About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2015
>>
[2015] ZASCA 49
|
|
Yende v Passenger Rail Agency of South Africa (39/2014) [2015] ZASCA 49 (27 March 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 39/2014
NOT
REPORTABLE
In
the matter between:
YENDE:
MHLONISHWA
LUCKY
.................................................................................
APPELLANT
and
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
................................................
RESPONDENT
Neutral
citation:
Yende v Passenger Rail
Agency of South Africa (
39/2014
[2015]
ZASCA 49
(27 March 2015)
Coram:
Cachalia, Bosielo, Zondi JJA, Van der Merwe and
Mayat AJJA
Heard:
11 March 2015
Delivered: 27
March 2015
Summary:
Delict – Negligence –
appellant allegedly falling off train departing from station –
whether negligence on the
part of respondent proved.
ORDER
On
appeal from Gauteng Local Division, Johannesburg (Sutherland J
sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Cachalia
JA and Mayat AJA (Zondi JA and Van der Merwe AJA concurring)
[1]
The primary issue in the present appeal, brought with the leave of
the court a quo (Sutherland J) is whether or not the appellant
(the
plaintiff in the court a quo), Mr Lucky Mhlonishwa Yende, discharged
the onus of proving before the trial court that the respondent
(PRASA) was delictually liable for the bodily injuries sustained by
Mr Yende at the Elsburg railway station (the station) on 24
March
2005. The
court a quo
found that PRASA was negligent because the procedure followed by the
guard relating to a train departing from the station was unsafe,
but
that such negligence was not causally connected to Mr Yende’s
injuries. Mr Yende appeals against the order dismissing
his claim
with leave of the trial court.
[2]
Mr Yende’s pleaded case was that he was injured as a result of
PRASA’s negligence in one or more of several respects.
Specifically, he averred that a train he was boarding at the station
had jerked and started to move, causing him to lose balance
and to
fall under the train. He alleged that PRASA had been negligent in
failing to take adequate precautions at the time to prevent
passengers from being injured by a moving train, when by the exercise
of reasonable care it could and should have done so. However,
he
pleaded no facts as to what precautionary steps PRASA ought to have
taken.
[3]
Mr Yende was the sole witness who testified on how he had been
injured. He stated that he had been waiting for a train, and
standing
about a meter from the edge of the platform, when a train arrived and
stopped at the station. His brother, who was
in front of him,
immediately boarded the train. He followed at the same time, but as
he stepped onto one of the carriages, the
train jerked and began
moving out of the station. The sudden and unexpected movement caused
him to lose his balance. He fell backwards
onto the platform and does
not know how he ended up on the railway tracks. As a result of his
fall he sustained injuries to the
back of his head, to his shoulder
and to his arm. Sadly, his right arm had to be amputated.
[4]
The platform where the appellant boarded is curved, concave to the
railway line, a fact that was central to the trial court’s
finding that the guard adopted a negligent procedure when signalling
for the train’s departure from the station. The guard,
Ms
Juwulwa, testified that after the train had stopped at the station,
she caused the doors of the carriages to be opened by pressing
a
button meant for this purpose. She stepped off the rear end of the
train onto the platform and walked a few meters away from
the train
from where she was able to observe the full length of the train
beyond the curve of the platform. From this vantage point
she was
able to detect whether commuters had stopped embarking or
disembarking. Once she was satisfied that there were no more
commuters going on board or coming down from a bridge on the
platform, she blew her whistle as a warning to any commuters, and
then made her way back to the guard’s carriage. From there she
was not able to see the front part of the train because it
was
obscured by the curve in the platform. She closed the doors of the
train and signalled for its departure. The driver then set
the train
in motion.
[5]
The fundamental dispute between the versions of the two parties was
that on Mr Yende’s version the train began departing
from the
station prematurely (almost immediately after it arrived at the
station), barely allowing any time for the commuters to
board.
The testimony of PRASA’s employees was that a full 45 seconds
elapsed between the train’s arrival and
the point at which it
began departing from the station. This was confirmed by a train
control official, Mr Underhay, who
had completed a log book on 24
March 2005 recording arrival and departure times of trains at the
station. On this crucial issue,
characterized by the trial court as
‘the question of timing’, the court accepted PRASA’s
version and rejected
Mr Yende’s testimony as implausible. It
found that Mr Yende sought to bolster his version by introducing a
false corroborating
witness – his brother – to confirm
that he was with him when they attempted to board the train. The
consequence of
this finding was that there was simply no explanation
before the court as to what happened.
