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[2019] ZAGPJHC 357
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Khanyisile v Transnet Soc Limited (07424/13) [2019] ZAGPJHC 357 (2 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 07424/13
In
the matter of
MASHAYA,
JABU
KHANYISILE
PLAINTIFF
and
TRANSNET
SOC
LIMITED
DEFENDANT
JUDGMENT
DOSIO AJ:
INTRODUCTION
[1]
This is an action whereby Jabu Khanyisile Mashaya, ("the
plaintiff"), an adult female, has instituted a damages claim
against Transnet Limited ("the defendant"), for certain
bodily injuries she sustained as a result of a train accident
that
occurred at dusk on the 1st of March 2010 in Kwazulu-Natal, at the
Vryheid East railway station, ("the station").
The result
of the accident culminated in the amputation of the plaintiff's leg
below the knee .
[2]
The matter comes before me for the determination of whether the
defendant was negligent in any way. The issue relating to the
quantum
of damages was separated in terms of Rule 33(4), and postponed
sine die.
THE PLEADINGS
[3]
Although there were many amendments in respect to the plaintiff's
particulars of claim, the final version states that the defendant's
breach amounted to negligent conduct in one or more of the following
respects;
"6. 1 The
Defendant failed to ensure the safety of members of the public in
general and the Plaintiff in particular on the
Vryheid East Station
train yard;
6.2 The Defendant
failed to take any or adequate steps to avoid the incident in which
the Plaintiff was injured, when by the exercise
of reasonable care it
should have done so;
6.3 The Defendant
failed to take any or adequate precautions to prevent the Plaintiff
from being injured by the moving train;
6.4 The Defendant
failed to employ employees, alternatively, failed to employ adequate
numbers of employees, further alternatively
failed to employ the
adequate number of security personnel to ensure the safety of the
members of the public in general and the
Plaintiff in particular on
the Vryheid East train yard;
6.5 The Defendant
failed to employ employees, alternatively, failed to employ an
adequate number of employees to prevent passengers
in general and the
Plaintiff in particular from being injured in the manner in which she
was;
6.6 The Defendant
allowed the Plaintiff to gain access to the train yard and to move
between the carriages of the Defendant's train;
6.7 The Defendant
allowed the train to be set in motion when it was unsafe to do so and
while the Plaintiff was in the process of
walking in between the
coaches.
6.8 The Defendant
neglected to employ security staff at the train yard to ensure the
safety of the public in general and the Plaintiff
in particular;
6.9 The Defendant did
not replace the fencing around the train yard and allowed the
Plaintiff and other members of the public to
gain access to the train
yard.
6.10 The Defendant
allowed the Plaintiff and other members of the public to transverse
the train yard at will.
6.11 The Defendant
failed to ensure that the members of the public and the Plaintiff in
particular were not warned against the dangers
of traversing the
train yard."
[4]
The defendant has pleaded it has taken all the reasonable steps,
within its resources, to discharge its duty of care towards
the
members of the community, including the plaintiff, by creating
alternative routes for them to walk across the station. In addition,
the defendant pleaded the defence of
volenti non fit injuria,
and
alternatively, pleaded that the amount of damages to be awarded to
the plaintiff be reduced in terms of section 1 of Act 34
of 1956, to
such an extent that if there is negligence to be shared, that the
plaintiff be settled with a bigger portion, namely
80% eighty percent
against the plaintiff.
COMMON ISSUES
[5]
The following facts are common cause;
1. The date, time and
location of the incident;
2. The layout of the
station, (exhibit "B"), which includes where the incident
occurred, the location of certain 'bridges',
the location of warning
signs, the location of the farming area (where the plaintiff
resides), and the location of the township
area. The distance between
the X1 markings is 8 kilometres, while the distance between the X2
markings is 2,8 kilometres;
3. Photographs A(i),
A(ii), A(iii) and A(iv);
4. Exhibit "C",
being an aerial photograph downloaded from the Internet (Google
Earth) depicting the station, the adjoining
farming area and the
adjoining township area, as well as a mark depicting where the
incident took place.
[6]
The issues in dispute are the following;
1. Whether the defendant
omitted to;
1.1
properly fence off its premises on which it conducted dangerous rail
movements, thereby preventing access to the premises by
members of
the public,
1.2
provide proper warning to members of the public of the dangers of
entering the premises and/or crossing the rail tracks, particularly
between stationary wagons;
1.3
employ adequate security to ensure a reasonable control over the
premises thereby preventing unsafe access by members of the
public,
including the plaintiff;
thereby constituting (an)
actionable, wrongful (unlawful) omission.
