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[2017] ZAGPJHC 434
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Y v Passenger Rail Agency of South Africa (25598/2016) [2017] ZAGPJHC 434 (8 September 2017)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
8
September 2017
CASE NO:
25598/2016
In
the matter between:
L.
E. Y.
Plaintiff
and
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
Defendant
JUDGMENT
STRYDOM
AJ:
Background
[1]
On 30 April 2016 Plaintiff and two of his friends, S. L. M. (‘S.’)
and T. were travelling on train 0411 from Oberholzer
to Johannesburg
which was operated by the Defendant. At Midway, T. got off the train
and the train departed without out him. Plaintiff
and S. travelled to
the next station, Tshiawelo, where the Plaintiff whilst alighting
from the moving train fell, went under the
train and was dragged by
the train for a distance. He sustained serious injuries
interalia
an amputated left lower leg.
[2]
It is common cause between the parties that the incident happened on
30 April 2016 at the Tshiawelo station at 7:50. The Plaintiff
was
travelling from Oberholzer to Johannesburg on train 0411. It was
further agreed that when the Plaintiff alighted from the train
it was
in motion and the doors of the coach in which the Plaintiff was
travelling were open. The Defendant did not concede that
the open
doors contributed to the damages that the Plaintiff suffered. It was
however in dispute as to what caused the coach doors
to be open. It
was further agreed that the train driver and Metro security guard
were at the time of the incident in the employ
of the Defendant and
acted within the cause and scope of their employment with the
Defendant on that day.
[3]
The issues to be decided as set out in the Defendant’s plea are
the defence of
volenti non fit iniuria
or also called
voluntary assumption of risk, alternatively that the Plaintiff was
the sole cause of the incident due to his negligence,
further
alternatively that the negligent conduct of the Plaintiff contributed
to his injuries and damages. The Defendant in line
with the
authorities accepted it has the onus to proof its special defence of
volenti non fit iniuria.
[4]
At the beginning of the trial the Plaintiff applied for a separation
of the issues of liability from that of quantum. This application
was
supported by the Defendant and as the balance of convenience
supported such a separation I granted it. The trial therefore
proceeded on the issues of liability only.
Volenti non fit iniuria
[5]
The defence of
volenti non
fit iniuria
is an absolute
defence and ‘
the rule
that no injury is committed against one who consents is as old as
digest,47.10.1.5…’
[1]
.
It cancels out fault and is not a ground of justification.
[2]
In the matter of Vorster supra the
volenti
non fit iniuria
defence was
discussed in detail. This defence has arisen on various occasions in
matters where PRASA is the Defendant as in this
case or MetroRail. In
all the matters that I had regard to this defence was linked to
instances where commuters alighted or disembarked
from a moving train
through open train doors.
[6]
The essential elements that the Defendant must proof are expressed in
the well-known
dictum
of Innes CJ in
Waring and
Gillow Ltd v Sherborne
[3]
:
‘
It must be clearly shown
that the risk (of injury) was known that it was realized, and that it
was voluntarily undertaken. Knowledge,
appreciation, consent –
these are the essential element, but knowledge does not invariably
imply appreciation, and both together
are not necessarily equivalent
to consent.’
[7]
The prejudiced person should be intellectually mature enough to
appreciate the effect of his actions. The test to establish
volenti
is a subjective one.
[4]
I am of the view that where a defendant embarks on a superficial
enquiry into what the plaintiff’s knowledge was, his
appreciation
of the risk/s and to what he consented to that it would
not satisfy the requirements of
volenti.
[8]
The Plaintiff at the time of the incident was 17 years old and a
learner. He was accompanied by his two friends and from the
statement
of S. it is apparent that he was 19 years old at that time. The age
of T. is not known but is not that relevant as he
was not with them
from Midway to Tshiawelo Station. Plaintiff could be described as a
teenager and S. as a young adult. They were
inexperienced commuters
and from a smallish town, Carltonville.
[9]
During cross examination Plaintiff indicated that he studies tourism
at school and that he knew and appreciated the danger of
standing in
an open door of the train and understood that he may fall out. He
further indicated that he appreciated that it was
very dangerous to
jump out of a moving train. The Plaintiff testified that the doors of
the coach did not work and were on each
occasion closed and opened by
the passengers. The reason for closing it was that they would get
cold and therefore closed it. This
is in my view a clear indication
of how ignorant the Plaintiff was as to safety issues on the train.
