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[2014] ZAGPJHC 404
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Mpshe v Passenger Rail Agency of SA (PRASA) (13/15939) [2014] ZAGPJHC 404 (21 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 13/15939
DATE:
21 NOVEMBER 2014
In
the matter between:
LIMAKATSO
MAMOTSEKANE SUSANNAH MPSHE
...............................
PLAINTIFF
V
PASSENGER
RAIL AGENCY OF SA
(PRASA)
...........................................
DEFENDANT
JUDGMENT
ANDREWS,
AJ
1.
The Plaintiff in this matter, a fare
paying train passenger, instituted action for payment of the sum of
R2,901,000 in damages arising
out of an incident where she was
allegedly pushed out of a train owned and/or managed and under the
control of the Defendant, and
sustained injuries. The trial was
confined to the issue of liability of the Defendant after the issues
of liability and quantum
were separated in terms of rule 33(4) at a
previous hearing, and the issue of quantum postponed
sine
die.
2.
The Plaintiff’s particulars of
claim state that on 22
nd
November
2012, she boarded one of the Defendant’s trains at Stretford
Station
en route
to Johannesburg station. The pleadings set out the details of her
claim extensively and I shall endeavour to summarise them as
follows.
3.
The Defendant owned and/or managed and
was in control of the train as well as the infrastructure, stations,
land and property supporting
the operation of the train (“associated
infrastructure.”) It was obliged to operate the train in a safe
and secure
manner, and to keep the associated infrastructure in a
safe and proper condition, pursuant to a written agreement concluded
by
the Defendant on 28
th
August 2000, the further terms of which are unknown to the Plaintiff.
4.
As a result of these facts the
Defendant owed the Plaintiff a duty of care to ensure that: the
condition of the train and/or
associated infrastructure did not pose
a danger to the Plaintiff; and/or adequate steps were taken to
prevent it from constituting
such a danger; and/or it was maintained
in a safe and proper condition. The duty also included the
taking of reasonable precautions
to ensure that the train did not
become overcrowded, the doors remained shut, adequate crowd control
was maintained, alternative
means existed for the passengers to
alight from the train as it had not stopped at a station, that the
Plaintiff did not become
dislodged from the coach and the incident
did not occur.
5.
The Plaintiff, in amended particulars
of claim, stated that the train came to a stop between Mlamlankunzi
Station and New Canada
Station. Where the train stopped,
the open coach doors and the many passengers caused her to fall from
the coach onto
the train tracks or area immediately adjacent to the
train tracks at a point between Mlamlankunzi Station and New Canada
Station
(hereafter referred to as ‘the incident’).
6.
As a result of the incident,
Plaintiff sustained bodily injuries including a left tibia fracture,
and had to be hospitalised; she
was disabled and disfigured and
suffered pain and loss of amenities of life which has given rise to
this claim.
7.
It was pleaded that the incident was
caused solely by the negligence of the driver of the train,
alternatively the conductor/guard
through their failure to avoid the
incident, when by the exercise of reasonable care they could and
should have done so. As regards
the driver it was pleaded that inter
alia he failed to stop at a station so commuters could safely
disembark from the train, he
allowed commuters to alight from the
train in a dangerous manner and failed to activate the stair
mechanism so that commuters could
alight safely. He failed to
pay due regard to train commuters in general and to the Plaintiff in
particular.
8.
Alternatively it was pleaded that
incident was caused solely by the negligence of the Defendant and/or
its employees acting in the
course and scope of their employment in
that they failed to prevent the incident from occurring when, by the
exercise of reasonable
care, they could have done so. Further that
they caused and/or allowed the condition of the train and
associated infrastructure
to pose a danger to commuters in general
and to the Plaintiff in particular, and/or failed to take any or
adequate steps to prevent
the train and/or associated infrastructure
from constituting such a danger, and failed to maintain the train
and/or the coach and/or
associated infrastructure in a safe and
proper condition and/or fail to take any or any reasonable
precautions to ensure the safety
of commuters in general and the
Plaintiff in particular, more particularly by failing to:
a.
maintain adequate crowd control in and
around the station, train and coach;
b.
ensure that the train, station and coach
did not become overcrowded;
c.
ensure that the doors of the coach remained
closed while the train was stationary between two stations;
d.
provide alternative means to alight from
the train as the train had not stopped at the platform; and ensure
that commuters in general
and the Plaintiff in particular did not
become dislodged from the coach;
9.
In breach of the duty of care
Defendant’s employees caused, or failed to prevent the train
and associated infrastructure from
posing a danger to the Plaintiff
and failed to prevent the incident from occurring. As a consequence
of the Defendant’s negligence
as aforesaid, alternatively the
breach of its duty of care, the Plaintiff suffered damages in the sum
of R2 901 000 for
which the Plaintiff holds the Defendant
liable. The action is therefore based on acts allegedly committed or
omitted by the Defendant
which are causally linked to the harm
suffered by the Plaintiff
10.
