Speaker 1: Lunch with Piper Hudson.
Speaker 2: And now Consumer Talk featuring Wendy Nola.
Speaker 3: All right, so moving away from car tires, Wendy is
Speaker 3: actually with us today for Consumer Talk, and we're going
Speaker 3: to be talking about your options and what you should
Speaker 3: or shouldn't expect if you suffer an injury or a
Speaker 3: damage of some kind to your property while you are
Speaker 3: busy shopping in a store. If you've had experience with
Speaker 3: this issue and you'd like to tell us how it
Speaker 3: played out in your case, you are welcome to share
Speaker 3: that experience with us with a WhatsApp to seven two
Speaker 3: five six seven one five six seven. You're also welcome
Speaker 3: to call in on two one four four six five
Speaker 3: six seven.
Speaker 1: Wendy.
Speaker 3: We use the term slip and fall for quite obvious reasons.
Speaker 3: That's what the industry calls them, because the two most
Speaker 3: common types of accidents in store are somebody slipping either
Speaker 3: on spilled produce or a wet floor, for example, or
Speaker 3: the fall being a product falling off a high shelf
Speaker 3: onto somebody. One of today's cases interestingly introduces a further
Speaker 3: restoration of this and that is what happens to what
Speaker 3: happens if it's not you, that's hurt, but some of
Speaker 3: your belongings that are damaged in an incident in a store,
Speaker 3: and will reflect on that aspect in our second case
Speaker 3: study today.
Speaker 1: But you wanted to set the scene for us, Wendy. Sure.
Speaker 4: So the main question is, of course, when is the
Speaker 4: store liable for a customer's injuries or damages and when
Speaker 4: are they not so. Retailers and this is my first observation,
Speaker 4: it's understandable but also quite sad, they tend to hand
Speaker 4: over such cases to the legal teams. That's what they've
Speaker 4: been instructed to do, because you know, establishing liability in
Speaker 4: these cases is quite is a specialist idea. But the
Speaker 4: unfortunate downside of that is that you know that's happening
Speaker 4: behind the scenes and the person and they're often elderly,
Speaker 4: you know, they just want a human response. They're looking
Speaker 4: for compassion, they're looking for care, they're looking for we
Speaker 4: see you, we hear you, We sorry, sorry this happened
Speaker 4: to you, And in many cases they don't get it,
Speaker 4: which is that exacerbates the hurt. They physically hurt, and
Speaker 4: then they feel emotionally hurt by what they perceive to
Speaker 4: be a lack of care in the response. So we're
Speaker 4: going to be discussing, as you said, two cases with
Speaker 4: the help of friend of the show, Trity Brookman, who
Speaker 4: is a Cape Ton based attorney and her firm specializes
Speaker 4: in representing consumers in these types of disputes and with
Speaker 4: dodgy cars.
Speaker 1: We've heard her speak to us.
Speaker 3: Many manner and will bring two d in in a moment.
Speaker 3: But let's start by taking a look at the first case.
Speaker 3: And I have to say upfront that since we started
Speaker 3: working on this story, it has indeed be handed over
Speaker 3: to a legal team, so we're somewhat restricted in terms
Speaker 3: of what detail we can include today.
Speaker 4: With we'll have a case of you know, as our
Speaker 4: listeners will know, and I'm terribly sorry about it, but
Speaker 4: these cases pour into my inbox at a right far
Speaker 4: beyond that which I could reasonably cope with. So I
Speaker 4: don't often see an email unless I'm doing.
Speaker 1: A specific search.
Speaker 4: So I didn't see the first case until about three
Speaker 4: months after it was said sent. And in that time
Speaker 4: between me the email being sent as a.
Speaker 1: Result of a previous show we did and how.
Speaker 4: Do you listened to the previous show and me getting
Speaker 4: in touch, there had been some developments which I wasn't
Speaker 4: initially aware of. Okay, So first, the other thing to
Speaker 4: say is we're going to have to be a bit
Speaker 4: vague because now this is gone legal, it's it's core emotion,
Speaker 4: it's emotion, and it's a case spending. And so when
Speaker 4: I took it up with the supermarket group involved, I
Speaker 4: was told we are giving our full cooperation to ensure
Speaker 4: that the matter is resolved as swiftly and fairly as possible. However,
Speaker 4: as it is subject to court proceedings and therefore subjected
Speaker 4: to say, we are not in a position to comment
Speaker 4: or provide any further information at this stage. And then
Speaker 4: our complainant, who are going to be calling DeBie, then
Speaker 4: also said, oh, maybe you should name me. I don't
Speaker 4: want there to be any.
