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[2015] ZAGPJHC 22
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Macheke and Another v Passenger Rail Agency of South Africa (2013/16571) [2015] ZAGPJHC 22 (9 February 2015)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO.2013/16571
DATE: 09 FEBRUARY 2015
In the matter between:
SOLOMON OUPA
MACHEKE
........................................................................................
First
Plaintiff
GRANT
MACHEKE
......................................................................................................
Second
Plaintiff
And
PASSENGER RAIL AGENCY OF SOUTH
AFRICA
..........................................................
Defendant
Judgment
SIWENDU,
AJ:
INTRODUCTION
[1]
The first plaintiff, Solomon Macheke
('Solomon')
and the second plaintiff, Grant Macheke
('Grant')
institute
proceedings against the defendant, Passenger Rail Agency of South
Africa
('PRASA')
arising out of a train accident at Dube Station.
[2]
For the sake of convenience, the plaintiffs will
be referred to by their first names
'Solomon'
and
'Grant'
respectively throughout the judgment and the defendant will be
referred to as
'PRASA'
.
[3]
On or about 10 September 2012,
'Grant'
was injured as a result of the accident and his legs had to be
amputated. He was eighteen (18) years old. He claims
damages in the amounts set out in the summons.
[4]
At the commencement of the proceedings,
'PRASA'
moved an application for separation of the determination of the
merits of the claim (liability) from the determination of quantum
pursuant to an agreement between the parties. Based on the
preliminary assessment of the facts of the case, the court ruled
that
the determination of quantum is not inextricably linked to findings
on the merits. In the result, the application for
separation
was granted in terms of Rule 33(4) on the basis that over and above
the determination of liability, the court would
determine whether or
not there had been contributory negligence on the part of
'Grant'
and if found to exist, the degree thereof.
[5]
Only those aspects of the particulars of claim
relative to the alleged breach of duty to the safety and security of
the public as
well as those relating to
'PRASA's
alleged negligence are referred to in this
judgment.
[6]
In the particulars of claim, the plaintiffs plead
that
'PRASA'
, is
obliged to render a rail commuter service in the public interest in
terms of the provisions of the South African Transport
Services Act 9 of 1989. It is obliged to do
so in terms of all statutory obligations and regulations
applicable
to
'PRASA'
as well as
implement policies, procedures and measures to ensure the safety of
the public making use of such a service.
[7]
The plaintiffs claim that such measures by
'PRASA'
must ensure
against reasonably foreseeable risks of bodily injury to or death of
members of the public making use of the service
arising from the
operation of the trains and ancillary activities, and require that
'PRASA'
monitors the
effectiveness of these measures.
[1]
[8]
The plaintiffs claim further that flowing from
'PRASA'
s legal
obligation, is a duty of care owed to the public to ensure that
safety, adequate control of individuals acting in a dangerous,
unsafe
or criminal manner, minimization of unsafe conduct, installation of
warning signs warning of potential dangers, appropriate
barriers and
installation of such barriers
[2]
,
including proper and adequate demarcation of potentially dangerous
areas, amongst others.
[3]
It is alleged that
'PRASA'
was in breach of this duty of care.
[9]
Over and above this, the plaintiffs plead that
'PRASA'
was negligent
in that:
(a)
It failed to ensure the safety of members of the
public in general, by safeguarding the rail tracks from the public,
by erecting
a boundary wall around the rail tracks;
(b)
It failed to employ employees, alternatively,
failed to employ an adequate number of employees to guarantee the
safety of pedestrians
in general and
'Grant'
in particular on the platform and/or its surroundings where he was
walking;
(c)
It failed to employ employees, alternatively,
failed to employ an adequate number of employees to prevent
pedestrians from crossing
the rail tracks and in particular
'Grant'
who was crossing towards the veld; and
(d)
It neglected to employ security staff on the
platform and/or the area around the rail tracks where
'Grant'
was walking to ensure the safety of the public in general and the
minor.
[10]
'PRASA'
disputes that
it is liable for the injuries suffered by
'Grant'
and conceded neither the duty of care
allegedly owed to
'Grant'
nor the negligence alleged. In particular,
'PRASA'
submits that in the event that the court finds that it had breached
its duty of care to
'Grant'
,
this breach was not causally related to the accident.