The Defendant placed most of the
Plaintiff’s averments in dispute and put the Plaintiff to the
proof thereof. It pleaded
that the Plaintiff had failed to
avoid injury where by reasonable care and skill she could and should
have done so; she attempted
to disembark from the train at an
unauthorised place, and she failed to disembark from the train at the
platform of the station.
It posed the question as to whether a
proprietor should be held liable for the misadventures of its
patrons.
11.
The Plaintiff testified, and the
evidence of Mr Luvuyo Tofile was also led. The Defendant led
the evidence of Mr Charles Stevens,
Mr Nkosana Mzwakali, Mr Thomson
Mudau and Ms Virginia Matona. The witnesses will be referred to
hereafter by their surnames.
Background facts
12.
It is common cause that the Plaintiff
travelled on train 9055 from Stretford station bound in the direction
of Johannesburg on 22
nd
November 2012. She embarked at around 15H00 and was due to arrive in
Mlamlankunzi approximately an hour later. After arriving at
Mlamlankunzi station it departed again and then came to a standstill
after leaving this station. Then passengers pulled the
doors
open and disembarked by jumping onto the ground next to the train.
There are no ladder staircases situated on any of the
passenger
coaches, only on the motor coaches. The Plaintiff also exited
the train and sustained injuries to her knees including
a fractured
left tibia. The manner in which she disembarked from the train was
disputed. She was assisted to get to Mlamlankunzi
station where
she was assisted further by two security guards. Her
details and a statement was taken from her in a
guard room. Some time
after 20H00 she was taken to Baragwanath Hospital. The train was
driven by Stevens and was staffed by a train
guard named Mzwakali,
who remained in the train in the rear coach, while Stevens and other
technicians attended to faults that
had arisen. The train was
eventually able to depart on its journey between 30 and 40 minutes
after it had stopped.
Whether the
Plaintiff jumped, or was pushed from the train.
13.
The following is a summary of the
Plaintiff’s evidence. The train stopped just past
Mlamlankunzi station after 16H00
and part of it was still next to the
platform of the station. After about five to ten minutes the
passengers pushed the doors
open and jumped onto the ground. At the
time the Plaintiff was standing and holding onto a steel bar about
1.2 meters from the
train coach door. At this point the
passengers were pushing one another and she tried to hold on, but was
weak and could
not do so because of the pushing. She was pushed
out of the passage where she was standing and out of the train door.
She
fell face forward, and was injured in the fall and could not walk
as a result. Two women who are unknown to her came
to her
aid. One stayed with her and the other went to get assistance,
bringing back two males whom she was told were security guards.
They
carried her to the Mlamlankunzi station and then interviewed her.
At the station she was in pain, dizzy and confused.
She did not
recall being interviewed by Ms Matona, a security guard. She stated
that she might have spoken to her but she was in
such pain that she
might not have taken note of her. About four hours after the
fall she was taken by ambulance to Baragwanath
Hospital.
14.
The Defendant’s witness, Mudau,
who was one of the security guards who assisted the Plaintiff that
night was not a witness
to the incident and did not provide any
clarity as to how the Plaintiff was injured. A sworn statement
by him indicated that
he arrived at 18H00 which is few hours after
the incident. It does not mention how the Plaintiff was hurt,
and merely states
that he was aware that commuters had jumped off a
stationary train nearby. However he testified that the
Plaintiff had informed
him that she had both jumped, and been pushed
off the train, which takes the matter no further. The fact that
he did not
indicate this information in his sworn statement raises
doubt as to the veracity of his evidence in court. His
explanation
as to why this highly relevant information was absent
from the statement was wanting. He explained that he did not
think
it was necessary to include that information in the statement.
He was trying to help the Plaintiff and hence omitted these
facts.
15.
Under cross examination he conceded
that he signed the sworn statement after the Plaintiff had already
filed her law suit, and about
six months after the event.
Counsel for the Plaintiff argued that the use of the word “Plaintiff”
throughout
the document to denote the Plaintiff suggests that it was
drafted by someone other than Mudau. When asked if he had any
evidence
to refute her claim that she was pushed off the train he
replied that he was not there and did not know that.
16.
Ms Matona an employee of PRASA Rail
Protection Service, was not a very credible witness. She
testified that she attended the
scene on the 22
nd
November 2012 around 19H00, interviewed the Plaintiff and completed a
report known as the Defendant’s “railway occurrence
liability report” which she read back to the Plaintiff who
confirmed that it was correct. However the report had the
appearance of having been drawn up
ex
post facto
ie after the Plaintiff had
already been taken to hospital, an event which according to her
evidence took place at round 20H00.
The detailed
description of the incident, including the fact that the Plaintiff
had been taken to hospital, was written in the
past tense and the
document was signed at New Canada station at 22H05, about two hours
after the Plaintiff had been taken by ambulance
from Mlamlankunzi
station to Baragwanath Hospital. It did not bear the
Plaintiff’s signature. It stated
in two places that the
Plaintiff was given medical treatment and then taken to Baragwanath
Hospital.