Speaker 3: So we're not naming the supermarket evolved and we So
Speaker 3: what happened, okay. So, and the reason we still sharing
Speaker 3: this case is because what happened is a very good
Speaker 3: demonstration of the kind of it's a very common should
Speaker 3: be dealing with, and it raises some opportunities to question
Speaker 3: the sort of the conditions that have to be in
Speaker 3: place in order for compensation to happen.
Speaker 1: Right, So, this case.
Speaker 3: Involves We're going to call her Debbie, who was shopping
Speaker 3: in a local supermarket almost a year ago. Now I
Speaker 3: think he's just over a year. I think it was
Speaker 3: the first of July. And can you tell us what
Speaker 3: happened to Debbie?
Speaker 4: Yes, so she of all awful things, silly things to happen.
Speaker 4: She had checked out, she had bought her her goodies
Speaker 4: that had been packed, and she was heading for the exit.
Speaker 4: And when she got to the rear part of the
Speaker 4: check encounter, where the packers generally stand, that's where she slipt.
Speaker 4: And it was only after you know, these things happened
Speaker 4: so fat that she saw what was left of the
Speaker 4: errant strawberry mushed into the bottom of her.
Speaker 1: So she slipped on a single storwberry.
Speaker 4: Slipped on one strawberry, unbelievable, so stood on it.
Speaker 1: Obviously it went squish, and then.
Speaker 3: That she's on the environment and she was on the floor,
Speaker 3: and on the floor with very serious injuries.
Speaker 4: Wendy exactly.
Speaker 1: She says.
Speaker 4: She was lying there on the cold floor.
Speaker 1: This wasn't the stores.
Speaker 4: But they called an ambulance.
Speaker 1: It took over an hour to come.
Speaker 4: Her knee was swelling up she was in terrible pain.
Speaker 4: Who husband was with her.
Speaker 1: She says.
Speaker 4: The store management offered to pay for the ambulance as
Speaker 4: well as emergency room treatment because they wouldn't have known anos.
Speaker 4: But by the time we got to Constancheberg Hospital they
Speaker 4: had withdrawn their offer. And I would say that the
Speaker 4: lawse had entered the picture by that stage.
Speaker 1: And said, don't offer anything.
Speaker 4: Yeah, oh there's a problem, need you know, Let's let's
Speaker 4: leave this to the lawyers. So x rays did later
Speaker 4: reveal that she had shattered her right knee cap. She
Speaker 4: gave me the medical term, but I think for our listeners,
Speaker 4: she shattered her right knee cap. She's had two surgeries,
Speaker 4: one to pin the bones together, the second to remove
Speaker 4: those pins. She spent four days in hospital, two weeks
Speaker 4: in a step down facility to get her walking again.
Speaker 4: She went from a walker to crutches, two crutches, then
Speaker 4: one crutch after two months of physios. This has been
Speaker 4: quite an ordeal that from that one strawberry on the floor,
Speaker 4: she says, in all this time. Sorry, she says, even
Speaker 4: after all of that, certain actions are still difficult for me.
Speaker 4: There is the possibility of yet another operation to remove
Speaker 4: bits of bone that are now pushing through the front
Speaker 4: of money, and all this time the Supermarket Group has
Speaker 4: done nothing and paid no expenses, which have racked up
Speaker 4: to more than five hundred thousand grand by now. Money
Speaker 4: will never be the same.
Speaker 3: Okay, oh, Debbie, I'm so sorry that you went through this.
Speaker 3: As Mendy has mentioned, Debbie did reach out to us
Speaker 3: a couple of months ago. Her brother actually heard the
Speaker 3: previous conversation about slip and fall accidents that happened. I
Speaker 3: think I was away at the time, but it happened
Speaker 3: on the show and said to her, why don't you
Speaker 3: call captain and ask for help? And at the time
Speaker 3: she had already consulted a lawyer, and that lawyer had
Speaker 3: reached out to the Supermarket Group involved asking for compensation
Speaker 3: on her behalf, but hadn't had any feedback at the
Speaker 3: point of that initial engagement.
Speaker 1: And Wendy, what has happened since then?
Speaker 4: So I went back to DEBI with what the Supermarket
Speaker 4: Group had told me, because I'd asked them a whole
Speaker 4: lot of questions around you know, there's been no reach out,
Speaker 4: and they said that gave me that statement I read
Speaker 4: out earlier, basically saying it's now subject dequyt. We we
Speaker 4: can't comment a legal process in motion, we can't comment,
Speaker 4: And DeBie said, yeah, it seems you know, our lawyer
Speaker 4: is pursuing a court case. That was never our intention
Speaker 4: from the start. We just wanted them to be fair
Speaker 4: and pay us what this ordeal has cost, you know,
Speaker 4: some financial compensation for medical expenses, and she's also had
Speaker 4: some loss of income.
