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[2020] ZAGPJHC 420
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Zanoxolo v The Passenger Rail Agency of South Africa (2018/40091) [2020] ZAGPJHC 420 (15 June 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2018/40091
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
15
June 2020
ZALENI
ZANOXOLO
Plaintiff
And
THE
PASSENGER RAIL AGENCY OF SOUTH
AFRICA
Defendant
JUDGMENT
RAMAPUPUTLA
AJ
[1]
The plaintiff seeks an order holding the defendant liable for damages
suffered as
a result of injuries sustained during an incident which
the plaintiff alleges occurred at the Mpilisweni Station, Katlehong
on
24 May 2017.
[2]
The court is called upon to determine liability only. The court is
confronted with
a version advanced by the plaintiff and his one
witness, Senzo Nxele. The defendant has no eyewitnesses to the
incident, however
a witness from Prasa it intended to call decided
not to come on the date of the trial and no reason was provided for
such change
of decision.
[3]
The defendant does not have a version but hopes that through
cross-examination, the
plaintiff and his witness will fail to prove
that the incident and injury were caused by the negligence of the
defendant. The defendant
intends to highlight the contradictions in
the pleadings and the testimony. The court is informed that the
contradictions will
impeach the credibility of the plaintiff and his
witness and the probability of their testimony and evidence.
PLAINTIFF’S
EVIDENCE
[4]
In summary, the plaintiff testified that on 24 May 2017, late in the
afternoon, he
and his friends boarded a train at Germiston station.
They were returning from seeking employment. He was seated at the
second
last carriage. The train seats were full and there were people
standing and some were even standing near the door. The train doors
were open and remained open even when the train was moving. The train
stopped
at other stations and as a result became fuller.
[5]
There was pushing by incoming and outgoing passengers. When the train
reached Natalspruit
Train Station, it was full and he stood up to
ready himself to be near the door. When the train was about to reach
the platform
of his destination, the train was moving slow. While
standing there, the other passengers started pushing and jumping. It
was at
that time that he was pushed off the moving train. He fell to
the ground where there were stones, three meters away from the
platform
of the Mpilisweni Station. He lost consciousness. His right
foot became lodged between the rail line and the moving train. The
moving train severed his right foot. As a result thereof he suffered
a traumatic amputation of the right ankle.
[6]
When he regained his consciousness he realised that his leg was
severed and he screamed
for his friend Senzo Nxele. Senzo Nxele and
his other friend removed him from the scene of the incident. There
were no security
personnel at the scene and a private car was called
to take him to hospital before an ambulance arrived. He was taken to
Thelle
Mogoerane Regional hospital by a private motor vehicle where
he received treatment.
SENZO
NXELE’S EVIDENCE
[7]
He and the plaintiff were from seeking employment and they boarded a
train at Germiston
Station. The train got fuller as it arrived at
other stations. He and the plaintiff were in the same coach.
According to him, there
were many people between the plaintiff and
the open door of the train. He did not count their number. The
plaintiff was not the
first in line next to the open door. He also
confirmed that while in the train, people were pushing and some were
jumping off but
he did not see who pushed the plaintiff and did not
see him fall. After alighting from the train he heard people
screaming. He
heard the plaintiff calling for his name from the
direction where the plaintiff was lying which was the gravel three
meters away
to the platform. There were no security personnel on
duty. He never consulted with the plaintiff’s attorneys.
[8]
There were people screaming and after alighting from the train he
followed them. He heard
his surname being called and he went where
the calling was coming from and he found the plaintiff who was lying
with his legs on
the rail track. He was injured with his right foot
amputated. He removed the plaintiff’s boot and put it in the
plastic bag
together with the severed foot. He called a private car
to take the plaintiff to the hospital as the ambulance was delayed.
When
they arrived at the hospital he told the personnel what happened
and they wrote the information on the file.
[9]
In light of the testimony of the plaintiff and his witness, both the
plaintiff and
the defendants applied for amendment of their
pleadings. Both parties did not object to the amendment of their
respective pleadings
which amendments were granted.
[10]
As regards the amendment of pleadings, the
following is of relevance and self-explanatory:
“
The
function of pleadings
[11]
Pleadings are a means by which parties to an action bring the issues
upon which reliance is to
be placed to the notice of the Court.
[1]
In drawing their pleadings a plaintiff must state clearly and
concisely on what facts he bases his claim and he must do so with
such exactness that the defendant will know the nature of the facts
which are to be proved against him so that he may adequately
meet
them in court and tender evidence to disprove the plaintiff's
allegations.
[2]
This
in turn will prevent ambush at the trial.
[12]
Departure from pleadings is permissible unless such departure will
cause prejudice. The court
has discretion in this regard.
