N.T obo S.T v Passenger Rail Agency of South Africa (24618/2021) [2022] ZAGPPHC 726 (26 September 2022)

80 Reportability

Delict

Brief Summary

Delict — Negligence — Liability of rail operator — Plaintiff, a minor, injured after falling from a moving train with open doors while boarding — Dispute over whether plaintiff was pushed by other passengers or jumped — Court finds that regardless of the circumstances, the operation of the train with open doors constituted negligence on the part of the Passenger Rail Agency of South Africa (PRASA) — PRASA failed to plead apportionment of damages or establish any fault on the part of the plaintiff, thus liable for the full extent of damages claimed.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a delictual action for damages arising from personal injuries sustained in a railway incident. The plaintiff, N T[…] acting on behalf of her minor son, ST, sued the defendant, the Passenger Rail Agency of South Africa (PRASA), for compensation arising from injuries allegedly caused by PRASA’s negligent operation of a passenger train.

The matter came before the Gauteng Division, Pretoria, as a trial on the merits. By agreement between the parties, and pursuant to a separation order, the issues of liability (merits) and quantum were separated. The court adjudicated liability only, with quantum postponed sine die for later determination.

The dispute concerned an incident in which ST, then aged 13, fell from a moving train and sustained serious injuries to his right foot. The central subject-matter was whether PRASA incurred 100% liability for the damages given the undisputed fact that the train moved with doors open, and whether any version advanced by PRASA could reduce liability through apportionment (contributory fault).

2. Material Facts

On 26 November 2019, ST, aged 13, was at Mlamlankunzi train station in Soweto at approximately 18h00 after soccer practice. He attempted to board a train to go home. During this process, he fell from the train while it was moving and suffered significant injuries, described in the pleadings as including a degloving injury of the right foot and traumatic amputation of several toes on the right foot. After the incident, ST reported it to security personnel and was transported to hospital by ambulance.

A key fact treated by the court as common cause was that, on either party’s version, ST fell (or exited) from a train that was already moving with its doors open. The parties were therefore aligned on the presence of an operational safety failure: the train departed or travelled while the coach doors were open.

The disputed facts concerned the immediate mechanism of how ST came to fall from the moving train. ST’s version was that, while he was boarding, he was pushed by disembarking passengers and fell as the train started moving with its doors open. PRASA’s version was that ST had boarded the wrong train, realised the mistake, and then attempted to disembark from the moving train (characterised in PRASA’s submissions as having “jumped off” or tried to get off while the train was moving), resulting in his foot becoming trapped and causing injury.

The evidentiary dispute was materially linked to the potential for an apportionment of damages. PRASA relied substantially on statements attributed to ST by PRASA protection officers taken shortly after the incident, while ST was injured and awaiting medical assistance. ST denied that he told the officers he was disembarking; he maintained he said he was injured while trying to board. The plaintiff later reopened her case (with PRASA’s consent, subject to PRASA’s right to call further witnesses) to call ST’s mother, who testified that she was present during the taking of the statement and that ST stated he was injured while trying to get onto the train.

PRASA did not call evidence from any train guard or official to establish that the train doors were closed before the train moved.

3. Legal Issues

The central legal questions were whether PRASA was negligent and therefore liable in delict for ST’s injuries, given the accepted fact that ST was injured in circumstances involving a moving train with open doors, and whether PRASA could avoid full liability by relying on ST’s alleged conduct (jumping off/attempting to disembark) to support an apportionment of damages.

The dispute involved a combination of application of law to fact and fact-finding. The application-of-law component concerned whether operating a moving train with open doors constituted negligence under settled authority and whether that negligence was sufficient to ground liability irrespective of whether ST fell while boarding or attempting to disembark. The fact-finding component concerned which version (pushed while boarding versus jumping/trying to disembark) was more probable, but the court treated that factual dispute as relevant primarily to the question of apportionment rather than the existence of negligence.

A further legal issue was procedural and doctrinal: whether PRASA was legally entitled to rely on apportionment where it had not pleaded contributory fault and sought to introduce apportionment only at the stage of written submissions.

4. Court’s Reasoning

The court approached PRASA’s liability through the lens of what it regarded as settled jurisprudence on open train doors. It reasoned that the common-cause fact—that ST fell (or exited) from a train in motion with open doors—was alone sufficient to establish negligence on PRASA’s part. The court emphasised that prior decisions have repeatedly concluded that a rail operator acts negligently where it permits a passenger train to travel with open doors, because the harm of falling from a train is reasonably foreseeable, even if the exact chain of events is not, and because the preventative steps required (keeping doors closed while in motion) are straightforward.

In applying those principles to the facts, the court held that PRASA’s negligence did not depend on accepting ST’s version in full. Even on PRASA’s own version—that ST tried to disembark after realising he was on the wrong train—the operative danger remained that the train was moving with open doors, creating a foreseeable risk of a commuter falling or being injured. The court regarded the risk as particularly apparent where persons are boarding or alighting and the train begins to move while the doors remain open.

