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[2011] ZAGPPHC 169
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South African Rail Commuter Corporation Ltd and Another v Mojapelo (A891/2008) [2011] ZAGPPHC 169 (16 September 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
/ES (REPUBLIC OF SOUTH AFRICA)
CASE NO: A891/2008
DATE:16/09/2011
IN
THE MATTER BETWEEN
SOUTH
AFRICAN RAIL COMMUTER
CORPORATION
LTD
...................................................................................
FIRST
APPELLANT
(FIRST
DEFENDANT A QUO)
METRORAIL
...........................................................................................
SECOND
APPELLANT
(SECOND
DEFENDANT A QUO)
AND
ANNEX
THABANG
MOJAPELO
.........................................................................
RESPONDENT
(PLAINTIFF
A QUO)
JUDGMENT
PRINSLOO.
J
[1]
The appellants, as defendants in the court a quo, were ordered to
compensate the respondent (then the plaintiff) for damages
flowing
from injuries sustained by the respondent while he was a passenger on
a train under the control of the appellants.
[2]
With the leave of the Supreme Court of Appeal, the appellants
launched this appeal to the full court of this division against
the
judgment of 3 August 2007, handed down by the learned judge a quo,
VICTOR, AJ, as she then was.
[3]
Before us, Mr Ferreira appeared for the appellants and Mr Pieterse
for the respondent.
Introduction
and background
[4]
On 17 February 2005, which, according to a calendar I consulted, was
a Thursday, at approximately 17:45 the respondent boarded
a passenger
train at the Dube station which is in the Greater Johannesburg
Metropolitan area.
[5]
The respondent had a valid ticket to be on the train.
[6]
The next station, barely a kilometre away, was Ikwezi station.
[7]
The respondent stood in the carriage he had entered, holding a pole
("the grab pole") installed in the middle of one
of the two
doors of the carriage. The respondent faced backwards and his upper
torso protruded from the open door of the train.
[8]
As the train was still picking up speed, and barely 300 metres away
from the Dube station platform, the respondent was hit on
the back of
the head by a temporary pole ("the pole") installed by
servants of the appellants allegedly some 77cm away
from the edge of
the train. This was a temporary makeshift pole erected to support
overhead cables damaged in an earlier train
derailment accident.
[9]
The impact caused the respondent to fall from the train and sustain
serious bodily injuries. He also lost his consciousness.
The
injuries are described in the particulars of claim as a severe head
injury with accompanying subarachnoid haemorrhaging, extensive
lacerations and bruises to his head and face and extensive injuries
to his mouth and teeth.
[10]
The respondent sued the appellants for compensation for the damages
he sustained as a result of his injuries.
[11]
In the particulars of claim it is alleged that the first appellant is
the owner of trains operated by the second appellant
on its behalf
within the metro district of the Greater Johannesburg area. This
allegation is admitted in the plea.
Although
she did not say so. I assume that the learned judge a quo gave the
judgment against the appellants jointly and severally.
A remark was
made in the heads of argument presented by the counsel for the
appellants to the effect that "the trial judge
did not make a
finding in respect of the liability to be attributed as between the
first and second defendants. It was only found
that the defendant
'bears the most blame'." This point, such as it is, was not
raised in argument before us. neither was it
raised in the notice of
appeal. In the circumstances, I do not consider it necessary to deal
with this issue any further.
[12]
In the trial before the court a quo, the quantum of the claim was
separated for later adjudication. Only the question of liability,
or
so-called "merits" had to be decided. The learned judge
apportioned blame between the parties and ordered the appellants
to
pay 80 percent of the damages sustained by the respondent,
apportioning 20 percent of the blame to the respondent.
Brief
remarks about the pleadings
[13]
In the particulars of claim, the respondent alleges that "the
aforesaid incident was caused due to the sole negligence
of the first
and second defendants and/or their employees acting within the course
and scope of their employment with the defendants".
There was
never a suggestion that the servants or employees of the appellants,
singled out for having negligently caused the respondent
damages were
not acting within the course and scope of their employment, so that
the question of vicarious liability was not in
issue.