17.
This anomaly was explained by Ms Matona
as follows. Notwithstanding the fact that Plaintiff had not yet been
taken to hospital this
information was inserted by her on the form,
and read to the Plaintiff. New Canada station was
indicated as the place
where the statement was taken and incident was
reported because it was customary to write the section, not the
station where it
took place, on the report and Mlamlankunzi falls
under the New Canada section.
18.
Under cross examination she confirmed
that she was still at Mlamlamkunzi at 22h00, which is the time
indicated next to the
words “Place: New Canada” at the
end of the form (it states the time as 22H05). However
the report also
indicated in two different sections (sections 2 and
3) that she had left Mlamlankunzi Station at 20H30. She could
not confirm
that this entry on the report was incorrect.
19.
Apart from these discrepancies Ms
Matona’s description of the interview, in the report itself
seems tentative as to the version
that the Plaintiff jumped off the
train. She recorded in one place on the report that “she fell
from a train that was stationed
near New Canada. She was
jumping off, it’s when she sustained a broken knee.” It
seems improbable that Ms Matona
would have spent three hours at
Mlamlankunzi station attending to a matter of this nature which
involved filling in a form with
very little information about the
Plaintiff on it. As a result of the inconsistencies and
discrepancies I do not regard
the evidence of Ms Matona’s as to
her interview with the Plaintiff as credible.
20.
The Plaintiff’s evidence was
challenged extensively in cross examination on a number of bases. It
was put to her that her
version differed from that of the Defendant’s
witnesses in the following respects: whether the security guards
assisted her
to get from the train to the platform, the position of
the stationary train relative to Mlamlankunzi station, and the
presence
of Ms Matona, who allegedly took a statement from her.
It was also put to her that her evidence that she was dizzy and
confused
was not credible as she had not suffered a head injury and
these claims cast doubt over her version. She withstood detailed and
repetitive cross examination, and was in general a credible witness.
21.
She stated that she might have thought
both guards were male as they were wearing trousers. She stated
that her details were
taken, and then a statement was taken by two
security guards who assisted her, but it was not read back to her.
22.
Mudau’s evidence regarding the
taking down of a statement at the guard room sheds some light on his
and Ms Matona’s
respective roles in the interview.
He stated that he called Ms Matona (the “client”) and the
ambulance
after the Plaintiff had been brought to the guard room.
When she arrived Ms Matona took down the Plaintiff’s details.
He took a statement from the Plaintiff which he re wrote much later
as his sworn statement herein, at the request of investigators.
During the interview the Plaintiff explained to him in some detail
how the incident occurred and how she sustained her injury.
He
wrote it while she was in pain and crying. After the ambulance
had left he completed the statement; he and Matona did
not stop
writing. His first statement was handed to his supervisors.
23.
He testified that the Plaintiff had
waited in the guard room until the arrival of the ambulance.
She was very emotional,
crying in pain, as she had sustained an
injury to her knee. She had been assisted by two male commuters
initially, which
is consistent with her claim that she was assisted
by two men, although they were not initially security guards as she
alleged.
Mudau’s evidence indicated that Ms Matona only
took down the Plaintiff’s name and address. When
she did
so he wrote it down.
24.
This suggests that Ms Matona may have
played a more peripheral role at the interview than Mudau, and that
she also did administrative
work after the ambulance had left.
This is confirmed by the time (22H05) registered at the end of the
liability form that
she completed, and the fact that Mudau stated
that they continued writing after the Plaintiff had left. There
is a also a
note in the incident report at 20H57 which suggests
that at least some of Ms Matona’s administrative duties were
completed
by her much later in the day. The liability form does
not have very detailed information about the Plaintiff and certain
details could have been completed later by Ms Matona as appears to
have been the case from the time entered at the end of it.
25.
The Plaintiff’s evidence
differed from that of the Defendant’s two witnesses, Stevens
and Mzwakali as regards
the position of the train, but they somewhat
unsure of its exact position as well, placing it about 100 meters
away from the platform.
26.
Plaintiff’s version was that she
was confused and in pain and did not take note of Ms Matona is not
implausible in the circumstances.
Given that she had to wait
for approximately four hours in severe pain after sustaining a left
tibia fracture, and (according to
her evidence) without any food or
water being offered to her, and in a guard room on a station, before
being taken to hospital,
it is not surprising that she might have
omitted taken note of some of the details of the event, such as the
distance between the
train and the platform, and the gender and
identity of one of the security guards who took her name and address.
Similarly the
drawing of a negative inference because she did not
inform them of the state of crowding in the train should be
approached with
caution, and is not justifiable. I consider
that the above discrepancies were not sufficiently material to
incline me to
doubt that the Plaintiff was a truthful witness.
27.
The Plaintiff was of slight build and
she looked somewhat older than her biological age of 57 years.
