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Retailer liable after shopper hit by automated boom gate

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The customer was walking out when the arm of the boom came crashing down on her head.

A shopper who was injured when she was struck by an automated boom gate at the exit of a parking area. Picture: African News Agency (ANA)

Pretoria – Shopping retail giant Pick n Pay is liable for the damages caused to a shopper who was injured when she was struck by an automated boom gate at the exit of a parking area.

The customer was walking out when the arm of the boom came crashing down on her head.

The lower court in Durban earlier dismissed the damages claim instituted by Cherylene Pillay.

The court found that Pick n Pay could not be held accountable for the incident.

It was found that she should have never walked where she did in the first place.

The Pietermaritzburg High Court subsequently found in favour of Pillay and said the retailer was 100% liable to compensate her for damages.

Pick n Pay then turned to the Supreme Court of Appeal, but it too ruled that the retailer was in fact liable for the damages.

The judges of the Supreme Court found that Pick n Pay had a duty to ensure the safety of its shoppers. Pick n Pay argued that the car park route taken by Pillay was for vehicles, not pedestrians.

But the Supreme Court, in its judgment, said it must be emphasised that the path taken by Pillay that day on her way out of the shopping centre was the route of choice for shoppers with their trolleys.

Following the incident at the Pick n Pay Hypermarket in Durban North, certain safety measures were implemented to ensure the safety of shoppers.

The boom which struck Pillay on the head consisted of a 3m aluminium pole painted in white and red, which is fairly prominent.

The pole weighed 2.4kg. The box containing the mechanism of the boom is bright yellow and plainly visible.

The boom is on a pavement opposite an entrance to the shopping centre. There were bollards between the road and the pavement, to discourage pedestrians from walking in the road.

On December 10, 2015, Pillay and her colleague had finished shopping at the hypermarket and were walking on the road towards the parking area to the car.

They were engaged in conversation and Pillay said she was in a hurry and did not pay attention to her surroundings.

She looked straight ahead and did not see the boom in the vertical position. She said that had she seen it, she would not have walked under it.

The next moment, the boom descended and struck her and her colleague. While Pillay suffered concussion and a strain-sprain injury to her cervical spine as a result of the blow, her colleague suffered an injury to her eye.

Pillay said the retailer was negligent as the boom was positioned immediately adjacent to a popular pedestrian walkway.

She said its descent mechanism operated without due regard to the presence of pedestrians and there was no warning sign or sound to alert pedestrians to its danger.

She said Pick n Pay should have foreseen the possibility that the boom could cause injury to persons frequenting the shopping centre, and failed to take steps to guard against such an occurrence.

The retailer said it had implemented and maintained reasonable systems to ensure that the parking area was clear of obstacles and hazards, which would render it unsafe for the public. It was said that Pillay should have watched where she was walking.

The court heard that about three months before the incident, the boom had descended unexpectedly and struck another person, breaking the frame of his glasses. He, however, did not sustain injuries.

Meanwhile, a warning sign had been erected, warning pedestrians to be “cautious of the boom ahead”.

The Supreme Court said the retailer thus appreciated the risks and therefore afterwards erected the warning sign. It must consequently pay Pillay the damages she could prove she had suffered.

Pretoria News

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