2. Whether the defendant
ought reasonably to have foreseen the possibility that its omissions
could result in injury and damage
to members of the public, including
the plaintiff, and having so foreseen such possibility, ought to have
taken steps to guard
against such an occurrence, and failed to do so
(thus establishing negligence on the part of the defendant);
3. Whether the injuries
of the plaintiff are causally linked to the wrongful and negligent
conduct of the defendant.
BACKGROUND
[7]
On the evening of the 1
st
of March 2010, the plaintiff and
Ms Bayisile "Amanda" Khanyile ("Ms khanyile")
were walking back from town
on route to where they live, which
included crossing a railway line, which exists between the town and
where the plaintiff lives.
While the plaintiff was attempting to
cross the railway line, and whilst climbing over a stationary train
and its coupling links,
the train was set in motion. This caused her
to fall onto the railway tracks, her left leg being severally damaged
by the wheels
of the train. She was transferred to hospital where her
leg was amputated below the left knee.
EVIDENCE
[8]
The evidence for the plaintiff's case consisted of two witnesses, the
plaintiff and Ms Khanyile. At the end of the plaintiff's
case, the
defendant's counsel brought an application for absolution. After
having heard both counsel, I dismissed this application
with costs.
The defendant called two witnesses namely, Mr Dingaan Robert Makhubo
("Mr Makhubo"), and Mr Johnson Mandia
Khumalo ("Mr
Khumalo").
Jabu Khanyisile Mashaya
(Plaintiff)
[9]
This witness stated that she was born on the 15
th
of March
1986. She stated she did not know of another way to get to town
without crossing the railway lines, as she was using this
route since
she was a scholar, to go to school and the town. She stated this
route is still currently being used by the community,
young and old.
On their way back from town that evening, she encountered a
stationary train at the area where she usually crossed.
[10]
Ms Khanyile was the first one to mount the coupling links between the
coaches and after Ms Khanyile had crossed, the plaintiff
climbed
over. When the plaintiff's leg was about to reach the gravel, the
train moved and she fell backwards. She stated there
was no warning
before the train moved off, and neither did she hear the sound of a
whistle or a hooter before the train moved.
Had she heard a warning
sound, she would not have attempted to cross over the train. The
wheel of the train then rode over her
left leg.
[11]
She stated that in all the years that she has used this route, she
has never seen any warning signs at the station to warn
people not to
cross the railway lines. There is also no fence erected to keep
people from entering the station premises. She stated
she has never
been stopped by an official of the defendant preventing her from
crossing the station premises. She stated that the
photos marked
exhibits A(i) and A(ii), is the exact place where the accident
happened.
[12]
During cross-examination the plaintiff stated she knew that these
trains transported coal and that this station was not a commuter
train station. She admitted that she is not a customer of the
defendant and was not invited by the defendant to be on the train
station premises.
[13]
As regards the warning sign which was shown to her, which depicts "a
train", she stated she has never seen this sign
before. As
regards the "stop sign" which was shown to her, and which
is situated at the level crossing, she stated that
this is simply a
sign to stop. She stated that no one ever told her that she could not
cross the railway line. She was not aware
of the level crossings on
the east and west side of the station. She repeated she has always
used the same footpath, which is depicted
on photo A(iv), since she
was a child and that this is still the route that she and the
community still use. When questioned whether
she knew whether members
of the public were in fact allowed to walk in the station, she stated
''The very same employees at that place even assist us to cross
the railway tracks, they will accompany us and assist us to cross
those tracks".
She added
"Those who come to my
assistance to help me, will be the ones interested in proposing love
to me at that stage".
[14]
Apart from the men who usually assist her, the plaintiff stated she
had never seen any security guards there. She only became
aware of
security officers being posted there, after her injury. She added
that the security officers posted there after her accident,
were not
there for a long time and are currently no longer there. In fact, she
stated, children are still crossing the railway
at the same point
depicted on photo A(iv).
[15]
This witness stated that she knows of only one bridge which is very
dark and which has water running through it. This witness
stated that
she would not have crossed the railway tracks if she was aware of
bridges and level crossings provided for pedestrians.
[16]
This witness impressed me.
Ms Khanyile
[17]
This witness corroborated the complainant in respect to the
following;
1. That she and the
plaintiff crossed the railway line at the same point they always
crossed over. They had used this route since
they were at school and
still used it. They would always walk along a footpath up to where
the railway tracks were and then they
would cross the railway. The
footpath is the one depicted on photo A (iv). Other adults and school
children still use this route.