[14]
It is convenient to quote the acts of negligence relied upon by the
respondent in his particulars of claim:
"6.1
They failed to ensure the safety of their fare paying passengers,
more specifically the safety of the plaintiff;
6.2
they allowed the train in which the plaintiff was a passenger to
travel with open doors, thus causing a serious safety hazard;
6.3
they failed to take any alternatively any reasonable precautions to
prevent the train in which the plaintiff was a passenger
from
becoming over-crowded;
6.4
they failed to implement any alternatively any proper and/or adequate
safety measures to ensure the safety of their fare paying
passengers;
6.5
they failed to take any, alternatively any reasonable precautions to
prevent the support pole from becoming a safety hazard,
alternatively
from causing harm and/or injury to their fare paying passengers, more
particularly the plaintiff;
6.6
they "failed-to^exercise the degree of care and skill that could
reasonably be expected of a public conveyer of passengers;
6.7
they failed to avoid the incident when by the exercise of reasonable
care and skill they could and should have done so."
[15]
In their initial plea, the appellants simply denied these allegations
of negligence and pleaded in the alternative that if
negligence were
to be found, such negligence was not causally related to the
incident.
[16]
In a later amendment of their plea, the appellants, in the
alternative, alleged contributory negligence on the part of the
respondent. They alleged that the respondent was negligent in failing
to stand or sit "within the confines of the train coach"
before the train was set in motion and while the train was in motion.
They pleaded that the respondent prevented the doors of the
train
from closing and he failed to avoid the accident when he could have
done so by the exercise of reasonable care. As a further
alternative,
the appellants introduced a plea of
volenti non fit iniuria
("volenti")
. They pleaded that the respondent was aware
of the risks of conducting himself in this particular manner by not
staying wholly
within the confines of the train. They pleaded that he
accepted and appreciated this risk and therefore consented to be
subjected
to the risk of injury.
Concise
summary of the evidence
[17]
This brief summary is aimed at high lighting what I consider to be
important aspects of the evidence.
The
evidence of Lesley Mmako
[18]
He was the only eye-witness and actually saw the respondent being hit
at the back of the head by the pole.
[19]
He did not know the respondent before this incident.
[20]
He was considered to be a truthful and impressive witness by the
learned judge a quo.
[21]
He boarded the same train as the one carrying the respondent. He was
on his way from Wits to his home in Naledi.
[22]
He regularly used the train for transport. He boarded this particular
train at Dube station, after having switched over from
an earlier
train.
[23]
At that time of day (peak hour) the station was very busy. The trains
were not on schedule. The train was full. The train was
so full that
he had to stand at the door grabbing hold of the arm rail.
[24]
There were no people regulating the number of passengers boarding the
train.
[25]
He was in the fourth carriage from the front and he saw the
respondent in the third carriage from the front, standing only
some
ten to fifteen metres ahead of him.
Although
the respondent was in the next coach, he was standing in the next
door following on the door in which the witness was standing.
[26]
When the respondent boarded the train he was not able to go and sit
down. He was holding the grab pole in the centre of the
door. He
actually saw the respondent boarding the train and holding the grab
pole.
[27]
When the train set off the doors were not closed. The door where the
witness was standing was open and so was the door where
the
respondent was standing. He saw no doors of the train that were
closed.
[28]
He denied the allegation made on behalf of the appellants in their
pleadings that the respondent prevented the doors from closing.
He
explained that this would have required the respondent to stretch his
legs further than he would have been able to do. There
were people
standing, presumably next to the respondent and between him and the
door.
[29]
The respondent was holding the grab pole with both hands facing
backwards, in other words with his back in the direction that
the
train was travelling.
[30]
The witness could see the pole approaching as the train was moving
and that there would be a collision between the pole and
the
respondent. When this happened, the witness moved his head into the
train. People screamed and the respondent fell off the
train. If
there was no pole, there would not have been an injury to the
respondent. The incident happened when the train was about
300 metres
past the Dube station platform.
[31
] There were no warnings to the commuters about the presence of the
pole.
[32]
The witness estimated the distance between the pole and the train at
about 45cm.
[33]
In cross-examination, the witness repeated that there were people on
the side of the respondent and did not dispute a suggestion
that they
were keeping the doors open. In this doorway where the respondent
stood, there were a number of other people.
