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[2019] ZAGPPHC 111
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Ndakana v Passenger Rail Agency of South Africa (A864/2016, 37086/2013) [2019] ZAGPPHC 111 (28 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO.
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO.
(3)
REVISED.
Appeal Case No: A864/2016
Court
a quo
Case No: 37086/2013
In
the matter between'.
ANNAH
NDAKANA
Appellant
and
PASSENGER
RAIL AGENCY OF SOUTH
Respondent
AFRICA
JUDGMENT
Haupt, AJ
INTRODUCTION:
[1]
The
appellant, ANNAH NDAKANA, is appealing the whole of the judgment and
order granted by Ranchod J on 27 May 2016. The appeal appeared
before
us, leave to appeal to the full court of this division having been
granted to the appellant an 8 September 2016.
[2]
The
appeal emanates from a judgment and order granted against the
appellant. The appellant instituted action for the payment of
damages
suffered by her. In her claim against the respondent (PRASA), she
alleges that she suffered damages due to bodily injuries
she
sustained when she fell from one of the respondent's trains on 27
March 2012 at the Saulsville station.
[3]
The
respondent denied any wrongful conduct on the part of its employees
and that the train was again set in motion after it had
stopped at
the Saulsville station, In summary, the respondent denied liability
on the basis that (i) it denied that the incident
occurred as
described by the appellant; (ii)
in
the alternative,
in the event of the
court finding that the incident occurred as described by the
appellant, it was caused by the negligence of
the appellant and,
(iii) it denied any causal link between the injuries sustained as
alleged by the appellant and the action of
its employees.
[4]
The
trial court found that the appellant had failed to discharge the onus
to proof negligence on the part of the respondent's employees
and
granted absolution from the instance with costs.
[5]
The
essense of the appeal before us, is whether the evidence by the
appellant and her witnesses, evaluated on a preponderance of
probabilities would indicate that she fell from the train as a result
of the respondent's negligence, or not.
FACTUAL
BACKGROUND:
[6]
The
relevant factual background facts are largely undisputed and arose in
the following circumstances.
[7]
On
27 March 2012 the appellant adjourned early from school. She was not
a regular train commuter. She decided on 27 March 2012 to
take the
train back to her home in Saulsville, instead of the bus which would
only have arrived later.
[8]
She
was in possession of a valid train ticket. This was only the second
time that she had travelled in a train.
[9]
At
Pretoria station the intended train was delayed and the appellant was
only able to take a later train with number 9051 from Pretoria
to
Saulsville. The trip from Pretoria station to Saulsville station
lasted just more than half an hour. The journey was uneventful.
The
train doors closed and opened as normal. When the train stopped the
doors opened for passengers to disembark.
[10]
The
train was a 12 coach train, consisting of 9 normal/passenger and 3
motor coaches. The first, middle and last coaches are the
motor
coaches. The train driver was in the first (front) motor coach and
the train guard in the last (back). The appellant was
seated in the
second last passenger coach.
[11]
Saulsville
station is the last station at which train number 9051 ends.
Saulsville station is a
"turnaround"
station, in that when the train
arrives at the station it cannot proc ed any further as it is the end
of the line and no further
journey is possible beyond that station.
This entails that when the train arrives at the turnaround station,
the train driver and
the train guard have to switch places. The train
driver will therefore come from the front to the rear coach and the
train guard
will then go from the rear to the front coach - this take
about 5 minutes. Thereafter the train will then proceed in the
opposite
direction, back in the direction of Pretoria. Train number
9051 is the train that travels from Pretoria to Saulsville and 9050
is the train that leaves Saulsville to Pretoria. It is the same
train, but different tracks.
[12]
The
incident occurred at about 14h22.
[13]
The
train driver on duty on the day of the incident was Mr. Prinsloo who
has 43 years' experience as a train driver. The train guard
on duty
that day was Mr. Masimbuko. He has 8 years' experience as a train
guard. The train driver and the train guard did not see
where, how
and when the appellant fell.
[14]
I only deal with the evidence as far as
it relates to the essence of the appeal before us. In summary, the
appellant's evidence
is that when the train stopped at Saulsville
station, the passengers got up, the sliding doors opened and the
passengers disembarked
from the train. She began disembarking two to
three minutes after the train had stopped, but then the train started
to move forward
again. At that moment she grabbed hold of the
pole/railing next to the door in the train coach in an attempt to
maintain her balance.
