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[2011] ZAGPJHC 160
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South African Rail Commuter Corporation Ltd v Somlotha (A5051/2010) [2011] ZAGPJHC 160 (9 November 2011)
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: A5051/2010
DATE:09/11/2011
In
the matter between:
SOUTH
AFIRCAN RAIL COMMUTER
…...............................................
Applicant
CORPORATION
LIMITED
and
SINDISWA
SOMLOTHA
.....................................................................
Respondent
JUDGMENT
MOKGOATLHENG
J
(1) The
respondent a 32 year old female security guard sued the appellant for
damages arising out of an incident in which she was
injured at the
New Era Station, on 24 October 2007. The trial proceeded only on the
issue of liability, after the parties obtained
a consent order
separating the issues of liability and quantum in terms of
Rule
33 (4) of the Uniform Rules
.
At the conclusion of the trial, the court-a-quo found that the
appellant’s negligence contributed to the injuries sustained
by
the respondent and consequently was liable for 50% of her proven
damages. The appeal is with the court-a-quo’s leave.
THE
FACTUAL MATRIX
(2) The
background facts are uncomplicated and largely undisputed. The
respondent is a regular commuter on the appellant’s
train
service. On that fateful afternoon she was on her way to work when
she boarded the train at Park Station.
When
the train approached New Era Station, she stood up, traversed the
passage and moved towards the coach door. It was difficult
for her to
make her way towards the door because the coach was full. There was
pushing and jostling in the coach passage.
She had not reached the coach
door when the train stopped. Some commuters managed to disembark
from the train. The train started
moving with the coach doors open.
The pushing was continuing, people were screaming trying to get the
train to stop. Because of
the noise in the coach, she did not hear
any whistle blowing or any warning indicating that the train was
going to pull off. She
does not know how she got out of the train,
but when she came to, she was lying on the platform. She does not how
she ended up
there.
(3) Ntuli testified on behalf of the
appellant that he is employed as a security guard. He and his
colleague Sindane performed security
duties at the New Era Station in
the middle of the specific platform. The train arrived on time at the
station and stopped. Commuters
disembarked from the train. Commuters
on the station boarded the train. A whistle was blown. The coach
doors were closed. The train
pulled off. Just as the train was
pulling off, he saw a male person and a female person struggling with
the coach door. Eventually
these two persons managed to open the
coach door. The male person jumped off first, thereafter a lady
jumped out as well, but unfortunately
she collided with a pole and
was injured.
THE
APPELLANT’S ALLEGED NEGLIGENCE
(4) The
negligence attributed to the appellant is that “
it
allowed the train to be set in motion without ensuring that the doors
of the train and coach in which the respondent was travelling
were
closed before the train was set in motion,……the
appellant allowed the coach of the train in which the respondent
was
travelling to be overcrowded and which resulted in the respondent
being pushed out of the train,…….. and appellant
allowed the train to move with open doors and failed to take any
alternative, adequate steps to prevent the train from moving with
open doors”.
(5) The
test by which delictual liability is determined is trite. It
encapsulates, depending upon the particular exigencies of each
case,
the question whether;
(a) a
reasonable person in the appellant’s position would foresee the
reasonable possibility of its servants conduct causing
harm resulting
in patrimonial loss to another;
(b) would
take reasonable steps to avert the risk of such harm; and
(c) the
appellant failed to take such steps.
(6)
It is trite that not every act or omission which causes harm is
actionable in delict. In order for liability for patrimonial
loss to
arise, the negligent act or omission must be wrongful. It follows
that it is the reasonableness or otherwise of imposing
liability for
such a negligent act or omission determines whether such negligence
or omission can be regarded as wrongful.
(7) The
onus to prove negligence reposed on the respondent and objectively
requires more than merely proving that the risk of harm
to her was
reasonably foreseeable and that a reasonable person would have taken
measures to prevent the risk of such harm. The
respondent must adduce
cogent credible evidence regarding the reasonable measures which
could have been taken by the appellant
to prevent or minimise the
risk of such harm.
