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[2011] ZASCA 170
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South African Rail Commuter Corporation Ltd v Thwala (661/2010) [2011] ZASCA 170 (29 September 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 661/2010
In the matter
between:
SOUTH AFRICAN
RAIL COMMUTER
CORPORATION
LIMITED
…................................................................
Appellant
and
ALMMAH PHILISIWE
THWALA
…................................................
Respondent
Neutral citation
:
South African Rail Commuter Corporation Ltd v Thwala
(661/2010)
[2011] ZASCA 170
(29 SEPTEMBER 2011)
Coram:
MTHIYANE, HEHER, MAYA, MAJIEDT AND WALLIS JJA
Heard:
16
August 2011
Delivered:
29
September 2011
Summary:
Damages
– appellant falling on train station platform and sustaining
bodily injuries when jostled by fellow commuters alighting
from a
stationary train – claim based on negligent omission –
negligence not proved.
___________________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court, Johannesburg (Lamont J sitting as court of first
instance):
1 The appeal is
upheld with costs.
2 The order of the
court below is set aside and the following is substituted:
‘
Absolution
from the instance is granted, with costs.’
_____________________________________________________________________________
JUDGMENT
___
_______________________________________________________________
MAYA JA (MTHIYANE,
HEHER, MAJIEDT, WALLIS JJA concurring):
[1] The respondent,
a 54 year-old woman, sued the appellant in the South Gauteng High
Court (per Lamont J) for damages arising out
of an incident in which
the respondent was injured at the Village Main Station, Johannesburg
on 1 June 2007. The trial proceeded
only on the issue of liability
(which the appellant denied), the parties having obtained a consent
order separating the issues
of liability and quantum in terms of rule
33(4) of the Uniform Rules. At the conclusion of the trial, the court
below found that
the appellant’s negligence caused the
respondent’s injury and that it was consequently liable for her
damages. The
appeal is with its leave.
[2]
The background facts are simple and largely undisputed. On her way to
work on the fateful morning, the respondent, a regular
commuter on
the appellant’s train service since she took employment in the
Village in 1990, boarded her usual train, 9705,
at Orlando West,
Soweto between 05h00 and 06h00. The train was more crowded than usual
because of a civil service strike which
brought more passengers. Her
regular coach was full to capacity with seated and standing
passengers and she was compelled to take
the adjacent one, also
crowded, in which she stood for the duration of her ride. As the
train approached her station, disembarking
passengers pushed their
way to the doors sweeping her along with the tide. She was pushed in
that throng and fell on the station
platform. She was trampled whilst
lying there in a daze. She sustained soft tissue injuries on the neck
and right arm and a further
head injury which caused the momentary
loss of consciousness. No one came to her aid in the rush and when
she could compose herself,
she rose and sought a station official to
assist her. She found a ticket examiner, Ms Rennet Tshidzumba, to
whom she reported the
incident and showed her injuries. Ms Tshidzumba
took her to Mr Johannes Maleka, a Metrorail
1
leading protection
official and manager who had visited the station to investigate a
case of theft. The latter simultaneously interviewed
and took sworn
statements concerning the incident from both the respondent and Ms
Tshidzumba. Thereafter, the respondent was conveyed
to hospital to
receive medical care.
[3] The only dispute
which arose related to whether the train was in motion or stationary
when the respondent was pushed and fell.
In opening addresses at the
beginning of the trial, the parties’ legal representatives
informed the court below that it was
not disputed that ‘the
[respondent] was pushed from [in]side the train onto the platform and
basically the only issue ...
is whether the train was stationary or
in motion’. According to the respondent’s counsel, ‘[the]
only other evidence
on behalf of the [respondent would] be that the
train was overcrowded and that the doors of the train remained open
from the previous
station up to the station where the incident
occurred’.