2. She has never seen any
sign prohibiting any person from crossing the railway line and no
fence has been erected to prevent people
from crossing the railway
line.
3. There was a stationary
train which they had to cross over.
4. She crossed first and
when it was the plaintiff's turn, the train started moving.
5. The accident happened
whilst the plaintiff was crossing over the coupling links.
6. They have never been
stopped from crossing the railway line either by security guards or
by other officers working for the defendant.
There were employees of
the defendant who would help them cross the railway line and who
would also propose love to them.
[18]
As regards the signs shown to her which reflect "a train"
and "a stop sign", this witness stated that she
does not
know where these signs are positioned and she has never seen these
signs where she and the rest of the public cross the
railway line.
When this witness was confronted during cross-examination that no
employees of the defendant would assist her to
cross over the railway
line, she answered,
"They won't admit they propose love as it
could end them up loosing their employment".
[19]
She was aware of a bridge which is dark, situated mostly underground
filled with water and as a result pedestrians don't use
this bridge.
[20]
This witness impressed me.
Dingaan Robert Makhubo
[21]
This witness testified that during 2010 he was an area manager
responsible for many stations. He ensured that there was strict
compliance with the defendant's policies. He testified that there is
no commuter rail at this station and that no member of the
community
is allowed on the station premises. He explained the outlay of the
station and the various routes that the community
should use when
crossing the railway line. He stated that all other routes to cross
the railway line are illegal.
[22]
He stated that a security company was employed to keep guard in the
area and to stop people from crossing the railway line
and that these
measures, have always been there and are still in place. He added
that the signs depicting "a train" and
a "stop sign"
have always been up at the station and that they are clearly visible.
He testified these signs are sufficient
as there has been no incident
at this station in the past nine years. He testified that to erect a
.fence at the station would
be expensive as the fence would have to
span an area of about 2.8 kilometres.
[23]
He rejected the notion that the community members, including the
plaintiff, cross freely over the railway on a daily basis.
He could
not comment on claims that officials of the defendant would assist
members of the community to cross the railway lines.
He stated that
these officials would be doing so out of their own accord and would
be violating their code of ethics and the company
rules.
[24]
He denied the plaintiff's evidence that she has never seen a security
officer at the station. He stated there was 24 hour security
at the
station consisting of five people, four on foot and one in a patrol
vehicle.
[25]
He stated that although he was in charge of the station, each
department, including the security department, did not report
to him
on a daily basis. Only in exceptional circumstances, like an
accident, would he be informed. He stated that the bridges
that are
present at the station, are for the benefit of both pedestrians and
motorists. He admitted that the level crossing at
the station, where
the "stop sign" is situated, is not regulated by a boom.
[26]
This witness did not impress me. He maintains that pedestrians are
not allowed on the station premises, yet he admits that
they are
allowed to cross at a level crossing which according to his evidence
is not regulated by booms. Although this witness
was adamant that
pedestrians do not cross at the point depicted on photo A(iv), he did
not refer to an occurrence book held by
the security personnel at the
station premises to confirm whether any transgressions had been noted
by the security personnel.
[27]
If the community were crossing at the point depicted on photo A(iv),
as stated by the plaintiff, Ms Khanyile and supported
by Mr Khumalo,
then the security officers should have written these transgressions
in the occurrence book. When Mr Makhubo was
asked this, he said
"It
may be so that they report that in their occurrence book but it never
came to me".
I find there has not been much attention placed
on this security breach by Mr Makhubo, because when the plaintiff's
counsel asked
him
"You can't tell the court whether these
security personnel ever stopped anyone from traversing the property
of Transnet?"
he replied
"I won't be able to can say
that because if they indeed stopped people from traversing the
premises it was not for them to
subsequently come to me and report to
me as this was their sole responsibility. The only time when I would
be able to be informed
is if there had been an incident where a
person got injured or if there was a commotion between people of the
personnel or if people
were stopped from traversing and would have
retaliated".
These answers have not impressed me. It is
clear from the evidence of Mr Khumalo that members of the public were
indeed crossing
the railway lines and that the security were aware of
this, and it is perplexing that such reports were never made known to
Mr
Makhubo.