She was described by
the witness Mudau at the time of the incident as
an “old lady” and described herself as elderly. Ms
Matona referred
to her as elderly. She stated that an old
person of her age would not likely disembark from a train by jumping
off
it. The Defendant’s witnesses estimated the distance
between the train door and the ground to have been a distance of
between
1.5 and 1.7 meters, onto unstable sloping gravel ballast.
Jumping off a train onto this terrain was likely to have been
risky
conduct for an older or frail person. She testified that her
intention had been to wait until the train was mobile again.
I find it implausible that a person of her age would have jumped off
a train considering the height of the train floor from the
ground and
the unstable and rugged terrain of the sloping gravel ballast below.
28.
The Plaintiff pleaded that the train
was overcrowded when the incident occurred, and defined this in her
evidence as a state where
passengers were sitting, standing, holding
onto strips and poles and there were “even more people beyond
the capacity of
the coach.” From Vereeniging
station it was already full and kept on taking more passengers.
She
was not able to state what the capacity of the passenger train
coach is, with reference to permissible numbers of passengers.
Under cross examination she referred to the train as both full and
overcrowded, and also referred to the fact that passengers were
getting off and on.
29.
She did not indicate that there were
persons hanging out of the open doors of the train, but her evidence
indicated that the train
was exceedingly full. It was so
crowded that she could not even move a short distance within the
train and that the passengers
were pressed so closely together that
they could feel each other’s every movement. This she
depicted by pressing the
palms of her open hands together. Her
description of the state of crowding in the respondent’s
afternoon trains was
also generally confirmed by the evidence of her
witness, Tofile, who testified that he had regularly caught a train
at the same
time as the 9055 over the last two years, although he
could not testify as to conditions on train 9055 when the incident
occurred
30.
Stevens did not expect a train running
outside of peak hours to be overcrowded, by which he meant persons
were hanging on to the
outside of the train or on the cowcatcher, but
stated that it could have become so as it was running late and it was
obviously
a possibility that it could have picked up passengers
waiting for other trains. He had nothing to gainsay the Plaintiff’s
evidence as to how crowded it was, as he did not go to her coach. He
in fact never saw the Plaintiff.
31.
Stevens and Mzwakali confirmed that
open doors on a train pose a danger to passengers whether the train
is mobile or stationary.
Stevens stated that in a very
full train, passengers near the door could be pushed out of the train
if others chose to disembark
by exiting a stationary train between
stations. Mzwakali stated that this may be possible and probable.
32.
I have no reason to doubt the
Plaintiff’s description of how crowded the train was and am
satisfied that that it was sufficiently
crowded that if it stopped
between stations and a throng of people disembarked by jumping out,
others standing near the doors could
be pushed out involuntarily.
33.
Stevens and Mzwakali, described events
such as the incident as occurring regularly when trains break down,
which is also not an
uncommon occurrence. Stevens in
particular described how passengers are inclined to leave a
stationary train first
in “drips and drabs” and then in
larger numbers. Mzwakali saw persons that day walking along the
track after
the train had broken down who could have numbered between
ten and fifty persons, and whom he assumed had climbed off the train.
34.
Having had regard to all the
evidence I consider it very probable that a surge of persons trying
to get off the train, which was
crowded to the extent described by
the Plaintiff, could have, and did push her along with it and out of
the train door after it
stopped after Mlamlankunzi station on the
22
nd
November 2012. Her version of the events that lead to her injury is
accepted as credible.
Evidence of the
driver and train guard regarding the incident.
35.
Stevens, whom I found to be a candid
and credible witness, testified that he had been employed for eight
years as a train driver
by the Defendant. He was responsible for the
safety of passengers when the train was moving between stations.
On the
22
nd
November
2012 he drove train 9055 from Braamfontein to Vereeniging and then
set off back again. On the way back from Vereeniging
the train
was not operating normally, and was running behind schedule. It
twice broke down and then completely failed just
after Mlamlankunzi
station, which is eighteen stations from Vereeniging. When it
first broke down he reset the fault on the
motor coach and drove the
train further, but then it broke down again and had to be reset on a
second motor coach. Then the
train arrived at Mlamlankunzi
station. There is a gradient after this station and if the
train is having problems the gradient
could affect it. Under
cross examination he stated that it was reasonable to foresee
problems with the uphill gradient with
this train.
36.
As it happens the train proceeded with
difficulty after Mlamlankunzi station and came to a standstill about
a train’s length
from it, which is where the incident
occurred. Stevens could not rectify the engine problem.
He called the train control
office to ensure that other trains were
informed that the train had stopped, to prevent a collision. He
then called for a
technician to be dispatched to reset the train.
He stepped out of the train and walked along the tracks to check the
problem.
The train had three motor coaches which he checked.
After the section manager had been dispatched to assist him, they
were able
to get the train moving normally again after a period of 30
to 40 minutes.
37.
When resetting the train Stevens was
required to remove the “control key” which de-energised
the train, causing the
air pressure that keeps the doors closed to
cease functioning. As a result the doors could easily be
opened.