[3]
In
Beck's
Theory and Principles of Pleadings in Civil Actions
[4]
other principles of pleadings are laid out thus:
Once
pleadings are filed the parties are bound by them.
If
the
pleadi
n
gs
raise
certain
i
ssues
and
the
evidence
adduced
at
the
trial
does
n
ot
substantiate them, the action
(or
defence
as
the case
might
be) would
fail
unless
amendments are granted.
[5]
”
ISSUES
FOR DETERMINATION
[13]
The court has to decide what is probable, whether the plaintiff and
his witness are credible and whether their evidence can
be relied
upon.
The
defendant has no witnesses on its side. Therefore, the probability
can only be assayed by the court from the factual testimony
of the
plaintiff and his witness.
[14]
The court has to decide whether the defendant or its staff
acts/omissions constitute negligent conduct. If the court finds
that
the defendant or its staff conduct constitute negligence, whether the
plaintiff assumed voluntary risk by moving near the
door of a full
train or whether the defendant contributed to such negligence.
[15]
The court has to determine the issue of factual and legal causation.
Could the plaintiff have suffered the injury had the incident
not
occurred. Whether there is a connection between the defendant’s
failure to carry out its duty to close the doors and
the injury
suffered by the plaintiff.
DEFENDANT’S
SUBMISSIONS
The
defendant’s Counsel approach is three-pronged.
[16]
He seeks to attack the credibility of the plaintiff and his witness,
the reliability and probability of their testimony. This
he says, he
is going to do by indicating the contradiction between the oral
testimony and the answers to a request to further particulars
for
trial drafted by the plaintiff’s attorney of record, entries
made in the hospital records and the amendment to further
particulars. The defendant further submitted hospital records from
Mpilisweni hospital indicating the place where the plaintiff
is
injured is different from the oral testimony.
[17]
His second strategy is to raise voluntary assumption of risk as
defence based on the fact that the plaintiff went near the
open doors
of a slow moving train. According to him, the plaintiff, unlike his
witness Senzo Nxele who stood in the middle of the
coach of the
moving train, was not cautious because he went near the open doors of
the coach of the train despite the fact that
it was dangerous to do
so.
[18]
The third strategy is to deny that there is a causal link between the
fall from the slow moving train with open doors and the
amputation of
the leg. This he submits, will prove that even if the court finds
that the defendant was negligent in failing to
close the doors of the
moving train,. Such negligence did not cause the plaintiff’s
injury ( but the plaintiff was contributorily
negligent by moving
near the open doors.
[19]
He argues that:-
[19.1]
The plaintiff’s oral evidence was neither credible nor probable
and such version should be dismissed as untrue and
improbable being
completely and materially contradictory of the pleaded version. This
is as a result of the answers to the defendant
filed an extensive
request for further particulars for trial which elicited very
detailed answers. The defendant submits that these
answers did not
reasonably emanate from the plaintiff’s attorney but must have
been obtained from the plaintiff after a comprehensive
consultation
with the plaintiff. According to defendant’s Counsel, the
answers given are of specific relevance to the question
of
credibility and probabilities and are quoted verbatim to assist the
court in understanding the extent to which the plaintiff
contradicted
the pleaded version.
The
defendant submits these contradictions further contradict Senzo’s
evidence and are material to the credibility of the
plaintiff.
[19.2]
Both the plaintiff and Senzo were evasive witnesses who failed to
give direct answers to pressing questions and had
to be directed to
answer questions, particularly on causation, contributory negligence
and voluntary assumption of risk.
[19.3]
The defendant’s further submits that the onus of proof rests
upon plaintiff convincing the Court, through credible
evidence, that
plaintiff’s version is more probable than that of defendant. He
further submits that concluding on factual
disputes where the version
of a plaintiff collides with that of the defendant a Court must
examine the credibility, reliability
and probability of the evidence
of various factual witnesses. He quoted cases such as
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell Et Cie and
Others
2003 (1) SA 11
(SCA) at 14J -
15E
,
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982
(2) SA 603
(A quoting
Govan v Skidmore
;
Selamolele v Makhado; National
Employer’s General Insurance; Santam Bpk v Biddulph
.
The above authorities are quoted to support his
attempt to impeach the credibility of the plaintiff and his witness,
and the probability
of the incident happening as alleged.
[19.4]
The defendant’s submits that t
he
version of the plaintiff should be dismissed as untrue and
improbable, alternatively the plaintiff did not proof the essential
element of causation (more particularly legal causation);
[19.5] The
defendant argues therefore that it should be absolved from the
instance and the plaintiff should be ordered to
pay the defendant’s
costs to date.
Analysis
of the Evidence
[20]
I have had ample opportunity to observe the
plaintiff and his witness. I was highly impressed by their demeanour
in the witness box. The plaintiff was very clear in his testimony and
was able to answer questions relating to how the incident
occurred.