Her body was already outside the train enabling
her to notice a person waving a red flag at the back of the train who
appeared
to stand on the railway tracks. She heard a loud noise that
sounded like a siren or hooter. It caused her to lose her grip. She
fell between the platform and the train and was dragged by the train
until she fell between the gap between the coaches. When the
train
stopped for the second time she was already under the train lying
between the tracks. I do not deal with the evidence of
her two
corroborating witnesses, for the reasons as more fully dealt with
later in this judgment.
[15]
In
summary, respondent's evidence as corroborated by both the train
driver and the train guard is that the train did not move a
second
time after it had stopped as Saulsville station on account of the
fact that the entry speed of the train was very low (15km/h),
there
is a 12 coach mark on the platform, namely a yellow board with black
letters clearly visible to the train driver and that
is where the
train stopped, Saulsville is a turnaround station and therefore the
train could not move forward again and the platform
length at
Saulsville is so long that even if the train were to stop short of
its assigned position, it would nevertheless still
be fully in the
platform and a repositioning of the train (i.e to move forward again)
would be unnecessary.
[16]
Both
the train driver and train guard testified extensively pertaining to
their respective duties and procedures before the train
leaves and
when it arrives at its destination. This includes the train doors
that open by way of a hydraulic system that is clearly
audible, the
bell communication system between them, the procedure that is
followed at Saulsville as a last station when the train
driver and
train guard exchange coaches and when flags, in particular red flags,
are used. Their evidence was that a red flag will
never be used in
case of an emergency stop. A red flag will only be used by the train
driver and/or train guard when the train
has broken down, or the
power is off or there is construction on the railway line. The train
driver specifically testified that,
in the event of an emergency
stop, the train guard would pull the brake in his
"drive
cab".
Every motor coach has a
"drive cab".
On
the day of the incident, after the train had stopped and the doors
opened, a security guard came to the train guard and informed
him
that a person has fallen. This happened immediately after the train
had stopped. The train guard saw a person lying between
the gap which
is between the platform and the train.
[17]
The
train driver testified that when he got out of his motor coach, he
saw a group of people standing at the end of the train and
he was
informed that a person had fallen. He saw a person (the appellant)
who was sitting under the platform. Both the train guard
and driver
were adamant that the train, on the day of the incident, stopped only
once and that it did not move forward again, save
for when the train
driver received the necessary authority to move the train half a
coach length forward in order to expose the
appellant so that the
paramedics could reach her. The appellant was adamant that the train
had moved a second time.
PROCEEDINGS
BEFORE THE TRIAL COURT:
[18]
By
agreement between the parties the trial only proceeded in respect of
merits. At the commencement of the trial the respondent
abandoned its
alternative defences, based on contributory negligence as set out in
sub paragraphs 4.2.5, 4.2.8, 4.2.11 and
4.2,13 of Its plea.
[19]
The
crux of the issue before the trial court was whether, after the train
had stopped at Saulsville station, the train driver caused
it to move
forward again without prior warning and whilst the doors were open,
causing the appellant who was in the process of
disembarking the
train, to lose her balance and fall down.
[20]
When
the matter came before Ranchod J, an order was granted, by agreement,
in terms of Rule 33(4) separating the merits and quantum
and
postponing the determination of the quantum
sine
die.
[21]
The
only issue the trial court had to determine was whether the train
moved for a second time after it had stopped at the Saulsville
station.
[22]
It
was common cause that the onus of proof rested on the appellant.
[23]
Three
witnesses testified in support of the appellant's case, being the
appellant and two fellow passengers (Mr. Masilwana and Mr.
Lehabe).
Mr. Masilwana sat in the 5ame coach in which the appellant was
travelling, but more to the back of the coach. Mr. Lehabe
was a
passenger in the coach in front of the coach in which the appellant
was sitting.
[24]
The
train driver, Mr. Prinsloo and the train guard, Mr. Masimbuko on duty
of the day of the incident, testified for the respondent.
[25]
In
summary, the appellant’s case was that the train driver and/or
or train guard were negligent by allowing the doors of the
train
coach to be opened at an inopportune moment and/or setting the train
in motion,
alternatively
allowing the train to move without prior warning and whilst the doors
of the train was still open. Furthermore it was argued that
if it is
accepted that the appellant was a passenger inside the train when
arriving at Saulsville station, the question is how
she came to fall
when exiting and how did she end up under the last coach if the train
had been stationary throughout?
[26]
The
appellant argued there was no evidence whatsoever tendered on behalf
of the respondent to give an explanation on how she ended
up under
the last coach if the train had been stationary throughout, having
regard to where she exited. The appellant's case is
that on the
probabilities the only explanation for her falling and eventually
ending up under the last coach of the train, is that
the train moved
when she exited it.