Speaker 1: Okay, so that's the context of what happened.
Speaker 4: Now.
Speaker 3: Listening into that description was consumer attorney Trudy Brookburn and Truty.
Speaker 1: It's always lovely to have you join us on the show.
Speaker 5: Welcome back, Thanks very much, but then specially to you, Wendy.
Speaker 1: Thanks.
Speaker 3: Obviously, we can't speak to the merits of the individual
Speaker 3: case here it is still before the courts. But broadly speaking,
Speaker 3: I'm sure there are a couple of sort of common
Speaker 3: threads in these kinds of cases that we need to
Speaker 3: highlight here. I mean, for example, if this case goes
Speaker 3: to court, as it looks like it might do, what
Speaker 3: would Debbie's lawyer have to prove in order for the
Speaker 3: supermarket to be found legally liable for her fall and
Speaker 3: for the attendant expenses that came with it is there
Speaker 3: a difference, Are there any sort of mitigating factors a
Speaker 3: court would look at, or key questions that would need
Speaker 3: to be asked to determine whether it's the shop's problem
Speaker 3: or not.
Speaker 5: Great question for Bill. Let me launch in. The basic
Speaker 5: principle is that if you own a building, or you
Speaker 5: manage and operate a building which is open to the public,
Speaker 5: you have a legal duty to ensure that the public
Speaker 5: is safe when there's still onto your premises. So there
Speaker 5: are a few other legal aspects that that impinge on this,
Speaker 5: but that is the basic principle. So a business owner
Speaker 5: must take reasonable steps to ensure that where the public
Speaker 5: are allowed to or invited to walk, that they can
Speaker 5: walk there with with safety. The second layer of law
Speaker 5: that comes into that so that that is a basic
Speaker 5: principle of whether the building was neglegend. So consumers and
Speaker 5: individuals members of the public are not required by the
Speaker 5: law to watch the every move. That's reasonable for them
Speaker 5: to assume that they can that they can walk around
Speaker 5: in their surroundings without always being watching their feet.
Speaker 4: Okay, that's really import So you don't be vigilant as
Speaker 4: down at all times, because that could create other problems
Speaker 4: I would imagine yes.
Speaker 5: And I think the relevant thing here is that Debbie
Speaker 5: was She said that she was walking next to her
Speaker 5: husband who was pushing his shopping trolley. So remember in
Speaker 5: a supermarket environment usually have tard flaws which are fundamentally slippery,
Speaker 5: and then you are often pushing a huge, big shopping
Speaker 5: trolley which prevents you from being able to watch where
Speaker 5: you put your feet down right, And that also applies
Speaker 5: to a person walking next to the person pushing the
Speaker 5: shopping trolley. So that's where we are going to. The
Speaker 5: fundamental process here is that the court is going to
Speaker 5: try and find out who was more negligend. Was Debbie
Speaker 5: negligend by not watching her feet? As I've explained, I
Speaker 5: think in the circumstances there's less of an expectation that
Speaker 5: you would have done that. And was the defendant who
Speaker 5: would be the shopping center or the and the supermarket chains,
Speaker 5: and did they conduct sufficiently regular inspections to ensure that
Speaker 5: their premises were staff So the timing of this thing
Speaker 5: is often the determinative factor there. So, as you can
Speaker 5: imagine you are the manager of a shopping center or
Speaker 5: of a supermarket, there are many square meters of floor
Speaker 5: that have to be checked from time to time to
Speaker 5: see whether something has built, whether there's a weily subsistance,
Speaker 5: a substance which is related to sap or whatever which
Speaker 5: or just a puddle of water, all of which can
Speaker 5: be and then a strawberry for crying in a bucket.
Speaker 5: So all of these things are the source of things
Speaker 5: that can land on the floor in a supermarket. As
Speaker 5: a supermarket manager, you have to be checking from time
Speaker 5: to time, but that you are not required by the
Speaker 5: law to check once a second, or once a minute
Speaker 5: or once every five minutes. You must check with regular intervals,
Speaker 5: and your system of checking needs to be reasonable and
Speaker 5: manageable in the circumstances of your supermarket and of the
Speaker 5: risk post to the consumers. So that's the evaluation that
Speaker 5: the poor judge will have to make. It's actually quite
Speaker 5: a tricky thing of weighing up the relative interests. The
Speaker 5: other thing that I thought might be relevant here is
Speaker 5: that a strawberry doesn't generally fall out of your shopping bag.
Speaker 5: So this occurred after the tools. This is as they
Speaker 5: are leaving that already paid, So the person who purchased
Speaker 5: that strawberry has lasted out of their shopping bag most likely.
