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[2020] ZAGPJHC 24
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Buthelezi v Passenger Rail Agency of South Africa (37364/17) [2020] ZAGPJHC 24 (25 February 2020)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
no: 37364/17
In
the matter between:
BONAKELE
VICTORIA
BUTHELEZI
Plaintiff
and
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
Defendant
Case
Summary:
Delictual damages – commuter falling
out of train stationery between two stations and sustaining bodily
injuries – claim
based on negligent omission – negligence
not proved.
JUDGMENT
MEYER
J
[1]
The plaintiff, a 45 year-old woman, sues the defendant for damages
arising out of an incident in which she sustained bodily
injuries
that happened during the morning on 4 September 2017, between
Cleveland and Tooronga stations, Johannesburg. Only
the
question of liability is presently relevant; a consent order
separating the questions of liability and quantum in terms of
r 33(4)
of the Uniform Rules of Court was granted at the commencement of the
trial.
[2]
The plaintiff testified and the defendant called as its witnesses the
driver of train 0628 (the train), Ms Maggie Mashiane,
the Metro guard
on duty on the train, Mr Charles Baloyi, and Ms Sithube, a security
guard employed by Royal Security, who was on
duty at Park Station,
Johannesburg, the ultimate destination of the train on the morning in
question.
[3]
The background facts are simple and were largely undisputed at the
conclusion of the trial. The train, driven by Ms Mashiane
and
guarded by Mr Baloyi, departed from Pretoria at 7:45 am on 4
September 2017, and it was scheduled to arrive at its ultimate
destination, Park Station, at 9:24 am. It was what is referred
to in the evidence an ‘all stop train’, stopping
inter
alia
at Germiston, Cleveland and Tooronga stations. It was
a twelve-coach train, including three motor coaches; one in front
where
the train driver was seated, one in the middle and one at the
rear where the train guard was stationed.
[4]
The plaintiff boarded the train around 8:00 am at Germiston station.
Once the train had departed from Cleveland station,
it experienced
mechanical problems and became stationary between that station and
the next one, Tooronga station. The train
driver rang a bell
three times to alert the train guard that the train was stopping.
The instruments indicated to her a mechanical
problem with the rear
motor. It is the duty of a train driver to first inspect the
motors to see whether a mechanical problem
could be resolved without
calling on the defendant’s technicians.
[5]
The train driver switched off the train and took its keys with her
when she alighted from the front motor coach in order to
unlock the
motor coaches. The effect of switching off a train is that the
air pressure is released, and the doors of the
coaches can then be
forced open easier. While the train driver was walking to the
other two motor coaches, commuters opened
the windows and enquired
from her what the problem was to which she replied that it was a
mechanical one. She was unable
to resolve the mechanical
problem with the rear motor herself and accordingly called the
technicians out to the train. She
instructed the train guard to
tell commuters who become ‘impatient’ to disembark from
the motor coaches where ladders
are fitted that can be used for the
purpose. When walking back to the front motor coach, she also
informed commuters who
enquired from her why the train was stationery
that if they ‘need’ to get off the train they should go
to either the
front, middle or rear motor coach and use the stairs to
disembark. She conversed with commuters in Sepedi and English.
Technicians attended to the mechanical problem and the train was back
en route
about an hour later. During that time certain
commuters disembarked by using the stairs of the motor coaches and
others forced
coach doors open and jumped from the train.
[6]
The plaintiff testified that disembarking commuters pushed their way
to an open door about three metres away from where she
was standing
in one of the coaches, in the process gradually pushing her to that
open door and then out of the train. She
fell on the ground and
sustained a fracture of the right tibial plateau and other bodily
injuries. (Whether the plaintiff
was pushed out of the train or
jumped of her own accord is an issue to which I return.)
Neither the train driver nor the
train guard saw the plaintiff lying
injured on the ground next to the train. Two young gentleman
selling sweets came to her
aid and helped her to the platform at
Tooronga station, which was about 200 metres away, where she boarded
a train to Park station.