Mr Khumalo
[28]
Mr Khumalo testified that he is a pensioner and that prior to
retiring he worked for the defendant since 1977. During 2010,
when
this incident occurred, he was working as a telemeter-guard. He
testified that members of the community are not allowed on
the
railway lines at the station. He stated that various measures were
put in place by the defendant, these measures included two
(2) level
crossings that have signs for members of the public to see, and three
(3) bridges over which the railway lines run.
[29]
He admitted that because the bridges are so far apart, the community
members elect to take a shorter route by crossing over
the railway
line. He stated that there are security guards that patrol the yard
24 hours and that such officers' role is to stop
people from crossing
over the tracks.
[30]
He testified that on the day of the accident he had reported to work
for night shift duty and had just completed his telemeter
duties. He
was driving behind a train that had just commenced moving when he met
with the plaintiff who was already injured. She
informed him that she
and her friend were intending to jump over the coupling links of a
stationary train and that whilst she was
on top of the coupling links
the train commenced moving and she jumped off whereupon she was
injured.
[31]
He strongly disputed that security officials have in the past helped
the plaintiff and Ms Khanyile to cross the railway line.
He added
that if anyone was found to be transgressing these rules that person
stood to be expelled from their duties or employment.
He disputed
that the plaintiff and others have been crossing the railway line
since childhood, as he stated that the security officials
stop
everyone from crossing the railway line.
[32]
Mr Khumalo testified that after he completes his routine telemeter
duties, he contacts the train driver to ascertain if the
driver can
read information from the telemeter devices and if everything is in
order. Only when the driver is satisfied will the
driver sound the
horn to warn anyone near the train of its departure. He confirmed
that on the day in question he followed this
procedure.
[33]
During cross-examination he confirmed that on the day in question he
communicated via two-way radio with the driver of the
train that he
had finished placing the telemeter devices at the front and back of
the train. This witness stated when the driver
is ready to depart,
the driver will call CTC for a signal to allow the train to be
dispatched. All this is done electronically.
[34]
Although this witness impressed me with his detailed knowledge about
trains, I was not impressed with his recollection of what
procedures
were followed by him prior to the train moving off on the night in
question. Initially he stated at length that he always
affixed
telemeters to the front and back of the train and that after he is
finished he communicates with the driver that he is
finished, only
then will the driver sound th horn and depart. However, this is not
what happened on this evening as he stated that
the train on which
the plaintiff climbed on the said evening was not fitted with
telemeters, as it was a 200 wagon length train.
If he did not affix
telemeters to this train on the evening of the incident, the sequence
of events that usually unfold would not
have occurred, therefore I am
not convinced that the driver was notified by Mr Khumalo that it was
safe to move the train, which
may be the cause why no horn was
sounded by the driver prior to the train departing.
[35]
Furthermore, Mr Khumalo is adamant that security personnel are still
at the station, however, there is no proof of this, as
none was
called by the defendant. Furthermore this witness is no longer
working at the station so it is unclear how he would know
what is
going on there in his absence. I accordingly approach his evidence
with caution.
[36]
It is important to note that Mr Makhubo and Mr Khumalo contradict
each other as the former emphatically denies that community
members,
including the plaintiff, cross freely over the railways, whereas Mr
Khumalo admitted he is aware that the community do
take short cuts
across the railway line.
THE DEFENCE RELIED UPON
BY THE DEFENDANT
[37]
The defendant's counsel referred me to the defence of
volenti non
fit injuria
which states that if the plaintiff knew the nature of
the defendant's work and with full knowledge thereof agreed to suffer
the
risk involved, then she cannot have any claim against the
defendant for the loss incurred by her due to the act.
[38]
The defendant's counsel referred me to a decision of
Titchner v
BRB
[1983] UKHL 10
(24 November 1983) where the plaintiff sued
the British Rail Board for damages arising out of injuries she had
sustained when she
was hit by train. The plaintiff and her boyfriend
were walking on the railway tracks having obtained access through a
pathway and
after jumping over a fence. The Court
a quo,
found
that the defendant was not liable for the damages suffered as the
plaintiff had assumed the risk of being injured when she
and her
boyfriend elected to cross the railway line at a point, other than
one designated for commuters. The court further held
that the fact
that the fence erected by the defendant was penetrable and not
repaired, was by itself, not sufficient to change
its opinion against
the plaintiff and held that, under those circumstances, the defendant
had done all that it could do to reasonably
prevent the foreseen harm
from happening. The court held that even though the fences along the
north and south sides of the line
had gaps, there were sufficient
warnings that if she went on she would be entering upon railway
premises. By giving her that warning,
the court held the defendant
was doing more than they were obliged to do. The court accordingly
upheld the doctrine of
volenti non fit injuria.