MATTERS THAT BECAME COMMON CAUSE
[11]
The following matters were common cause between
the parties namely that
'Grant'
:
(a)
suffers from a bi-polar mental condition and
receives treatment for the condition. He had taken the
medication at approximately
07:00 am the morning of the accident and
had left his home in Dube for school at approximately 07:35 am.
(b)
He was not a commuter at the time of the
accident. He had utilised the pedestrian/passenger bridge that
links Dube township
to Meadowlands township to cross over on route to
Veritas High School which is situated in Meadowlands.
(c)
The side effects of the medication would
cause him to struggle to breath and talk. The medication left
his mouth wide
open, presumably locking his jaws.
(d)
The manner of the driving or operation of the
train was not contested.
[12]
On the day in question when he experienced these
side effects he had already gone over the pedestrian bridge
above the station
to the Meadowlands side of the station but had
decided to take a 'short cut' back to Dube hence why he went
across the railway
tracks to get to the shops on the Dube side of the
station.
[13]
The area surrounding the railway tracks near the
station had been fenced but this fence was broken and pedestrians
could walk through
the fence across the railway tracks. This
fence had since been replaced with a palisade fence by
'PRASA'
.
[14]
Security guards employed by
'PRASA'
were stationed at the Dube station on the day of the accident.
EVALUATION
OF THE EVIDENCE
[15]
The only evidence led on the merits of the claim
was that of
'Grant'
and his father
'Solomon'
.
'PRASA'
closed its
case without calling witnesses.
[16]
Various exhibits depicting the layout of the Dube
Station as well as those of surrounding stations were submitted to
the court.
Both parties agreed that the layout of the station
depicted in
'Exhibit E3'
of the defendant's bundle of documents was the correct representation
of Dube Station at the time of the accident.
[17]
A notice of objection had been served on the
plaintiffs relative to the admission of photographs at
page
14
of the
Plaintiff's
Amended Merits Bundle 'B'
, marked photograph
'F'
. Accordingly
these were not considered into evidence.
[18]
The plaintiffs and defendant part ways with
regards to the exact place where the accident allegedly occurred.
[4]
[19]
'PRASA'
alleges that
the accident occurred approximately sixty eight meters (68m) away
from the edge of the station platform. It submits
that this is where
'Grant'
was first seen
by the security guards the morning of the accident. In contrast, the
plaintiffs allege that the accident occurred
approximately one
hundred and two meters (102 m) away from the edge of the
platform of the station.
[20]
Utilizing
'Exhibit E3'
,
'PRASA'
places
'Grant'
and the accident along that portion of the station that is cordoned
off, while
'Grant'
places himself and the accident along that portion of the station
where the fencing ends. It had not been disputed that the palisade
fencing in
'Exhibit E3'
was installed after the accident and that previously it had been in
disrepair, thus allowing pedestrians to access the area and
cross the
railway tracks.
[21]
In his evidence in chief,
'Grant'
testified that on the day in question at approximately 07:00 am he
had taken his bi-polar medication. He had left his home in Dube
at
approximately 07:35 am, travelled along streets and over the Dube
railway station pedestrian bridge, which links Dube and Meadowlands
townships. This was his routine route to school.
[22]
After crossing the bridge he had experienced
side effects caused by the medication which resulted in
breathing difficulties
leaving his mouth wide open consequently
making it difficult to speak.
[23]
He testified further that whenever he experienced
these side effects, he found that once he ate 'hard cakes' they
diminished
and/or were alleviated. On the day in question, he
had already crossed the pedestrian bridge when he experienced the
side effects.
He decided to return to the Dube side of the
station as he needed to access the tuck shops and/or hawkers on the
Dube side of the
station to buy 'hard cakes' to alleviate his
symptoms. He testified that he elected to use a 'short cut'
by walking
across the railway tracks instead of utilizing the bridge
at the station as he was going to be late for school.
[24]
After crossing the Dube Station bridge, on
reaching the railway tracks, he testified that he saw a stationary
train at the platform
and commuters were alighting. He had been
crossing the railway tracks when he heard a loud noise. He was
shocked by the noise
and found himself underneath the train.
[25]
The following material matters arose from
'Grant's
testimony
during cross examination. There was a time difference of
approximately forty (40) minutes between the time he alleges
to have
crossed the accident point of impact and the occurrence of the actual
accident. The accident was recorded to have
occurred at 08:20
am. He had testified in his evidence in chief that his school
commenced at 07:50 am. He had crossed
the station well before
school commenced. When pressed to explain this discrepancy, he
testified that he had not paid attention
to the time and therefore
could not dispute the recorded time of the accident. This is
inconsistent with his evidence in
chief and the rationale he provided
for taking the 'short cut'.