The reason I would have expected
of a person that is aware of the
dangers associated with open train doors is … that
due to the overcrowded train
and the severe shaking of the train when
pulling off, the passengers could fall out.
[10]
The enquiry into the subjective knowledge, appreciation and consent
of the dangers of jumping from a moving train was not taken
further
by the Defendant. The Defendant has the
onus
to show that the
Plaintiff had sufficient knowledge and appreciation of the inherent
dangers of jumping from a moving train and
that this appreciation
goes so far as to include the extent of the harm that may befall him
should he jump from a moving train.
[11]
The enquiry by the Defendant was not sufficient and I am not
convinced that Plaintiff had a sufficient appreciation of the
dangers
and extend of the injuries that may befall him. I am not convinced
that I can draw an inference from the Plaintiff’s
conduct that
he had consented to the harm that befell him. The plea of
volenti
non fit injuria
thus stand to be rejected.
Sole
cause of the incident
[12]
It is common cause that the doors of the coach in which the Plaintiff
was travelling were open at the time when the train pulled
off from
Tshiawelo Station. The issue around open train doors and the
resulting negligence of the Defendant were dealt with in
a series of
matters which culminated in the ConCourt judgment of
Mashongwa
v Prasa
[5]
.
[13]
The ConCourt stated the following:
It must be emphasised that harm was
reasonably foreseeable and PRASA had an actionable legal duty to keep
the doors closed while
the train was in motion. Not only has it
expressly imposed this duty on itself, its importance was also
alluded to in Metrorail.
[14]
The fact that the Defendant was negligent does not mean that this
negligence contributed to the injuries and resulting damages
suffered
by the Plaintiff. Is there thus a causal link between the Defendant’s
failure to close the coach doors and the injuries
sustained by the
Plaintiff? In this instance on the version of the Defendant’s
witness, Mentoor, the coach doors were slow
to close and only once
the train picked up speed the doors were completely closed. The
evidence of Mr Diphoko, the train driver,
is that the train picks up
speed once it’s out of the station. Thus, the coach doors would
have been completely closed only
when the train was out of the
station. It was testified by Mentoor, that the Plaintiff and S. were
keeping the doors open. It was
the duty of the person sitting at the
back of the train – I am informed that it is the Metro guard -
to make sure that the
doors of all coaches were closed before the
train depart from the station. If the Plaintiff and S. were keeping
the doors open
then it was his/her duty to make sure that they do not
do that.
[15]
This on the Defendant’s version did not take place as the
Plaintiff was able to get exit the coach whilst the train was
in
motion. Had the Metro guard done his/her work the Plaintiff would not
have been able to exit the coach when the train pulled
off. I
thus find that the Defendant was negligent and that this negligence
contributed to the Plaintiff’s damages.
The plea that the
Plaintiff was the sole cause of the incident is thus dismissed.
Contributory negligence of the
Plaintiff
[16]
The only issue remaining is to establish whether the Plaintiff has
contributed to the damages he suffered and if, to what degree.
There
are two mutually destructive versions before me. On the version of
the Plaintiff, the Defendant was solely to be blamed for
the injuries
he sustained, whilst on the Defendant’s version the Plaintiff
contributed to his injuries and his claim for
damages stands to be
reduced in terms of the Apportionment of Damages Act, Act 34 of 1956.
[17]
In the matter of
Stellenbosch
Farmers’ Winery Group Ltd
[6]
the principles were set out where there are two irreconcilable
versions.
The technique generally employed by
courts in resolving factual disputes of this nature may conveniently
be summarised as follows.
To come to a conclusion on the disputed
issues a court must make findings on (a) the credibility of the
various factual witnesses;
(b) their reliability; and (c) the
probabilities.
