months before this incident, the boom had struck another person, breaking his glasses frame. Following that incident, warning signs stating 'CAUTION BOOM OVERHEAD' were erected, but these were not in place when the respondent was injured.

• Whether Pick 'n Pay Retailers (Pty) Ltd was negligent in the operation of the automated boom gate
• Whether a reasonable person in the position of the defendant would have foreseen the reasonable possibility of the boom descending and striking a person
• Whether a reasonable person would have taken reasonable steps to guard against such occurrence
• Whether the risk of injury was negligible or significant
• Whether the defendant's conduct fell short of the standard of the reasonable person
• Whether the plaintiff was contributorily negligent
• Whether disclaimer notices constituted a tacit agreement absolving the defendant from liability

The appeal was dismissed with costs. The Supreme Court of Appeal upheld the high court's order directing the defendant to pay 60% of the plaintiff's proved or agreed damages.

The binding legal principles established are: (1) In determining negligence, the focus is on whether in the particular circumstances the defendant's conduct fell short of the standard of the reasonable person, rather than strict adherence to a formula; (2) The Kruger v Coetzee test (whether a reasonable person would foresee the reasonable possibility of harm and take reasonable steps to guard against it) is merely a guideline or aid, not a requirement for strict adherence; (3) A commercial property owner operating an automated boom gate in an area frequently used by shoppers has a duty to take reasonable steps to protect pedestrians from foreseeable harm; (4) Where a route under or near an automated boom gate is the route of choice for shoppers, and where there has been a prior incident of the boom striking a person, the risk of injury is not negligible and reasonable steps must be taken to guard against it; (5) Reasonable steps in such circumstances would include, at minimum, erecting warning signs and/or having a person operate the boom manually rather than having it operate automatically; (6) Post-incident safety measures implemented by a defendant can be evidence that the defendant appreciated the significance of the risk and that the prior safety measures were inadequate.

The Court made several non-binding observations: (1) The defendant's reliance on the Australian case of Livsey v Australian National Car Parks Pty Ltd was misplaced, as each case must be determined on its own particular circumstances and seeking guidance from facts and results of other cases is generally futile; (2) The defendant advisedly did not persist in its defence based on disclaimer notices constituting a tacit agreement absolving it from liability; (3) The Court noted without deciding that controlled tests conducted by a technician (where he allowed the boom to strike his shoulder but not his head) cannot establish that the risk of injury to members of the public was negligible, particularly when the boom could strike an unexpected pedestrian on the head; (4) The fact that metal shopping trolleys would activate the boom meant that inattentive pedestrians or those engaging in conversation would be unaware of a boom in raised position for 15 to 20 seconds, particularly in the absence of a vehicle, making injury more likely when the boom descended in two seconds.

This case is significant in South African negligence law as it illustrates the application of the reasonable person test in the context of automated systems at commercial premises. It demonstrates that while the Kruger v Coetzee test remains a useful guideline, recent authorities have shifted focus from strict adherence to the foreseeability and preventability formulation to the actual standard of conduct expected of a reasonable person. The case emphasizes that courts are free to assume foreseeability and focus on whether the defendant took appropriate steps expected of them in the circumstances. It establishes that commercial property owners operating automated systems in areas frequented by the public have a duty to implement adequate safety measures, including warning signs and appropriate operational controls. The case also illustrates that post-incident safety improvements can be evidence that the defendant appreciated the significance of the risk. It reinforces the principle that what constitutes reasonable steps depends on the particular circumstances of each case and that guidance from other cases has limited utility.