[26]
The second aspect relates to
'Grant's
emotional and mental health. The
version put by
'PRASA'
to
'Grant'
was that he
had not intended to go to school on the day and the accident had been
as a result of a suicide attempt.
'Grant'
had allegedly been seen by
'PRASA's
security
guards sitting across the point of accident
[5]
that morning. It was put to him that this was inconsistent with
his evidence in chief and the intention to go to school.
[27]
It was also put to him that when his father
attended the accident scene he had informed and/or intimated to the
security guards
of
'Grant's
suicide attempt(s). The allegations about his suicide were
recorded in the Metrorail Joint Operations Centre Occurrence Book
[6]
and the Metrorail Segment Occurrence Book
[7]
respectively.
'Grant'
denied these allegations during cross examination.
[28]
In amplification of this version, it had been put
to
'Grant'
that less
than three (3) months before the accident, he had taken an overdose
of
Epilim
tablets in a
suicide attempt and had to be admitted at Chris Hani Baragwanath
Hospital's emergency unit.
[8]
These allegations were denied.
'Grant's
version was that he took the overdose of
Epilim
tablets with the view to induce sleep as he had problems sleeping
which he attributed to the medication.
[29]
'Grant's
version that
he needed to eat 'hard cakes' to alleviate his symptoms had been cast
in doubt by his psychiatrist who reported that
eating 'hard cakes'
would not have made a change in the medical side-effects
[9]
even though
'Grant's
version was that doing so alleviated the side effects.
[30]
It
had also been put to
'Grant'
that he had elected to cross the railways tracks knowing it was
dangerous to do so and that if he had been cautious he would have
utilised the bridge made available for pedestrians and commuters.
He did not deny this election but was emphatic however
that he needed
to take the 'short cut' due to the urgency of the side effects
he was experiencing. He testified
that the train had been
stationary at the time of crossing. He conceded that he had
made a choice with regards to crossing
and when pressed, conceded
that he may have miscalculated.
[31]
The second witness called on behalf of the
plaintiffs was the
'Grant's
father,
'Solomon'
.
He testified that on the morning in question, while at home he had
received information that
'Grant'
was involved in an accident and had rushed to Dube station. He
had found
'Grant'
under the train with his mouth wide open unable to speak.
Nothing much turns on his evidence in chief other than that Dube
station was not fenced off and township residents crossed the railway
tracks 'willy-nilly'. In cross examination, he had
denied
advising security guards stationed at the Dube station that the
accident had been a suicide attempt. He conceded that
the
suicide allegation was the only aspect he found fault with in the
statement by the
'PRASA'
official, and that all other aspects of the statement relative to the
report were correctly recorded.
APPLICABLE LAW
[32]
The case advanced by the plaintiffs is premised
on two negligent omissions, namely, the alleged breach of duty of
care
'PRASA'
owes to
the general public and to
'Grant'
as a result of an alleged failure to put reasonable measures to
prevent the incident.
[10]
[33]
The first question for this court is whether or
not the plaintiffs have discharged the onus of establishing on the
balance of probabilities
the breach of this duty. Related to
this question is an aspect of the burden required to be discharged by
the plaintiff,
namely whether, 'but for' the inadequate measures
allegedly employed, the accident would not have occurred.
[34]
It is not disputed that
'PRASA'
provides a rail commuter service in the public interest, and as an
organ of state bears the obligation to protect the rights to
dignity,
life and security of commuters as well as the general public that
utilizes facilities under its control. This obligation
was
affirmed in Rail Commuters Action Group
[11]
and in considering factors relevant, the court held that:
"Factors that would ordinarily be relevant would
include the nature of the duty, the social and economic context in
which it
arises, the range of factors that are relevant to the
performance of the duty, the extent to which the duty is closely
related
to the core activities of the duty-bearer - the closer they
are, the greater the obligation on the duty-bearer, and the extent of
any threat to fundamental rights should the duty not be met as well
as the intensity of any harm that may result. The more grave
is the
threat to fundamental rights, the greater is the responsibility on
the duty-bearer.
