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[2020] ZAGPJHC 147
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Mhlanga v Passenger Rail Agency (16/4158) [2020] ZAGPJHC 147 (17 April 2020)
THE
HIGH COURT OF SOUTH AFRICA, SOUTH GAUTENG
LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 16/4158
In
the matter between:
MHLANGA
EDDIE
PLAINTIFF
AND
PASSENGER
RAIL
AGENCY
DEFENDENT
JUDGMENT.
Molahlehi
J
Introduction
[1]
The claim for
damages by the plaintiff, Mr Mhlanga, in this matter arose from the
accident that occurred on 10 August 2016 at New
Canada railway
station. He claims damages as a result of the injuries suffered
consequent the accident.
[2]
It was pointed out
by Counsel at the commencement of the hearing that an order was
issued during the case management conference,
separating liability
from quantum of damages. Thus the only issue for determination in the
present proceedings concerns the issue
of liability of the defendant.
[3]
It is common cause
that the plaintiff suffered bodily injuries on the day in question.
He embarked on the train at Orlando railway
station with his intended
destination being Johannesburg.
The
plaintiff’s case
[4]
The plaintiff was
the first witness to testify about what happened on the day of the
incident. He boarded the train at around 7:20
at Orlando railway
station. The train arrived thirty minutes late and was overcrowded.
[5]
He travelled on the
train with his cousin Mr Gift Simango. On arrival at the
station, the train doors were open and remained
like that until the
train arrived at the new Canada railway station.
[6]
The train was
overloaded, and thus he had to stand, with nothing to balance himself
on. He was standing a meter away from the open
door.
[7]
He testified further
that the next station after Orlando was Mlamlankumzi and because of
train was full, no passengers embarked
on the train at that station.
The next station was New Canada.
[8]
As the train was
approaching the platform at New Canada, the passengers started
jostling and pushing towards the opened door in
preparation of
alighting from the train. In the process of jostling and
pushing by other passengers, the plaintiff was ejected
out of the
moving train. He fell and sustained injuries on his feet and back.
[9]
Before falling out
of the train there were seven people between him and the door, who
were balancing themselves with the steel poles
inside the train.
[10]
The plaintiff
testified during cross-examination that he fell backwards and on his
back. He was asked how it came about that
he ended up injuring
his feet if he fell in the manner he described. He stated that it was
because the people who alighted the
train at that moment were
pushing. He disputed the version put to him that he was seen
hanging outside the driver's cabin.
He further insisted that no
person boarded the train at Mlamlankunzi.
[11]
The second witness
to testify in support of the case of the plaintiff was his relative,
Mr Gifts Simango. He testified that he together
with his cousin, (the
plaintiff) and other cousins boarded the train from Orlando on the
way to Johannesburg in the morning. The
train was overloaded, and its
doors were open as it travelled towards Johannesburg. He did not find
a seat to sit on, and thus
he stood, holding onto the belts that hang
inside the train ceiling. He had his monthly ticket and was in the
second coach from
that of the driver's cabin.
[12]
According to him,
information was passed by passengers who were at the door that a
stop-and-check would be conducted at the New
Canada station. It was
for this reason that people started jostling and pushing to get out
of the train. The plaintiff was
in that process ejected out of
the train. He fell out of the train just where the platform begins.
The official of the defendant
approached him immediately after the
accident.
[13]
During
cross-examination, the witness stated that they, together with the
plaintiff, arrived at Orlando station at about 6:30 and
boarded the
train to Johannesburg. His version concerning what happened at
Mlamlankunzi is that the train stopped and few
people alighted and
because it was overloaded few were able to board the train.
[14]
Concerning what
happened as they approached and arrived at the New Canada station, he
testified that about five meters before entering
the platform the
train reduced its speed and at that point, people started jumping out
of the train. The plaintiff was the only
person who was ejected out
of the train on that the day. He refuted the assertion that the
plaintiff was hanging out of the driver's
cabin. He also
confirmed the version that there were people between the door and
where the plaintiff was standing.
[15]
During
cross-examination, he insisted that the incident occurred on 9 August
and not 10 August 20216.
The
defendant’s case
[16]
The only witness who
testified on behalf of the defendant was Mr Tembe, the senior
protection officer of the defendant. He testified
that on 10 August
2016 he reported for duty at New Canada railway station and was
deployed to conduct a stop-and-check of passengers
who were on the
train without valid tickets.