[6]
Counsel for Mr Yende was constrained to concede that the court was
correct in its finding that the train must have stopped for
at least
45 seconds, before departing from the station. Despite this he sought
to persuade us that Mr Yende could only have been
injured because the
doors probably remained open when the train departed, causing him to
fall out. He asked us to take judicial
notice of the fact that people
do get injured on trains in this manner, and that therefore Mr
Yende’s injuries were probably
sustained because of PRASA’s
fault.
[8]
The submission in this regard is utterly without merit, for it
amounts to a plea that the court can impose a form of strict
liability on PRASA that jettisons the fault requirement, which lies
at the heart of delictual liability. Once the court rejected
Mr
Yende’s version, there was no other explanation based on the
evidence for what happened to him or how he sustained his
injuries.
That ought to have been the end of the matter.
[9]
Nevertheless, the court embarked on an enquiry as to whether PRASA’s
procedure relating to the way it deals with the situation
on a curved
platform at the station was reasonable. The court said that when the
guard returns to the coach to signal, a large
part of the train is
unsighted and when the doors are closed the guard relies on
assumptions. These assumptions are that the hydraulic
system is
working, that all the doors have been closed and that no one has
arrived at the last second to get onto the train. The
way to ensure
that problems do not arise, the court said, was to have a second
person at the curved platform standing where the
guard would have
been standing with her whistle, in order to signal that all is safe,
the doors can be closed and the train may
depart. The employment of a
second person to perform this task at the station, said the court,
would ‘enable (PRASA) to deal
with the habitual problem of
commuters on trains behaving irresponsibly and trying to hop on at
the last moment.’ The trial
court thus concluded that PRASA was
negligent in the way it dealt with this situation on the curved
platform at the station.
[10]
However, after finding that PRASA was negligent relating to the
procedure the guard followed at the curved platform, the learned
judge concluded that in the absence of a plausible account of how Mr
Yende came to fall under the train, it was not possible to
conclude
that this negligence was causally connected to his injuries. In
arriving at this conclusion, the learned judge was no
doubt correct,
but this begs the question as to how PRASA could have been found to
be negligent at all when the appellant had not
presented a plausible
account before the court.
[11]
It seems that the court a quo arrived at this conclusion by
considering PRASA’s conduct in the abstract because there
was
no plausible version for how the harm was actually caused. But
negligence in our law cannot be determined in the abstract,
without
reference to the foreseeable consequences it produces, for it is only
consequences that are foreseeable against which the
reasonable person
should take precautions. In the instant matter, we do not know how
the harm was caused. It was therefore not
possible to find
foreseeable harm, which a reasonable person in the position of PRASA
would have been expected to take steps to
prevent.
[1]
In the circumstances, Mr Yende did not discharge the onus of proving
negligence either.
[12]
For all these reasons, the trial court was correct to dismiss Mr
Yende’s claim and the appeal must fail. The following
order is
accordingly made:
The
appeal is dismissed with costs.
Bosielo
JA:
[13]
I have had the benefit of reading the judgment by my Colleagues,
Cachalia JA and Mayat AJA. I regret the fact that I do not
agree with
both their reasoning and finding. These are my reasons for parting
ways with them.
[14]
As my two colleagues have dealt with the factual matrix of the case
quite extensively, I will avoid rehashing the same facts
except where
it is necessary to shed more light on my reasoning.
[15]
Essentially my colleagues find that as the court below had found the
appellant (Mr Yende) not to be a credible witness and
rejected his
entire evidence, this automatically meant that there was no version
to consider. They hold further that as Mr Yende
bore the onus of
proof, the court below should have found that he had failed to make a
case against the respondent (PRASA) on negligence.
As a result, my
colleagues hold that this should have been the end of the matter. I
do not agree.
[16]
I disagree with my colleagues on their finding that the court below
erred in finding negligence on the part of PRASA. The following
background facts are necessary to explain my dissent. The issue
on appeal was the finding by the court below that there was
no causal
link between alleged negligence on the part of PRASA and the injuries
sustained by the appellant.
[17]
My colleagues criticise the reasoning and finding by the court below
on negligence. Essentially they hold at para 1 (supra)
that, having
found the appellant not to be a credible witness thus rejecting his
version, the court below should have found that
Mr Yende had failed
in discharging the onus of proving that PRASA was delictually liable
for the bodily injuries he sustained at
the Elsburg railway station
on 24 March 2005. This is how they express themselves at para 8
above:
‘
Once
the court rejected the appellant’s version, there was no other
explanation based on the evidence for what happened to
Mr Yende or
how he sustained his injuries. That ought to have been the end of the
matter.’
[18]
However, that did not happen because PRASA, testified through the
train guard Ms Juwula (Juwulwa), the protection officer,
Mr Molefe
(Molefe) and Mr Underhay (Underhay), the train control officer. Based
on PRASA’s version, the court below found
that Juwulwa did not
act like a reasonable train guard on the ill-fated day. It found her
conduct to constitute negligence.