[39]
Counsel referred me to the decision of
Waring and Gil/ow Ltd v
Sherbone
1904 TS 344
, where the learned Innes CJ held that;
"...A man who
consents to suffer an injury can as a general rule have no right to
complain. He who knowing and realising a
danger, voluntarily
undertakes to undergo it, has only himself to blame for the
consequences."
[40]
Counsel argued that there are two (2) level crossings which are
intended to cater for pedestrians, three bridges, two warning
signs
and 24 hour security. Counsel argued that everything the defendant
could have done, it did. Counsel argued that another of
the factors
to consider is the expense to add to the measures already in place.
Counsel referred me to the case of
Soobramoney v Minister of
Health (Kwazulu-Nata/)
(CCT32/97)
[1997] ZACC 17
;
1998 (1) SA 765
(CC);
1997 (12) BCLR 1696
(27 November 1997) which sets down the
legal principles pertaining to a government's obligations within its
resources.
THE
LAW
[41]
The test for negligence and the determination of liability for
damages under the common law is derived from the
locus classicus
case of
Kruger v Coetzee
1966 (2) SA 428.
The learned
Holmes JA at page 430E stated;
"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."
[42]
A court must ask in these instances whether a reasonable man would
have foreseen the harm happening; and whether a reasonable
man would
have taken steps to avoid the harm happening, and whether the
defendant had taken those steps to prevent the harm from
happening.
[43]
What
constitutes reasonable measures depends on the circumstances of each
case.
[1]
[44]
As stated by the learned O'Reagan J in the case of
Rail Commuters
Action Group v Transnet Ltd t/a Metrorail
(CCT 56/03) [2004]ZACC
20
[2004] ZACC 20
; ;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) (26 November 2004),
at paragraph [88] reasonable measures would be;
"... 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... 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.
In particular, an organ of state will not be held to
have reasonably performed a duty simply on the basis of a bald
assertion of
resource constraints.
"
[45]
The
causa sine qua
non test (or the "but for" test)
is widely accepted as the method by which the factual causal link or
absence thereof
is determined. In
International Shipping Co (Pty)
Ltd v Bentley
1990 (1) SA 680
at 700 F-G the learned Corbett CJ
stated;
".. . in the law of
delict causation involves two distinct enquiries. The first is a
factual one and relates to the question
as to whether the defendant's
wrongful act was a -cause of the plaintiff's loss. This has been
referred to as "factual causation".
The enquiry as to
factual causation is generally conducted by applying the so-called
"but-for" test, which is designed
to determine whether a
postulated cause can be identified as a
causa sine qua non
of
the loss in question. In order to apply this test, one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant... If the event would in any
event have ensued, then the wrongful conduct was not
a cause of the
plaintiff's loss. If the wrongful act is shown in this way not to be
a causa
sine qua non
of the loss suffered, then no legal
liability can arise. On the other hand, demonstration that the
wrongful act was a
causa sine qua non
of the loss does not
necessarily result in legal liability. The second enquiry then
arises, viz whether the wrongful act is linked
sufficiently closely
or directly to the loss for legal liability to ensue or whether, as
it is said, the loss is too remote. This
is basically a juridical
problem in the solution of which considerations of policy may play a
part. This is sometimes called 'legal
causation'."
The
defence of
volenti non fit iniuria
[46]
The essential elements that the defendant must prove are expressed in
the well-known dictum of Innes CJ in
Waring and Gil/ow Ltd v
Sherbome
1904 TS 340
at 344 where it is stated;
"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 elements, but knowledge does not invariably
imply appreciation, and
both together are not necessarily equivalent
to consent."
[47]
As to the last requirement of consent, it is the law that the
plaintiff will not be taken to have consented to the harm in
instances where the defendant is also guilty of negligence.
EVALUATION
Defence
of
volenti non fit injuria
[48]
The onus rests on the defendant to prove the defence of
volenti
non fit injuria.
[49]
The defendant relies on the matter of
Titchner v BRB (supra),
however, the distinguishing factor between the matter of
Titchner
v BRB (supra)
and the facts of the matter
in casu,
is that
the defendant
in casu
did not erect any fences whatsoever.
