Lunch with Piper Hudson.
And now Consumer Talk featuring Wendy Nola.
All right, so moving away from car tires, Wendy is actually with us today for Consumer Talk, and we're going to be talking about your options and what you should or shouldn't expect if you suffer an injury or a damage of some kind to your property while you are busy shopping in a store. If you've had experience with this issue and you'd like to tell us how it played out in your case, you are welcome to share that experience with us with a WhatsApp to seven two
five six seven one five six seven. You're also welcome to call in on two one four four six five six seven.
Wendy.
We use the term slip and fall for quite obvious reasons. That's what the industry calls them, because the two most common types of accidents in store are somebody slipping either on spilled produce or a wet floor, for example, or the fall being a product falling off a high shelf
onto somebody. One of today's cases interestingly introduces a further restoration of this and that is what happens to what happens if it's not you, that's hurt, but some of your belongings that are damaged in an incident in a store, and will reflect on that aspect in our second case study today.
But you wanted to set the scene for us, Wendy. Sure.
So the main question is, of course, when is the store liable for a customer's injuries or damages and when are they not so. Retailers and this is my first observation, it's understandable but also quite sad, they tend to hand over such cases to the legal teams. That's what they've been instructed to do, because you know, establishing liability in
these cases is quite is a specialist idea. But the unfortunate downside of that is that you know that's happening behind the scenes and the person and they're often elderly, you know, they just want a human response. They're looking for compassion, they're looking for care, they're looking for we see you, we hear you, We sorry, sorry this happened to you, And in many cases they don't get it,
which is that exacerbates the hurt. They physically hurt, and then they feel emotionally hurt by what they perceive to be a lack of care in the response. So we're going to be discussing, as you said, two cases with the help of friend of the show, Trity Brookman, who is a Cape Ton based attorney and her firm specializes in representing consumers in these types of disputes and with dodgy cars.
We've heard her speak to us.
Many manner and will bring two d in in a moment. But let's start by taking a look at the first case. And I have to say upfront that since we started working on this story, it has indeed be handed over to a legal team, so we're somewhat restricted in terms of what detail we can include today.
With we'll have a case of you know, as our listeners will know, and I'm terribly sorry about it, but these cases pour into my inbox at a right far beyond that which I could reasonably cope with. So I don't often see an email unless I'm doing.
A specific search.
So I didn't see the first case until about three months after it was said sent. And in that time between me the email being sent as a.
Result of a previous show we did and how.
Do you listened to the previous show and me getting in touch, there had been some developments which I wasn't initially aware of. Okay, So first, the other thing to say is we're going to have to be a bit vague because now this is gone legal, it's it's core emotion, it's emotion, and it's a case spending. And so when I took it up with the supermarket group involved, I was told we are giving our full cooperation to ensure
that the matter is resolved as swiftly and fairly as possible. However, as it is subject to court proceedings and therefore subjected to say, we are not in a position to comment or provide any further information at this stage. And then our complainant, who are going to be calling DeBie, then also said, oh, maybe you should name me. I don't want there to be any.
So we're not naming the supermarket evolved and we So what happened, okay. So, and the reason we still sharing this case is because what happened is a very good demonstration of the kind of it's a very common should be dealing with, and it raises some opportunities to question the sort of the conditions that have to be in place in order for compensation to happen.
Right, So, this case.
Involves We're going to call her Debbie, who was shopping in a local supermarket almost a year ago. Now I think he's just over a year. I think it was the first of July. And can you tell us what happened to Debbie?
Yes, so she of all awful things, silly things to happen. She had checked out, she had bought her her goodies that had been packed, and she was heading for the exit. And when she got to the rear part of the check encounter, where the packers generally stand, that's where she slipt. And it was only after you know, these things happened so fat that she saw what was left of the errant strawberry mushed into the bottom of her.
So she slipped on a single storwberry.
Slipped on one strawberry, unbelievable, so stood on it.
Obviously it went squish, and then.
That she's on the environment and she was on the floor, and on the floor with very serious injuries.
Wendy exactly.
She says.
She was lying there on the cold floor.
This wasn't the stores.
But they called an ambulance.
It took over an hour to come.
