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[2019] ZAGPPHC 222
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Nkosi v Passenger Railway of South Africa (37477/ 2011) [2019] ZAGPPHC 222 (13 June 2019)
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO: 37477/ 2011
13/6/2019
THABO LEONARD NKOSI
PLAINTIFF
and
PASSENGER
RAILWAY OF SOUTH AFRICA
DEFENDANT
JUDGMENT
KHUMALO J
[1]
The Plaintiff, Thabo Leonard Nkosi
("Nkosi " ), a double amputee, instituted an action against
the defendant, the Passenger
Rail Agency of South Africa (PRASA) for
damages that arose from injuries he sustained when he allegedly fell
from a PRASA train
at a platform in Skraamsdam near Kliprivier,
Johannesburg that resulted in him losing both his limbs.
[2]
The parties have agreed to the
separation of merits from the quantum. The matter consequently
proceeded only with the aspect of
merit s that of quantum postponed
for later adjudication.
[3]
Nkosi summarily in his particulars of
claim avers that when the accident occurred on or about 29 January
2011, at 5H10 he was a
passenger in the Prasa train which was at the
time travelling between Kliprivier and Skraamsdam Train Stations. He
was in possession
of a valid train
ticket
that allowed him to travel between Vereeniging and Germiston
and
return.
The other passengers pushed
him out of the open doors of the moving train which led to his fall.
He sustained multiple injuries from
the fall, that included the severance of his left leg and the
fracture of his right leg. He
was treated at Chris Hani Baragwanat h
and Natalspruit Hospitals where is fractured right leg was amputated.
[4]
Nkosi accordingly alleges the sole cause
of the accident to have been the negligence of PRASA and its
employees whom he says, inter
alia, failed to take any or any
reasonable precautions to ensure the safety of commuters in general
and the Plaintiff in particular,
more particularly having failed:
[4.1] to
maintain adequate crowd control in and around the station, train and
coach;
[4.2] to
ensure that the station, train and coach did not become overcrowded;
[4.3]
ensure that the doors of the coach remained closed while the train
was in motion;
[4.4]
ensure that commuters in general and the Plaintiff in particular did
not fall from the moving train.
.
[4.5] to
prevent the incident from occurring when, by the exercise of
reasonable care, they could have done
so.
[5]
He in the alternative pleaded that 1
st
and 2
nd
Defendant owed him a duty of care to ensure that:
[5.1] the
condition and state of the train and/or the coach and /or the infra
structure, stations, land
and property supporting the operation of
the train and/or the coach did not pose any danger to him;
[5.2]
reasonable precautions were taken to ensure his safety and; more
particularly, to ensure that;
[5.2.1]
adequate crowd controls was maintain ed in and around the station,
train and coach;
[5.2.2]
the doors of the coach remained closed while the train was in motion;
[5.2.3]
the incident did not occur.
[6]
Nkosi is therefore claiming an amount of
R5 400.000 . 00 for the damages he alleges to have suffered which
includes, lo ss of earnings,
past and future medical expenses and
general damages.
[7]
PRASA in its Plea denies the allegations
of negligence as alleged by Nkosi, denying any knowledge of the
accident or liability to
his damages.
[8]
In his further particulars that he
furnished on request from PRASA, he stated that he was travelling
alone and was indeed pushed
from behind whilst standing inside the
train near the door whereupon he fell on his front stomach. He was
airlift ed to Baragwanath
Hospital in the presence of the
security
personnel
at the accident scene. The
doors of the train were open when he boarded the train and remained
constantly open whilst the train
was in motion.
[9]
This is a delictual action. According to
the minutes of the parties pre-trial conference held not long before
the trial, the parties
had agreed that Nkosi bears the onus of proof,
satisfying the court on all the material elements and the duty to
begin. In this
particular case, it is the first delictual element
that is material to a determination of the dispute: viz. the
actus
reus,
or the commission or omission
of the particular act on the part of PRASA employees that Nkosi avers
was wrongful, negligent and
caused him harm.
EVIDENCE LED
[10]
Nkosi, who was the only witness to his
case, during the trial however testified to a slightly different
story. He said on that day
he boarded the train at about 5h05 in the
morning at the railway station at Skraamsdam Train Station,
Kliprivier. The train was
crowded, he therefore took a position in
side the train, standing and holding onto one of the straps that was
hanging down from
the roof of the train. The train doors had remained
open since the time that he board ed the train and when the train was
in motion
.