The evidence
[18]
The Plaintiff and S. testified. The Plaintiff from the start set the
scene that the train had problems and had to return and
this caused
the train to be late. Due to the train being late it only allowed the
passengers a short time to get on and off as
it was trying to make up
time and it was driving fast. The train doors did not automatically
close and had to be closed by the
passengers. He further indicated
that the train was over crowded as some of the passengers had to
stand. They were under the impression
that train 0411 was an ‘all
change’ train at Midway Station and they had to disembark at
Midway. At Midway, they became
unsure whether it was indeed an ‘all
change’ at Midway. Tshepo out of his own jumped up and went to
ask at the platform
from the security or hawkers about the ‘all
change’.
[19]
Tshepo was unable to get back onto the train and was left behind. He
and S. decided to get off at Tshiawelo Station and wait
for Tshepo at
Tshiawelo Station. He didn’t phone Tshepo as he feared he may
be robbed of his cellphone but would phone Tshepo
once they
disembarked at Tshiawelo Station. At Tshiawelo Station the passengers
getting in and getting out were jostling to as
to try and get off or
on. He and S. stood aside at the door waiting for the rush of
commuters to disembark and embark.
[20]
When he got the opportunity to disembark he placed his right foot on
the platform with his weight on this leg. The train was
higher that
the platform and he stepped onto the platform with his right foot; as
he started to lift his left foot the train started
to pull off. He
then lost his balance due to a violent shaking of the train and fell
face forward on the platform and was dragged
under the train.
[21]
The train would make a noise indicating that it is going to pull off,
then about 2 seconds from the noise it would start to
shake and
simultaneously pull off. It took him about 2 seconds to disembark.
[22]
S.’s evidence was broadly along the line of the evidence of the
Plaintiff, except for the following. He did not mention
that the
train returned to the Oberholzer Station but did mention the train
was late. He further indicated that the Plaintiff phoned
Tshepo
whilst being on the train but could not follow the conversation due
to the music being played in the coach. They both could
not really
say why they did not disembark at Midway.
[23]
S. further testified that he did speak to an investigator –
which appeared to be Mr Liederman – who took a statement
from
him. He was upset at the time and didn’t want to give a
statement. Liederman was aggressive and accused him and the
Plaintiff
of jumping off the train. He confirmed that the signature was his but
denied that it was read to him or that he read
the statement or that
he took the oath. He further confirmed that Liederman did introduce
himself properly but he can’t remember
the full name of the
investigator.
[24]
The only aspect that he does not agree with in the statement is the
part where he would have said that he and the Plaintiff
decided to
jump off the moving train. That concluded the case for the Plaintiff.
[25]
The Defendant called Mr Liederman, the investigator for PRASA, Mr
Mentoor, an off-duty security guard whose employer was contracted
to
do security services for PRASA and Mr Diphoko, the train driver.
[26]
Mr Liederman, is employed at the Investigation Unit of the Defendant
and stationed at Krugersdorp. On the day of the incident
he attended
the scene in his capacity as an investigator. S. was pointed out to
him as a witness. He interviewed a security officer
first. It must be
mentioned that he didn’t indicate which security officer –
I assume it to be the Metro guard.
[27]
He introduced himself to S. and removed him to the security officers’
office. S. was upset in the beginning but as he
started to talk to S.
he calmed down. He asked S. what happened and S. told him what
happened. He then wrote out a statement for
S. on what S. told him,
read it to him and took the oath and asked him to sign the statement.
[28]
The only aspect that S. disputed in his statement relates to the fact
that he and the Plaintiff decided to jump from the moving
train. He
denied that he was aggressive towards S., that he did not read the
statement to him and that he did not administer the
oath. He
indicated that the information in the statement came from S.. They
conversed in English.
[29]
Mr Mentoor is an off-duty security officer. He uses this specific
route to get to work and home. He was doing night shift and
boarded
train 0411 at Suurbekom. He indicated that this train does not go to
Johannesburg station on Saturdays and Sundays but
stop at New Canada
where another train must be boarded for Johannesburg.
[30]
The train was not late and there was nothing out of the ordinary
about the train until the incident with the Plaintiff. The
coach that
he boarded was no 3 and the coach doors closed and opened
automatically. The doors however closed slowly and are only
fully
closed once the train is at speed. Every time before the train pulls
off there is a whistle that signals the departure. The
train did not
shake when it pulled off.