Her knee was swelling up she was in terrible pain. Who husband was with her.
She says.
The store management offered to pay for the ambulance as well as emergency room treatment because they wouldn't have known anos. But by the time we got to Constancheberg Hospital they had withdrawn their offer. And I would say that the lawse had entered the picture by that stage.
And said, don't offer anything.
Yeah, oh there's a problem, need you know, Let's let's leave this to the lawyers. So x rays did later reveal that she had shattered her right knee cap. She gave me the medical term, but I think for our listeners, she shattered her right knee cap. She's had two surgeries, one to pin the bones together, the second to remove those pins. She spent four days in hospital, two weeks in a step down facility to get her walking again. She went from a walker to crutches, two crutches, then
one crutch after two months of physios. This has been quite an ordeal that from that one strawberry on the floor, she says, in all this time. Sorry, she says, even after all of that, certain actions are still difficult for me. There is the possibility of yet another operation to remove bits of bone that are now pushing through the front of money, and all this time the Supermarket Group has done nothing and paid no expenses, which have racked up
to more than five hundred thousand grand by now. Money will never be the same.
Okay, oh, Debbie, I'm so sorry that you went through this. As Mendy has mentioned, Debbie did reach out to us a couple of months ago. Her brother actually heard the previous conversation about slip and fall accidents that happened. I think I was away at the time, but it happened on the show and said to her, why don't you
call captain and ask for help? And at the time she had already consulted a lawyer, and that lawyer had reached out to the Supermarket Group involved asking for compensation on her behalf, but hadn't had any feedback at the point of that initial engagement.
And Wendy, what has happened since then?
So I went back to DEBI with what the Supermarket Group had told me, because I'd asked them a whole lot of questions around you know, there's been no reach out, and they said that gave me that statement I read out earlier, basically saying it's now subject dequyt. We we can't comment a legal process in motion, we can't comment, And DeBie said, yeah, it seems you know, our lawyer is pursuing a court case. That was never our intention
from the start. We just wanted them to be fair and pay us what this ordeal has cost, you know, some financial compensation for medical expenses, and she's also had some loss of income.
Okay, so that's the context of what happened.
Now.
Listening into that description was consumer attorney Trudy Brookburn and Truty.
It's always lovely to have you join us on the show.
Welcome back, Thanks very much, but then specially to you, Wendy.
Thanks.
Obviously, we can't speak to the merits of the individual case here it is still before the courts. But broadly speaking, I'm sure there are a couple of sort of common threads in these kinds of cases that we need to
highlight here. I mean, for example, if this case goes to court, as it looks like it might do, what would Debbie's lawyer have to prove in order for the supermarket to be found legally liable for her fall and for the attendant expenses that came with it is there a difference, Are there any sort of mitigating factors a court would look at, or key questions that would need to be asked to determine whether it's the shop's problem or not.
Great question for Bill. Let me launch in. The basic principle is that if you own a building, or you manage and operate a building which is open to the public, you have a legal duty to ensure that the public is safe when there's still onto your premises. So there are a few other legal aspects that that impinge on this, but that is the basic principle. So a business owner must take reasonable steps to ensure that where the public are allowed to or invited to walk, that they can
walk there with with safety. The second layer of law that comes into that so that that is a basic principle of whether the building was neglegend. So consumers and individuals members of the public are not required by the law to watch the every move. That's reasonable for them to assume that they can that they can walk around in their surroundings without always being watching their feet.
Okay, that's really import So you don't be vigilant as down at all times, because that could create other problems I would imagine yes.