[19]
This is how the court below expressed itself in finding PRASA
negligent:
‘
It
seems to me self- evident that the particular procedure followed by
her, which I accept is the prescribed procedure, has some
serious
flaws. This particular train did not have a conductor and by way of
contrast there was therefore no one who could have
signalled from,
say, the middle of the train that there was no one arriving or
getting onto the train. Thus when she moved from
the spot where she
blows her whistle, the doors are still open and she has to rely on
her assumption about the reliability of the
hydraulic system to close
all the doors before the train leaves the station. All this is done
unsighted. Obviously, the way to
make sure this is not done unsighted
is to have a second person at a curved platform station standing
where she would have been
standing with her whistle, in order to
signal to her that all remains safe throughout the door closing and
departure process. The
importance of this is self- evident. In my
view such a procedure would enable the defendant to be a position to
deal with what
is a habitual problem of commuters on trains behaving
irresponsibly and trying to hop on at the last moment. A somewhat
spirited
debate arose about whether or not this particular procedure
was itself of such a nature that the defendant could be accused of
negligence. In my view the answer to that question can be
unequivocally answered that the defendant is indeed negligent in the
way it proceeds to deal with this situation on a curved station.’
[20]
Notwithstanding having found PRASA to have been negligent, the court
below dismissed Mr Yende’s claim on the basis that
there was no
causal nexus between PRASA’s negligent behaviour and the
damages sustained by Yende. My colleagues agree with
the court below
that causation was not proved. They find that it was not possible for
it to find a reasonable harm, which a reasonable
person in PRASA’s
position would have been expected to take steps to guard against. I
do not agree.
[21]
Grappling with the intractable question of causation the
Constitutional Court seized the opportunity in
Lee v Minister of
Correctional Services
2013 (2) SA 144
(CC) paras 40-41 and
enunciated the correct legal approach to causation as follows:
‘
Although
different theories have developed on causation, the one frequently
employed by courts in determining factual causation
is the
conditio
sine qua non
theory or but-for test.
This test is not without problems, especially when determining
whether a specific omission caused a certain
consequence. According
to this test the enquiry to determine causal link, put in its
simplest formulation, is whether ‘one
fact follows from
another’. The test –
“
may
involve the metal elimination of the wrongful conduct and the
substitution of a hypothetical course of lawful conduct and the
posing of the question as to whether upon such an hypothesis
plaintiff’s loss would have ensued or not. If it would in any
event have ensued, then the wrongful conduct was not a cause of the
plaintiff’s loss; [otherwise] it would not so have ensued.
If
the wrongful act is shown in this way not to be a
causa
sine qua non
of the loss suffered, then
no legal liability can arise.”
In
the case of “positive” conduct or commission on the part
of the defendant, the conduct is mentally removed to determine
whether the relevant consequence would still have resulted. However,
in the case of an omission the but-for test requires that
a
hypothetical positive act be inserted in the particular set of facts,
the so-called mental removal of the defendant’s omission.
This
means that reasonable conduct of the defendant would be inserted into
the set of facts. However, as will be shown in detail
later, the rule
regarding the application of the test in positive acts and omission
cases is not inflexible. There are cases in
which the strict
application of the rule would result in an injustice, hence a
requirement for flexibility. The other reason is
because it is not
always easy to draw the line between a positive act and an omission.
Indeed there is no magic formula by which
one can generally establish
a causal nexus. The existence of the nexus will be dependent on the
facts of a particular case.’
[22]
I interpose to restate the salutary warning given by the
Constitutional Court in
Lee
(supra) para 73 where it stated:
‘
Our
law has always recognised that the but-for test should not be applied
inflexibly. A court ultimately has to make a finding as
to whether
causation was established on a balance of probabilities on the facts
of each specific case.’
[23]
The following salient facts cannot be disputed; that Mr Yende was at
the railway station on the ill-fated day; that he attempted
to board
a train that was in motion already; the train guard never saw him
before she sounded the whistle for the train driver
to put the train
in motion; he was only seen by the train guard whilst already lying
on the railway tracks and, importantly, that
he sustained the
injuries reflected on the medical report at Elsburg railway station
on 24 March 2005.
[24]
What is not clear from the evidence is how Mr Yende got injured as
there is serious paucity of evidence. To resolve this, we
have to ask
ourselves the question: given everyday life experience what could
have happened? Is it probable that he flew himself
against a moving
train with its doors closed? Unless he was drunk or mad, this sounds
patently preposterous. The converse thereof
is: is it not probable
that the train doors were open, that Mr Yende was late for the train
and tried to board it whilst it was
already in motion? And further
that in the process he lost his balance and fell down into the rail
tracks and got injured in that
process? To my mind, this appears to
be most likely scenario which accords with common sense and the
probabilities.