[31]
He noticed the Plaintiff and two friends in the coach and his
impression was that this must be their first train ride. They
all got
off at Midway and as the train pulled off the Plaintiff and one of
the friends jumped on. The third one got left behind
at Midway. He
could see that they were panicky and did not know what to do. He
could hear the discussion between the two of them
as he was sitting
diagonally opposite them. He denied that music was played in the
coach.
[32]
At Tshiawelo Station they got off and stood just outside the door of
the coach, they got back onto the train and as the train
pulled off
the Plaintiff jumped off the train and landed under the train. Once
the train came to a standstill he put his reflector
clothes on and
went to where the Plaintiff was lying on the train tracks. He could
see that the Plaintiff sustained serious injuries.
[33]
Mr Diphoko testified that he was the train driver of train 0411 on
that train. The train was not late and there was nothing
wrong with
the train and specifically denied that there were problems with the
cables. He indicated that he looks at the signals
similar to
intersection robots which will show when he may go. He is not
responsible for checking the passengers which it appears
is the duty
of the person at the back of the train to check that and neither is
he responsible for the closing of the coach doors.
[34]
He will pull off only when he hears the bell, which signals to him
that he may pull off right away. At Tshiawelo Station he
stopped and
when he heard the bell he pulled off. He indicated that the train
pulled off slowly and will gradually increase the
speed. He however
received the stop signal and brought the train to a stop.
[35]
He testified that the train is not like a car and cannot stop
immediately. In cross examination, he denied that the train was
shaking and indicated that there was no reason for the train to
shake. He further testified that when pulling off, the train would
pull off slowly and a person jogging next to it will be able to keep
up with the train but not once it has left the station and
has
accelerated. He stated that he puts the train in motion by pressing a
lever forward and that the lever has notches which is
followed
automatically. He denied that he increased the speed to quickly due
to the notches as the lever will then follow the notches
automatically.
[36] That concluded the case for the
Defendant.
Assesment of Evidence
[37]
The Plaintiff carries the onus to proof his case. I shall deal with
is the credibility of the various witnesses that testified
on the
factual evidence, their veracity and then the probabilities on the
evidence.
[38]
The Plaintiff’s case is that he lost his balance in the process
of disembarking the train, fell on the platform and was
pulled under
the train. The events according to the Plaintiff, leading up to this
fateful event unfolded as follows:
38.1
the train had a cable problem which caused it to turn back. This in
turn caused the
train to be late. The train being late is confirmed
by S.;
38.2
the train was speeding to make up time and did not allow enough time
for the passengers
to get on and off at the different stations;
38.3
the train was overcrowded as it was month-end;
38.4
the above facts lead to Tshepo been left behind at Midway Station;
38.5
upon arrival at Tshiawelo Station there was a jostling of passengers
getting on and
off the train to such an extent that despite him
sitting near the doors he had to wait for the passengers to get off
and on;
38.6
due to the abovementioned facts there was not enough time for the
Plaintiff and S.
to disembark and they only got an opportunity to do
so when the train was in the process of pulling off.
[39]
It was already conceded, rightly so, during argument by Mr Shepstone
that the train was on time. Once this concession was made
the whole
chain of events as set out above come under scrutiny. Certain
peripheral issues of dispute which may have seemed to be
of lesser
importance now start to have a greater influence on the assessment.
[40]
The Plaintiff was adamant that the train had cable problems and even
explained how they made enquiries from the workers working
next to
the line. This statement is patently untrue in the light of the
evidence of Mentoor, Diphoko and the concession of Mr Shepstone.
[41]
The effect of the train being on time leads to certain inevitable
conclusions:
41.1
There was no need to speed between the stations;
41.2
At each individual station the passengers had sufficient time to
board or disembark;
and
41.3
the whistle/bell warned of the departure of the train.
[42]
The reasons for being in the door of the coach and disembarking at
that crucial time comes under scrutiny and the question
should then
be asked what was the Plaintiff doing in the door of the coach at
that crucial time?
[43]
Mentoor correctly assessed the Plaintiff and S. as inexperienced
train commuters. The Plaintiff and S. had very little knowledge
of
the trains’ movements. This contrasts with the seasoned
commuter, Mentoor who could relate the movements of the train
including the number of passengers on that train during and at the
end of the month, unfailingly.