[4] The respondent’s
testimony was that she noticed that the train doors were open only
when it pulled in at Village Main
Station (contrary to her counsel’s
summation of her case above that the train doors were open from the
previous station)
and jostling passengers, who pushed her causing her
fall, started disembarking before the train came to a complete
standstill.
She claimed to have told both Ms Tshidzumba and Mr Maleka
that she was pushed from the train whilst it was still moving, albeit
slowly. However these officials, who testified for the appellant,
were adamant that she reported that the train had already stopped
when she was pushed to the platform and fell.
[5] In his evidence,
Mr Maleka referred to two documents which he said recorded the
respondent’s report to him. In the statement
she gave to Mr
Maleka mentioned above – which he took in her language, Zulu,
translated into and wrote in English and then
read back to her for
confirmation – the respondent said:
‘
On
its arrival at Village Main the train stopped and as I was about to
disembark the train I was pushed by commuters who were also
disembarking. I then fell out of the train to the ground with my
right shoulder. The train was overcrowded. I then went to the
ticket
offices ... and looked for ticket examiners as they were not yet at
the station. At about 7h10 I saw one of the ticket examiners
arriving
and I reported the incident to her.’
[6] In the
appellant’s Railway Occurrence Reporting (Liability) Report
completed by Mr Maleka contemporaneously with the execution
of the
respondent’s affidavit during her interview, one of the pro
forma questions was whether the train was in motion when
the accident
occurred. Mr Maleka had checked the answer ‘No’. He
emphasized the importance of this aspect in his evidence
stating that
‘it very important … it is one of the major question[s]
put on the liability form … and the information
which I must
write into that form, I must be very certain that it is correctly
related to me, what I am writing down’.
[7] Ms Tshidzumba’s
account was similar and, despite lengthy cross-examination on this
point, she steadfastly maintained that
the respondent’s report
was that the accident took place after the train had stopped. This
testimony tallies with her affidavit
recorded by Mr Maleka, in the
respondent’s presence, which reads:
‘
[The
respondent] accessed the train at about 05h40. She was inside the
train ... at Village Main and was about to disembark ...
She alleges
that immediately after the train stopped commuters from her back
pushed her out of the coach ... and she fell to the
ground on her
right shoulder. Train according to her was overcrowded.’
[8] The driver of
train 9705, Mr Johannes Fourie, testified. He explained that he
cannot see the 12-coach train from his driving
post in the front as
he faces forward and relies on train guards who man the coaches to
operate the doors. It is these guards who
open and close the train
doors (which are inspected daily for mechanical faults and functioned
properly at the material time) by
pressing certain buttons to release
or engage the door locking mechanism when it is safe for passengers
to board or disembark.
He said he is able to hear, from his driving
seat, the whooshing sound from air pressure being released when the
doors open after
he stops the train. When the train departs the
guards sound a bell to alert him that it is safe to drive. From his
account, there
appears to have no deviation from this procedure on
the relevant morning. His train ran smoothly and no mishap was
brought to his
attention. He sought to dispute that the train was
overcrowded but conceded in cross-examination that he could not deny
such evidence
as he did not and could not see what happened in the
coaches behind him.
[9] The court below
rejected the respondent’s evidence that the train was moving
when the accident occurred. It found it improbable
that ‘the
general throng of passengers of whom she was one would’ exit a
moving train and concluded that the train
was stationary when the
respondent, pushed along by other passengers, disembarked and fell.
The court however accepted the respondent’s
version that the
train was overcrowded. On that basis it found that the harm suffered
by the respondent – that a frail commuter
such as the
respondent, travelling on a crowded train during peak hours, might be
pushed, fall and suffer injury – was foreseeable
and that the
appellant ‘was under an obligation to take steps to prevent’
it. The court consequently held that by allowing
the train to be
overcrowded, the appellant negligently failed to take reasonable
steps to prevent harm which was foreseeable and
that such negligent
omission was the direct cause of the respondent’s injuries
giving rise to liability for her damages.