Furthermore, in the matter
in casu
there was a well-used short
cut through the veld, which the employees of the defendant were aware
the community utilised frequently
to cross the railway. If a fence
had been erected together with pedestrian bridges and clear signs
prohibiting pedestrians from
crossing the railway then there would
have been sufficient grounds of justification to exclude wrongfulness
(unlawfulness) or negligence
on the part of the defendant.
[50]
In the case of
Slater v Clay Cross
Co
Ltd
[1956] All ER
625
the plaintiff was injured when she was struck by a train and
claimed damages. The court held that (i) the defendants were under
a
duty, in carrying out their operations, to take reasonable care not
to injure anybody lawfully walking on the railway and they
had failed
in that duty as the driver had failed to blow the train whistle
before entering the tunnel, (ii) the defence of
volenti non fit
injuria
was not available since, although the plaintiff in
walking through the tunnel voluntarily took the risk of danger, she
did not take
the risk of negligence by the driver. The court held
that her knowledge of the danger was a factor in considering the
plaintiff's
contributory negligence.
[51]
It is evident that the plaintiff
in casu
knew and appreciated
the danger that her actions in crossing the railway at dusk would
present. However, as regards the third element
for the defence of
volenti non fit injuria
to succeed, there must be consent on
the part of the plaintiff. I cannot find that she consented to the
harm occurring. I find that
the train driver on this evening did not
blow the horn or sound a whistle to warn either the plaintiff or Ms
Khanyile that the
train was to depart. Accordingly the third element
needed for the defence of
volenti non fit injuria
to exist has
not been established and accordingly this defence is dismissed.
Probabilities
[52]
From the oral evidence that has been presented it is clear to me that
there are two mutually destructive and irreconcilable
versions. The
plaintiff believes the defendant is at fault for allowing the
accident to occur and the defendant alleges it did
everything it
could have done to safeguard the area where the accident occurred,
and furthermore that the plaintiff was aware of
the danger in
crossing the railway and proceeded to cross, thereby negating any
liability on the part of the defendant for the
injuries sustained.
[53]
The decision of
Stellenbosch Farmers' Winery Group Ltd. and
Another v Martell
&
Cie SA and Others
[2002] ZASCA 98
is instructive, in that it lays down the guidelines to be employed by
the court in resolving factual disputes. The learned Nienaber
JA
stated at paragraph [5] the following;
"On the central
issue, as to what the parties actually decided, 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."
[54]
The defendants say they have security personal 24 hours at the
station. I find this improbable because if there are security
guards
posted at the station, children and adults alike would not be
crossing this railway line. No security guard was called by
the
defendant that currently works there to rebut the version of the
plaintiff that to date adults and children are still crossing
these
railway lines. In addition, no evidence was placed before me by a
security officer who was on duty on the evening of the
accident to
say he or she was on duty and patrolled the area where the plaintiff
was injured.
[55]
The fact that there is adequate lighting in the area where the
plaintiff was crossing the railway line is not disputed by the
defendant. Accordingly I find it puzzling that both the plaintiff and
Ms Khanyile were able to cross this railway line without
being
detected by the security guards.
[56]
Irrespective of when the photos A(ii) and A(iii) were taken, (which
depict a school child crossing the railway at the exact
point where
the plaintiff met her accident), the fact remains, there were no
security guards on the day this photo was taken to
stop the child
from crossing the railway line or to prevent the photographer from
taking the photo. This suggests that the measures
in place to prevent
the community from crossing are not sufficient.
[57]
The defendant alleges there is adequate bridges to attend to the
needs of pedestrians who need to cross the railway. I find
this
improbable because the community, the plaintiff and Ms Khanyile use
the area where the foot path is situated to cross the
railway. This
suggests the bridges are too far away from where the need arises for
them to be present. This is confirmed by Mr
Khumalo who states that
the community take short cuts to cross the railway line. The
defendant's employers knew where these short
cuts are and with this
knowledge the defendant should have acted proactively to create safe
crossings for pedestrians, or to cordon
off these areas with a fence.
This would prevent the community from crossing the railway at these
points.
[58]
As regards a horn being sounded by the driver of the train on the
evening of the accident I find on the probabilities this
did not
occur. I say this for the following reasons; namely, at the inception
of Mr Khumalo's evidence he explained in great detail
that after he
usually affixed the telemeters to the train, he would communicate
this to the driver of the train, who would then
get a signal from
CTC. Only then would the train driver blow the horn. However during
the latter part of his cross- examination
he conceded that the train
which caused the injury of the plaintiff was a 200 wagon length train
and he does not affix telemeters
to such a train. Accordingly on the
evidence of Mr Khumalo I find that he did not affix telemeters to
this train on the evening
that this incident occurred, and
accordingly he would not have communicated with the driver after
affixing the telemeters. He explained
that with a 200 wagon length
train
"It is electronically operated, that is where the
driver of the train can see everything as there are no other of these
problematic
areas like a train using a telemeter. Once the driver is
ready to depart the driver will ask for a signal as he can see
everything
is correct."