Ms Sithube, who was on duty at the
‘gate concourse’ at Park station, was informed about an
injured lady on platform
11 – 12. One of her duties as a
security officer was to help people who have been injured on trains.
[7]
Ms Sithube went to platform 11-12 where she found the plaintiff.
She obtained her personal particulars, train ticket and
enquired from
her how she got injured. (I return to the conflicting accounts
of the plaintiff and Ms Sithube regarding the
explanation given to Ms
Sithube as to how she had got injured.) She requested the
plaintiff to stay there while she was going
to call for an ambulance
and summon a colleague. Ms Sithube then went to the control
office where she reported the incident.
An official of the
defendant, Ms Mazibuko, accompanied her back to the plaintiff, who
also explained to Ms Mazibuko what had happened
to her. The
plaintiff was taken by ambulance to Charlotte Maxeke Johannesburg
Academic Hospital, where she was admitted,
given treatment and
surgical intervention, and she was discharged on 29 September 2017.
[8]
The premise of the plaintiff’s case is that she fell and
sustained injuries as a result of being pushed out of a stationary
train that was overcrowded and allowed to run all the way from
Germiston station and to be stationery between two stations with
open
doors. In his opening address the plaintiff’s counsel
formulated her case thus:
‘
Had the doors of
the train been closed and had the train not been overcrowded she
would not have been injured; she would not have
been pushed out of
the train.’
[9]
In
South African Rail Commuter Corporation Limited v Thwala
(661/2010)
[2011] ZASCA 170
(29 September 2011), Maya JA said
this:
‘
[11] The test by
which to determine delictual liability is trite. It involves,
depending upon the particular circumstances
of each case, the
questions whether (a) a reasonable person in the defendant’s
position would foresee the reasonable possibility
of his or her
conduct causing harm resulting in patrimonial loss to another; (b)
would take reasonable steps to avert the risk
of such harm; and (c)
the defendant failed to take such steps. But not every act or
omission which causes harm is actionable.
For liability for
patrimonial loss to arise, the negligent act or omission must have
been wrongful. And it is the reasonableness
or otherwise of
imposing liability for such a negligent act or omission that
determines whether it is to be regarded as wrongful.
The onus
to prove negligence rests on the plaintiff and it requires more than
merely proving that harm to others was reasonably
foreseeable and
that a reasonable person would probably have taken measures to avert
the risk of such harm. The plaintiff
must adduce evidence as to
the reasonable measures which could have been taken to prevent or
minimise the risk of harm.
[12] It is settled that
the appellant (a corporation whose main object and business in terms
of the Legal Succession to the South
African Transport Services Act 9
of 1989 under which it was established, is to provide rail commuter
services in the public interest
and generate income from the
exploitation of rail commuter assets on behalf of the State) carries
a positive obligation to implement
reasonable measures to ensure the
safety of rail commuters who travel on its trains. Such
obligation must give rise to delictual
liability where, as was
pleaded here, the risk of harm to commuters resulting from falling
out of crowded trains running with open
doors is eminently
foreseeable.’
(Footnotes
omitted.)
[10]
The sum of the plaintiff’s evidence on the aspect that the
train was overcrowded is merely that the train was ‘very
full’. She stood for the duration of her ride. The
train driver testified that the train left Pretoria at 7:45
am, which
was off-peak, and it ‘was not as full as peak hour traffic’.
The train guard testified:
‘
There were not
many people on that train because it was off-peak time. Peak
hour normally is from 5:00 to 7:30. The train
departed late from
Pretoria, 7:45.’
[11]
An inference of negligence, in my view, cannot be drawn from the
plaintiff’s scant evidence on this aspect that the train
was
very full. More is required. Equally apposite to the
present case is what Maya JA said in
Thwala
para 15:
‘
. . . The sum of
the respondent’s evidence on this aspect was merely that the
train was “very full . . . even up to
the door”.
