1. Over the past two years, there has been a deluge of case law pertaining to liability arising

from “slip and trip” incidents.

2. In the most recent decision of Morrison v MSA Devco (Pty) Ltd (5229/2018) [2025]

ZAWCHC 21 (30 January 2025), the Western Cape High Court explained the following:

“[75] In casu, the Plaintiff emphasised that the disclaimer notices are on the front door of the restaurant immediately above the caution notice indicating that the floors may be slippery when wet. The Plaintiff and Mr Winspear reasonably expected to be notified that the floor was wet by the placing of wet floor notices on the floor.

It was asserted that if the Defendant displayed the wet floor notices on the wet floor inside the existing dining area, the disclaimer can be enforced.

Consequently, they argued that the Defendant should not be allowed to escape liability under the disclaimer.

[76] As previously stated, notwithstanding that the cleaning protocols were elucidated in detail, the actual person, namely, “the lady with the mop”, was not called to give evidence as she had apparently witnessed the incident and would have been in the best position to explain where the warning signs were placed when the floor was being mopped. It was explained that this is necessary as floors are slippery when wet, and to ensure the safety of customers and employers.

[77] Even if the doctrine of quasi-mutual consent finds application, and even if the wording of the disclaimer notice was written in plain language, was brought to the attention of the Plaintiff and was understood by the Plaintiff, it must be emphasised that a disclaimer is not an automatic legal shield, and must in my view, be evaluated in the context of the overall safety management of the premises. This approach aims to reshape how South African courts view disclaimer notices, emphasising reasonable safety over blanket exclusions of

liability.

[78] To my mind, the enforcement of an indemnity clause will depend on the facts of each case. The way I see it, the application of an indemnity clause is conditional upon it being established that the indemnifier took reasonable steps to guard against the incident from which it wishes to be indemnified. The authorities are clear that the Defendant has the duty to take reasonable steps to keep his premises reasonably safe at all times when members of the public may be using them. In my view, if the correct cleaning protocols were observed, the harm was reasonably preventable.”

3. In this matter, the Plaintiff had a meeting at the McDonald’s restaurant in Milnerton, Western Cape, to discuss work-related issues.

4. She slipped and fell inside the McDonald’s restaurant. Whilst she was getting up, she realised that the floor was damp because it had been recently washed.

5. As set out in the above quote, a disclaimer is not an automatic legal shield and must be evaluated in the context of the overall safety management of the premises.

6. The enforcement of an indemnity clause will depend on the facts of each case.

7. The application of the indemnity clause is conditional upon it being established that the entity occupying the premises took reasonable steps to guard against the incident from which it wished to be indemnified.

8. The court held that McDonald’s had the duty to take reasonable steps to keep its premises reasonably safe at all times when members of the public were using it.

9. The above judgment reaffirms the principle that where an insurer is relying on a disclaimer notice which contains an indemnity clause, evidence must be led regarding the steps that were taken by the insured to ensure the overall occupational health and safety management of the premises in that the insured took reasonable steps to guard against the incident from which it wishes to be indemnified.

10. This means that the insured will have to lead evidence regarding its cleaning protocols, the frequency with which it cleans its premises, the procedures adopted, evidence from the individuals that manage and maintain the premises, evidence from the cleaning company and individuals that clean the floor, and evidence regarding the position of the caution signs and the disclaimer notices.

11. It is no longer sufficient to simply rely on a disclaimer notice.