The court then addressed the bearing of the factual dispute (fell versus jumped) on apportionment of damages. It held that PRASA had not pleaded apportionment and had not pleaded fault on the part of the plaintiff. Relying on authority from the Supreme Court of Appeal, it concluded that a defendant seeking apportionment must plead plaintiff fault; PRASA’s attempt to introduce apportionment for the first time in written submissions, without an amendment application and without a properly developed basis, could not succeed. On that basis alone, the court rejected any reduction of liability through apportionment.

The court nonetheless proceeded to consider the apportionment issue on the assumption that it were open, and held that PRASA would in any event have failed to discharge the onus of proving contributory fault. It evaluated the reliability of the evidence on which PRASA relied, including the circumstances in which ST’s statement was taken. The court expressed concern about the context: ST was a severely injured 13-year-old, in pain and awaiting an ambulance on a busy platform; there were language differences (ST spoke Xhosa, while the officers spoke Sotho); and the setting was not conducive to precision. The court also noted that the protection officer’s contemporaneous notes were missing, and the statement relied on had been transcribed later from those missing notes, increasing the possibility of error.

In addition, the court found that the two protection officers contradicted one another on various aspects of their evidence, which undermined reliability. It further expressed doubts about the memory and trustworthiness of one of the officers, referring to shifting accounts about whether a written statement was taken, when it was transcribed, and whether ST was sitting or lying down. The court considered it significant that the officer asserted facts about security presence at the station that he could not directly know, and that his evidence conflicted with that of the other officer on the question of whether there was security on the platform.

By contrast, the court described ST’s evidence as adamant, credible, and consistent on the core issue that he fell while trying to board. The court further treated the mother’s evidence as rebutting PRASA’s version that ST said he was disembarking, noting that she testified that ST told the officers he was trying to get onto the train. While the court acknowledged that the timing of that evidence required caution, it considered that, in the context of the totality of the evidence, it constituted an additional difficulty for PRASA in meeting its onus.

5. Outcome and Relief

The court granted judgment on the merits in favour of the plaintiff and held PRASA liable for 100% of the plaintiff’s proven or agreed damages. The determination of quantum remained postponed in accordance with the earlier separation of issues.

The order as recorded in the judgment addressed liability only and did not set out a separate costs order in the portion reproduced.

Cases Cited

Mthombeni v Passenger Rail Agency of South Africa (13304/17) [2021] ZAGPPHC 614 (27 September 2021).

Baloyi v Passenger Rail Agency of South Africa (PRASA) 2018 JDR 2044 (GJ).

Transnet Ltd t/a Metro Rail and Another v Witter (517/2007) 2008 ZASCA 95 (16 September 2008); 2008 (6) SA 549 (SCA).

Rodgers v Passenger Rail Agency of South Africa 2018 JDR 0347 (GP).

Maruka v Passenger Rail Agency of South Africa 2016 JDR 0720 (GP).

Maduna v Passenger Rail Agency of South Africa 2017 JDR 1039 (GJ).

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

Ngubane v South African Transport Services [1990] ZASCA 147; 1991 (1) SA 576 (A).

AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A).

Legislation Cited

No legislation was cited in the judgment as reproduced.

Rules of Court Cited

Uniform Rule of Court 33(4) (separation of issues between merits and quantum).

Held

The court found that it was common cause that ST was injured in circumstances where he fell (or exited) from a moving train with open doors, and that this fact, on its own, established negligence on PRASA’s part in light of settled authority.

The court further held that PRASA could not obtain a reduction of liability through apportionment of damages because contributory fault had not been pleaded, and the attempt to raise apportionment in written submissions was procedurally impermissible in light of the applicable authority. In any event, the court found that PRASA failed to discharge the onus of proving contributory fault on the evidence.

Accordingly, PRASA was held liable for 100% of the plaintiff’s proven or agreed damages, with quantum standing over for later determination.

LEGAL PRINCIPLES

A rail operator’s failure to ensure that train doors are closed while a train is in motion constitutes negligent conduct, because the risk of commuters falling and suffering serious injury is reasonably foreseeable, and reasonable preventative steps are available and straightforward.

Where a defendant seeks to rely on apportionment of damages based on alleged fault of the plaintiff, the defendant must plead such contributory fault and the basis for apportionment. A defendant cannot ordinarily introduce apportionment for the first time in written submissions without pleading and, where necessary, without seeking an amendment.

Even if apportionment is procedurally available, the defendant bears the onus of proving contributory negligence or facts justifying apportionment. In discharging that onus, the reliability of contemporaneous statements may be undermined by factors such as the injured person’s condition, language barriers, missing contemporaneous notes, internal contradictions in witnesses’ accounts, and demonstrated unreliability in memory and trustworthiness.