Speaker 5: So what happened there with the packaging? How is it
Speaker 5: that the strawberry was able to escape so easily? Because
Speaker 5: all the strawberry I generally buy in the supermarket quite firmly.
Speaker 1: In the plastic packaging, inside.
Speaker 5: Their plastic packaging. So I have wondered whether the person
Speaker 5: who applied the packaging, maybe there was floppy cling wrap
Speaker 5: or some other type of loose packaging that was not
Speaker 5: sufficiently sat and that could indicate neglegends by whoever the
Speaker 5: person was that packed it, whether that's the supplier to
Speaker 5: the supermarket or the supermarket itself, depending on who did
Speaker 5: that packaging, So there might be a further ground for
Speaker 5: Debbie to demonstrate that there was neg legends, and that's
Speaker 5: worth really checking out. I think the two main things
Speaker 5: that I would be almost forensically investigating if I were
Speaker 5: her attorney, would be how long was that strawberry on
Speaker 5: the ground, and one can take that if there was
Speaker 5: a camera and that direction, and their number two who
Speaker 5: did the packaging? And why was it loose.
Speaker 4: Or the I mean, for argument's sake, and I have
Speaker 4: no clue. It's just occurred to me while you were talking,
Speaker 4: truly that the previous sharper who bought those strawberries may
Speaker 4: well have opened that clamshell and helped themselves to a
Speaker 4: strawberry or two, and one dropped out in the processitch game.
Speaker 4: But that's where the CTV footage is critical, and they
Speaker 4: will always have footage at those tills.
Speaker 3: Yes, that's one of the most watched areas.
Speaker 5: I think if when thinks about the who can be
Speaker 5: the negligent party? If there was another shopper who dropped
Speaker 5: a strawberry, that might be the person against whom you
Speaker 5: aim your clam if that's what the CCTV footage.
Speaker 3: Okay, truly, just before we go to the news, a
Speaker 3: quick follow up here. In your experience with cases like this,
Speaker 3: are stores generally inclined to be happy to say we'll
Speaker 3: cover you for the ambulance of the emergency visit if
Speaker 3: it looks like it's a sort of a modest expense
Speaker 3: in line, and less likely to do so if they
Speaker 3: can see that this is going to be a very
Speaker 3: expensive process to remedy. Did do you think that impacts
Speaker 3: how they behave in the immediate optimize Pepper.
Speaker 5: I mean, it certainly changes the consumer's experience of the
Speaker 5: whole thing. But the types of matters that arise on
Speaker 5: my death, I've never encountered one where the supermarket or
Speaker 5: the shopping center infected cover any medical expenses. I suppose
Speaker 5: the more serious ones come to me where the medical
Speaker 5: expenses are more substantial, although not necessarily, but I think
Speaker 5: it would be definitely. I mean, if I'm advising the
Speaker 5: shopping center, my advice is sort this thing out quickly
Speaker 5: and early, and pay the initial amounts in the hope
Speaker 5: that you can avoid much greater damage and harm and
Speaker 5: legal expenses are going forward as well. Cases can costume
Speaker 5: million rand. It's really worthwhile settling things early where you
Speaker 5: know that there is a problem or was a potential
Speaker 5: problem on your side.
Speaker 1: Great advice.
Speaker 4: I just need to make a really born correction. I
Speaker 4: just remember Debbie wrote us in April this year. This
Speaker 4: slip happened in July twenty twenty four, so it has
Speaker 4: dragged on for a year already. Okay, that's why you
Speaker 4: know she came to us and things are probably not
Speaker 4: progressing legally because there has been.
Speaker 1: There has been no no, no for that. I could
Speaker 1: come back. Okay, join the conversation.
Speaker 5: Join the conversation.
Speaker 1: You're with Kate Thalk.
Speaker 6: Hello, Mangie, I'm a Nancy. My name is Marion, and
Speaker 6: I'm a nanty one year old and I fell in
Speaker 6: the store yesterday. Was shopping at Checkers in the West
Speaker 6: Coast More and I slipped and it happened so quickly.
Speaker 6: They were cleaning floors. But I don't know if that
Speaker 6: was the reason for why I slipped, but I just
Speaker 6: wanted to give book cares to the manager and the
Speaker 6: customer care lady. He arranged to get a wheelchair for
Speaker 6: me and for her to push me around to finish
Speaker 6: my shopping. But anyway, the pain was too bad. I'd
Speaker 6: fallen on my hip.
Speaker 4: Sorry.
Speaker 6: Fortunately my daughters were shopping in the store as well,
Speaker 6: so I was able to be driven home and straight
Speaker 6: to the doctor. But I must say the stuff at
Speaker 6: Checkers in West Coast More were absolutely fantastic.