She neither pleaded nor established in evidence that the appellant
had a duty to regulate the numbers of
its rail passengers, nor what
reasonable measures it ought to have implemented in that regard to
ensure passenger safety that it
omitted to take. She led no
evidence, for example, on the passenger capacity of the coach; if
that number was exceeded, how
many passengers remained in the coach
when the train reached her station etc. One cannot assume
simply from the fact that
there were standing passengers that the
coach carried an impermissible number as the appellant’s policy
and applicable safety
standards might well legitimately have allowed
that practice.’
[12]
The plaintiff’s evidence that the train ran from Germiston
station with open doors, which remained open also when the
train was
stationary between Cleveland and Tooronga stations, is not credible.
In chief she testified that when the train
left Germiston station,
she noticed that the doors of the train were open. In fact, she
said ‘[t]hey were wide open’.
When the train was
stationery between Cleveland and Tooronga stations the ‘doors
were still open’. She concluded
her evidence in chief by
saying this:
‘
If the doors were
closed, I would not have fallen. From the time the train left
Germiston I never saw the doors closed.
They were never
closed.’
Under
cross-examination, however, she testified that she did not observe
whether the doors of the other coaches were open.
And insofar
as the coach in which she travelled is concerned, she testified that
only the door that was about three metres away
from where she was
standing was open and the other doors were closed.
[13]
The train driver explained that her driving position is in front of
the train and that she faces forward, looking out for signals.
The train guard is positioned at the rear of the train and
responsible for ensuring that commuters get on and off the train and
that all the doors are closed before a train leaves a platform.
She testified that there was no problem with the train when
she took
it over in Pretoria. She also did not receive any report from
the train guard that indicated any problem with the
train doors. If
there was a problem, he would have informed her or the defendant’s
technicians of it.
[14]
The train guard testified that when he took over as the train guard
in Pretoria, he had not been informed of any problems with
the train
by the train guard from whom he took over. When a train guard
relieves another train guard on a train, the latter guard
reports to
the guard taking over about the train and the status of its doors.
He testified that his duties include the duty
to observe the full
length of the train on the platform until the full length of the
train has left the platform. He took time
to observe the doors and
did not notice anything unusual. He also did not experience any
problems with the doors; they functioned
properly.
[15]
From the testimony of the train driver and guard it appears that the
train ran smoothly the morning in question until it had
a mechanical
breakdown of its rear motor once it had left Cleveland station, and
that the doors were properly functional.
The plaintiff did not
discharge the onus of establishing that the train ran with open doors
or that a door of the coach in which
she was travelling remained open
from Germiston station and while the train was stationary between
Cleveland and Tooronga stations.
It seems to me more probable
that some commuters forced open some of the train doors, including
the door where the plaintiff jumped
off or was pushed off the train.
I accept that it is common human behaviour for railway commuters,
particularly during morning
periods when most are in a hurry to get
to work or to other destinations, to rush to the doors of a coach
when a train gets stuck
between two nearby stations, and to rather
get off the train and walk to the nearest station to board another
train. (Cf.
Thwala
para 14.)
[16]
This, in fact, is supported by the evidence of the plaintiff, the
train driver and the guard. The plaintiff testified
that during
the time when the train was stationary between Cleveland and Tooronga
stations, people started to rush to the door
close to where she was
standing and started to push each other, ‘because they were in
a hurry and must go to work’.
The train driver testified
that she had instructed the train guard to tell commuters who become
‘impatient’ and wished
to get off the train to use the
stairs fitted to the motor coaches to disembark, and she herself also
told this to commuters who
‘need to get off’ the train.
The train guard testified that commuters forced the doors open and
were jumping
off the train while it was stationary. In his view
those commuters acted like that because they did not know when the
train
was going to leave again.
