A Pick n Pay store failed to keep shelves safe, a court says – now it must pay

A franchised Pick n Pay store in Hartebeespoortdam, owned the company Robispec, is liable for the injury suffered by a shopper when a rack collapsed in April 2017, the high court in Johannesburg ruled.

The store had argued it should not be held responsible, at least not entirely, because shopper Bradly Stearns had hit the rack with his trolley – and should not have tried to catch it when it collapsed.

Stearn ruptured a bicep in the process.

But a slow-moving, empty trolley should not be able to knock over a rack, the court said, and Stearn's grab for the rack as it toppled – motivated by the fear that it could fall on someone else – was reasonable.

The Pick n Pay's approach to safety, on the other hand, was not reasonable in the court's estimation.

In six years the store's racks had never been formally inspected for wear and tear, and there was no plan for maintenance. Even once the falling rack had injured Stearns, it did nothing to fix the rest of its shelving.

Members of the public, said Judge Pieter Meyer, are entitled to expect shelves to be safe.

They were, apparently, not. An expert described the rack that collapsed as "an accident waiting to happen". An independent examination, long after the incident, showed racks not fastened, with missing components, and capable of swinging around.

Everyone agreed that Stearns was walking slowly with a still-empty trolley. Even so, he could have avoided touching the rack at all, the store said, or could have simply watched it fall.

Meyer did not agree, saying it was not reasonable to expect Stearns to anticipate bodily injury being caused by “bumping the rack slightly with his empty shopping trolley".

"The reasonable measures which could have been taken to prevent or minimise the risk of harm are obvious, and include having a formal procedure in place regarding safety inspections of the racks and shelves, regular physical inspections, and having a maintenance system in place by which any defects found are promptly repaired by appropriately qualified technicians," Meyer said in the judgment.

In not having such, the store was negligent, he said, and the store had created a dangerous situation.

The store also argued that it displays standard signs that disclaims liability, which it said created a contract that includes the phrase: "Pick n Pay will not be held responsible for any loss, damage or injury sustained on its premises."

Such "inconspicuous" fine-print disclaimers are not enough, Meyer said; disclaimers "should be pertinently brought to the attention of a customer".

A hearing to determine Stearns' damages will now resume.

Pick n Pay did not immediately respond to questions on the safety requirements for its franchisees.