JUDGMENT
OF THE TRIAL COURT
[27]
In its judgment the trial court made the
following findings:
[27.1]
The appellant testified in chief and under cross examination that she
boarded
the train at Pretoria at about 14h30 and that the journey
took just over 30 minutes. Therefore the train arrived at Saulsville
at about 15h00. This is inconsistent with the time of the incident at
about 14h22, which was not in dispute.
[27.2]
It seems improbable that it would take the appellant two to three
minutes
to get off the train at Saulsville in the absence of a
reasonable explanation given her testimony that she sat near to the
exit
door.
[27.3]
Her testimony that she saw a person with a red flag standing on the
railway
track and it seemed that he was attempting to stop the train,
seems improbable in that the person (presumably the train guard who
had a red flag in his possession) would be standing on the tracks to
stop the train moving forward where he is at the rear co oh
and the
driver In the front coach.
[27.4]
Her testimony was that when the train began moving forward again he
let go
of the pole she was holding onto while disembarking and she
fell down. If her version is to be accepted, it begs the question why
she did not keep holding on for then she probably would not have
fallen down.
[27.5]
The appellant's demeanour in the witness stand cannot be criticized.
She
was calm and gave her evidence in a
“
fairly
forthright manner”
,
She was adamant that the
train moved forward whilst he was getting off.
[27.6]
The appellant's two corroborating witnesses (Masilwane and Lehabe)
were not
reliable. Mr. Masilwane was not an impressive witness. He
speculated and had no first-hand knowledge. Mr Lehabe's recollection
of events further appears not to be reliable.
[27.7]
The train guard, Mr. Masimbuko made a good impression as a witness.
There
was no contradiction in his evidence and he was calm and gave
considered answers under a lengthy cross examination. This
finding
refers to the train guard's evidence relating to the
explanation of his duties when a train arrives at the station.
[27.8]
The train driver, Mr. Prinsloo made overall a good impression as a
witness
and his evidence is reliable. This refers to the train
driver's testimony regarding that on the day in question he had
stopped
the train, then got off to go to the back of the train as he
was going to drive back to Pretoria. He did not move the train
forward
again after stopping except when the appellant had to be
reached by the paramedics and then he only moved the train with the
permission
of the Central Train Control (CTC).
MERITS
OF THE APPEAL:
[28]
Before us, it was argued on behalf of
the appellant that despite the inconsistencies and contradictions
between the evidence of
the appellant and her two corroborating
witnesses (Masilwane and Lehabe), this does not taint the appellant's
case in a fatal sense.
It was contended that there was sufficient
prima facie
evidence
to discharge the onus of proof and the only contradictory factual
evidence on behalf of the respondent was a bare denial
by the train
driver and train guard that the train had moved again.
[29]
Although the appellant agrees that the
respondent has no burden of proof, it was argued that there is an
obligation on the respondent
to rebut the evidence of the appellant.
It was further contended that the respondent's witnesses could not
explain how the appellant
would land under the last coach of the
train after having exited the third coach without the train having
moved.
[30]
The primary thrust of the appeal against
the judgment was that the trial court ignored the inherent
probabilities. It was contended
that her version on the probabilities
was the only explanation for her falling from the train and
eventually ending up under the
last coach of the train, i.e that the
train moved wf1en she exited it and that there is no other inference
to be drawn.
[31]
The
trial court was faced with two mutually destructive versions as to
whether the train had moved forward again whilst the appellant
was
disembarking after having come to a stop. The technique to be applied
in resolving factual disputes was confirmed by the Supreme
Court of
Appeal in
SFW Group Ltd and another v
Martell et
ci
and
others
2003 (1) SA 11
(SCA) at 14,
paragraph (5). To resolve factual disputes of this nature the court
must make findings on (i) the credibility of the
various factual
witnesses; (ii) their reliability; and (iii) the probabilities.
[32]
The trial court in applying the
abovementioned technique found that the appellant did not discharge
the onus to proof negligence
on the part of the respondent's
employees. I agree with the finding of the trial court.
[33]
In the present matter the om.is rested
on the appellant to proof negligence on the balance of probabilities
on the part of the respondent's
employees, in this instance the train
driver or the train guard or both of them, as they were the only
persons who could have caused
the train to move again after it had
stopped.
[34]
Onus of proof is a matter of substantive
law.
[1]
The appellant therefore has to proof all the elements of her case.