Thus, an obligation to take measures to
discourage pickpocketing may not be as intense as an obligation to
take measures to provide
protection against serious threats to life
and limb. A final consideration will be the relevant human and
financial resource constraints
that may hamper the organ of State in
meeting its obligation. This last criterion will require careful
consideration when raised"
(Court’s emphasis
)"
[35]
This court must express alarm at the paucity of
evidence presented to advance and support
'Grant's
claim.
'PRASA's
version
put to witnesses demonstrated that
'PRASA'
concentrated its oversight efforts mainly to passengers and within
the station precinct. This version was not disputed.
The
quality of these efforts is not the subject of this case.
[36]
Evidence further points to the fact that
'Grant'
was injured meters away from the actual station platform and in
'Grant's
own version
further from the station precinct. He claims that there were no
obvious measures to cordon off the railway tracks
from the crossing
public.
[37]
The provision of rail commuter services, its
apartheid history as well as the disparity in the quality of
facilities for black commuters
living in townships has been the
subject of number references by the courts.
[12]
In the court's view, delineating the boundary and scope of
'PRASA's
legal duty to the surrounding communities and pedestrians beyond
commuters is a matter of public interest and a business social
ethical consideration that applies to
'PRASA'
in terms of
Regulation 43(5)
of the
Companies Act 71 of 2008
in so
far as the responsibility for the impact of activities and its
contribution to the surrounding communities.
[38]
In
South African Rail
Commuters Corporation v Almmah Pheliswe Thwala 661/2010[2011]
ZASCA179 [29 September 2011],
Maya JA in
dealing with the nature of the onus of a claimant like
'Grant'
held that:
"The nature of the onus was
such as to oblige her to adduce evidence that gave rise to an
inference of negligence. Only
then would the (Corporation) have
had to rebut that inference by adducing evidence relating to the
measure it took to avert the
harm but onus of proving such measures
are inadequate and unreasonable in the circumstances and would
nevertheless remain on the
claimant."
[39]
Pertinent evidence which would have assisted the
court in this regard was not adduced and/or admitted.
[40]
In
Minister
of Safety and Security v van Duivenboden 2002(6) SA 431 SCA
Nugent JA held at paragraph 21 that :
"
When
determining whether the law should recognise the existence of a legal
duty in any particular circumstances what is called for
is not an
intuitive reaction to a collection of arbitrary factors but rather a
balancing against one another of identifiable norms.
Where
the conduct of the State, as represented by the persons who perform
functions on its behalf, is in conflict with its constitutional
duty
to protect rights in the Bill of Rights, in my view, the norm of
accountability must necessarily assume an important role
in
determining whether a legal duty ought to be recognised in any
particular case." (Court’s emphasis)
"
[41]
Adducing supporting evidence to of the alleged
breach of such a duty cannot be left to the court's intuitive view of
what wrongful.
[42]
Evidence of where
'PRASA's
duty begins and ends relative to the rest of the railway tracks
outside of the proximity of the station platform was not presented,
nor was evidence relative to foreseeability of injuries and the
gravity thereof. In the court's view, this had to be weighed
against relevant human behavioural constraints, and in particular the
court was not armed with evidence to prove that 'but for'
the alleged
inadequate measures resulting in the wrongful breach of its duties,
this particular accident would not have occurred.
[43]
This brings the court to the second aspect of the
alleged negligent omission which is interrelated to the above.
In this regard,
the question is whether the plaintiffs have
discharged the burden of establishing on the balance of probabilities
that
'Grant's
injury
was a
causa sine qua non
of
'PRASA's
alleged
wrongful action and sufficiently linked closely or directly to the
wrongful act? A demonstration that the wrongful
act was a
causa
sine qua non
of the loss does not necessarily
result in legal liability.
[44]
On the question of wrongfulness, notwithstanding
the court's findings on the limitations in evidence, the plaintiffs'
contention
through its witnesses is that the rail tracks in Dube
Station were not cordoned off and protected compared with other
nearby stations.
Residents of Dube and Meadowlands took a 'short cut'
by crossing the rail tracks.
[45]
While logic dictates that had there been a proper
fence harm would not have occurred, there is no evidence before the
court to reach
this conclusion or to demonstrate that pedestrians
would not have crossed where
'Grant'
crossed or at some other point.
[46]
By his own admission
'Grant'
disregarded the bridge crossing provided at the station, according to
him, due to the urgency of his side effects. Even
though
he had used it earlier that morning on route to school to cross from
Dube township to Meadowlands township.