No mention was made by Mr Khumalo
that the driver would in this instance still sound the horn prior to
departure. In addition, the
actual driver of the train on the said
evening was not called by the defendant to confirm that a horn had in
fact been blown prior
to the trains departure that evening.
[59]
From the evidence of Mr Khumalo, it is clear that the movement of
trains, particularly on the so-called block road portion
of the
station, were controlled by electronic remote sensing, without regard
to human observation. It is on this basis that I find
that there is a
need for strict access control to the premises as potentially
dangerous train movements are being performed there.
[60]
The defendant relies on two signs, one which shows "a train"
and the other "a stop sign". The defendant
also states that
the presence of two level crossings, and three bridges are adequate.
The two level crossings are 2.8 kilometres
apart. Mr Makhubo agreed
that the two signs of "a train" and "a stop sign"
are not placed where the community
are in fact crossing the railway
line. I find that two road signs are not sufficient to convey the
message that moving trains can
cause a danger to pedestrians. The
"stop sign" at the level crossing is for the attention of
vehicles, not pedestrians.
There is nothing in place solely directed
towards the pedestrians crossing the railway safely.
[61]
Mr Makhubo confirmed that the fish grade area, the block road area,
the vacuum yard and the sorting yard are not fenced. To
date there is
still no fence and Mr Makhubo stated that it would be too expensive
for the defendant to erect a fence. As stated
by the case of
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail (supra)
an
organ of state will not be held to have reasonably performed a duty
simply on the basis of a bald assertion of resource constraints.
The
defendant relied on the case of
Soobramoney v Minister of Health
(Supra)
which stated should insufficient financial resources of
the State prevail, the State cannot be forced to supply services. The
distinguishing
factor between the case of
Soobramoney (supra)
and
the matter
in casu,
is that the former case dealt with lack of
financial resources for a, single patient who sought renal dialysis
from the Addington
Hospital, however in the matter
in casu,
failing to erect a fence affects a whole community.
[62]
Even though Mr Makhubo made the comment there is no money to put up a
fence for two kilometres, no mention was made why there
is no money
and why other alternatives like a pedestrian bridge crossing over the
railway was not erected.
[63]
It is simply not sufficient for the defendant to rely on the fact
that the plaintiff was never invited into the premises and
that she
should have used the level crossing. Both the plaintiff and Ms
Khanyile were unaware of the existence of the level crossings
as
being there for their benefit. In addition the photo depicting a
footpath showing regular usage by the public clearly would
have
alerted any
diligens paterfamilias
to see the dangers of the
public taking short cuts and would have taken steps to ameliorate the
situation. The defendant's contention
that it had provided safe
alternatives to assist members of the public to cross the railway,
were patently ineffective as shown
by the defendant's own version
that the public resorted to the taking of short cuts through its
premises, and had been doing so
for many years.
[64]
The station yard is not cordoned off by a fence, and owing to
inadequate signage, which fails to clearly and unambiguously
explain
to both children and adults alike that they are not allowed to cross
the railway, I find that no adequate or reasonable
steps have been
taken by the defendant to safeguard the well-being of pedestrians who
need to cross the railway.
[65]
In line with the case of
Kruger v Coetzee, (supra)
I find that
the defendant who was operating dangerous equipment, was under a
legal duty to take reasonable steps to prevent or at
least minimise
the risk to third parties. The movement of heavy freight trains on a
railway line is a dangerous activity. Further,
in line with the
authority of
Ngubane v The SA Transport Services
1991 (1) SALR
p 756 AD, if the defendant foresaw the possibility of harm, it should
have taken reasonable steps to prevent such
harm from occurring.
[66]
The facts of this case show that the defendant indeed foresaw the
possibility of its failure to fence its premises could result
in
injury to members of the public. Regarding the steps taken to guard
against such an occurrence, namely the employment of four
security
guards on foot and a single patrol vehicle, the presence of two
traffic signs, the presence of three bridges (used by
vehicles) and
two level crossings (used by vehicles), are measures which are so
inadequate that I find they are unreasonable.