(8) It
is settled that the appellant carries a positive obligation to
implement reasonable measures to ensure the safety of rail
commuters
who travel on its trains. Failure to implement such obligation must
give rise to delictual liability where, as was pleaded
here, the risk
of harm to commuters resulting from falling out of crowded trains
running with open doors is eminently foreseeable.
(9) The
question which remains for determination is whether on the evidence
that the respondent fell and sustained injury as a result
of her
disembarkation from a moving train with its doors open, she
discharged the onus resting upon her, of proving on a balance
of
probabilities that the appellant was negligent, bearing in mind that
whether or not such conduct constitutes negligence ultimately
depends
upon a realistic and sensible judicial approach to all the relevant
facts and circumstances. See
Transnet
Limited t/a Metro Rail and the South African Rail Commuter
Corporation Limited v David Witter
[2008] ZASCA 95
;
2008 (6) SA 549
SCA,
2009 (1) ALL
SA 164.
(10) The court-a-quo correctly identified
that
“The essential and
narrow question is whether the sliding doors of the coach were
properly closed before the train was set
in motion
”.
Further the court-a-quo correctly opined that the appellant has been
held to be negligent where it sets in motion a train
whilst the
sliding doors of the coaches are not properly closed. It followed
that there would be no negligence on the part of the
appellant at all
if the sliding doors were closed when the train was set in motion and
the doors were forcibly opened, as contended
for by the appellants
witness Ntuli.
(11) It is trite that where there are two
mutually destructive versions the respondent can only succeed if she
satisfies the court
on a preponderance of probabilities that her
version is true and accurate and therefore acceptable. In deciding
whether such evidence
is true or not the court will weigh up and test
the respondent’s allegations against the general probabilities.
The estimate
of the credibility of the witness will therefore be
inextricably bound up with a consideration of the probabilities of
the case
and, if the balance of probabilities favours the respondent,
then the court will accept her version as being probably true. If,
however, the probabilities are evenly balanced in the sense that they
do not favour the respondent’s case any more than they
do the
appellant’s, the respondent can only succeed if the court
nevertheless believes her and is satisfied that her evidence
is true
and that Ntuli’s version is false.
National
Employers’ General Insurance Co Ltd v Jagers
1984 (4) SA 437
(ECD) at 440E – 441H
.
(12) Regarding the credibility of witnesses
in factual disputes it is instructive to have regard to the ratio, in
Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et
Cie and Others
2003 (1) SA 11
(SCA) at 141 – 15D
where it was held:
“
The technique generally employed
by courts in resolving factual disputes of this [irreconcilable]
nature may conveniently be summarised
as follows. To come to a
conclusion on the disputed issues a court must make findings on
(a) the credibility of the various
factual witnesses;
(b) their reliability; and
(c) the probabilities.
“As to (a), the courts finding on
the credibility of a particular witness will depend on its impression
about the veracity
of the witness. That in turn will depend on a
variety of subsidiary factors, not necessarily in order of
importance, such as
(i) the witness’ candour and
demeanor in the witness box;
(ii) his bias, latent and blatant;
(iii) internal contradictions in his
evidence;
(iv) external contradictions with what
was pleaded or put on his behalf, or with established fact or with
his own extracurial statements
or actions;
(vi) the probability or improbability
and particular aspects of his version;
(vi) the calibre and cogency of his
performance compared to that of other witnesses testifying about the
same incident or events.
As to (b), a witness’ reliability
will depend, apart from the factors mentioned under (a)(ii), (iv) and
(v) above, on
(i) the opportunities he had to
experience or observe the event in question; and
(ii) the quality, integrity and
independence of his recall thereof.
As to (c), this necessitates an analysis
and evaluation of the probability or improbability of each party’s
version on each
of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step,
determine whether
the party burdened with the onus of proof has
succeeded in discharging it.”