Speaker 3: I hope you feel much much better soon, Marianne. And
Speaker 3: that's really good feedback.
Speaker 4: After I said sometimes it can come across as a
Speaker 4: bit I'm caring because they've got to worry about the
Speaker 4: legal implications and but there's the notion of liability and
Speaker 4: everything else. So that's lovely to hear.
Speaker 1: I think there's another positive voice note that's come through
Speaker 1: as well.
Speaker 7: Let's take a listen, Hi is gooden? Here two things.
Speaker 7: I was in another supermarket and there was a fruit
Speaker 7: box on the floor at below knee level, and I
Speaker 7: banged into it and it sort of thought, wow, that
Speaker 7: was a bit hard and sharp. Didn't think much more
Speaker 7: of it because I had to look at my genes
Speaker 7: from the one side and didn't see anything, but the
Speaker 7: jeans were actually torn. When I got back, store was
Speaker 7: very good. They said, no, look, that's obviously happened. I
Speaker 7: went to speak to them to get them to move
Speaker 7: the boxes. They did move that box, but I haven't
Speaker 7: seen the boxes fixed in the other stores. All of
Speaker 7: them have got metal frames on the outside, which we've
Speaker 7: got very sharp edges, which if somebody had cut themselves
Speaker 7: on an older person cutting themselves would have not great.
Speaker 1: But yeah, the store was very good about it, and.
Speaker 2: They sort of dealt with it straight away and then
Speaker 2: offered to buy me a new pair of genes, which
Speaker 2: was really really well done from one of the bigger
Speaker 2: change But another thought, what about liability insurance. Surely these
Speaker 2: stores carry liability insurance, and surely that should be part
Speaker 2: of the processes be insured against the sort of.
Speaker 5: Just a thought.
Speaker 3: Sure, I thought that several other people had as well,
Speaker 3: including Chris. And there was another one from Henry saying,
Speaker 3: surely shopping centers of public liability insurance for exactly this
Speaker 3: kind of scenario.
Speaker 1: Thank you.
Speaker 3: Let's ask Trudy to comment on that attorney truly public
Speaker 3: liability insurance? Should that be sufficient to cover this kind
Speaker 3: of incident?
Speaker 5: I would have I would have certainly thought so. So unfortunately,
Speaker 5: from a consumer perspective, that doesn't necessarily mean that you're
Speaker 5: not in for a big fight. So how it works
Speaker 5: if you have insurance is that you would notify your
Speaker 5: insurer of the claim. So let's say the manager has
Speaker 5: been informed that Marion has slipped while they're cleaning the floors,
Speaker 5: or about another incident, and you would immediately ring your broker.
Speaker 5: The broker would speak to the insurer, and then the
Speaker 5: legal department at the lib Letty insurance would tell you
Speaker 5: what you allowed to do and say and whatnot and
Speaker 5: if the thing becomes a court case. And here I
Speaker 5: just want to remind the listeners that you need to
Speaker 5: sue within three years of the incident, and if you
Speaker 5: miss that deadline, you've lost your calm, and if it's
Speaker 5: against the municipality, that summons has to go out within
Speaker 5: six months or that for them needs to be a
Speaker 5: notice within six months after it happened. So if it's
Speaker 5: a municipality that caused your harm or you slipped on
Speaker 5: municipal property, definitely see a lawyer very quickly. So sorry
Speaker 5: to circle back. So if the thing then goes to court,
Speaker 5: it's essentially the liability insurances lawyers who are fighting against
Speaker 5: you all the same stuff that you need to prove,
Speaker 5: et cetera. But unfortunately they have a lot of legal
Speaker 5: clout and they have deep pockets, so you can expect. Unfortunately,
Speaker 5: even though there's liability insurance, unless it's a real opening shatcase,
Speaker 5: you may actually have more oppossession if your acclaimant than
Speaker 5: you would have had otherwise.
Speaker 3: Thank you so much for that feedback, Trudy, And just
Speaker 3: to recap for anybody who's come in midway, Wendy Nada
Speaker 3: with us in studio. Consumer attorney Trudy Brookman with us
Speaker 3: by phone as we talk about compensation in the case
Speaker 3: of injuries or damages happening in a store environment. I mean,
Speaker 3: this just makes my blood Boil. Tracy's sharing what happened
Speaker 3: to her mom, who was in her sixties at the time.