[34]
He could not see what was happening inside the coach in which the
respondent
was.
[35]
The witness was shown two photographs, to be found on exhibit "A",
depicting the pole next to the train. According
to the version of the
appellants the pole was about 77cm away from the train. A passenger
leaning out of the train and stretching
his hand towards the pole
still did not touch the pole. The witness felt that the pole that he
saw was closer to the train. The
scene depicted on exhibit "A"
was reconstructed for purposes of this litigation. The pole is
covered with what is described
as "danger tape".
[36]
In my view, the witness was not in any way discredited in
cross-examination. The finding by the learned judge a quo that he
was
a truthful and impressive witness is, in my view, justified.
The
evidence of Christoffei Francois Potgieter
[37]
He is a technical superintendent employed by Metro Rail. He has
thirty five years service with Transnet (and, presumably, its
predecessors).
[38]
The pole was installed on 25 January 2005, some three weeks before
the incident on 17 February.
[39]
According to him, the pole was there for about four months. It was
removed at the end of May 2005.
[40]
Some time later, the witness was instructed to recreate the scene for
purposes of the taking of photographs, presumably for
this
litigation: "Toe is ek gevra om die hele proses weer te gaan
herhaal om foto's te neem en om mates te kry." He also
said "Ek
het hulle persoonlik self geneem en dit is die Sondag wat ons die
"tydeTIke mas weer gaan opsit het om die hele
storie oor te
doen."
[41]
According to him, the pole was about 77-78cm from the edge of the
train. He testified that the pole installed for the photograph
session was installed at the same place where the pole was which
collided with the respondent. According to him the clearance was
adequate and the prescribed regulations allow for the temporary
structure to be installed at such a distance.
[42]
In cross-examination, he conceded that the temporary structure (the
pole) was installed closer to the train than a permanent
structure
would have been. Under those circumstances the pole has to be covered
with "danger tape". The following exchange
then occurred
between him and counsel for the respondent:
"Maar
daar moet 'danger tape' aangebring word want dit is gevaarlik. Die
'danger tape' is om aan te toon dit is gevaarlik nie
waar nie? —
Ja ek meen, vernaam vir 'guards' en vir treindrywers wat baie keer
uitkyk by 'n trein dit is waaroor dit daar
is."
[43]
There was also the following exchange:
"U
sal met my saamstem hoe nader aan die trein hoe gevaarliker? —
Dit is reg.
Goed,
nou dan se u verder 'n tydelike struktuur kan opgerig word volgens
die regulasie 300mm nader as die minimum maar dan is dit
volgens
regulasie
maar dit is nie noodwendig veilig nie want dan moet daar 'danger
tape' aangebring word? — Dit is reg."
[44]
The witness also said that if a passenger is found to be leaning out
of the train with the upper part of his body the train,
according to
regulation, is not supposed to be allowed to depart.
The
testimony of Emilv Khensani Legodi
[45]
She was the second and last witness called on behalf of the
appellants, with the respondent having closed his case after calling
Mr Mmako.
[46]
She was employed as a guard on the train and had ten years experience
in this capacity.
[47]
She was the guard on this particular train.
[48]
She did not witness the incident and had no personal knowledge about
it. She was informed about it afterwards.
[49]
The trip between Dube station and Ikwezi station only lasts for about
four minutes.
[50]
When she was first informed about the incident by telephone, on the
same day. she was told that three people had fallen off
the train but
this turned out to be incorrect.
[51]
According to her evidence, which she repeated a few times, she got
off the train when it pulled into Dube station, stood on
the platform
and observed the platform and saw commuters boarding and
disembarking. When she was satisfied that the people had
finished
boarding and disembarking she blew her whistle to alert the people to
step away from the train and to make sure that "those
who were
on the train must make sure that they are completely on the train".
She then blew her whistle, got onto the train,
looked again, blew her
whistle again and then closed the doors by pushing a button. She then
gave the driver a signal to ride away.
She then watched the platform
as the train pulled off right up to the end of the platform. She says
when you press the close button,
"it gives you a sound, a click
that tells you that the doors are closing".
[52]
She said that it was her duty to make sure that when she presses the
close button to also look if the doors are in fact closing.