The distance of the train floor from the ballast which
is the gravel of the tracks is about 1.6 to 1.7 meters. It was
not
at all safe to jump off a train. Train breakdowns are a
frequent occurrence, and he explained what would normally take place
as follows. He would initially communicate with the passengers
as they would ask him what was wrong with the train but after
a while
they would become agitated. Some passengers would remain calm
and others would start speaking to him in vulgar language,
directing
their anger at him and trying to get off the train. He would
not engage with them to stay on the train because
in his experience
this had absolutely no effect, and communicating with them would
hamper his attempts to get the train restarted.
38.
Most of the passengers would disembark
by climbing off the train and walking to other destinations along the
train tracks. On the
22
nd
November it was foreseeable that the passengers would disembark by
pulling the doors of the train open, after it had been stationary
for
any length of time. His duties were to focus on getting the
train back in working order and he did not consider communicating
with passengers to be one of his duties. In his experience the
impact that time spent on a stationary train had on passengers
was to
create discomfort for them.
39.
The passengers in this case opened the
doors and the majority exited the train. He stated that open
doors even on a stationary
train present a danger to passengers,
because it was “quite a drop” from train to the ground
below. If the coach
was really full and some passengers wanted
to exit and a throng was moving to the doors it could cause a danger
to passengers standing
near the doors. This was reasonable to
expect. People exiting a train which was stationary between
platforms presented a
danger to themselves and others. However
he did not regard this danger to be on a par with a fire, or other
emergency incident,
in that it was not out of the ordinary. In
an emergency he would have conducted himself differently. In
that case he
would have made passengers aware of what was going on,
and how it poses a danger to them and to train personnel. When
questioned
by the court as to what the difference was between this
situation and an emergency in the context of the dangers posed to
passengers
he was unable to explain the difference.
40.
The responsibility of the guard,
Mzwakali, was to ensure the safety of the passengers embarking and
disembarking from the trains
at the stations.
En
route
Stevens was the one who was
responsible for getting the passengers to safety. Stevens notified
the station nearby when the train
came to a standstill but did not
ask for additional guards, even though it was foreseeable that
passengers would leave the train
in a dangerous fashion, after they
had opened the train doors. There was nothing he
could do to stop them exiting
the train.
41.
During re-examination he stated that he
would have expected the passengers not to conduct themselves
recklessly, but to have conducted
themselves with due regard for
their own safety.
42.
Mzwakali, the train guard, who was
often an evasive witness and far less candid than Stevens,
nevertheless confirmed much of what
Stevens had said as to the
foreseeability of events that took place on train 9055 that day.
This included the likelihood
that passengers would disembark if
the train stopped between platforms and the fact that the train was
full. His evidence was that
the train experienced several problems
that day. The power was not reflecting well and it was not
working well, which had
a negative impact. It was not running
on schedule or as smoothly and efficiently as it would normally do.
43.
He speculated that the train might
have become less full as it was running behind schedule, and some
passengers may have been inclined
to get off and board other trains.
This contrasts with the view of Stevens that it could have become
overcrowded, under the
same circumstances. Neither of them
inspected the train when it left Mlamlankunzi station. Stevens
stated that he had
no facts to refute the plaintiff’s version
that it was overcrowded, and Mzwakali was evasive when the same
question was posed
to him. What is important is that in the
mind of Stevens, who took the decision to continue driving, it was
foreseeable that
the train was overcrowded, or at least had become
very full by this stage, because it was running behind schedule.
Liability of the
Defendant
44.
The Plaintiff’s claim is founded
in delict. The direct cause of the damages she suffered was
being pushed off the train
by unknown third parties. However,
she wishes to hold the Defendant liable because of the alleged
wrongful acts or omissions
of its employees when they were acting in
the course and scope of their employment. In order to succeed,
the applicant would
have to establish that:
a.
the Defendant’s employees owed a
legal duty to the applicant to protect her;
b.
they acted in breach of such a duty and did
so negligently;
c.
there was a causal connection between such
negligent breach of the duty and the damage suffered by the
applicant. (
Carmichele
v Minister of Safety and
Security
2001(4) SA 938 (CC) at [25];
The
legal duty to protect the Plaintiff
45.
Counsel
for the Plaintiff argued that the Defendant owed the Plaintiff, a
fare paying passenger, a duty of care. The duty
is owed to
persons to whom harm is foreseeable.
R
eferring
to the judgment of the
Constitutional
Court in Rail Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at 411, it was argued that Defendant is under a
constitutional duty to provide transport that is safe and secure for
commuters.
[1]
The
judgment in this matter had held that the Defendant has
an
obligation to ensure that reasonable measures are taken to provide
for the security of rail commuters whilst they are making
use of rail
transport services provided for and ensured by, respectively, the
first and second respondents (the first respondent
being the
predecessor to the Defendant in the present matter). Counsel
for the Plaintiff argued that although the harm to
her was
foreseeable the Defendant had done absolutely nothing to prevent the
acts which led to her injury and hence it was liable
to compensate
her for the injuries suffered.