Speaker 3: To cut a long story short, she had an accident
Speaker 3: in the parking lot outside the store after her trolley's
Speaker 3: wheels got stuck and she was sent flying and broke
Speaker 3: her wrist. And she said when they tried the parking
Speaker 3: attendant came to her assistance and went and called the manager,
Speaker 3: but the store manager said, we can't help because it
Speaker 3: happened outside the store and very painful recovery. Later, her
Speaker 3: mom did phone the landlord of the property and they
Speaker 3: pretty much or so she gave up. But Tracy says
Speaker 3: a week after the incident, the shopping center placed signage
Speaker 3: at the very point my mom fell with a sign
Speaker 3: had a falling person, a tumbling trolley and a warning
Speaker 3: or hazard sign. I mean, really, I mean, obviously that's
Speaker 3: rubbing salt into a very painful wound because it says
Speaker 3: that they obviously knew that there was a hazard there,
Speaker 3: that that was a danger to shoppers.
Speaker 5: Yes, and as far as I know, the if you're
Speaker 5: renting the the shop inside the shopping center, you also
Speaker 5: are often the tenant of the of the parking which
Speaker 5: is directly adjacent if you're huge. But I'm speaking under
Speaker 5: correction there, so I think that that may just have
Speaker 5: been an excuse to not avalid one. But when we'd
Speaker 5: have to check that out with with reference to the
Speaker 5: relevant lease, what I do want to say is that
Speaker 5: disclaimers is a whole nother layer, and the signage and
Speaker 5: the warning signage that was put up that Tracy was
Speaker 5: was speaking about is another relevant factor when trying to
Speaker 5: work out with you you're going to succeed with the
Speaker 5: claim if you've been the victim of a slip and
Speaker 5: trip or slipping for accident. Sorry about the flippant sounding
Speaker 5: uh called accident, but that unfortunately, that's that's what lawyers
Speaker 5: call it. So these disclaimers are are what attorneys and
Speaker 5: and we do recommend that if you have a shop
Speaker 5: or anything you're just open to the public, that you
Speaker 5: do have a disclaimer up and a warning notice up
Speaker 5: at the at the entrance. And these disclaimers can sometimes
Speaker 5: succeed in avoiding consumers being able to claim from you,
Speaker 5: and other times not. And it's quite a complicated thing
Speaker 5: whether they can or coun't. The reason that it's complicated
Speaker 5: is that the consumer Protection Act says that if there's
Speaker 5: a contract, and these disclaimers and warning signs are a
Speaker 5: type of contract between the public and the shop, these
Speaker 5: contracts have to only contain fair, reasonable and just contract terms,
Speaker 5: and must be drafted in plain language and must be
Speaker 5: drawn to your attention in a conspicuous manner before you
Speaker 5: gain access to the premises. So that's one of the
Speaker 5: reasons probably that the signage was out in the parking lot,
Speaker 5: right out in the parking lots. So then, so as
Speaker 5: I was saying, the poor judges have an invidious task
Speaker 5: sometimes to try and balance the rights of consumers and retailers.
Speaker 5: That the basic principle is that you cannot you cannot
Speaker 5: bypass a disclaimer as a as a as a business
Speaker 5: or you cannot rely on your disclaimer to bypass your
Speaker 5: response fundamental responsibility as a as a business owner or
Speaker 5: operator to take the reasonable steps to ensure that where
Speaker 5: the public is allowed to walk, that they can walk
Speaker 5: there with safety. So if that's not in place, no
Speaker 5: disclaimer is going to help you. It just provides a
Speaker 5: little bit of further ground for argument in court if
Speaker 5: there really is a situation where the consumer has a
Speaker 5: vallet case thanks.
Speaker 1: For that, truly. Please stay with us.
Speaker 3: We're going to take a very short break and then
Speaker 3: when we come back from this, we're going to switch
Speaker 3: slight focus away from injury to what happens in the
Speaker 3: case of damage in store. And we've had an interesting
Speaker 3: case study there from was it Gordon who got his
Speaker 3: genes replaced?
Speaker 1: Yeah, that's not what's happened. In the next case, we're
Speaker 1: going to take a look at talk WhatsApp seven to
Speaker 1: five six seven one five six seven.
Speaker 3: Right, Well, back to the subject of incidents in shopping stores,
Speaker 3: and let's switch the focus away from incidents where shoppers
Speaker 3: are injured to ones where damage to their belongings takes place.
Speaker 3: And Wendy, won't you just tell us about this week's
Speaker 3: second case, Stuffy?
Speaker 4: Sure? So. Just over two months ago, eighty two year
Speaker 4: old Margaret from Koumaki visited Micah Hardaway store in Fishok
Speaker 4: to buy paint.
Speaker 1: And a few other things.