[47]
This brings the court to unsatisfactory aspects
of
'Grant's
evidence
during cross examination and his subjective state of mind. It
had been put to him that he was seen by
'PRASA'
security guards earlier that morning across the railway track.
He could not effectively account for the lapse of time from
the time
he left home, crossed the bridge to the time of the accident which
occurred approximately forty (40) minutes later and
could not
reconcile this discrepancy. In the result, doubt was cast on
his version that the reason he took a 'short cut'
was because he
was rushing to go to school. He had not disputed that he had
been seen across the railway tracks earlier that
morning.
[48]
The second aspect relates to the version put to
him and his father
'Solomon'
regarding
his alleged suicide attempt(s). It was not disputed that
'Grant'
had been
admitted at Chris Hani Baragwanath Hospital following an overdose of
Epilim
. While he
denied that this had been a suicidal attempt, the allegation about
his suicidal attempt(s) found their way into
a statement by
'PRASA'
officials. While
'Grant'
and his father denied advising
'PRASA'
security of this, when weighed against
available evidence and their performance during cross examination it
has been enough to cast
sufficient doubt in the court's mind, in
particular, in the face of there being no other evidence to counter
the allegations.
On this score, the probabilities do not favour
the plaintiffs.
[49]
It was submitted in argument that
'Grant's
conduct constituted a voluntary assumption of the risks associated
with the crossing of the railway track a long standing principle
enunciated in
Waring and
Gillow
Ltd v Sherborne
1904 TS 340
at 344
that:
"
He who, knowing and realising a danger,
voluntarily agrees to undergo it has only himself to thank for the
consequences"
[50]
'Grant'
testified that
he had thought it was safe to cross the railway, he had conceded that
he had miscalculated hence why the accident
ensued. The consequences
of the medication remains a moot point. It had not been contended
that it had affected his faculties or
judgment.
[51]
While in his evidence he was adamant that the
train had been stationery at the time he started crossing, thus
implying a proper
lookout and an awareness of potential danger and
risk, the concession that he had miscalculated indicated that he
foresaw the prospects
but erred. The manner of the driving of the
train had not been contested. The plaintiffs evidence falls far short
of satisfying
the standard of proof required.
[52]
On the question of costs, the general principle
is that costs follow the result. This is still subject to the court's
discretion.
Counsel for the defendant correctly did not labour the
point. The litigants had brought a
bona
fide
claim and the issues raised are of
public interest even though they were not successful. It is fitting
that each party pays its
own costs.
[53]
In the result, the following order :
(a)
The plaintiffs' claims be dismissed.
(b)
Each party to pay their own costs.
SIWENDU
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO
.
2013/16571
HEARD ON
:
3 – 7 NOVEMBER
2014
FOR THE PLAINTIFFS: ADV. R LIPHOSA
INSTRUCTED BY:
MAKAU
PHEFADU INC.
FOR THE DEFENDENT
:
ADV. T J BRUINDERS SC
INSTRUCTED BY:
NORTON ROSE FULBRIGHT INC.
(incorporated at DENEYS REITZ
INC.)
DATE OF JUDGMENT
:
9 FEBRUARY 2015
[1]
Paragraphs 3.3, 3.5.2.1 and 3.5.3 of the
Plaintiffs Summons
[2]
Paragraphs 4, 4.1.1.2 and 4.1.2 of the
Plaintiffs' Particulars of Claim
[3]
Paragraph 4.1.3 of the Plaintiffs' Particulars of
Claim
[4]
See 'Exhibit E3' of the defendant's supplementary
bundle of documents
[5]
At page 27A of the Defendant's Bundle of
Documents 'Bundle C'
[6]
At page 24 of
the Defendant's Bundle of Documents
'Bundle C'
[7]
At page 26 of the
Defendant's Bundle of Documents
'Bundle C'
[8]
At page 24 of the Plaintiff's Amended Merits Bundle 'B'
[9]
Psychiatrist's Report dated 28 October 2014
[10]
Paragraph 23 of Plaintiff's Heads of Argument
[11]
Rail Commuters Action Group and Others v Transnet
Ltd t/a Metrorail and Other
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at paragraph 88
[12]
Phetole Peter Mokwena v South African Rail
Commuter Corporation Limited and 1 Other 2012 SA (GSJ); and
Rail
Commuters Action Group and Other (
Supra
)