[17]
He conducted the
process of checking by standing on a vantage point which is a bridge
under which the train would pass on its way
to Johannesburg. While
standing there, he observed a person next to the driver's door
outside the train. The person was trying
to jump from where he was,
as the train was entering the platform. It was too late for him to
jump and accordingly, he landed under
the train and the platform.
[18]
Having observed the
incident, he went around to a security officers and instructed him to
contact other officials to go to the scene.
He further testified that
he never saw any other person jumping out of the train on that day.
[19]
During
cross-examination, Mr Tembe conceded that the train was overcrowded
and that people were hanging at the door of the train.
[20]
He insisted that he
saw only one person at the door of the driver and that only one
person was involved in that accident on that
day.
Legal
principles
.
[21]
As
stated in South African Rail Commuter Corporation Ltd v Thwala,
[1]
the test for determining the legal liability in a case involving an
allegation of negligence entails conducting a factual inquiry
into
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.
[22]
In Thwala the Court,
after restating the above test held that not every act or omission
which causes harm is actionable. The Court
further found that for
liability for patrimonial loss to arise, the negligent act must be
harmful.
[23]
It is trite that the
plaintiff being the party alleging negligence has the burden of
proof. The plaintiff has to discharge the burden
by adducing evidence
as to the reasonable measures which could have been taken to prevent
or minimize the risk of harm.
[24]
In
Moshongwa v PRASA,
[2]
the
Constitutional Court held that PRASA has by being a public carrier a
duty to protect its passengers from suffering physical
injury while
using trains.
[25]
As
concerning the issue of causation, the Constitutional Court in the
Minister of Correctional Services,
[3]
held that the element of liability gives rise to two distinct
inquiries. The first inquiry, the Court held, is a factual
inquiry into whether the harm complained of was due to the negligent
act or omission on the part of the defendant. There is no
need to
conduct further inquiry if the answer to this question is in the
negative. If the answer is in the affirmative, the
second
inquiry, which concerns legal causation requires an investigation
into how close or remote is the harm to the negligent
act or
omission.
[26]
The case of the
plaintiff in the present matter is based on the alleged failure by
the defendant to take reasonable steps to prevent
the injuries he
suffered. His contention is that had the doors of the train
been closed he would not have suffered any harm.
In other
words, the consequent injuries and the damages he suffered follow
from the negligent failure by the defendant to
close the door of the
train.
[27]
The defendant
disputed the plaintiff's claim and contended that he was not forced
out of the moving train, but instead, he involved
himself in an act
in which he voluntarily assumed the risk of injury. It
contended that it should not be liable for the resultant
damages
suffered by the plaintiff when he voluntarily assumed the risk of the
danger of falling off the train.
[28]
It is clear from the
above discussion that there is a factual dispute concerning the cause
of the accident.
[29]
In
resolving factual disputes, the Court is in enjoined to find where
the truth lies between the two mutually destructive versions.
In this
respect the Court is required to investigate: (a) the credibility of
the various factual witnesses, (b) the reliability
and (c) the
probability or improbability of each party's version on each of the
disputed issues. In search of where the truth
lies between the
two mutually destructive versions, the Court will be persuaded by
whether the balance in favour of the truth tilts
in favour of the
party that has the burden of proof. While these factors need not be
considered in isolation of each other, the
courts are generally slow
to resort to the credibility factor because of its inherent
challenges.
[4]
To succeed
in discharging its onus the party that bears the onus has to produce
credible evidence to support his or her case.
[5]
[30]
In the present case,
it was argued on behalf of the plaintiff that he had discharged the
onus of proving on the balance of probabilities
that the defendant
was negligent in allowing the train to travel with its doors open. It
was further argued that the plaintiff
and his witness were reliable
witnesses and thus the probabilities favour that version.
Evaluation
[31]
In my view, the
version of the plaintiff is highly improbable, and precisely because
it in certain respects is contradicted by his
witness. Although the
train was overcrowded, he did not have to push himself inside the
train and stand about a meter away from
the door. He estimated that
there were about seven other people between him and the train door.