[10] In her
particulars of claim the respondent based her cause of action on the
appellant’s alleged breach of its ‘legal
duty,
alternatively a duty of care ... to ensure the safety of the public
... making use of such services as passengers or otherwise’.
It
was alleged that the respondent ‘was pushed, by persons unknown
to her, from the moving train, through open coach doors
and fell on
the platform’. The grounds of negligence were then pleaded as
follows:
‘
6.1
The Defendant failed to ensure the safety of members of the public in
general and the Plaintiff in particular on the coach of
the train in
which the Plaintiff travelled;
6.2 The Defendant
failed to take any or adequate steps to avoid the incident in which
the Plaintiff was injured, when by the exercise
of reasonable care it
could and should have done so;
6.3 The Defendant
failed to take any or adequate precautions to prevent the Plaintiff
from being injured by moving train;
6.4 The Defendant
failed to employ employees, alternatively, failed to employ an
adequate number of employees to guarantee the safety
of passengers in
general and the Plaintiff in particular on the coach in which the
Plaintiff intended to travel;
6.5 The Defendant
failed to employ employees, alternatively, failed to employ an
adequate number of employees to prevent passengers
in general and the
Plaintiff in particular from being injured in the manner in which she
was;
6.6 The Defendant
allowed the coach of the train in which the Plaintiff was travelling
to be overcrowded;
6.7 The Defendant
allowed the train to be set in motion without ensuring that the doors
of the train and coach in which the Plaintiff
was travelling were
closed before the train was set in motion;
6.8 The Defendant
took no steps to prevent the coach in which the Plaintiff was
travelling from becoming overcrowded;
6.9 The Defendant
allowed the train to move with open doors and failed to take any,
alternatively, adequate steps to prevent the
train from moving with
open doors;
6.10 The Defendant
failed to keep the coach safe for use by the public in general and
the Plaintiff particular;
6.11 The Defendant
neglected to employ security staff on the platform and/or the coach
in which the Plaintiff was travelling to
ensure the safety of the
public in general and the Plaintiff.’
[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.
2
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.
3
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.
4
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.
5
[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)
6
carries a positive
obligation to implement reasonable measures to ensure the safety of
rail commuters who travel on its trains.
7
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.
[13] Reverting to
the facts of the present matter, I respectfully agree with the court
below that the train must have stopped before
the respondent was
unceremoniously ejected from her coach. Any other conclusion would
necessitate a finding that Mr Maleka and
Ms Tshidzumba who
interviewed the respondent directly after the accident, for an
unknown reason and no obvious gain to them, somehow
concocted a grand
scheme to cover for the appellant and, to achieve that goal,
falsified documentation by deliberately recording
a report contrary
to what the respondent told them and were prepared to perjure
themselves in court. Notably, it was not put to
either of them in
their thorough cross-examination that they were lying in this regard
to afford them an opportunity to deal with
such a charge. There is,
in my view, simply
no basis to draw the
far-fetched conclusion of a conspiracy on the acceptable evidence.
[14] I may just add
that I accept that it is common human behaviour for railway
commuters, particularly during morning peak periods
when most are in
a hurry to get to work, to rush to the doors of a coach, when it
nears their destination, so as to disembark quickly.
This, in fact,
is supported by the respondent’s evidence that ‘if the
train is about to stop or to arrive at the station,
people push each
other ... because they want to get off the train’. I find it
most unlikely, as did the court below, that
the majority of the
passengers, no matter how much in a rush they are, would engage in
such a dangerous exercise as to exit a moving
train as the respondent
would have it. What seems more probable is that when the doors of the
stationary train opened, the respondent
was trapped in the surge of
dismounting passengers, shoved in the rush and lost her balance.
[15] But I have a
difficulty with the factual finding made by the court below that the
train and, in particular, the respondent’s
coach, was
‘overcrowded’, from which the inference of negligence was
drawn. 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.