Dube
station is positioned "in such a way that a guard can see the
entire length of the train. When I pressed the close button,
I did
see that the doors did in fact close."
[53]
She could not dispute the evidence of Mmako that there were twelve
coaches on that particular train. According to a sketch
plan
presented on behalf of the appellants, exhibit""?","
a coach is" approximately "20 metres long.
This would mean
that the length of the train (presumably without the locomotives)
would have been about 240 metres.
[54]
She disputed the plaintiffs case that there were commuters standing
in the doors of the train and people protruding partially
out of the
doors of the train. She said that if there were people hanging out of
the train she would have informed the security
guards and if the
doors were faulty she would have had to report that to the
authorities. If there is a problem she will give a
signal that the
train is not to depart.
[55]
She also did not see anybody preventing the doors from closing.
[56]
She denied that the train was over-crowded. This denial was not put
to Mmako when he was cross-examined.
[57]
She was shown two documents, exhibits "El" and "E2",
discovered by the appellants, which are reports of
the incident in
which it was stated that the train was over-crowded. In the incident
report of 17 February 2005. it was stated
"the person allegedly
fell from Metro 9464 ... that was apparently over full". In
exhibit "E2", a Spoornet
report by L P A Britz, it was
reported "that the person is unknown and he fell from a moving
train because it was too crowded
between Dube and Ikwrezi ... He had
a weekly ticket from Naledi to Johannesburg ... He sustained mouth
and right eye injuries,
two cuts on" the: forehead~and a "cut
behind " the head". On exhibit "El" it is also
stated that
the witness was the conductor on the train. She offered
very little comment on these reports other than to say that she took
note
of what was stated therein. The following exchange also took
place
about
these reports:
"It
was reported on the same day. Is it your evidence that you told them
that it was not too crowded? — Yes. but I did
not write this
report."
[58]
The learned judge a quo was not impressed with this witness. On a
reading of the record, it appears that the witness was at
times
argumentative and at times evasive.
It
is also quite clear, that the testimony of the witness that all the
doors were closed before the train departed must be false.
The
eye-witness, Mmako, testified that the doors were open when the train
departed. The reports presented by the appellants themselves
indicate
that the train was over-crowded. The incident happened during peak
hour. Moreover, if the doors were closed, the incident
would not have
happened, barely 300 metres beyond the end of the Dube platform. It
is common cause between the parties, and recorded
in the pre-trial
minute, that the respondent was struck on the back of the head by the
pole. Counsel for the appellants conceded,
during argument before us,
that the doors must have been open otherwise this accident could not
have taken place. On the witness
Legodi's version, the acts of
contributory negligence, alleged by the appellants, have no
foundation.
[59]
In my view, the learned judge was well justified in rejecting the
evidence of Ms Legodi and accepting that of Mmako. As was
stated in
the well known case of R v Dhlumayo and Another
1948 2 SA 677
(AD) at
705:
"The
trial judge has advantages - which the Appellate Court cannot have
-in seeing and hearing the witness and in being steeped
in the
atmosphere of the trial.Not only has he had the opportunity of
observing their demeanour, but also their appearance and
whole
personality. This should never be overlooked." It was held in
the same well-known judgment, at 706, that these general
principles
"will guide an appellate court both in civil and criminal
cases". It is trite that a court of appeal will
be slow to
interfere with the findings of fact in the absence of a material
misdirection. In this case, I see no such misdirection.
[60]
So much for the evidence.
Is
there room for an adverse inference to be drawn against the
respondent because he did not give evidence?
[61]
In her judgment, the learned judge recorded that counsel for the
respondent (then plaintiff) placed on record during the hearing
that
the appellants (defendants) had been requested to admit the
plaintiffs head injury. Counsel pointed out to the learned judge
that
the respondent "would not be able to testify because he did not
remember any of the events that had occurred on that
day". The
appellants refused to make this admission. When the admission was
requested, the plea had not yet been amended and
no contributory
negligence on the part of the respondent had been alleged.
[62]
It appears from the record that the amendment was only moved at the
commencement of the trial.