(13) Mr Ferreira’s argument on behalf
of the appellant, is that the respondent has failed to discharge the
onus resting on
her because there is a
lacuna
in her evidence in that she cannot explain to the court how she
disembarked from the coach and landed on the platform. Counsel’s
argument misconceives the objective reality that it is common cause
that the train was set in motion with the specific coach doors
open,
consequently, the appellant’s servant was negligent in setting
the train in motion with the coach doors open. Its conduct
is
ineluctably the contributory cause to the respondent falling off the
train and onto the platform.
(14) I cannot find fault with the
court-a-quo’s reasoning and findings in its evaluation of
Ntuli’s evidence. I repeat
the court-a-quo’s dealing with
such evidence verbatim for purposes of emphasis:
“
During cross examination his
attention was drawn firstly to two statements that he had made as
well as other documents conyained
in the bundle. His attention was
drawn, firstly, to exhibit “B” a statement that he made
at the time of the incident.
In that statement no mention is made of
there being any forcible opening of the doors by passengers as he
contended in his evidence.
All that he stated was that the Plaintiff
disembarked from the moving train. The following day Ntuli was
required to submit a more
comprehensive statement under oath to Metro
Rail Protection Services; this document is exhibit “C”.
Here (to) no mention
is made of the alleged forcible opening of the
doors, he merely mentions that whilst patrolling on the 24 October
2007 he came
across a woman who was embarking (sic) from a moving
train. When confronted with these two statements Ntuli was unable to
satisfactorily
explain the omission. He sought to explain that he was
told by Metro Rail what to put into the statement, a highly
improbable and
improper suggestion.
In my view if Ntuli had indeed witnessed
persons forcibly opening the sliding doors and exiting the train as
he described in evidence
he would have mentioned this in the
statements exhibits “B” and “C”. These are
not mere omissions which
are irrelevant and which can be overlooked,
they are material omissions.
Ntuli’s
attention was also drawn to a statement made by an official named
More, exhibit “D”. The official concerned
made a written
statement… under which Ntuli’s signature appears. Here
to (sic) it is merely stated that the injured
person was disembarking
from the moving train and no mention is made of the forcible opening
of doors….
Another material aspect which in my view
impacts on the integrity of Mr Ntuli is his omission in the statement
to refer to the fact
that at the time of the incident he was
accompanied by another security guard one Sindane, who witnessed
what, had occurred. In
exhibit “B” he was specifically
required to indicate whether there were other witnesses to the
occurrence… He
deliberately omitted to refer to Sindane’s
presence in the statement. When asked to explain this he gave
contradictory versions.
He first said that he inserted the words not
applicable (N/A) at the appropriate place where there is a reference
to other witnesses,
because Sindane was shocked and was in no
position to give a statement. He later testified that according to
Metro Rail training
that he had received it was not necessary for him
to refer to a witness who was a colleague of his or who worked with
him, but
rather to other witnesses.
His evidence in this regard cannot be
accepted. Given the very significant omission to which I have
referred, particularly concerning
the forcible opening of the doors.
The only inference to be drawn is that all that Ntuli witnessed in
fact, was the Plaintiff disembarking
from the train whilst it was in
motion and that he did not at the time see persons male and female
struggling with the door or
attempting to open the door or opening
the door as contended for in his evidence in chief…
It was
put to the Plaintiff that Ntuli would testify that after the train
was set in motion there was a wrestling with doors, a
man then jumped
off and was followed by a woman the Plaintiff. It was not put by
counsel for the Defendant to the Plaintiff that
she caused the door
of the coach to open or assisted another person to open the coach, as
is alleged in the pleadings, the Defendant’s
plea and in
Ntuli’s evidence in chief…
The fact that the Plaintiff exited or
disembarked from the train shortly after it was set in motion through
the sliding doors of
the coach is a clear indication, on the
probabilities, that the door was open and remained open when the
train was set in motion.