[16] I say this
aware that the appellant’s policies and legal obligations in
the conduct of its rail service are, of course,
peculiarly within its
knowledge. So too is the nature and extent of the relevant
precautionary measures it must take to ensure
rail commuter safety.
However, the fact remains that it did not have to prove that it could
not reasonably have prevented the respondent’s
fall. The record
shows no indication that the respondent attempted to ascertain this
kind of evidence by, for example, employing
the mechanisms provided
by the rules of court such as seeking discovery, requesting
particulars for trial etc. The nature of the
respondent’s onus
was such as to oblige her to adduce evidence that gave rise to an
inference of negligence. Only then would
the appellant have had to
rebut that inference by adducing evidence relating to the measures it
took to avert harm. But the onus
of proving that such measures were
inadequate and unreasonable in the circumstances would nevertheless
remain on the respondent.
[17]
The question which remains for determination is whether on the
evidence that the respondent fell and sustained injury as a
result of
being pushed from a stationary train by impatient fellow commuters –
a happenstance over which the appellant was
not shown to have control
– she discharged the onus resting upon her, of proving on a
balance of probabilities that the appellant
was negligent: bearing in
mind that whether or not conduct constitutes negligence ultimately
depends upon a realistic and sensible
judicial approach to all the
relevant facts and circumstances.
8
[18] As indicated
above, the premise of the respondent’s case was that she fell
and sustained injury as a result of being
pushed by an excessive
crowd ‘from inside’ a moving train. Quite apart from the
finding that the evidence does not
establish that she was pushed and
fell because the coach was overcrowded and her failure to establish
the reasonable precautionary
measures that the appellant could have
taken to prevent passengers knocking one another down when
disembarking from stationary
trains, the respondent’s single,
insurmountable hurdle is her failure to establish that the train was
in motion when she
was ejected from it. It seems to me that once the
court accepted that the train was stationary when the respondent
disembarked
and the accident occurred, that should have been the end
of the respondent’s case. This, clearly, was the result
contemplated
by the parties themselves when they defined the issue;
that only a finding that the train was in motion when the respondent
was
pushed and fell would give rise to liability. The court below
thus erred in this regard and the appeal must succeed.
[19] In the result
the following order is made:
1 The appeal is
upheld with costs.
2 The order of the
court below is set aside and the following is substituted:
‘
Absolution
from the instance is granted, with costs.’
____________________
MML Maya
Judge of Appeal
APPEARANCES
FOR THE APPELLANT: M
Smith
Instructed by Cliffe
Dekker
Hofmeyer Inc,
Johannesburg
McIntyre & Van
der Post, Bloemfontein
FOR THE RESPONDENT:
JC Pieterse
Instructed by
Edeling Van Niekerk Inc, Johannesburg
Lovius-Block,
Bloemfontein
1
Metrorail
is one of the divisions or business units of services Transnet Ltd,
a public company with share capital owned by the
State, which
include South African Airways, port services and freight rail. It
was established in terms of the Legal Succession
to the South
African Transport Services Act 9 of 1989 to render commuter rail
services.
2
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-F;
Mkhatshwa v Minister
of Defence
2000 (1) SA 1104
(SCA) paras 19-22;
Sea Harvest
Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
2000
(1) SA 827
(SCA) para 22.
3
See,
for example,
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority
2006 (1) SA 461
(SCA) para 12;
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd
2006 (3) SA 138
(SCA) para 10;
Charter Hi (Pty) Ltd v
Minister of Transport
[2011] ZASCA 89.
4
Trustees,Two
Oceans
above para 11;
Shabalala v Metrorail
2008 (3) SA
142
(SCA) para 7.
5
Shabalala
para 11.
6
See
ss 15(1), 22 and 23(1) of the Legal Succession to the South African
Transport Services Act 9 of 1989.
7
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA
359
(CC) paras 82-88.
8
Mkhatshwa
para 23.