[2]
If the train moved again after it had stopped, it follows that the
respondent was negligent. If the train did not move again, there
is
no negligence on the part of the respondent. She alleged, and
therefore had to proof, that the driver of the train and/or train
guard was negligent in one or more of the following respects:
(i)
That
he caused the train to suddenly pull off without ensuring that it was
safe to do so;
(ii)
failed
to exercise proper or adequate control over the train;
(iii)
failed
to keep a proper lookout; and
(iv)
failed
to prevent the incident when he was, with the exercise of reasonable
care, in the position to do so.
[35]
It is settled law that whilst the
evidentiary burden may shift between parties dependent on the measure
of proof furnished by the
one party or the other, the onus never
shifts from the party on whom It originally rested.
[3]
[36]
The evidence of the appellant on how the
incident took place was not corroborated by her factual witnesses. I
do not agree with
the appellant’s argument that although the
evidence of Masilwane and Lehabe was not satisfactory in all
respects, their evidence
remain untainted that the train moved again.
A court cannot decide a case in light of inferences which arise only
from selected
facts considered in isolation, nor follow an approach
resulting in a cherry picking of evidence and a piecemeal process of
reasoning
when weighing up the evidence as a whole of a witness.
[4]
[37]
The evidence of the corroborating
witnesses taken as a whole is irreconcilable with the appellant's
evidence on how the incident
occurred. To illustrate, Masilwane
testified that when the train moved again, the train doors closed
trapping the appellant's leg.
Mr Lehabe was sitting in a different
coach and he did not see the appellant falling from the train. He
disembarked the train in
under a minute, whereas it took the
appellant, who was sitting close to the door, two to three minutes.
Furthermore, he was already
on his way to the station exit when the
incident occurred. In my view their evidence taken as a whole, has no
evidentiary value
due to the inherent inconsistencies and
contradictions.. I agree with the finding of the trial court that
their evidence is neither
credible nor reliable.
[38]
As the onus was on the appellant it was
not for the respondent to explain what happened on the day of the
incident or give alternatives
to what might have happened. I df) not
agree with the appellant's contention that there was a mere bare
denial by the respondent
regarding the second movement of the train.
Only two persons could have caused the train to move, i.e the train
driver or the train
guard signalling the driver to continue. The
respondent did not merely, in my view, give a bare denial if regard
is had to the
evidence of the train driver and the train guard
regarding the procedure and protocol that was followed on the
particular day and
more specifically that Saulsvlile is a turnaround
station and the processes that are followed when there is an
emergency stop and
the three bell system signalling to commuters that
they can disembark.
[39]
In my view the version of the train
driver and train guard is more probable and show to the inherent
improbability of the appellant's
evidence of a red flag that was
waived which she saw whilst still clutching to the pole or that she
heard a sound similar to a
siren when she fell. Having regard to the
evidence of the train driver and train guard taken as a whole, it is
clear that a red
flag is not used in a situation of an emergency stop
as argued on the version of the appellant.
[40]
Both the train driver and the train
guard were consistent and steadfast in their evidence which
corroborated each other pertaining
to the evidence to what had
happened prior to arriving at the Saulsville station and that they
parked at the designated 12 coach
mark. When considering their
testimony as a whole, why the train did not move a second time, the
respondent has provided, In my
view sufficient evidence to neutralise
a
prima facie
case
.,... that is if it is accepted that the appellant had made out such
a case. The entry &peed of the train was very low
when it
approached the station (15km/h), the train stopped at the yellow
board with black letters clearly visible to the train
driver marked
"12 coach mark"
platform,
Saulsville station is a turnaround station and therefore the end of
the route and the length of the platform at Saulsville
is so long
that even if a train were to stop short of its assigned position, it
would nevertheless still be fully in the platform
and a
re-positioning of the train would be unnecessary.
[41]
No evidence was placed before the trial
court on behalf of the appellant that the train had to be
re-positioned as it was not properly
on the platform. The evidence
before the trial court was that it was an uneventful journey and when
the train stopped, the doors
opened and the passengers started
disembarking. Therefore, on the probabilities there was no reason to
move the train deeper into
the platform as the evidence taken as a
whole show that when the train stopped, it was parked in such a
manner that the passengers
could disembark without difficulty.
[42]
The appellant contends that the
probabilities favour her version in that when the train moved again
she fell and she was dragged
along by the train and the train kept on
moving until the gap between the coaches reached the appellant when
she fell down from
the platform, landing on her version, underneath
the train between the wheels of the last coach. The appellant further
contends
that the only inference to be drawn is that the appellant
would not have landed under the last coach, if the train did not move
a second time whilst she was exiting the third last coach.