[44]
He has a clear memory that the train was not late as his employer
would have send a car to pick him up. He used this route
on a weekly
basis over a period of years and indicated that this is not a busy
train and every passenger on that day had a seat.
He indicated that
even at month-end the train is not busy.
[45]
Mentoor indicated that the coach doors closed automatically albeit
slowly. The evidence of Plaintiff and S. was that the passengers
had
to close and open the doors. The reason why the passengers closed the
doors, was that they get cold and therefore closed it.
This is not
only an indication of how ignorant the Plaintiff was as to safety on
the train but also show his inexperience as to
commuting on trains.
[46]
The Plaintiff and S. both gave the impression that they were calm,
collected and had decided to just wait at Tshiawelo Station
for
Tshepo. In this they contradicted each other on whether there was a
call to Tshepo. I find the fact that S. didn’t know
what the
discussion was between Tshepo and the Plaintiff as highly unlikely.
The explanation given why only Tshepo got off at Midway
is wholly
unsatisfactory. I further also find it improbable that they could not
find any passenger on the overcrowded coach to
tell them that the
train was not an ‘all turn’ train at Midway. This is
especially so when half of the passengers remained
behind.
[46]
The version that the train on a Saturday morning – even if it
was month end – was so overcrowded that the jostling
passengers
did not allow Plaintiff an opportunity to disembark is improbable.
This is more so once the version of Plaintiff as
discussed above are
found to be improbable. The version of the Plaintiff and S. stands to
be rejected. The explanation by Mentoor
of the conduct of the
Plaintiff and S. is more probable and provides an explanation for the
almost erratic behaviour of Plaintiff.
Mentoor’s description of
their conduct shows they were panicking and did not know how to be
reunited with Tshepo. They did
not know what to do or how to handle
the situation which is very probable having regard that they were
teenagers/young adults coming
from a smallish town and being
inexperienced commuters. The jumping out of the train at the last
minute shows the uncertainty of
Plaintiff and S. of what they wanted
to do.
[47]
I accept the version of Mentoor as what has happened on that fateful
day. In the light of this finding I shall shortly deal
with the
statement made by S.. It is clear that S. was biased towards the
Plaintiff’s case and in certain respects blatantly
embellished
his evidence to fit the version of the Plaintiff. I find that S. was
compelled to deny paragraph 4 of the statement
as it did not fit the
Plaintiff’s version. His denial of providing Leiderman with
this information is rejected. I find that
Leiderman correctly
recorded the statement of S. and administered the oath after reading
it out to S. and placed no pressure on
S. to make the statement.
[48]
What remains now is to determine to what extend the conduct of the
Plaintiff deviated from the reasonable man. Once I rejected
the
Plaintiff’s version the facts before me are that the Plaintiff
and S. stood in the doors of the coach thus preventing
them from
closing and that Plaintiff then jumped from the moving train.
[49]
In the result, the following Order is made:
[49.1] The
issues of liability are separated from the issues of quantum;
[49.2] The
issues of quantum are postponed
sine die
;
[49.3] The
Plaintiff is entitled to recover from the Defendant 40% of his proven
damages;
[49.4] The
Defendant is to pay the costs.
I
STRYDOM
ACTING
JUDGE OF THE HIGH COURT
Date of
Hearing: 28 – 31 August 2017
Judgment
Delivered: 8 September 2017
Counsel
for the Plaintiff: Adv R Shepstone
Instructed
by: Dudula Inc
Counsel
for the Defendant: Adv A Maier- Frawley
Instructed
by: Cliffe Dekker Hofmeyr Inc
[1]
SANTAM INSURANCE CO LTD v VORSTER 1973(4) SA 764 (A)
[2]
Neethling Law of Delict 7
th
Edition. Page 177
[3]
1904 TS 340
at 344
[4]
SANTAM INSURANCE supra at 778, 781
[5]
[2016] JOL 34753
(CC)
[6]
Stellenbosch Farmers’ Winery Group Ltd aa v Martell et cie &
others 2003(1) SA 11 SCA at par 5.