In the recent matter of Schol Property and Consulting v Kwashilia Gajjar the Eastern Cape High Court had to consider an appeal brought by Schol Property and Consulting (“the Defendant”) against the order of the trial court which found the Defendant negligent and therefore liable for such damages as may be proved by Kwashilia Gajjar (“the Plaintiff”).

The facts giving rise to this claim are that on 9 April 2021 the plaintiff and her daughter visited the Sunridge Village shopping mall (“the Mall”) with the intention of doing some shopping and having a meal at one of the restaurants. On the way to the restaurant the plaintiff tripped and fell on the uneven floor, injuring her shoulder, which subsequently required surgery.

The walkway in the Mall was partly covered and consisted of two types of paving bricks. The uncovered part had been paved with charcoal grey pavers and there were red paving bricks on the covered area, which was also slightly elevated. A white line had been painted on the charcoal grey pavers at the edge of the raised level.

At trial, the Defendant called Mr Du Preez, an expert witness in civil engineering, who testified that the reason for the uneven floors was to prevent rainwater that runs off the non-covered area from flowing onto the covered walkways. He explained further that the purpose of the white line was ‘to attract attention of the raised level and the difference in level as you come from a lower level up to a higher level.’

The issue before that Court was whether or not the Defendant, as the owner of the Mall, had taken the necessary safeguards to prevent potential accidents being caused by the uneven floors. Defendant’s Counsel submitted that marking the elevation with a white line to caution patrons of a possible risk was an appropriate warning of the uneven floors and that the Plaintiff had, in fact, noticed the elevation caused by the curb stones, at which point she should have changed her direction to the more even flooring area. It was suggested that the fact that she did not notice the white line in time to alter her direction meant that she did not consider her own safety.

It was also suggested that the trial Court erred in concluding that the white line was an inadequate warning as it was plainly visible from a distance. The Judge at that point asked Defendant’s Counsel whether a white line would normally be considered a warning of danger, and he conceded that it was not.

The Plaintiff herself testified that she did not consider the white line as a warning of danger as a red line might have been, and there was no notice indicating that patrons should be aware of a step. Plaintiff’s Counsel argued that customers’ attention would not normally be directed at the floor and that it would not be costly to erect a warning sign.

Referring to several cases on the nature of an expert witness’ testimony, the Court held that the function of an expert witness is to draw inferences from the facts, sometimes supported by documents given to him by the client, in order to provide an opinion on the matter at hand. In this case, except for the opinion evidence of Mr Du Preez, no factual evidence was led by the Defendant to explain the purpose of the white line or why it was regarded as an appropriate warning.

A concern was also raised by the Judge as to whether Mr du Preez’s evidence could qualify as expert evidence as there were no facts led in evidence, and his explanation of the purpose of the white line was not based on his expertise as an engineer, but rather an assumption that the white line was meant to be a warning of danger to the patrons. Consequently, the Court further held that “the reasonableness or otherwise of drawing inferences from such facts in support of the opinion can only be determined once the Plaintiff’s evidence has been tested.”

Accordingly, having fully considered the evidence before it and delictual aspects of the matter, the appeal Court found that the trial Court correctly found that the Defendant failed to take reasonable steps to warn the pedestrians of the inherent danger created by the raised surface. Thus, in the circumstances the appeal was dismissed with costs.

Tel:+27 31 570 5459;  Email: sakhile.mbele@gb.co.za