[63]
According to the record, the trial commenced on 31 July 2007. It
appears from the record that counsel for the respondent (plaintiff)
informed the learned judge, before commencement of the proceedings,
that on 20 June (presumably 2007) the "plaintiff requested
the
defendant to admit that the plaintiff suffered a head injury and he
filed an affidavit wherein he states that he has no recollection
of
the incident itself and the plaintiff sought that admission. Only on
3 July did the defendant inform the plaintiff that the
admissions
sought is not made. That was at the stage when contributory
negligence was not even an issue." Counsel further
informed the
learned judge that the respondent then filed a notice in terms of
rule 36(9)(a) recording the intention of the respondent
(plaintiff)
to call a neurosurgeon as an expert witness to testify about the head
injury and the fact that the plaintiff could
not remember the
incident. The rule 36(9)(b) summary of the expert witness' testimony
was filed out of time and objected to by
the appellants (defendants).
The respondent then proceeded with the trial without calling the
neurosurgeon or giving evidence.
The affidavit filed by the
respondent about his state of amnesia did not form part of the papers
before us.
[64]
In her judgment, the learned judge recorded these developments very
briefly at the outset and later declined to draw an adverse
inference.
[65]
In my view, this approach of the learned judge cannot be criticised.
If the appellants were sceptical about the memory loss
suffered by
the respondent, they could have allowed the neurosurgeon to testify
or they could have postponed the trial in order
to have the
respondent independently examined. The appellants, when contending
for an adverse inference to be drawn, relied on
well-known
authorities, such as Galante v Dickinson
1950 2 SA 460
(A), dealing
with the general proposition, as I understand it, of a litigant
failing to call an eye-witness which is available
to assist the court
or failing to testify himself, for example where the litigant was the
driver of a motor vehicle facing an allegation
that a collision was
caused by his negligence. The present case, in my view, is
distinguishable in the sense that there are clear
indications that
the respondent was not "available" to assist the court
because of his representations to the court,
albeit through his
counsel and by affidavit, that he could not remember the events
surrounding the incident leading to his injuries.
Considering the
circumstances of the incident, which are not in dispute, the
probabilities are also overwhelming that he must have
sustained a
serious head injury, as was also pleaded, supra. It was also not all
together clear to me what the adverse inference
is that the
appellants are contending for. When counsel for the respondent raised
this issue during the proceedings, counsel for
the appellants
indicated that the inference which the appellants contend for is that
the respondent was reckless in his conduct.
When dealing with the
question of whether or not to draw an adverse inference, the learned
judge also remarked that it was not
necessary to call the plaintiff
in order to prove the incident because it was common cause between
the parties that the plaintiff
was injured by the pole and that he
was picked up unconscious after the incident.
[66]
In all the circumstances, I am of the view that this is not a proper
case to draw an adverse inference such as the one contended
for by
the appellants. I fail to see how this court of appeal can interfere
with the decision of the learned judge not to draw
such an adverse
inference.
[67]
Counsel for the appellants conceded that, in the absence of such an
adverse inference being drawn, there is no room for the
defence of
volenti. In these circumstances, I will not give further
consideration to the volenti defence, other than remarking
that, in
my view, it was in any event not proved on the evidence that the
respondent was aware of or should have been aware of
the danger posed
by the pole and that he reconciled himself with such danger. Indeed,
the undisputed evidence of Mmako is that
the commuters were not
warned about the danger presented by the pole. Legodi could not
contest this state of affairs. There - is
no basis to assume on
the-probabilities that the respondent knew-about the pole at an
earlier stage.
The
apportionment of negligence applied by the learned judge
[68]
Our courts have held repeatedly that a railway authority, such as the
appellants, allowing a train to travel with open doors,
particularly
an over-crowded suburban train, is negligent. One of the leading
cases on this subject is that of Khupa v South African
Transport
Services
1990 2 SA 627
(W). The over-crowded train travelled with
open doors. The plaintiff tried to disembark from the train while it
was still in motion.