Negligence
46.
The following summary of the applicable
legal principles was set out by van Heerden, AJA in
Minister
of Safety and Security and another v Rudman and another
[2004]
3 All SA 667
(SCA) at paragraph 65:
“
The
classic test for establishing the existence or otherwise of
negligence, quoted with approval in numerous decisions of this Court,
is that formulated by Holmes JA in
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-G.
“
For
the purposes of liability culpa arises if –
(a) a
diligens
paterfamilias
in the position of the Defendant –
(i) would foresee
the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b) the Defendant
failed to take such steps.
Whether
a
diligens paterfamilias
in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case. No hard and
fast basis can be laid down.
As
was emphasised by this Court in
Sea
Harvest Corporation (Pty) Ltd and another v Duncan Dock Cold Storage
(Pty) Limited and Another
:
2000 (1) SA 827 (SCA) paragraph
21-22 at 839G-840
in the following
terms:
‘
[21]
..it should not be overlooked that in the ultimate analysis the true
criterion for determining negligence is whether
in the particular
circumstances the conduct complained of falls short of the standard
of the reasonable person. Dividing the inquiry
into various stages,
however useful, is no more than an aid or guideline for resolving
this issue.
[22] It is
probably so that there can be no universally applicable formula which
will prove to be appropriate in every case . . .’
‘
. . .
it has been recognised that, while the precise or exact manner in
which the harm occurs need not be foreseeable,
the general manner of
its occurrence must indeed be reasonably foreseeable.’”
Foreseeability
and the breach of the duty of care.
47.
The incident leading to Plaintiff’s
injuries was defined in her particulars of claim as follows: “The
area where the
train stopped, the open coach doors and the many
passengers caused the Plaintiff to fall from the coach onto the train
tracks or
area immediately adjacent to the train tracks at a point
between these two stations.” It was pleaded
inter
alia
that Defendant owed the Plaintiff
a duty of care to ensure that the condition of the train and/or
associated infrastructure did
not pose a danger to the Plaintiff; and
that the incident did not occur.
48.
In this case as the evidence has shown
that harm to commuters standing near the doors of train coaches on a
very full train was
foreseeable if it broke down between stations.
The train was very full and by the time it the train left
Mlamlankunzi
station Stevens was aware of the fact that it was full
and could foresee that it could by then have become very full or even
overcrowded,
because it was running behind schedule.
49.
Stevens was aware of the fact that
passengers would experience discomfort and become frustrated when the
train stopped between stations.
He could foresee passengers getting
hurt if a throng tried to exit from a very full train. Mudau
stated that people fell
off trains belonging to the Respondent, on
four out of five days.
50.
After it broke down, and the control
key was removed which was required in order to reset the train, and
the doors could easily
be opened by passengers. Once the train
had stopped between stations for any length of time nothing Stevens
or Mzwakali could
do would stop passengers from pulling open the
doors and exiting the train, which they did on the day in question.
It was not only
foreseeable but inevitable that passengers would
attempt to disembark within a relatively short time after the train
had come to
a standstill between station
s.
51.
Stevens stated that open doors on a
train, stationary or moving represented a danger to passengers, and
passengers exiting between
platforms presented a danger to themselves
and others, although it was nothing out of the ordinary. It was
the norm. He considered
getting off the train in that way hazardous
by virtue of the drop of between 1.6 to 1.7 meters to the gravel
ballast below, and
the danger of walking along the ballast where
there were oncoming trains.
52.
Stevens, acting in the course and scope
of his employment as a train driver of 9055 foresaw that after the
train had broken down
twice and was facing an incline after
Mlamlankunzi station it might face further problems, and by this
I understand that there
was a foreseeable risk that it would break
down again. The Defendant’s trains according to both
Stevens and Mzwakali,
regularly break down.
When
probed by the court Stevens could not distinguish the danger posed to
passengers by mass disembarkation between stations under
these
circumstances, from an emergency. However he did not
remain at Mlamlankunzi station to effect, or arrange to
be effected,
repairs to the train to prevent this eventuality, and to allow
passengers to safely disembark should they have chosen
to do so. He
simply carried on drivi
ng.
Mlamlankunzi
is not a station as such, but a halt. However Stevens’
evidence was that it has a platform, and presumably
passengers could
safely disembark there.
Reasonable
measures.
53.
The essence of Plaintiff’s case
is that the incident was caused by employees of the Defendant, acting
within the course and
scope of their employment, who either caused
the train to pose a danger to commuters or had failed to take
reasonable steps to
prevent the incident.
Inter
alia
, they failed to operate the train
in a safe and proper condition, and/or to prevent the train from
constituting a danger, and to
ensure the safety of commuters in
general, when by the exercise of reasonable care they could and
should have done so. These acts
were causally linked to the
Plaintiff’s injury.
54.