Speaker 4: A salesperson helped her choose one liter type of paint,
Speaker 4: a little one, and offered to carry it to her
Speaker 4: to the till point for her. So he was walking
Speaker 4: in front of her when for some reason, the tub
Speaker 4: slipped from his hand and as it hit the floor,
Speaker 4: the lid popped off and white paint splattered onto Margaret's handbag.
Speaker 1: Pants, and shoes.
Speaker 4: Because she was right in the firing line an attempt
Speaker 4: by a store staff to clean her bags. They literally said,
Speaker 4: liver with us, will clean it. She couldn't take a
Speaker 4: clothes off, obviously, yeah, but she put They have a
Speaker 4: plastic bag and she put all the stuff in her
Speaker 4: handbag in that and she went home and they said, well,
Speaker 4: we'll return it to you. They did return the bag
Speaker 4: to her, but it was not an entirely successful clean
Speaker 4: up job. The paint was white and there was you know,
Speaker 4: still smudges visible. It wasn't ours. What kind of bag
Speaker 4: it was, We're not talking about a designer. She actually
Speaker 4: I said what kind of bag? I really wanted to know.
Speaker 4: Was it fabric?
Speaker 1: Was leat?
Speaker 4: Then she said it's foley there. So it was not
Speaker 4: a very expensive hand bag in the scheme of things.
Speaker 4: But so she was given you know, laterally it was like, yeah,
Speaker 4: he has your compensation five hundred rand and not just
Speaker 4: five hundred rand cash, five hundred grand voucher for the store.
Speaker 4: And then she said she's already bought what she needed, and.
Speaker 1: You can't buy replacement trainers, pants.
Speaker 4: Or bag of plica the brands that she had. I
Speaker 4: think the shoes were sketches, but her.
Speaker 3: Estimate was that the damage is total to about two
Speaker 3: and a half thousand rands in total by the time
Speaker 3: you taggied up the shoes, the pants and the bag.
Speaker 3: So she wasn't happy with the offer of take your
Speaker 3: store voucher for five hundred rand because she said to us,
Speaker 3: that doesn't help her resolve the issue that she's sitting
Speaker 3: with through no fault of her own. Where do you
Speaker 3: reached out to the short store tell us about that engagement?
Speaker 4: Sure, so I called the store and I was put
Speaker 4: through to the owner and he, you know, I wanted
Speaker 4: to point out that the voucher was not under the
Speaker 4: circumstances appropriate compensation. I said, Margaret had no part in
Speaker 4: what happened. The staff member made a mistake, as we
Speaker 4: all do from time to time. The cost of replacing
Speaker 4: the items is about two and a half thousand rand
Speaker 4: in total, which in the scheme of things these kinds
Speaker 4: of incidents is modest, right for three items of clothing.
Speaker 4: And I said, are you willing to cancel that voucher
Speaker 4: and give Margaret a cash amount of two and a
Speaker 4: half thousand in order to settle this matter appropriately. I
Speaker 4: added that Margaret did still have the ruined clothing and
Speaker 4: question and you know if they wanted to verify any
Speaker 4: replacement estimations. He responded, well, he initially said I had
Speaker 4: to had to be in person. I said, that's a
Speaker 4: rather long drive for me. It's not a reasonable request.
Speaker 4: We can do this on the phone, and we could
Speaker 4: do it over email. He said he couldn't read verify
Speaker 4: me over the phone, so could I send an email?
Speaker 4: Which I did right and then I got a response
Speaker 4: saying my.
Speaker 6: Yeah.
Speaker 4: He said he asked for photos of the clothing items,
Speaker 4: the not the handbag, but the pants and the shoes.
Speaker 4: He said the tracksuit, pants and shoes were not reported
Speaker 4: in the store only afterwards and that and only a
Speaker 4: week later. My staff went out of their way to
Speaker 4: assist and the customers more than happy at the time,
Speaker 4: only to then later report a further issue. I prefer
Speaker 4: face to face meetings. Then I know exactly who I'm
Speaker 4: dealing with and it can be dressed immediately. As I
Speaker 4: had the photos which Margaret had sent me, I fowarded
Speaker 4: them on and I repeated my question about him, was
Speaker 4: he willing to pay that fairly modest amount to Margaret?
Speaker 4: And as we sit here, I did say it would
Speaker 4: have to be before one o'clock. And I don't see
Speaker 4: a response from him. So this is this case is ongoing.
Speaker 3: Let's just bring Trudy back in at this point because
Speaker 3: she's still with us listening in and Trudy, thank you.
Speaker 3: There's the final few minutes we'll ask of you before
Speaker 3: we let you get back to your real job. In
Speaker 3: a case like this, and we've heard a couple of others.
Speaker 3: Now we had the case of the genes that were ripped.