[17]
The plaintiff’s testimony is that she was standing in one of
the coaches about three paces away from a door that remained
open
since she had boarded the train; she was gradually pushed to the open
door by fellow commuters; she attempted to resist the
pushing until
she got to the open door, but then made her ‘body light’
(she stopped resisting) in order not to fall
on her head, and that is
when she was pushed out of the train. The obstacle in the way
of accepting the plaintiff’s
account of being pushed off the
train, however, is the testimony of Ms Sithube, who is adamant that
the plaintiff reported to her
that the train was stuck between
Cleveland and Tooronga stations; that people then started to jump off
the train; that she remained
seated in the hope that the train ‘will
move on’; and when that did not happen, she decided to also
jump from the train
and to walk to Tooronga station from where she
would catch the next train. That, according to Ms Sithube, is
the explanation
the plaintiff gave to her as to how she got injured.
[18]
Ms Sithube made a good impression as a witness and the plaintiff’s
attempts at discrediting her evidence were not convincing.
The
plaintiff agreed that she explained to Ms Sithube (the security
officer) what happened to her and how she got injured, but,
according
to the plaintiff, what she explained to Ms Sithube ‘is what
[she] explained to this court’, that she was
gradually pushed
to the open door and out of the train. Furthermore, she accuses
Ms Sithube of ‘not taking any notes’,
of ‘tapping’
her phone while she was explaining to her what had happened, that she
did not speak isiZulu to her (which
is her mother tongue) and that
they did not understand each other. When Ms Sithube was
confronted with the evidence of the
plaintiff on these aspects, she
replied by saying that her own mother tongue is Venda, but that she
is able to express herself
in isiZulu in a way that isiZulu-speaking
people understand, that they indeed conversed in isiZulu and
understood each other, that
she recorded everything that the
plaintiff had told her in her pocket book, which she handed to her
supervisor at the Royal Security
Office when it was full and she was
issued with a new one.
[19]
I find it improbable that Ms Sithube would fabricate evidence
prejudicial to the plaintiff’s case. It is not suggested
that she either foresaw the litigation or had any interest in the
outcome of this litigation; she merely worked as a security officer
for a company that renders security and other services to the
defendant. Furthermore, it is not suggested that she and the
plaintiff are known to each other and that there is any acrimony
between them, or that she had any other motive to fabricate evidence
against the plaintiff. I am unable to find that Ms Sithube’s
evidence is false. (See
National Employers’ General
Insurance Co Ltd v Jagers
1984 (4) 437 (ECD) at 440 D-G.)
[20]
It should be borne in mind, as was said by Maya JA in
Thwala
para
18, ‘that whether or not conduct constitutes negligence
ultimately depends upon a realistic and sensible judicial approach
to
all the facts and circumstances’. As I have mentioned,
the premise of the plaintiff’s case is that she fell
and
sustained injuries as a result of being pushed by fellow commuters
from the inside of an overcrowded train that was allowed
to run and
be stationery between two stations with its doors ‘wide open’.
The plaintiff, however, failed to establish
that the train was
overcrowded or that the open door of the coach in which she travelled
and which she fell from the train was
a happenstance over which the
defendant had control or that she was pushed out of the train by
fellow commuters. She thus
failed to discharge the onus resting
upon her of proving on a balance of probabilities that the defendant
was negligent.
I should add that my conclusion would not have
been different if I were to have found that the plaintiff established
that she was
pushed off the train by fellow commuters. That on
the relevant facts and circumstances of this case would also have
been
a happenstance over which the defendant was not shown to have
control.
[21]
In the result the following order is made:
Absolution
from the instance is granted, with costs.
____________________________
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Hearing:
22-24 April 2019 and 3 June 2019
Judgment:
25 February 2020
Plaintiff’s
counsel: Mr Bulelani Mzamo (B Mzamo Inc)
Instructed
by: B Mzamo Inc., Fox Street, Johannesburg
Defendant’s
counsel: Adv FF Opperman
Instructed
by: Cliffe Dekker Hofmeyr Inc., Sandown, Sandton