[43]
The evidence before the trial court was
that the space between the train and the platform was very limited
(8-1O cm). The appellant
argued that the only logical explanation of
how she ended up under the last coach of the train, was to accept her
version that
when she exited the third last coach the train moved
again. The authorities indicate that inferences must be carefully
distinguished
from conjecture and speculation and that no inferences
can be drawn unless there are objective facts from which to infer
other
facts which it is sought to establish.
[5]
[44] The court is not
entitled to speculate on the possible existence of other facts, it
must stay within
the four corners of the proved facts.
[6]
It was not for the trial court to speculate on how the appellant
landed underneath the last train coach. She must proof her case.
She
provided no factual or expert evidence or even photographs regarding
the length of the coach, where the door was situated from
which she
exited the coach, the spaces between the coaches or whether the train
was t the platform or not, to support the inference
the appellant
wishes the court to make having regard to the probabilities. If there
are no positive facts from which the inference
can be made, the
method of inference fails and what is left is mere speculation and
conjecture.
[7]
[45]
The
respondent's witnesses did not see how the incident occurred and
therefore they could not speculate on how the appellant fell
and came
to land under the train. Their testimony is directly related to
whether or not they were negligent as alleged by the appellant.
In
applying the technique laid down in
SFW
Group
supra,
the
version of the appellant, In my view, is improbable. If the
appellant's evidence is to be accepted that the train moved again
and
she tried to hold on, lost her grip, was trapped between the platform
an the train, was dragged along and eventually fell between
the
coaches and ended up under the train inside the railway tracks
between the wheels of the train, it is improbable that the appellant
would not have been run over by the train,
alternatively
fatally injured given her testimony that the train kept on moving.
[46]
The
train driver and train guard both testified that it was not possible
for the train to have moved forward in order to expose
the appellant
if she was lying under the train on/or between the tracks or wheels.
They are prohibited from moving the train when
a person is lying
under a train on the tracks as the train is low and when the train
moves it would either seriously injure or
kill the person lying under
the train. In my view the probabilities favour the version on behalf
of the respondent in that the
appellant was underneath the platform
and not underneath the train.
[47]
In
my view the version of the appellant contains various inherent
improbabilities. In contrast to the appellant's evidence and the
contradictory evidence of her collaborating witnesses, the evidence
by the train driver and train guard was, without contradictions
or
inherent improbabilities. I agree with the findings of the trial
court in this regard. In my view on a closer examination of
the
evidence and having regard to the test regarding the reliability of
the evidence, the credibility of the witnesses and the
probabilities,
the appellant failed to discharge the onus of proof.
[48]
Counsel
on behalf of the respondent indicated that in the event of the appeal
being dismissed, the respondent shall not seek to
enforce any costs
order granted.
ORDER:
[49] The following
order is made:
1.
The appeal is dismissed;
2.
Each party to pay it's own costs.
L
C HAUPT (AJ)
Acting Judge of the High
Court
I
agree and it is so ordered.
R
G TOLMAY
Judge
of the High Court
I
agree and it is so ordered.
D
NAIR
Acting
Judge of the High Court
I
agree and it is so ordered
HEARD
ON:
7 November 2018
DATE
OF JUDGMENT:
28 February
2019
APPELLANTS'
COUNSEL:
Adv N F de Jager
RESPONDENT'S
COUNSEL:
Adv S M Tisani
APPELLANTS'
ATTORNEY:
Gert Nel Inc.
RESPONDENTS'
ATTORNEYS:
Diale
Mogashoa Attorneys
[1]
Zeffert, Paizes, St.Q Skeen,
The South African Law of Evidence
(Butterworths) at 45
[2]
Pillay v Krishna
1946 AD 946
at 951-952
[3]
South Cape Corporation (Pty) Ltd v Engineering Management Services
(Pty) Ltd
1977 (3) SA 534
(A) at 548.
[4]
R v Sacco 1958(2) SA 349 (N) at 353; Schwikkard, Van der Merwe,
Principles of Evidence
(2
nd
edition).
[5]
Casswell v Powell Duffryn Associated Collaries Ltd 1939 (3) All ER
at 733; S v Essack
1974 (1) SA 1
(A) at (6);
Principles of
Evidence
supra
at 496
[6]
Principles of Evidence
supra
at 496 and the reference
to authorities in footnotes 14 and 15.
[7]
De Wet
v
President
Versekerinusmaatskappyijpk
1978 (3) SA 495
(C) at 500.