He was carrying a number of parcels. The court
held that there was contributory negligence on his part in seeking to
alight from
such a train laden as he was with parcels but the
percentage negligence attributed to him was only 25 percent. By
comparison, the
present respondent, in my view, did not make himself
guilty of conduct as negligent as that of the plaintiff in Khupa. The
present
respondent did not attempt to disembark from the moving
train. He leaned out of the train which was over-crowded and was
surprised
by the collision with the temporary pole obviously
constructed too close to the train. He was not warned about the
existence of
the pole. The witness Potgieter conceded that the pole
posed a danger. The pole, in my view, had to be closer to the train
than
what is depicted on exhibit "A", because on the
exhibit "A" scenario, with the passenger leaning out of the
train with his whole body and stretching out his hand and still not
being able to touch the pole, it is inconceivable how this
particular
incident could have happened, bearing in mind the undisputed evidence
of Mmako that the respondent was holding on to
the grab pole with
both his hands.
[69]
In Transnet Ltd t/a Metro Rail & Another v Witter
[2008] ZASCA 95
;
2008 6 SA 549
(SCA) the trial court apportioned 50 percent against the plaintiff
who had attempted to board a moving train through an open carriage
door. The Supreme Court of Appeai was not prepared to interfere with
this apportionment. In Ngubane v South African Transport Services
1991 1 SA 756
(AD) the plaintiff had boarded an over-crowded train.
He was jostled by other passengers and lost his grip on the overhead
strap
and fell out of the open door. It was held that the railway
authorities were solely to blame for the injuries.
[70]
In Transnet Ltd t/a 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. It was held
that his
damages had to be reduced by two thirds.
[71]
It was common cause between the parties before us, that a court of
appeal will be slow to interfere with the apportionment
of damages
decided upon by the trial judge. In South British Insurance Co Ltd v
Smit
1962 3 SA 826
(A) the following was said at 837F by the learned
judge of appeal:
"From
the very nature of the enquiry, apportionment of damages imports a
considerable measure of individual judgment: the assessment
of 'the
degree in which the claimant was at fault in relation to the damage'
is necessarily a matter upon which opinions may vary
... were this
court readily to interfere with a trial court's apportionment of
damages, dissatisfied litigants would be encouraged
to appeal in
well-nigh every case. Where, therefore, the trial court has correctly
found the facts and has made no error in principle,
this court as was
indicated by SCHREINER ACJ will not lightly disturb the apportionment
decided upon by the trial court."
[72]
In the present case, the appellants (through their servants acting
within the course and scope of their employment) were clearly
negligent in allowing the train to travel with open doors
particularly where it was over-crowded and some passengers were
visibly
protruding beyond the confines of the train. The negligence
of the servants of the appellants was compounded, in my view, by the
fact that they knew about the presence of the pole posing a danger
and still allowed the train to travel under those circumstances
without warning the commuters about the existence of the pole.
[73]
The contribution of the respondent, if any, was in my view far more
limited in the sense that he allowed the upper part of
his body to
protrude beyond the confines of the train while he was hanging on to
the grab rail under crowded circumstances. There
is no evidence to
the effect that he knew about the existence of the pole and, on the
probabilities, he did not, otherwise he would
have taken
precautionary measures. The learned judge found, correctly, that the
allegations of contributory negligence mentioned
in the plea were not
provecT[bearing in mind that the onus to prove contributory
negligence was on the appellants) but the learned
judge nevertheless
found a degree of contributory negligence because the plaintiff did
put himself in some danger by positioning
himself on that journey in
the way that he did.
[74]
In all the circumstances, I am of the view that, on the evidence, the
degree of fault on the part of the appellants was clearly
well in
excess of that on the part of the respondent. I find no basis to
interfere with the apportionment applied by the learned
judge. I am
particularly mindful of the fact that this court must be slow to do
so, as illustrated. Consequently, I am of the view
that the appeal
cannot be upheld.
The
order
[75]
I make the following order:
1.The
appeal is dismissed.
2.
The appellants, jointly and severally, are ordered to pay the costs.
W
RC PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
A89I-2008
I
agree
N
M MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree
T
J RAULINGA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD
ON: 10 AUGUST 2011
FOR
THE APPELLANTS: EJFERREIRA
INSTRUCTED
BY: JACQUES VAN DER MERWE ATTORNEYS
FOR
THE RESPONDENT: J C PIETERSE
INSTRUCTED
BY: CORNE VAN DE VENTER