[67]
Section 20 of the Fencing Act 31 of 1963 imposes a legal duty on the
defendant to fence off its premises. Section 20 states;
"(1) The owner of
any railway line which traverses any holding shall, at his own
expense, erect and maintain on either side
of such line a sufficient
fence with adequate crossing facilities at every place where a public
road traverses such line and at
any other place where such facilities
are reasonable necessary... "
[68]
Considering whether there is a causal link between the defendant's
omissions, and the harm suffered by the plaintiff, I find
on a
balance of probabilities that the failure to erect a fence, proper
pedestrian bridges and to erect clear signs explaining
and
prohibiting pedestrians from crossing the railway is causally
connected to the reason why the plaintiff suffered this injury
on the
night in question. In applying the
causa sine qua non
test,
"but for" the lack of a fence, proper pedestrian bridges
located at the frequently used pathways, and proper signage,
would
this plaintiff still have entered the station premises and been
injured? I find the answer to this question would be "no".
Accordingly I find the defendant's omission and failure to take
reasonable steps to erect a fence, to erect proper pedestrian
bridges, and to erect proper signage, is closely related to the
plaintiff's injury and that the defendant's omissions legally and
factually caused the plaintiff's injury.
Contributory negligence
[69]
The onus is on the defendant to prove the contributory negligence on
the part of the plaintiff.
[70]
I find that the plaintiff was negligent in climbing onto the coupling
links. These coupling links are a least a meter above
the ground,
they are rusty and the possibility of slipping and injuring oneself
is high. The plaintiff would have had to jump up
onto the train and
jump off on the other side. Although the plaintiff denies there was a
potential risk, or that she was negligent,
I find she was indeed
negligent.
[71]
Apportionment of negligence is not an easy task for a court. In my
view reference to past decisions may assist as a guide to
decide what
is fair in the circumstances.
[72]
In the case of
Khupa v South African Transport SeNices
1990
(2) SA 627
(W) the plaintiff disembarked from a train while he was
carrying a number of parcels and whilst the train was still in
motion.
The court held that there was contributory negligence on the
part of the plaintiff and the court attributed a percentage of the
negligence to him in the amount of 25% twenty-five percent. In the
case of
Transnet Ltd tla Metro Rail v Tshabalala
[2006] 2 All
SA 583
(SCA) the plaintiff was in a state of intoxication when he ran
alongside a moving train trying to board same and fell. The court
reduced his damages by two thirds. In the case of
Yende v
Passenger Rail Agency of South Africa
(39/2014
[2015] ZASCA 49
(27 March 2015), the plaintiff boarded a train which was already in
motion and fell backwards onto the platform and later on the
railway
tracks. He sustained injuries to his head, shoulder and arm. His arm
was later amputated. The majority judgment upheld
the dismissal of
the plaintiff's claim in the court
a quo,
however, the
minority judgment of the learned Bosielo JA found equal negligence on
the part of PRASA and the plaintiff. Bosielo
JA found that the
plaintiff negligently boarded a train which was in motion, however
the train guard failed to see that all the
doors of the train were
closed before the train moved off. The learned Bosielo JA found both
the plaintiff and the defendant equally
responsible and ordered that
the respondent pay 50% fifty percent of the proven damages. Although
all of these cases refer to commuters
that were travelling on
commuter trains, the principles are still of assistance in
determining the contributory negligence of the
plaintiff
in casu.
[73]
I am not in agreement with the defendant's counsel that 80%
eight percent of the negligence should be ascribed to the plaintiff.
The plaintiff has been using this route her entire life. She was
aware that when trains are about to depart the sound of a horn
is
activated. She stated that had she heard the sound of a horn she
would not have climbed over the coupling link. In light of
the above
authorities mentioned in paragraph
[74]
and the facts of the matter
in casu
I attribute equal
negligence on the part of the plaintiff and the defendant.
ORDER
[74]
In the premises the following order is made;
1. The defendant is
liable 50% fifty percent of the plaintiff's proven or agreed damages;
2. The defendant is
ordered to pay the costs;
3. The determination of
quantum is postponed
sine die.
____________________
D DOSIO
ACTING JUDGE OF THE HIGH
COURT
Appearances:
On
behalf of the Plaintiff
Adv D.J Combrink
On
behalf of the Defendant
Adv S Mgiba
Heard
on the 4th of July 2019
Judgment
handed down on the 25th of September 2019
[1]
See J Neethling & JM Potgieter law of Delict (6
th
ed,2010) at page 148