And I think the relevant thing here is that Debbie was She said that she was walking next to her husband who was pushing his shopping trolley. So remember in a supermarket environment usually have tard flaws which are fundamentally slippery, and then you are often pushing a huge, big shopping trolley which prevents you from being able to watch where you put your feet down right, And that also applies to a person walking next to the person pushing the
shopping trolley. So that's where we are going to. The fundamental process here is that the court is going to try and find out who was more negligend. Was Debbie negligend by not watching her feet? As I've explained, I think in the circumstances there's less of an expectation that
you would have done that. And was the defendant who would be the shopping center or the and the supermarket chains, and did they conduct sufficiently regular inspections to ensure that their premises were staff So the timing of this thing
is often the determinative factor there. So, as you can imagine you are the manager of a shopping center or of a supermarket, there are many square meters of floor that have to be checked from time to time to see whether something has built, whether there's a weily subsistance, a substance which is related to sap or whatever which or just a puddle of water, all of which can be and then a strawberry for crying in a bucket. So all of these things are the source of things
that can land on the floor in a supermarket. As a supermarket manager, you have to be checking from time to time, but that you are not required by the law to check once a second, or once a minute or once every five minutes. You must check with regular intervals, and your system of checking needs to be reasonable and manageable in the circumstances of your supermarket and of the risk post to the consumers. So that's the evaluation that the poor judge will have to make. It's actually quite
a tricky thing of weighing up the relative interests. The other thing that I thought might be relevant here is that a strawberry doesn't generally fall out of your shopping bag. So this occurred after the tools. This is as they are leaving that already paid, So the person who purchased that strawberry has lasted out of their shopping bag most likely. So what happened there with the packaging? How is it
that the strawberry was able to escape so easily? Because all the strawberry I generally buy in the supermarket quite firmly.
In the plastic packaging, inside.
Their plastic packaging. So I have wondered whether the person who applied the packaging, maybe there was floppy cling wrap or some other type of loose packaging that was not sufficiently sat and that could indicate neglegends by whoever the person was that packed it, whether that's the supplier to the supermarket or the supermarket itself, depending on who did that packaging, So there might be a further ground for Debbie to demonstrate that there was neg legends, and that's
worth really checking out. I think the two main things that I would be almost forensically investigating if I were her attorney, would be how long was that strawberry on the ground, and one can take that if there was a camera and that direction, and their number two who did the packaging? And why was it loose.
Or the I mean, for argument's sake, and I have no clue. It's just occurred to me while you were talking, truly that the previous sharper who bought those strawberries may well have opened that clamshell and helped themselves to a strawberry or two, and one dropped out in the processitch game. But that's where the CTV footage is critical, and they will always have footage at those tills.
Yes, that's one of the most watched areas.
I think if when thinks about the who can be the negligent party? If there was another shopper who dropped a strawberry, that might be the person against whom you aim your clam if that's what the CCTV footage.
Okay, truly, just before we go to the news, a quick follow up here. In your experience with cases like this, are stores generally inclined to be happy to say we'll cover you for the ambulance of the emergency visit if it looks like it's a sort of a modest expense in line, and less likely to do so if they can see that this is going to be a very expensive process to remedy. Did do you think that impacts how they behave in the immediate optimize Pepper.
I mean, it certainly changes the consumer's experience of the whole thing. But the types of matters that arise on my death, I've never encountered one where the supermarket or the shopping center infected cover any medical expenses. I suppose the more serious ones come to me where the medical expenses are more substantial, although not necessarily, but I think
it would be definitely. I mean, if I'm advising the shopping center, my advice is sort this thing out quickly and early, and pay the initial amounts in the hope that you can avoid much greater damage and harm and legal expenses are going forward as well. Cases can costume million rand. It's really worthwhile settling things early where you know that there is a problem or was a potential problem on your side.
Great advice.
I just need to make a really born correction. I just remember Debbie wrote us in April this year. This slip happened in July twenty twenty four, so it has dragged on for a year already. Okay, that's why you know she came to us and things are probably not progressing legally because there has been.
There has been no no, no for that. I could come back. Okay, join the conversation.
Join the conversation.
You're with Kate Thalk.
Hello, Mangie, I'm a Nancy. My name is Marion, and I'm a nanty one year old and I fell in the store yesterday. Was shopping at Checkers in the West Coast More and I slipped and it happened so quickly. They were cleaning floors. But I don't know if that was the reason for why I slipped, but I just wanted to give book cares to the manager and the customer care lady. He arranged to get a wheelchair for me and for her to push me around to finish
my shopping. But anyway, the pain was too bad. I'd fallen on my hip.
Sorry.
Fortunately my daughters were shopping in the store as well, so I was able to be driven home and straight to the doctor. But I must say the stuff at Checkers in West Coast More were absolutely fantastic.
