Slip-and-fall liability – managing festive foot traffic

December is here, and malls and shopping centres are already overflowing with festive shoppers. The atmosphere feels lively, but it also becomes crowded. As foot traffic increases and trading hours extend, the risk in slip-and-fall claims rises significantly.

Summer rains create wet floors. Staff misplace merchandise. Shoppers move quickly and often without caution. These factors combine to increase personal injury claims at a time when legal clarity matters most.

Liability for injuries that occur in public spaces

South African courts continue to grapple with liability for injuries that occur in public spaces. Judges must consistently interpret the duty of care owed by mall owners and their contractors. This duty remains a recurring point of contention. Courts must determine what constitutes reasonable measures to ensure shopper safety.

The issue recently surfaced again in Verna Mershall Manuel vs Supercare Services Group (Pty) Ltd, a case arising from a 9 November 2016 incident at Zevenwacht Mall in Cape Town. The claimant slipped on a chip in a walkway and fractured her wrist. At the time, Investec Properties (Pty) Ltd owned the mall. Broll Property Group (Pty) Ltd managed it. Supercare Services Group (Pty) Ltd provided cleaning services under a formal service agreement. The case illustrates how the risk in slip-and-fall liability increases when multiple parties share responsibilities.

The claimant alleged that both the property manager and the cleaning contractor owed her a duty to keep the walkway free from hazards. She argued that their failure to detect and remove the chip amounted to negligence. She initially sued both parties but later withdrew her claim against the property manager. That decision removed the party primarily responsible for hazard detection. It also weakened her case and increased the risk in slip-and-fall liability created by unclear responsibility allocation.

Whose job is it anyway?

The cleaning contractor defended itself by pointing to the Master Service Agreement (MSA). The agreement excluded responsibility for detecting or monitoring spillages. It required the contractor to clean spills only when notified. CCTV footage showed that the chip fell 15 seconds before the incident. Cleaners responded quickly after the fall. This sequence of events highlighted how the risk in slip-and-fall claims can hinge on seconds rather than minutes.

The Western Cape High Court dismissed the claim. The court found the MSA binding and clear. It held that the contractor had no duty to patrol the mall or detect spillages. The contractor, therefore, could not be liable for a duty it never agreed to perform. The judge also noted the short window between the chip falling and the fall. No reasonable cleaning system could have prevented the incident. The court emphasised that the owner and property manager carried the primary responsibility for maintaining safe premises.

On appeal, the court considered whether the initial judgment misinterpreted the MSA or misunderstood the scope of the legal duty. The appeal court confirmed the lower court’s reasoning. It held that the MSA’s deeming provisions were enforceable. The contractor’s role was limited to cleaning once notified.

The court stressed that liability for negligent omissions depends on the existence of a legal duty. In this case, that duty did not exist. Public policy, the court said, does not support imposing liability on a contractor for duties excluded by contract. The managing agent had retained responsibility for hazard detection.

The court reaffirmed an important principle. Mall owners and managing agents carry ultimate responsibility for creating and maintaining safe premises. They may delegate tasks to contractors, but the delegation must be reasonable and clearly defined. Owners cannot shift the entire duty to contractors when public policy suggests otherwise. Here, the appointment of the cleaning contractor was reasonable. The contract clearly excluded monitoring duties. Holding the contractor liable would have been inappropriate and legally unsound.

This three-tier structure of owner, managing agent and service contractor is common in commercial property operations. It also creates a chain of responsibility that insurers must evaluate. Each link in that chain affects exposure and increases the risk in slip-and-fall claims when responsibilities overlap.

Allocation of risk in slip-and-fall claims

Mall owners and managing agents must draft agreements with precise responsibility allocations. Any ambiguity increases exposure for all parties involved. When contractor agreements exclude hazard detection duties, owners and managing agents must introduce independent monitoring systems. These might include dedicated inspection staff, enhanced CCTV systems with active monitoring or regular floor-walk protocols.

Underwriters should request copies of all agreements between property owners and their service providers. These documents help insurers assess the true extent of risk, especially where contractors limit their contractual liability. Even when owners delegate responsibilities, they must maintain oversight. They must also ensure that contractors perform their duties consistently and competently.

The festive season brings crowds, long operating hours and a higher likelihood of hazards. It also sharpens the risk in slip-and-fall claims that courts and insurers must evaluate. Clear contracts, proper monitoring and proactive oversight remain the strongest defences against unnecessary liability.