He was not confused by the defendant’s Counsel attempt to
assail his credibility by asking him why his testimony
differs with
the answers to a request for further particulars for trial(drafted by
his attorney of record) and hospital records
notes. He explained that
he could not give an explanation why those differ with his testimony
because those differences were made
without his knowledge. He was not
the person who gave that information. It became clear to me that he
is correct because those
differences consisted of actual inaccuracies
which he could not have said. For example, it was stated that he was
from work when
in fact he was from seeking work. It was stated in the
hospital records that Senzo is his relative when in fact Senzo is his
friend.
[21]
The plaintiff has proven to be an impressive witness whose evidence
contained probabilities.
There were no contradictions in his
testimony and he was very consistent when it came to the essential
facts of the matter.
[22]
I was struck by the alacrity with which Senzo Nxele answered
questions under cross-examination.
The fact that Senzo Nxele
confirmed that he did not see the plaintiff falling and did not see
who pushed the plaintiff shows that
he is an honest witness. He
confirmed the place where he found the plaintiff and this
substantiated the place where the incident
occurred as stated by the
plaintiff. He also confirmed that that there were no security
personnel on duty and he himself had to
organise transport from the
nearby township as the ambulance was taking too long to arrive.
[23]
I conclude that both the plaintiff and his witness were very
impressive They both did not exaggerate.
They stuck to the truth.
They honestly answered questions pertaining to where the plaintiff
was standing in the train, the fullness
of the coach of the train,
the pushing and jumping by passengers, the movement of the train, the
fall of the plaintiff, the place
where the incident happened, the
nature of the injury suffered by the plaintiff, the lack of security
guards on the platform and
station, and the fact that they were from
seeking employment.
[24]
Defendant’s Counsel attempt to characterise the absence of
other general bruises and injuries
as irreconcilable with plaintiff’s
version. This argument is flawed because the defendant’s
counsel is not medically
qualified to come to such conclusion.
[25]
Senzo Nxele’s evidence removed any doubt as to whether the
plaintiff was in fact pushed.
His evidence confirmed that he did not
jump from a moving train contrary to what defendant’s counsel
suggested. His evidence
further revealed that there was no danger in
moving near the door because there were other people in the space
between the plaintiff
and the open door. This evidence put paid to
any suggestion of voluntary assumption of risk and/or contributory
negligence. The
fact that he does not claim having seen anyone in
particular pushing his friend( the plaintiff) demonstrates his
integrity.
[26]
The evidence of the plaintiff is credible and that
of Senzo corroborates his version in so far as is alleged
that the
doors of the train were open, the fact that there was pushing in the
train, and the place where he found the plaintiff
after the incident.
[27]
I accept the whole version advanced by the plaintiff as highly
probable.
REASONS FOR JUDGMENT
[28]
The defendant’s Counsel correctly submits
that the onus of proof rests upon plaintiff convincing the
Court,
through credible evidence, that plaintiff’s version is more
probable than that of defendant. His further submission
that
concluding on factual disputes where the version of a plaintiff
collides with that of the defendant a Court must examine the
credibility, reliability and probability of the evidence of various
factual witnesses is correct.
[29]
As I have already stated that the defendant has no witnesses and as
such no version of its own,
then the above submissions are not
applicable in this case. Th
e
bulk
of cases he relied upon are about mutually destructive versions and
how a court must assess those versions.
Since
the defendant has no witnesses on its side, I am therefore not going
to be dealing with the above submissions and I conclude
that the use
of the above authorities is incorrect.
[30]
The
estimate of credibility of a witness is inextricably bound up with a
consideration of the probabilities and the Court is required
to
consider these concepts simultaneously.
[6]
The best assessment of credibility is an independent assessment of a
witness' spoken words as the Court has the ability to listen
and
observe demeanour, degree of hesitancy or uncertainty in any
concession by witness or in affirmation thereof.
[7]
[31]
I have observed the plaintiff’s demeanour and I am satisfied
that he has acquitted himself
with dignity in the witness box. The
honesty with which he met the questions under cross-examination left
a positive impression.
[32]
The essence of the plaintiff and his witness testimony is that they
were from seeking employment,
they boarded a train which was full and
they were in the same coach, there were many people between the
plaintiff and the open
door of the train, the plaintiff was not the
first in line at open the door, when the train was approaching the
platform it moved
slow and there was pushing and jumping, there were
people who jumped behind the plaintiff, the plaintiff fell from the
same train
and after falling the plaintiff ended up lying on the
gravel three meters away from the platform. The plaintiff called
Senzo Nxele
who found him lying with his legs on the rail track. He
was injured with his right foot amputated. Senzo Nxele removed the
plaintiff
boot and put it in a plastic bag together with the severed
foot. He called a private car to take the plaintiff to the hospital
as the ambulance was delayed. When they arrived at the hospital Senzo
Nxele (and not the plaintiff) told the hospital personnel
what
happened and they wrote the information on the hospital file.