I hope you feel much much better soon, Marianne. And that's really good feedback.
After I said sometimes it can come across as a bit I'm caring because they've got to worry about the legal implications and but there's the notion of liability and everything else. So that's lovely to hear.
I think there's another positive voice note that's come through as well.
Let's take a listen, Hi is gooden? Here two things. I was in another supermarket and there was a fruit box on the floor at below knee level, and I banged into it and it sort of thought, wow, that was a bit hard and sharp. Didn't think much more of it because I had to look at my genes from the one side and didn't see anything, but the jeans were actually torn. When I got back, store was very good. They said, no, look, that's obviously happened. I went to speak to them to get them to move
the boxes. They did move that box, but I haven't seen the boxes fixed in the other stores. All of them have got metal frames on the outside, which we've got very sharp edges, which if somebody had cut themselves on an older person cutting themselves would have not great.
But yeah, the store was very good about it, and.
They sort of dealt with it straight away and then offered to buy me a new pair of genes, which was really really well done from one of the bigger change But another thought, what about liability insurance. Surely these stores carry liability insurance, and surely that should be part of the processes be insured against the sort of.
Just a thought.
Sure, I thought that several other people had as well, including Chris. And there was another one from Henry saying, surely shopping centers of public liability insurance for exactly this kind of scenario.
Thank you.
Let's ask Trudy to comment on that attorney truly public liability insurance? Should that be sufficient to cover this kind of incident?
I would have I would have certainly thought so. So unfortunately, from a consumer perspective, that doesn't necessarily mean that you're not in for a big fight. So how it works if you have insurance is that you would notify your insurer of the claim. So let's say the manager has been informed that Marion has slipped while they're cleaning the floors, or about another incident, and you would immediately ring your broker.
The broker would speak to the insurer, and then the legal department at the lib Letty insurance would tell you what you allowed to do and say and whatnot and if the thing becomes a court case. And here I just want to remind the listeners that you need to sue within three years of the incident, and if you miss that deadline, you've lost your calm, and if it's against the municipality, that summons has to go out within six months or that for them needs to be a
notice within six months after it happened. So if it's a municipality that caused your harm or you slipped on municipal property, definitely see a lawyer very quickly. So sorry to circle back. So if the thing then goes to court, it's essentially the liability insurances lawyers who are fighting against you all the same stuff that you need to prove, et cetera. But unfortunately they have a lot of legal
clout and they have deep pockets, so you can expect. Unfortunately, even though there's liability insurance, unless it's a real opening shatcase, you may actually have more oppossession if your acclaimant than you would have had otherwise.
Thank you so much for that feedback, Trudy, And just to recap for anybody who's come in midway, Wendy Nada with us in studio. Consumer attorney Trudy Brookman with us by phone as we talk about compensation in the case of injuries or damages happening in a store environment. I mean, this just makes my blood Boil. Tracy's sharing what happened to her mom, who was in her sixties at the time.
To cut a long story short, she had an accident in the parking lot outside the store after her trolley's wheels got stuck and she was sent flying and broke her wrist. And she said when they tried the parking attendant came to her assistance and went and called the manager, but the store manager said, we can't help because it happened outside the store and very painful recovery. Later, her mom did phone the landlord of the property and they
pretty much or so she gave up. But Tracy says a week after the incident, the shopping center placed signage at the very point my mom fell with a sign had a falling person, a tumbling trolley and a warning or hazard sign. I mean, really, I mean, obviously that's rubbing salt into a very painful wound because it says that they obviously knew that there was a hazard there, that that was a danger to shoppers.