[25]
Applying the time-worn ‘but for’ test to the facts of
this matter flexibly as we have been cautioned to by the
Constitutional Court in
Lee
(supra), I fail to see how one cannot find that, but for the failure
of the train guard to make sure that all the doors were closed
before
the train got into motion; the inability of the train guard to see
beyond the curve to ensure that no person including Mr
Yende was
still attempting to board the train when she blew the whistle for the
train driver to put the train in motion; and for
her, notwithstanding
this, to give a signal to the train driver to put the train in
motion, such conduct constitutes a direct and
immediate cause of Mr
Yende’s injuries.
[26]
The Constitutional Court expounded the ‘but for’ test
further as follows in
Lee
(supra) at para 46:
‘
In
Kakamas
[2]
it was stated that “(c)ausality often raises difficult legal
questions which cannot always be answered by strict adherence
to
logic. Recourse may sometimes be had to what [the House of Lords]
called the laws ‘empirical or common-sense view of causation’”.
In
Siman
[3]
the minority judgment noted that “(f)inally, as in other
problems relating to causation in delict in applying the ‘but
for’ test the court should not overlook the importance of
applying common sense standards to the facts of the case”’.
[27]
Whilst dealing with the same problem, this Court held in
Minster
of Finance & others v Gore NO
2007 (1) SA 111
(SCA) that:
‘
Application
of the ‘but-for’ test is not based on mathematics, pure
science or philosophy. It is a matter of common
sense, based on the
practical way in which the ordinary person’s mind works against
the background of everyday life experiences.’
[28]
Most recently, Nugent JA put it even more succinctly in
Minister
of Safety and Security v Van Duivenboden
[4]
as follows:
‘
A
plaintiff is not required to establish a causal link with certainty,
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than the metaphysics.’
[29]
Common sense and simple logic dictates to me that had it not been of
PRASA’s negligence, Mr Yende would not have been
injured by the
train in the manner it did. I am fortified in my view by the fact
that there is no evidence that he was injured
elsewhere and not by
PRASA’s train at Elsburg railway station on the ill-fated day.
Significantly, there is no evidence or
suggestion that there were any
concurrent or supervening causes of wrongful acts by other agents
other than PRASA which could have
caused his injuries. I am satisfied
that there’s clear evidence of a causal nexus between Mr
Yende’s injuries and PRASA’s
negligence. It follows that
I disagree with the finding by the court below.
[30]
This brings me to the final aspect of this case. Whether on Mr
Yende’s version, he did not make himself guilty of contributory
negligence. If one accepts as the most plausible or likely hypothesis
which accords with common sense and everyday life experience,
that he
was injured whilst trying to board a train that was in motion
already, then there can be no doubt that he acted negligently
as his
actions deviated markedly from that of a reasonable man. Furthermore,
there is no doubt that his negligence contributed
causally to his
injuries. To my mind, there is therefore a clear basis for
apportionment of damages based on his contributory negligence.
[31]
I now turn to determine the extent of Mr Yende’s contributory
negligence. This is no easy task as this cannot be the
subject of
pure mathematical calculations. The difficulty is that there is no
set standard to determine apportionment. It is trite
that such an
enquiry involves a careful consideration of all the facts and a
measure of individual judgment and discretion. Inevitably,
there will
always be a difference of opinions by different minds.
[5]
In the circumstances, I think that it would be fair and equitable to
reduce the appellant’s damages by 50%.
[32]
In the result, I would uphold the appeal with costs and order the
respondent to pay 50% of the appellant’s proven damages.
Majority
judgment:
____________________
A
Cachalia
Judge
of Appeal
___________________
H Mayat
Acting
Judge of Appeal
Dissenting:
____________________
L
O Bosielo
Judge
of Appeal
Appearances
For
the Appellants: I Smith
Instructed
by:
P
D Yazbek, Johannesburg
Lovius
Block, Bloemfontein
For the Respondent:
T J Bruinders SC
Instructed
by:
Jerry Nkeli &
Associates Inc, Johannesburg
Webbers,
Bloemfontein
[1]
See
generally Boberg PQR
The
Law of Delict
(1991)
274-279.
[2]
Kakamas
Bestuursraad v Louw
1960 (2) SA 202
(A) at 220B-C.
[3]
Siman
& Co (Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888 (A).
[4]
Minister
of Safety and Security v Van Duivenboden
(209/2001)
[2002] ZASCA 79
;
[2002] 3 All SA 741
(SCA) at 917H-918A.
[5]
South
British Insurance Co Ltd v Smit
1962
(3) SA 826
at 837F-838A.