Brief Summary

Delict — Liability of common carrier — Passenger injured during train journey — Plaintiff assaulted by fellow passengers and pushed from moving train — Defendant's duty of care to ensure safety of passengers — Plaintiff's evidence found credible despite minor contradictions — Defendant failed to rebut plaintiff's claims or provide evidence of train doors being closed — Plaintiff discharged onus of proof on balance of probabilities — Defendant liable for damages.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned a delictual claim for damages arising from personal injuries sustained by the plaintiff while travelling as a rail commuter on the defendant’s train network. The proceedings were confined to the issue of liability (the merits), with quantum standing over for later determination or agreement.

The plaintiff was Thabang Nkosana Motloung, who alleged that he was injured during an incident on a commuter train near Ennerdale train station on 17 November 2018. The defendant was the Passenger Rail Agency of South Africa (PRASA), cited in its capacity as the provider/operator responsible for the commuter rail service and passenger safety.

Procedurally, the matter proceeded to trial on a separated merits issue, with the court required to decide whether PRASA was legally liable to compensate the plaintiff for damages arising from the incident. The judgment was delivered electronically on 16 May 2022.

The dispute’s general subject-matter was whether PRASA breached its legal duty to ensure commuter safety and whether that breach, through negligence, resulted in the plaintiff’s injuries in circumstances involving open train doors, alleged inadequate security, and an assault by other commuters culminating in the plaintiff being forced from the moving train.

Material Facts

The court accepted as established that the plaintiff resided in Orange Farm and commuted using PRASA trains. He testified that he purchased a monthly train ticket at Lenasia (“Lenz”) train station on 1 November 2018, and that he had been using PRASA’s train network for approximately a year and some months before the incident. The ticket constituted objective support for his use of the rail service during the relevant month.

On 17 November 2018, after finishing work, the plaintiff travelled to Lenz station and gained entry through access control. He encountered a large number of commuters waiting on the platform. A train arrived at approximately 19:30, and the plaintiff boarded and sat in the second seat from the door.

A central factual allegation relied upon by the court was the plaintiff’s evidence that the train departed with its doors open and that the doors remained open throughout the journey from Lenz station up to the vicinity of the incident. While travelling, the plaintiff said that commuters stood at the doorway smoking dagga, and that after he complained about the smoke he was assaulted. At Lawley station, additional commuters boarded and associated with those who had assaulted him earlier.

As the train proceeded towards Ennerdale station, the plaintiff testified that he complained again about the dagga smoke, after which he was further assaulted, struck with a beer bottle, struck with a panga to the back of the head, and then pushed out of the moving train, where he collided with a steel pole. He lost consciousness and later awoke on the platform, assisted by persons he believed to be paramedics or police. The plaintiff’s evidence (not contested in the respects relied upon by the court) was that he was transported by ambulance to Baragwanath Hospital and regained consciousness only after approximately three weeks.

The plaintiff conceded he did not report the incident to PRASA officials or to the South African Police Service (SAPS). The court treated this as an issue raised in cross-examination but accepted the plaintiff’s explanation that his prolonged unconsciousness accounted for the absence of a report.

The defendant called Mr Bezuidenhout, a PRASA security area commander, who testified that his investigation could not identify the incident in PRASA records and that he had only been given the summons, which did not disclose the exact time of the incident or train number. He described the role of a train guard in relation to door closure and train departure procedures. In cross-examination, he conceded that commuters could block doors from closing, that train guards do not continuously observe between stations due to danger, and that it is possible for someone to be thrown out while the guard is not observing. The court also relied on his concessions that his investigation was incomplete, including that he did not interview ambulance personnel, did not visit the hospital for information, and did not interview station security guards or establish whether security guards were posted at Ennerdale on the day.

In the pleadings, the defendant alleged (in substance) that the incident arose because the plaintiff attempted to disembark from a moving train, and that he voluntarily assumed the risk of injury or death. The court treated it as material that this pleaded version was not put to the plaintiff in cross-examination, and that the defendant also did not lead evidence to support the assertion (foreshadowed by counsel) that the train doors were closed throughout.

Legal Issues

The central legal questions were whether PRASA was negligent in relation to passenger safety on the train in question, and whether that negligence caused the plaintiff’s harm so as to render PRASA delictually liable for the plaintiff’s damages.

The dispute required the court to make findings primarily involving the application of legal principles to facts, including credibility and probability assessments. It included a factual enquiry into what occurred on the train (especially whether doors were open and whether safety measures were in place), and a legal enquiry into whether PRASA breached a recognised legal duty toward commuters and whether the negligence test for foreseeability and reasonable preventative steps was satisfied.

A further issue, although not treated as determinative through extensive legal analysis, concerned the onus of proof and the approach to uncontradicted evidence, particularly given the defendant’s limited rebuttal and the incompleteness of its investigation.

Court’s Reasoning

The court began by assessing the evidence against the principle that uncontradicted evidence is not automatically sufficient to discharge an onus, and that a version may be rejected if it is so improbable that it cannot be accepted. The court referred to authority confirming that it does not follow from the absence of contradiction that evidence must be true.