[32]
He initially stated
that as far as he could recall, no one was pushed out of the train on
that day. When questioned further
about this issue in
cross-examination, he said that he could not recall how many people
were between him and the door. He
could not see whether any
passenger blocked the door from closing. The plaintiff conceded in
general terms that it is dangerous
to hang outside the train once it
is in motion.
[33]
The second witness
of the plaintiff was the most unsatisfactory witness in that he
contradicted the plaintiff in some respects.
It appears from
his version that the jostling and pushing in the coach was due to
passengers who wanted to jump out of the
moving train to avoid ticket
inspectors.
[34]
He testified that
the plaintiff was the only person that fell out of the train. This is
so despite there being many other people
who were jumping out of the
moving train. It was also, according to him, only the plaintiff
who lost his balance while the
others balanced on each other.
[35]
It is quite clear
that to a considerable extent, the story told by the plaintiff's
witness was a fabrication. This is amongst others
evidenced by the
fact that he during cross-examination he volunteered information
which was never solicited from him in cross-examination.
He testified
in this respect that other people who were outside the driver's cabin
accused the plaintiff as one of those who were
outside the driver's
cabin. There was nothing suggesting the need to divulge this
information, which to some extent supported the
version that there
was at least someone hanging outside the driver's cabin.
[36]
He contradicted the
plaintiff about the times estimated by the plaintiff and the date of
the occurrence. He insisted that the accident
occurred on 9 August
2016. This is despite it being indicated to him that the record
reflected otherwise. He could
not tell how come his brother
missed noticing that some people boarded the train at Mlamlankunzi
railway station. The version of
the plaintiff was that there were no
passengers that went on board the train at Mlamlankunzi station
because the train was full.
[37]
The only witness of
the defendant was Mr Tembe. His testimony, although being that
of a single witness, was clear, consistent
and satisfactory to the
extent that this Court was persuaded to accept it as truthful. He
gave a full account of what happened
at the critical moment before
the accident.
[38]
As indicated
earlier, he observed the incident from his vantage point standing on
the bridge under which the train would pass. He
saw the
plaintiff hanging outside the driver's cabin and also as he was
trying to pull himself up as the train was approaching
the platform.
[39]
Mr Tembe was
cross-examined at length as to why he did not stop the train when he
saw the plaintiff hanging outside the driver's
cabin. His
explanation which I find fair and reasonable is that he is not
responsible for train operations, and in any case,
the train was
entering the station, and it was about thirty meters away from the
platform at the time he saw it.
[40]
The argument that
calling Mr Tembe as a witness was an afterthought because he was not
identified as such in the appellant's occurrence
book is
unsustainable. The occurrence book indicates otherwise. The record
reflects that the entry into the occurrence book was
done by Mr
Mavume, who recorded that the incident was reported by Mr Tembe, who
also witnessed the incident.
[41]
The proposition by
the plaintiff's Counsel that the person that Mr Tembe saw hanging on
the train may be a different person who
by the time he reported the
incident to the security may have stood up and run away is
unsustainable considering the plaintiff's
version. The fact that one
of the witnesses who stated that he preferred to remain anonymous and
was unwilling to testify does
not detract from the reliability, the
consistency and the truthfulness of the single witness testimony of
Mr Temebe.
[42]
In light of the
above, I find that the plaintiff has failed to adduce sufficient
evidence to show that the injury he suffered was
as a result of the
negligence of the defendant.
Order
[43]
In the premises, the
plaintiff's claim is dismissed with costs.
_______________________
E
Molahlehi
Judge
of the High Court,
Johannesburg
.
x
The
representation:
For
the Plaintiff: Adv O Morapedi instructed by B Mzamo Incorporated
For
the Defendant: Adv FF Opperman instructed by Cliffe Derker Hofmeyr
Inc
Date
heard: 13 February 2020
Delivered:
17 April 2020.
[1]
South
African Rail Commuter Corporation Ltd v Thwala(661/2010)
[2011]
ZASCA 170
(29
SEPTEMBER 2011) at paragraph [11].
[2]
(2015)
ZACC 36
at paragraph 20.
[3]
2013 (2)
BCLR 129 (CC).
[4]
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell and Others,
2003 (1)
SA 11
(SCA) at paragraph [5].
[5]
National
Employers' General Insurance v Jager
1984 (4) SA 437
(ECD) at 440 –
D.