Court dismisses R1m claim after 72-year-old falls outside Makro in Alberton

A Johannesburg High Court has dismissed a claim for more than R1 million brought by a 72-year-old Alberton man who said he slipped and fell outside the Makro store in Alberton on 19 December 2020. The court found the plaintiff failed to establish that a hazardous condition existed at the precise location and time of the fall and rejected his negligence claim against Masstores (Pty) Ltd, trading as Makro SA Alberton.

What the shopper alleged

The plaintiff, Johannes Martin Ehrke, said he and his wife had visited the Makro store to buy paint during Covid-19 restrictions. He testified he had purchased two 5-litre cans of paint, which he carried in his hands, and that he fell between bollards while negotiating a slight downslope on his way to his vehicle.

Ehrke alleged his feet slipped after stepping on laminated pieces of paper left on the ground and claimed more than R1 million plus interest and legal costs for injuries including a right hip fracture, a T2 injury, soft-tissue injuries to his back and right hip, and an injury to his right thumb. His claim included medical expenses, loss of income, future loss of income or employability and general damages.

Defence and evidence before the court

The retailer disputed Ehrke’s account. Evidence presented in court included photographs of the area where the incident reportedly occurred, and Ehrke’s son testified that he had seen laminated pages on the ground around the time of the incident. The court also heard that Covid-19 crowd-control measures were in place at the time, with designated routes, queues, tape, signage and staff used to manage customer movement.

Why the court dismissed the claim

The court found Ehrke had not proved a hazardous condition existed at the exact spot and time of his fall. It noted that no expert evidence was presented about the alleged slipperiness of the laminated papers, the surface, or the footwear Ehrke was wearing factors the court said made it impossible to determine whether the papers could have caused a slip.

The judge also highlighted inconsistencies between the plaintiff’s testimony and that of his witnesses regarding tape, trolleys and conditions at the entrance, and said Ehrke could not precisely identify what he had stepped on. The court found the evidence about the location and condition of the alleged papers insufficient to establish causation.

Conduct of the plaintiff weighed against his claim

The judgment placed emphasis on Ehrke’s conduct immediately before the fall. It found that he had been carrying approximately 16kg of paint in both hands and had chosen not to use an available trolley, which the court said reduced his ability to recover balance. The court also noted that Ehrke had observed tape and laminated paper in the area before the incident but did not look down as he approached the sloped kerb and proceeded behind a bollard into an area the court said was not intended for customers under the crowd-control arrangements.

The judge described Ehrke’s conduct as negligent, careless and reckless compared with what a reasonable customer would have done, and concluded that his conduct was the direct and material cause of the incident. The court said the possibility that Ehrke had simply missed a step could not be excluded and was equally possible as the suggestion that he had slipped on laminated paper.

Judgment

Because the plaintiff did not discharge the burden of proving a hazardous condition and causation, and because the court found his conduct materially contributed to the fall, the damages claim against Makro was unsuccessful.