Yes, and as far as I know, the if you're renting the the shop inside the shopping center, you also are often the tenant of the of the parking which is directly adjacent if you're huge. But I'm speaking under correction there, so I think that that may just have
been an excuse to not avalid one. But when we'd have to check that out with with reference to the relevant lease, what I do want to say is that disclaimers is a whole nother layer, and the signage and the warning signage that was put up that Tracy was was speaking about is another relevant factor when trying to work out with you you're going to succeed with the claim if you've been the victim of a slip and
trip or slipping for accident. Sorry about the flippant sounding uh called accident, but that unfortunately, that's that's what lawyers call it. So these disclaimers are are what attorneys and and we do recommend that if you have a shop or anything you're just open to the public, that you do have a disclaimer up and a warning notice up at the at the entrance. And these disclaimers can sometimes succeed in avoiding consumers being able to claim from you,
and other times not. And it's quite a complicated thing whether they can or coun't. The reason that it's complicated is that the consumer Protection Act says that if there's a contract, and these disclaimers and warning signs are a type of contract between the public and the shop, these contracts have to only contain fair, reasonable and just contract terms, and must be drafted in plain language and must be drawn to your attention in a conspicuous manner before you
gain access to the premises. So that's one of the reasons probably that the signage was out in the parking lot, right out in the parking lots. So then, so as I was saying, the poor judges have an invidious task sometimes to try and balance the rights of consumers and retailers.
That the basic principle is that you cannot you cannot bypass a disclaimer as a as a as a business or you cannot rely on your disclaimer to bypass your response fundamental responsibility as a as a business owner or operator to take the reasonable steps to ensure that where the public is allowed to walk, that they can walk there with safety. So if that's not in place, no
disclaimer is going to help you. It just provides a little bit of further ground for argument in court if there really is a situation where the consumer has a vallet case thanks.
For that, truly. Please stay with us.
We're going to take a very short break and then when we come back from this, we're going to switch slight focus away from injury to what happens in the case of damage in store. And we've had an interesting case study there from was it Gordon who got his genes replaced?
Yeah, that's not what's happened. In the next case, we're going to take a look at talk WhatsApp seven to five six seven one five six seven.
Right, Well, back to the subject of incidents in shopping stores, and let's switch the focus away from incidents where shoppers are injured to ones where damage to their belongings takes place. And Wendy, won't you just tell us about this week's second case, Stuffy?
Sure? So. Just over two months ago, eighty two year old Margaret from Koumaki visited Micah Hardaway store in Fishok to buy paint.
And a few other things.
A salesperson helped her choose one liter type of paint, a little one, and offered to carry it to her to the till point for her. So he was walking in front of her when for some reason, the tub slipped from his hand and as it hit the floor, the lid popped off and white paint splattered onto Margaret's handbag.
Pants, and shoes.
Because she was right in the firing line an attempt by a store staff to clean her bags. They literally said, liver with us, will clean it. She couldn't take a clothes off, obviously, yeah, but she put They have a plastic bag and she put all the stuff in her handbag in that and she went home and they said, well, we'll return it to you. They did return the bag to her, but it was not an entirely successful clean up job. The paint was white and there was you know,
still smudges visible. It wasn't ours. What kind of bag it was, We're not talking about a designer. She actually I said what kind of bag? I really wanted to know. Was it fabric?
Was leat?
Then she said it's foley there. So it was not a very expensive hand bag in the scheme of things. But so she was given you know, laterally it was like, yeah, he has your compensation five hundred rand and not just five hundred rand cash, five hundred grand voucher for the store. And then she said she's already bought what she needed, and.
You can't buy replacement trainers, pants.
Or bag of plica the brands that she had. I think the shoes were sketches, but her.
Estimate was that the damage is total to about two and a half thousand rands in total by the time you taggied up the shoes, the pants and the bag. So she wasn't happy with the offer of take your store voucher for five hundred rand because she said to us, that doesn't help her resolve the issue that she's sitting with through no fault of her own. Where do you reached out to the short store tell us about that engagement?
Sure, so I called the store and I was put through to the owner and he, you know, I wanted to point out that the voucher was not under the circumstances appropriate compensation. I said, Margaret had no part in what happened. The staff member made a mistake, as we all do from time to time. The cost of replacing the items is about two and a half thousand rand in total, which in the scheme of things these kinds of incidents is modest, right for three items of clothing.
And I said, are you willing to cancel that voucher and give Margaret a cash amount of two and a half thousand in order to settle this matter appropriately. I added that Margaret did still have the ruined clothing and question and you know if they wanted to verify any replacement estimations. He responded, well, he initially said I had to had to be in person. I said, that's a rather long drive for me. It's not a reasonable request. We can do this on the phone, and we could
do it over email. He said he couldn't read verify me over the phone, so could I send an email? Which I did right and then I got a response saying my.
