Schol Property and Consulting v Kawshlia Gajjar

The appellant/defendant was the owner of Sunridge Village shopping mall in Gqeberha. On 9 April 2021, the respondent/plaintiff visited the mall with her daughter to have dinner at San Fernando's restaurant. After purchasing desserts at Mary's shop, the plaintiff was walking toward the restaurant when she tripped and fell on an uneven floor surface. The walkway consisted of two types of paving bricks at different levels - charcoal grey pavers in the uncovered area (lower level) and terracotta red pavers in the covered area (elevated/raised level). A white line had been painted on the charcoal grey pavers at the edge of the raised level caused by the curb stone. The plaintiff sustained injuries to her shoulder requiring an operation. The defendant's expert witness, Mr Du Preez (a civil engineer), testified that the uneven floors were designed for stormwater management and that the white line was intended to attract attention to the raised level. The plaintiff was an elderly person visiting the mall for the first time. The trial court separated the merits from quantum under Rule 33(4) and found the defendant negligent and liable for damages.

• Whether the defendant owed a duty of care to members of the public entering the mall to ensure their safety
• Whether the defendant took sufficient reasonable precautions to prevent the potential danger created by the uneven floors
• Whether the white line demarcation constituted adequate warning of the potential hazard
• Whether the defendant's negligent conduct caused the plaintiff's injuries
• Whether causation was established on a balance of probabilities in the case of a negligent omission
• The proper role and function of expert evidence and the need for a proper factual foundation

1. The appeal is dismissed. 2. The appellant is ordered to pay costs on scale B as contemplated in Rule 69(7) including costs of the application for leave to appeal.

Where an occupier of premises has by prior positive conduct (such as constructing uneven floor surfaces) created a foreseeable potential risk of harm to members of the public lawfully on the premises, the occupier owes a legal duty to take reasonable steps to guard against the risk materializing. The test for negligence requires asking whether a reasonable person (diligens paterfamilias) in the defendant's position would: (a) foresee the reasonable possibility of the conduct injuring another and causing patrimonial loss; and (b) take reasonable steps to guard against such occurrence. A warning that is not commonly understood or associated with danger (such as a white line without accompanying signage) does not constitute a reasonable precautionary step where more effective warnings could be implemented without difficulty. In proving causation for negligent omissions, the 'but-for' test requires flexible application based on common sense: a hypothetical non-negligent conduct is introduced into the facts to determine whether harm would nonetheless have ensued. Expert evidence must be based on proven or admitted facts, not assumptions or speculation, and a proper factual foundation must be laid before expert opinions can be given weight. The absence of factual evidence from the defendant explaining what steps were taken and why particular precautions were chosen undermines expert opinion evidence based on assumptions about those matters.

The court made several important observations: (1) That during argument, counsel for the defendant properly conceded that a white line is not normally used as an indication of danger; (2) That white lines on roads are commonly accompanied by additional signage indicating what danger lies ahead (stop signs, speed humps, etc.); (3) That the court was "not really sure that the testimony of Mr Du Preez qualified as expert evidence" as it did not establish the cogency or technical integrity of the white line concept, and his explanation was not based on engineering expertise or building regulations; (4) That experts are sometimes unflatteringly described as "hired guns" and must remain independent and neutral, not partisan advocates; (5) That photographs showed at least three poles in the immediate vicinity where the plaintiff fell, one with a sign attached, indicating that placing warning signs was feasible; (6) That while the court cannot prescribe exactly what steps should have been taken, a warning sign about the danger would have served the purpose; (7) That the plaintiff, as an elderly person visiting the mall for the first time, was entitled to expect to walk safely on the premises; (8) The court noted that it agreed with the trial court's findings and was unable to find differently in all the circumstances.

This case is significant in South African delictual law for several reasons: (1) It clarifies the duty of care owed by shopping mall owners to patrons regarding premises safety and the standard of reasonable precautions required; (2) It emphasizes that where a defendant has by prior lawful positive conduct created a potential risk of harm, a duty arises to take reasonable steps to prevent the risk materializing (based on Van Vuuren v eThekwini Municipality); (3) It reinforces principles regarding expert evidence, requiring that: experts must base opinions on proven facts not speculation; factual foundations must be laid before expert opinions are given; parties cannot rely solely on expert evidence without factual testimony; (4) It demonstrates flexible application of the 'but-for' causation test in cases of negligent omissions, following Oppelt v Department of Health, Western Cape and Lee, emphasizing common sense over rigid formalism; (5) It establishes that minimal warnings (like a white line not commonly associated with danger) may be insufficient where more effective warnings (like signs) could reasonably be implemented; (6) It addresses occupiers' liability in the context of architectural design features that create hazards to first-time visitors.