On credibility, the court found that the plaintiff provided reasonable explanations for matters raised in cross-examination. In particular, the plaintiff’s explanation for not reporting the matter—his alleged unconsciousness for three weeks—was accepted as plausible in context. The court also accepted his explanation for not changing coaches or disembarking after the first assault, namely that moving between coaches was dangerous and that he was unfamiliar with Lawley station and could not readily disembark there given his destination.

Although the plaintiff’s evidence contained some contradictions (including confusion over dates and differences between two affidavits), the court found these contradictions not material to the outcome, especially taking into account the plaintiff’s extended unconsciousness which could affect recall of details. The court regarded the date of the incident as clear—17 November 2018—and accepted the corroborative value of the train ticket purchased on 1 November 2018.

The court placed weight on procedural fairness and evidential completeness in concluding that the defendant’s pleaded version was not properly advanced at trial. It noted that PRASA’s pleaded case—that the plaintiff attempted to disembark from a moving train and assumed the risk—was never put to the plaintiff during cross-examination. The court also recorded that the defendant’s stated intention to lead evidence that the train doors were closed was not realised, with no such evidence being adduced.

Mr Bezuidenhout’s evidence was treated as of limited assistance on the merits because it did not provide direct contradiction of the plaintiff’s account and because it shifted from the pleaded defence to an effective suggestion that no incident occurred, while also containing concessions that supported the plaintiff’s version as possible (including the possibility of blocked doors and the possibility of ejection without observation by a guard). The court further characterised the investigation as incomplete, noting the failure to pursue relevant sources of corroboration or refutation (ambulance crew, hospital information, station security).

Turning to the legal framework, the court applied the principle that PRASA bears a legal duty to ensure the safety of rail commuters, with reasonable safety measures including preventing overcrowding, ensuring doors are closed while trains are moving, and providing adequate security on trains and platforms. The court applied the negligence test articulated in Mashongwa v Passenger Rail Agency of South Africa, namely whether a reasonable person in PRASA’s position would foresee harm from the risk factors (such as open doors or absence of security), whether reasonable steps would be taken to prevent harm, and whether PRASA took such steps.

On the facts accepted, the court found that PRASA allowed the train to travel with open doors and that no measures were shown to have been implemented to ensure passenger safety on that train, including no evidence of security personnel being on duty on the train or at Ennerdale station at the time. Applying the foreseeability and reasonable-steps enquiry, the court concluded that a reasonable person in PRASA’s position would have foreseen harm to a commuter in those circumstances, and that PRASA failed to take reasonable steps to avert that foreseeable harm.

The court accordingly held that the plaintiff discharged the onus on a balance of probabilities, and that PRASA’s negligence constituted a breach of its public-law duty toward commuters, rendering it liable for the plaintiff’s damages flowing from the incident.

Outcome and Relief

The court held the defendant liable for 100% of the plaintiff’s proven or agreed damages arising from the incident near Ennerdale train station on 17 November 2018.

The court ordered the defendant to pay the plaintiff’s costs of suit in respect of the separated merits issue, payable within 60 days.

Cases Cited

McDonald v Young 2012 (3) SA 1 (SCA).

Rail Commuters Action Group and Others v Transnet t/a Metrorail and Others 2005 (2) SA 359 (CC).

Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court found that PRASA owed commuters a legal duty to take reasonable safety measures and that, on the facts accepted, PRASA negligently breached that duty by permitting a train to operate with open doors and by failing to demonstrate that adequate safety and security measures were in place.

The court accepted the plaintiff’s version of how the incident occurred, found that the defendant failed to rebut that version with evidence, and rejected the pleaded defence that the plaintiff attempted to disembark from a moving train because it was not put to the plaintiff in cross-examination and was not supported by evidence led at trial.

PRASA was held liable for 100% of the plaintiff’s proven or agreed damages, and was ordered to pay the plaintiff’s costs relating to the separated merits issue.

LEGAL PRINCIPLES

A party bearing the onus cannot rely solely on the fact that its evidence is uncontradicted; the court must still assess whether the evidence is credible and probable, and may reject it if inherently improbable. Conversely, where a plaintiff’s version is accepted as credible and the defendant fails to lead evidence in rebuttal, the plaintiff may discharge the onus on a balance of probabilities.

PRASA, as operator of a public rail commuter service, bears a legal duty to take reasonable steps to ensure the safety and security of passengers using its rail system. Reasonable safety measures identified include keeping train doors closed while in motion and providing adequate security measures on trains and at stations.

Negligence is assessed through the enquiry whether a reasonable person in the defendant’s position would foresee harm from identified risk factors, would take reasonable steps to prevent such harm, and whether the defendant in fact took such reasonable steps. Applying this test, operating a train with open doors and failing to demonstrate appropriate safety/security measures may found liability where harm occurs in consequence of those conditions.

Motloung v PRASA (2019/13557) [2022] ZAGPJHC 331 (16 May 2022)