Yeah.
He said he asked for photos of the clothing items, the not the handbag, but the pants and the shoes. He said the tracksuit, pants and shoes were not reported in the store only afterwards and that and only a week later. My staff went out of their way to assist and the customers more than happy at the time, only to then later report a further issue. I prefer face to face meetings. Then I know exactly who I'm
dealing with and it can be dressed immediately. As I had the photos which Margaret had sent me, I fowarded them on and I repeated my question about him, was he willing to pay that fairly modest amount to Margaret? And as we sit here, I did say it would have to be before one o'clock. And I don't see a response from him. So this is this case is ongoing.
Let's just bring Trudy back in at this point because she's still with us listening in and Trudy, thank you. There's the final few minutes we'll ask of you before we let you get back to your real job. In a case like this, and we've heard a couple of others. Now we had the case of the genes that were ripped. I've had Williams saying his puffer jacket was was damaged by the edge of a sharp edge of a metal strip in a store as well. In a case like this,
is the store liable to compensate for the damage? And you know, are they how much are they liable to compensate? Do they need to if you're wearing an old pair of jeans, do they need to buy you a new pair of jeans to replace them, or your second ad page to replace them?
How does it work?
Okay, So the basic principle is that where you are negligent, and negligence can be a proactive action or it can be an omission, and that can also be the way in which your environment is set up. Like the sharp piece of meat. All of those could indicate neglegends, and negligence is where you fall short of the required standard of care that one should have for especially if you're a retailer and you allow members of the public into your space, then there's a standard of care where you
need to be careful to look out for other safety. Okay, so as soon as these negligence, and to my mind it's Christal clear in all three cases the genes, the plant paints, planters situation, and the sharp piece of metal that there was neglegends. In that case, the law says that you must pay money to correct the situation as
though you were never negligend. So if the shop had never been negligend, then Margaret would would still have her sketches and paints and a handbag that were clean and usable. That's not the case. The easy way to to to rEFInd her is with a new equivalent. That's strictly speaking, I suppose if those were all the clothes, the shop
could require her to find an equivalent secondhand pair. Just for practical purposes, we replas with new things because those are easily accessible and and you can find them, and it's very difficult to find a secondhand equivalent of what
you had. So and that's basically how how it plays out. Normally, if it's possible to repair the goods that were that were damaged as a result of the neck legends, the shop is only liable for a repair if that repair renders the goods as good as they were before the neg legends kicked in. So one doesn't I mean, you're not require to walk around with a stained handbag or you know, clear clothing or whatever. Yeah, in that case they must replace it with a new equivalent.
I should say that the the what I could see in the photographs of the pants and the shoes is that they're not It's not just a huge artistic sort of.
Splatter pollock these spots.
But I mean, I wouldn't be happy to walk around with spots of paint on my clothing. It would they wouldn't wouldn't feel the same to me. And do you think it's a reasonable expectation that they get replaced because they are stained.
Okay, truly, I want to say such a huge thank you to you for giving such a big chunk of your time to us the softernoon in bits and pieces as well.
We so appreciate your.
Patients in bearing with us and as always appreciate your advice to our listeners.
Thanks for joining us.
Thanks for no problem at all. If I can say to you to Margaret, go to the Small Claims Court or report the matter to the Office of the Consumer Protector, which you can find under the provincial government's website, you can just drop an email to them and they'll start investigating a free of charge for all of us taxpayers in the Western cap make use of the service and these a newly formed consumer Affairs Tribunal which will hear the matter if it isn't resolved by the Office of
the Consumer Protector, and all of that should play out with art you needing lawyers or anything like that.
Thank you so much for that helpful advice as well. Consumer attorney Trudy Brookman Well, a huge thank you to Wendy Nola as always, and reminder that if you want to lodge a case with her, the best thing to do is go to her website Wendynola dot co dot z spelt k nw l e er and fill out the contact form there, which really will prompt you for all of the information that is needed. Wendy will chat again next week Wednesday.
Well, thanks,