[33]
Senzo Nxele further confirms that the train was moving with open
doors and that there were no
security personnel on duty neither in
the train, on the platform nor at the station. These facts prove that
defendant was negligent.
[34]
The plaintiff and Senzo Nxele’s testimony confirms that
it
is improbable that the plaintiff would have been pushed out of the
train had the open doors been closed.
This
clearly proves that
there is a causal link
between proven negligent conduct or omission and the injuries. Had
the plaintiff not fell, his legs would
not have been lodged between
the train and the rail line and he would not have been injured. As a
result factual causation is established.
[35]
I further have to consider whether had there been adherence to the
strict safety regime of closing doors when the train is
in motion by
the defendant, the plaintiff would have sustained
a
traumatic amputation of the right ankle.
[8]
LEGAL
CAUSATION
[36]
The failure by Prasa to close the doors of a moving train
reinforces
the legal connection between PRASA’s failure to take
preventative
measures and the amputation of the plaintiff’s leg. Therefore,
the failure to close the doors of a moving train,
is too closely
connected
to the train severing the plaintiff’s right foot.
PRASA
has imposed the duty to
secure
commuters on itself through its operating procedures and such failure
proves legal causation.
[9]
I
therefore impute liability to PRASA.
[37]
The defendant’s Counsel has stated that it should be accepted
that if the doors were not
open it is more probable than not that the
plaintiff would not have sustained the injuries. This is correct.
CONCLUSION
[38]
The material evidence in this case is how and where the incident took
place. The incorrectness
of the few answers to the request to further
particulars does not change the fact that the plaintiff was pushed,
fell from an overcrowded,
moving train, with open doors. The evidence
of plaintiff and his witness is credible and probable. His version is
admitted as true.
Both the plaintiff and Senzo gave direct answers to
questions relating to causation, contributory negligence and
voluntary assumption
of risk. Their answers put paid to submissions
of contributory negligence and/or voluntary assumption of risk.
[39]
The fact that there were no security guards on the train, the
platform and at the station constitutes
an omission on the part of
the defendant which omission amounts to failure to carry out its duty
to act.
The
fact that the carriage doors were open at all relevant times is a
dereliction of duty which certainly arouses the moral indignation
of
society. This conduct amounts to wrongfulness and is legally
reprehensible.
[10]
[40]
Further, the fact that the defendant allowed the train to be
overcrowded, with open doors while
in motion constitutes negligence.
[41]
Furthermore, the fact that other passengers pushed the plaintiff
until he fell, with the result
that his leg got amputated, amounts to
harm caused to the plaintiff.
The incident was reported
to the defendant and the defendant duly investigated, but the results
of the investigation are not disclosed
and the witness from PRASA
failed to come to testify on the date of trial. I can only draw a
negative inference from this failure
to come and testify.
[42]
Counsel for the defendant has dismally failed to disprove that the
pushing passengers, open doors
of an overcrowded coach of a moving
train constitute all the elements of wrongfulness, fault, negligence
and resultant damage.
[43]
I therefore conclude that the amputation to the plaintiff’s leg
was caused by a moving
train from which the plaintiff was pushed.
[44]
It is thus reasonable, fair and just that liability be imputed to the
defendant (PRASA). Therefore
the defendant is 100% liable for the
damages suffered by the plaintiff.
I
therefore make the following order:-
ORDER
The defendant is to pay
100% of:
1. The agreed or proven
damages of the plaintiff.
2. The cost of
plaintiff’s attorneys and counsel’s fees including those
in respect of preparation of trial.
NE
RAMAPUPUTLA
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Appearances
Counsel
for Plaintiff
:
Adv E Coleman
Attorney
for Plaintiff
:
MED
Attorneys
Counsel
for Defendant
:
Adv P Uys
Attorney
for Defendant
:
Norton Rose Fulbright Inc.
Date
of hearing
17 March 2020
Date
of judgment
15 June 2020
[1]
Durbach
v Fairway Hotel Ltd
1949
(3) SA 1081
(SR)
at 1082
[2]
Benson
and Simpson v Robinson
1917
WLD 126
[3]
Robinson
v Randfontein Estates G.M
Ltd
1925
AD 173 198
[4]
H.
Daniels
6
th
Edition 2002
[5]
At
page 46
[6]
National
Employer’s General Insurance Co Ltd v Jagers
1984
(4) SA 437
(A) at 440E–441A
[7]
Johnson
v Road Accident Fund
2001
(1) SA 307
(C) at 310J-311A
[8]
Mashongwa
v
Passenger Rail Agency of South Africa
2016
(3) SA 528 (CC)
[9]
Ibid.
[10]
Ibid