Beyond the disclaimer sign: mitigating slip-and-fall liability in public spaces

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The purpose of the disclaimer notice is to protect the owners of the store or public facility, plus their employees, from liability for injuries members of the public may suffer while using the space, with slip-and-fall incidents and their accompanying damages claims the primary concern.

Slip-and-fall incidents may seem innocuous but the ease with which they can happen, and the consequences of a serious slip-and-fall incident can cause business owners and employees serious legal challenges.

Furthermore, while most slip-and-fall incidents are accidental, the risk of opportunists seeking a payout to avoid legal action is ever present.

The challenge clients face is while it may be economically more sensible to pay a claim versus engaging the services of a legal team, a single payout for a slip-and-fall incident can set a precedent.

Should a settlement become public knowledge, the likelihood of more incidents occurring increases significantly.

Understanding and appreciating the legislation and common law governing disclaimer signs is key to mitigating the risk of delictual and other liability arising from slip-and-fall incidents.

The legislative framework and common law governing slip-and-fall claims and disclaimer signs

The primary legislation governing slip-and-fall claims for businesses with an asset value or turnover of up to R2m (CPA threshold) is the Consumer Protection Act (CPA).

The CPA sets out the requirements for disclaimer signs to be valid and enforceable.

These requirements are that signs are:

• conspicuous and highly visible;
  
• written in plain language; and
  
• give the public notice before they enter a facility or engage in a transaction.

Critically, disclaimer signs are not a silver bullet for all claims that could arise from a slip-and-fall incident.

A valid disclaimer sign does not protect a business owner from liability if the damage is caused by gross negligence or is unfair, unjust or unreasonable.

For example, a disclaimer sign will not absolve a business owner of liability for injuries and damages arising from a failure to rectify a clear defect in the facility’s floor or not addressing a roof leak that causes a puddle that leads to a person slipping and falling.

The liability of business owners exceeding the CPA threshold is assessed in accordance with the South African law of delict. In this regard, the injured party must prove that the business owner owed them a duty of care, breached that duty, and caused their injury as a result.

In addition, the injured party will need to prove traditional common law elements of delict including negligence, causation and damage.

Notably, South African courts have infused CPA requirements into the common law requirements for delictual liability and vice-versa (see for instance Lombard v McDonald’s Wingtop (2020)).

Case law concerning slip and fall incidents is also evolving.

As recently as 2024, the High Court in Bloemfontein ruled in Pieterse v FLM SA (Pty) Ltd and Others against a plaintiff (Pieterse), who claimed damages from the defendant (FLM) for bodily injuries sustained from a fall on the passage way leading into a store.

Pieterse argued that FLM's disclaimer notice did not absolve it of liability as FLM had been negligent in failing to fix and maintain the uneven paving outside their premises. The court ultimately decided that the presence of a valid disclaimer notice and the paving appearing to be in “fair” condition negated claims of negligence.

A key takeaway is a claim’s burden of proof resting with the claimant, and members of the public being responsible for their safety to a reasonable degree.

The unique nature of business operations and commercial contractual relationships adds a layer of complexity to the liability considerations. Indeed, the managers of a business may find themselves personally and vicariously liable for the actions of their employees.

Furthermore, where incidents occur on "common property" outside the business premises, such as in the FLM case above, liability may fall upon a landlord or property management company.

Simple tips to reduce slip and fall liability beyond a legally compliant disclaimer notice

The best way for clients to avoid the most severe legal consequences of a slip-and-fall incident is to foster an approach that emphasises prevention and treats the disclaimer sign as a risk mitigation measure rather than an impenetrable shield against liability.

In our experience, the clients most likely to be adversely affected by slip-and-fall incidents are those who overemphasise external risk mitigation rather than detailed focus on day-to-day operations.

Have staff received the appropriate training? Does a good relationship exist between management and staff, including the shop steward? What security measures exist to provide objective evidence if an incident occurs? How often is maintenance performed in and outside the premises? Do staff possess the appropriate signage and equipment to perform their roles well?

Proactive clients “stress test” their facilities for slip-and-fall and operational liability through engaging in the services of a workplace inspector specialising in health and safety. Often, all it takes is an objective assessment from an external party to reveal blind spots that workers and managers may not be aware of to snuff out highly preventable liability.

Has your business been stress-tested? If not, a proactive approach to liability may be the missing piece in mitigating the risk of slip-and-fall claims.