A reasonable person in the position
Stevens found himself, facing an incline and foreseeing a further
train breakdown, where the
norm was for passengers to disembark from
the train and possibly injure themselves, especially when the train
was very full, would
have used common sense. He would not have
departed from Mlamlankunzi station before the condition of the train
was such that
he was confident that it was safe to do so. Stevens was
the person responsible for the safety of the passengers while driving
the
train between stations, and he confirmed this fact in his
evidence. He had an intimate knowledge of the train and the route.
He was able to call for assistance from a position in the vicinity of
Mlamlankunzi station. It is therefore reasonable to
infer that
he could have called for assistance on arrival at that station, when
he knew that the train now faced an incline. The
facts speak for
themselves. By the exercise of reasonable care he could have
prevented the incident.
55.
Stevens thus acted negligently. He
departed from Mlamlankunzi station when it was not safe to do so. In
so doing he set in motion
a chain of events which ended in the
Plaintiff being pushed off the train
Legal
causation and liability for the delicts of third parties.
56.
But for the actions of the Defendant’s
employees acting within the course and scope of their employment, the
Plaintiff would
not have been injured. Her injuries are
therefore factually causally linked to the Defendant’s
employees’ actions.
The second inquiry is whether the wrongful
act is linked sufficiently closely or directly to the loss for legal
liability to ensue,
or whether the loss is too remote. This is
basically a juridical problem in the solution of which considerations
of policy
may play a part, referred to sometimes as “legal
causation.” (See:
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) 700;
LAWSA Volume, 8
Delict,
paragraph 132).
57.
According to Corbett CJ, in
Standard Chartered Bank of Canada versus
Nedperm Bank Limited
[1994] ZASCA 146
;
1994 (4) SA 747
(A) at 765 A-B, the test for legal causation is:
"a
flexible one in which factors such as reasonable foreseeability,
directness, the absence or presence of a
novus actus interveniens
,
legal policy, reasonability, fairness and justice all play their
part.”
58.
The question arises whether the harm
caused to Plaintiff is too remote to impute to the Defendant. On this
issue Corbett CJ, in
OK Bazaars 1929 Ltd
versus Standard Bank of South Africa
Ltd 2003 (3) 688 (SCA) referred with approval to the following
summary by Fleming in the
Law of Torts
,
7
th
edition, at 173:
"The
problem involves the question whether, or as to what extent, the
Defendant should have to answer for the consequences
which his
conduct had actually helped to produce. As a matter of practical
politics, some limitation must be placed upon legal
responsibility,
because the consequences of an act theoretically stretch into
infinity. There must be a reasonable connection between
the harm
threatened and the harm done. This inquiry, unlike the first,
presents a much larger area of choice in which legal policy
and
accepted value judgments must be the final arbiter of what balance to
strike between the claim to full reparation for the loss
suffered by
innocent victim of another's culpable conduct and excessive burden
that would be imposed on human activity if a wrongdoer
were held to
on so for all the consequences of these default."
59.
The Plaintiff pleaded that her injuries
were caused solely by the negligence of the Defendant and/or its
employees acting within
the course and scope of their employment.
From the evidence it is clear that the direct cause of the
Plaintiff’s injuries
was the conduct of third party passengers
who pushed her off the train. During the presentation of
argument, counsel for
the Plaintiff sought to amend its pleadings to
include the wrongful acts of third parties. This application
was opposed by
the Defendant. It is not necessary for me to
consider this application for amendment as will become clear from the
paragraphs
that follow.
60.
The Defendant argued that it cannot be
held liable for the delicts of its patrons and has a reasonable
expectation that all passengers
would conduct themselves with due
regard for their own personal safety and the safety of others, and
that they would not endanger
themselves or others with reckless
conduct. Its liability is limited to instances where its
omissions are of such a nature
that it has failed to act positively
in circumstances in which it had a positive duty to act. In essence
the conduct of the passengers
was an intervening cause for which it
was not liable.
61.
As stated in
Van
Der Spuy v Minister of Correctional Services
2004 (2) SA 463
at 474 G:
"Although
a new intervening cause, such as the negligent or intentional
wrongful conduct of a third party may often result
in the harm
suffered being too remote, each case must be decided in the light of
its own particular facts and circumstances and
depending on the
facts, an intervening cause may also not break the chain of
causation.”
62.
The question as to whether an
intervening cause has broken the chain of causation was considered
by Nugent, JA in
OK Bazaars [1929] Ltd
Versus Standard Bank of South Africa Ltd
at 699 where the learned judge stated:
“
I
have already called attention to the fact that the test for legal
causation in general is a flexible one. When directed specifically
to
whether a new intervening cause should be regarded as having
interrupted the chain of causation (at least as a matter of law
if
not as a matter of fact) the foreseeability of the new acts occurring
will clearly play a prominent role.(
Joffe
and Co. Limited versus Hoskins and Another
1941 A.D. 431
at 455-6;
Finchback back
Versus Pretoria City Council
1969 (2)
SA 559
(T) at 560 6B-C,
Neethling et al
(supra at 205);
Boberg Law of Delict
at 441) if the new intervening cause is neither unusual nor
unexpected, and it was reasonably foreseeable that it might occur,
the original actor can have no reason to complain if it does not
relieve him of liability.”