In the circumstances, having regard to
the probabilities, the evidence and the credibility findings which I
have made, I find that
the Defendant was indeed negligent, the
negligence being that it allowed the train to be set in motion
without ensuring that the
doors of the train and coach in which the
Plaintiff was travelling were closed…”
(14) The plaintiff testified consistently
that the doors were open from Germiston Station to where the train
arrived at the New
Era Station and remained open when the train was
set in motion. She then says that she does not recall what happened
thereafter.
The only substantial criticism levelled against the
respondent is that she did not respond adequately to the appellant’s
version when put by counsel. Apart from that aspect there is no
reason why the respondent’s version that the doors were open
should be rejected.”
(15) A court of appeal is generally
reluctant to disturb findings of fact which depend on credibility. It
is trite that it will
do so where such findings are plainly wrong
Santam Bpk v Biddulph
2004 (5)
SA 486
(SCA) at 589E-G.
Having regard to the judgment of the Court-a-quo and the reasoning
followed by it in coming to its findings there are no grounds
upon
which it can cogently be argued that its finding are wrong
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 705 – 706; Protea
Assurance Co Ltd v Casey
1970 (2) SA 643
(A) at 648D-E; Munster
Estate (Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) at
623F-624A.
(16) In addition, an aspect which seemed to
have escaped the court-a-quo as well as counsel, is the content of
paragraph 2
in the report made by Ntuli Exhibit “B”.
Paragraph
2
deals with the particulars of
the person completing the report who happens to be Ntuli himself. The
question is asked whether he
was a “
witness
to the occurrence
”. The
answer to this question is indicated by a cross with a “
No
”.
Ntuli did not therefore regard himself as capable of being a witness
to the occurrence, yet he testified as if he witnessed
the whole
event. This inconsistency is, in my view, very material to the
veracity of his evidence. In my view, the court’s
credibility
finding of Ntuli as an unsatisfactory witness cannot be upset nor the
finding that the probabilities were in favour
of the respondent’s
version.
(17) The court-a-quo correctly,
made
the finding that the evidence does not establish that the respondent
was pushed and fell because the coach was overcrowded,
and
correctly came to the conclusion that the respondent’s version
that she walked off the train while the doors were open without
having forced them open, is more probable.
(18) The court-a-quo also correctly made a
credibility finding against Ntuli that the latter’s version
that the doors were
closed when the train moved off and that the
doors were forced open by another gentleman and the plaintiff was to
be rejected as
improbable. The court-a-quo correctly disbelieved the
evidence of Ntuli since his version was only mentioned for the first
time
at the trial. In an affidavit previously made to his superiors
as well as in the accident form filled in by him, no mention was
made
of the fact that the doors were forced open.
(19) The court-a-quo correctly applied the
applicable legal principles to the facts and I cannot find any fault
with the court-a-quo’s
analysis, evaluations, findings of fact
and its conclusions regarding the credibility of the evidence of the
appellant’s
witness Ntuli.
(20) In my view causative negligence was
established. Mr Ferreira conceded that he cannot credibly assail the
court-a-quo’s
application of its judicial discretion regarding
the apportionment of contributory negligence. Consequently, it is not
necessary
to deal with this aspect as an issue in this appeal, save
to state that the court-a-quo exercised its judicial discretion
properly
and did not misdirect itself in its assessment of
contributory negligence.
(21) I therefore make the following order:
The appeal is dismissed with costs.
Dated and signed at Johannesburg on the
9
th
November 2011.
___________________
D.R.
MOKGOATLHENG
JUDGE OF THE HIGH COURT
I, agree ___________________
W.L.
WEPENER
JUDGE OF THE HIGH COURT
I, agree, and it is so ordered
_____________________
C.J.
CLAASSEN
JUDGE OF THE HIGH COURT