Speaker 3: I've had Williams saying his puffer jacket was was damaged
Speaker 3: by the edge of a sharp edge of a metal
Speaker 3: strip in a store as well. In a case like this,
Speaker 3: is the store liable to compensate for the damage? And
Speaker 3: you know, are they how much are they liable to compensate?
Speaker 3: Do they need to if you're wearing an old pair
Speaker 3: of jeans, do they need to buy you a new
Speaker 3: pair of jeans to replace them, or your second ad
Speaker 3: page to replace them?
Speaker 1: How does it work?
Speaker 5: Okay, So the basic principle is that where you are negligent,
Speaker 5: and negligence can be a proactive action or it can
Speaker 5: be an omission, and that can also be the way
Speaker 5: in which your environment is set up. Like the sharp
Speaker 5: piece of meat. All of those could indicate neglegends, and
Speaker 5: negligence is where you fall short of the required standard
Speaker 5: of care that one should have for especially if you're
Speaker 5: a retailer and you allow members of the public into
Speaker 5: your space, then there's a standard of care where you
Speaker 5: need to be careful to look out for other safety. Okay,
Speaker 5: so as soon as these negligence, and to my mind
Speaker 5: it's Christal clear in all three cases the genes, the
Speaker 5: plant paints, planters situation, and the sharp piece of metal
Speaker 5: that there was neglegends. In that case, the law says
Speaker 5: that you must pay money to correct the situation as
Speaker 5: though you were never negligend. So if the shop had
Speaker 5: never been negligend, then Margaret would would still have her
Speaker 5: sketches and paints and a handbag that were clean and usable.
Speaker 5: That's not the case. The easy way to to to
Speaker 5: rEFInd her is with a new equivalent. That's strictly speaking,
Speaker 5: I suppose if those were all the clothes, the shop
Speaker 5: could require her to find an equivalent secondhand pair. Just
Speaker 5: for practical purposes, we replas with new things because those
Speaker 5: are easily accessible and and you can find them, and
Speaker 5: it's very difficult to find a secondhand equivalent of what
Speaker 5: you had. So and that's basically how how it plays out. Normally,
Speaker 5: if it's possible to repair the goods that were that
Speaker 5: were damaged as a result of the neck legends, the
Speaker 5: shop is only liable for a repair if that repair
Speaker 5: renders the goods as good as they were before the
Speaker 5: neg legends kicked in. So one doesn't I mean, you're
Speaker 5: not require to walk around with a stained handbag or
Speaker 5: you know, clear clothing or whatever. Yeah, in that case
Speaker 5: they must replace it with a new equivalent.
Speaker 4: I should say that the the what I could see
Speaker 4: in the photographs of the pants and the shoes is
Speaker 4: that they're not It's not just a huge artistic sort of.
Speaker 1: Splatter pollock these spots.
Speaker 4: But I mean, I wouldn't be happy to walk around
Speaker 4: with spots of paint on my clothing. It would they
Speaker 4: wouldn't wouldn't feel the same to me. And do you
Speaker 4: think it's a reasonable expectation that they get replaced because
Speaker 4: they are stained.
Speaker 3: Okay, truly, I want to say such a huge thank
Speaker 3: you to you for giving such a big chunk of
Speaker 3: your time to us the softernoon in bits and pieces
Speaker 3: as well.
Speaker 1: We so appreciate your.
Speaker 3: Patients in bearing with us and as always appreciate your
Speaker 3: advice to our listeners.
Speaker 1: Thanks for joining us.
Speaker 5: Thanks for no problem at all. If I can say
Speaker 5: to you to Margaret, go to the Small Claims Court
Speaker 5: or report the matter to the Office of the Consumer Protector,
Speaker 5: which you can find under the provincial government's website, you
Speaker 5: can just drop an email to them and they'll start
Speaker 5: investigating a free of charge for all of us taxpayers
Speaker 5: in the Western cap make use of the service and
Speaker 5: these a newly formed consumer Affairs Tribunal which will hear
Speaker 5: the matter if it isn't resolved by the Office of
Speaker 5: the Consumer Protector, and all of that should play out
Speaker 5: with art you needing lawyers or anything like that.
Speaker 3: Thank you so much for that helpful advice as well.
Speaker 3: Consumer attorney Trudy Brookman Well, a huge thank you to
Speaker 3: Wendy Nola as always, and reminder that if you want
Speaker 3: to lodge a case with her, the best thing to
Speaker 3: do is go to her website Wendynola dot co dot
Speaker 3: z spelt k nw l e er and fill out
Speaker 3: the contact form there, which really will prompt you for
Speaker 3: all of the information that is needed. Wendy will chat
Speaker 3: again next week Wednesday.
Speaker 1: Well, thanks,