63.
In the present case, the fact that
passengers would disembark and those standing near the doors on a
very full train could be pushed
off train if it stopped for any
length of time between stations was foreseeable. This was
according to the Defendant’s
two witnesses who were in charge
of the safety on the train, as driver and guard. The Defendant’s
conduct is therefore causally
linked to harm to passengers standing
near the coach doors who might be injured by being pushed off or
falling off the train in
these circumstances. It remains to be
determined whether this would include the Plaintiff.
Forseeability
of the specific harm to Plaintiff.
64.
The precise nature of the harm to
Plaintiff need not have been foreseen. As stated in
Kruger
v van der Merwe and Another
[1996] 2 SA
362
(A) at 366, the doctrine of foreseeability in relation to
the remoteness of damage does not require foresight as to the exact
nature and extent of the damage; cf.
American
Restatement of the Law, Torts
(Negligence), paragraph 435. It is sufficient if the person sought to
be held liable therefore should reasonably have foreseen
the general
nature of the harm that might, as a result of his conduct, befall
some person exposed to a risk of harm by such conduct.
65.
In the present case the harm suffered
by the Plaintiff fell within the general nature of foreseeable harm
under the circumstances
of the incident. In my view the general
manner of the harm suffered by the Plaintiff was reasonably
foreseeable. Her
evidence was that she was
standing
about 1.2 meters from the coach door, and that she fell face down.
She was an older person of slight build and was
pushed along by a
crowd very closely packed together in the train. Once the train
doors were open, it is readily apparent
that she was standing
sufficiently close to the doors that she need only have been pushed a
few paces to fall out of the open train
door and down a drop of over
1.5 -1.7 meters to the gravel below.
66.
Defendant contended that it had a
reasonable expectation that passengers would conduct themselves with
due regard to their personal
safety and would not endanger themselves
or other commuters with reckless conduct, this issue does not require
consideration in
the light of the above. It is also doubtful
whether such expectation can validly exist when the defendant itself
has been
less than responsible and has created a situation of great
discomfort for its passengers, when by the exercise of reasonable
measures
this could and should have been avoided. The evidence
of Mzwakali was that the train was not air conditioned. The
incident
occurred in the afternoon on a midsummer’s day. After
initially communicating with the passengers it was not Stevens’
practice to go on communicating with them as he thought this would
hamper his efforts to get the train to function.
Trains
regularly broke down. The train was very full. The passengers
were therefore cooped up in the heat facing an indeterminate
delay.
Stevens acknowledged that this would result in them experiencing
discomfort. Opening the unlocked doors and exiting
in these
circumstances is not conduct which is so reckless that it would allow
the defendant to escape liability.
Conclusion.
67.
The Plaintiff pleaded that the
Defendant owed her a duty of care to ensure that the condition of the
train and/or associated infrastructure
did not pose a danger to her
and that the incident did not occur. The evidence led establishes
that the final breakdown of the
train was an incident without which
Plaintiff would not have been injured, and that her injury was caused
by the driver’s
negligent conduct, through his failure to avoid
the incident.
68.
Defendant has a duty of care towards
its passengers, to ensure that all reasonable measures have been
taken to provide for their
safety whilst in transit making use of
rail transport services. By the exercise of reasonable care
Stevens could and should
have taken measures to avoid the incident
but failed to do so. While acting in the course and scope of his
employment, he failed
to pay due regard to train commuters in general
and to the Plaintiff in particular. The Plaintiff’s pleadings
were drafted
sufficiently widely for the Defendant to be held liable
for the injuries suffered by the Plaintiff during the incident on
this
basis.
69.
Much emphasis was placed in argument on
the alleged negligent omissions of the Defendant to prevent injury to
the Plaintiff after
the train had come to a halt. In the light of the
fact that liability has been established for the negligent acts
committed by
the driver it is not necessary to consider these
arguments. Apart from this it is also not necessary to consider the
application
to amend the pleadings.
I
make the following order
a.
The Defendant is liable to the Plaintiff
for the damages suffered as a result of the incident on 22
nd
November 2012 when she fell off one of the defendant’s trains;
b.
Costs to be paid by Defendant to the
Plaintiff on the scale as between party and party.
c.
The determination of the quantum herein is
postponed sine die.
A
ANDREWS
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
DATE
HEARD : 4
th
September 2014
DATE
DELIVERED : 21 November 2014
For
the Plaintiff : Adv Anderson
Instructed
by :.Mokoduo Attorneys
For
the Defendant : Adv Tisani
Instructed
by : Cliffe Decker HofmeyrInc
[1]
The
order in this matter stated as follows: “It is declared that
the first and second respondents have an obligation to
ensure that
reasonable measures are taken to provide for the security of rail
commuters whilst they are making use of rail transport
services
provided and ensured by, respectively, the first and second
respondents.”