As the train
start
ed moving, it swayed from one rail to the other. Whilst swaying and
swerving, he fell out of the train on to the ground. He
fell forward
and landed out on his stomach. His legs were trapped under the rails
of the train. He stayed on the ground laid on
his stomach. The train
rode over his legs severing his left leg. He tried to move the right
one and realised that it was fractured.
[11]
There were no personnel or security at
the station taking any measures on crowd control. He remained there
alone for a long time
as the place is not frequented by people. After
some time he saw paramedics arriving at about 7h00. They attended to
him. There
must have been security personnel there because the
paramedics called them to come and assist in lifting him from the
place where
he landed. He thereafter heard one of the paramedics
saying that he was seriously injured and must be lifted so maybe they
should
call the helicopter emergency services. He was airlifted from
there to Baragwanath Hospital.
[12]
He denied that he was crossing the
railway line during the accident. He said he had a ticket but the
paramedics took his clothes
off so he does not know what happened to
it
or his clothes. The train was
packed/full when it left the station. It was normally full at that
time and the doors always open.
There
were no measures to control the crowd. There are trains that they
call right train. When they arrive on the platform the doors
will be
closed, such a train cannot be opened from outside. After such a
train has stopped completely the doors will open. He said
the train
is not safe but one just boards it to reach one's destination.
[13]
Under cross examination his testimony
was that he stays in Daleside in Midvaal, Kliprivier, near the
station . He had boarded the
train at Skraamsdam train station at
4h55 in the morning,
coming back from
work. He boarded the train from Skraamsdram.
He
was employed at Blockhouse in Daleside . Skraamsdam is the name of
the station in Daleside. He was asked if the area where he
works and
lives are close by the station why he would use the train to go to
work. He said on that day after work he was going
to see his
girlfriend in Natalspruit. He said from work he went straight to the
station.
He said his ticket was for
travelling from Daleside to Natalspruit
(contrary
to what is said in the particulars of claim),
and
a monthly ticket.
He was asked why
he would buy a monthly ticket to go and see a girlfriend. His
response was that even though he lives in Daleside,
his girlfriend is
in Natalspruit so when he ever decide she then travels to Nat
alspruit . So he bought the ticket so he can be
able to go to he-r as
and when he decides to visit her. He us-ed to stay in his room only
on Mondays and go and see her everyday.
He
said he bought the ticket at Kliprivier station .
[14]
He indicated that Skromdram is a
small station. When he boarded the train there was not a big crowd
because the train was coming
from Vereeniging going to Germiston.
He
did not agree that skraamsdram is the last station and a holding
station. Also that the houses are far from the station as this
is a
farm area . It was agreed there is a garage and there is only a farm
not farms. He then again said there was a crowd on the
platform
because there are shelters near the station and a number of people
from there would board the train at the station.
It
was put to him that it was 5h00 in the morning on a Saturday,
and
asked whether all those people came from the shelters. He said others
would be farmworkers coming from work and there were other
people at
a distance so he would not be able to say how many people were there
on the platform.
There were 2 other
people he saw who got into the train as he also did. The train was
full and he could not get any further than
at the point of the
overhead strip that was dangling from the ceiling.
The
other strips that were dangling from the roof were already being used
by the other people. The coach had 4 doors 2 from each
side.
The
train had started moving, changing tracks as it was doing so. It was
when the train was in mot ion and swerving that he fell
out to the
ground. He was the only one who fell from the train.
There
were no people standing at the door but there were people behind him
who lost their balance and stumbled against him
and he fell out.
[15]
It was pointed out to him that the Railway line at Skraamsdam station
does not criss cross,
but it is in a straight line.
His
version then was that it was criss crossing and he fell out and was
not pushed. He repeated his denial of being pushed. He said
it
happened almost when the train was leaving the station, hardly 5
meters, he was pushed and he fell.
His head came out first like
flying or flung out. He had a stone lodged on his elbow on impact
when he was landing . It was not
fractured but severely bruised.
He
laid next to the train in the same direction to where it was going.
He only saw that his left leg is no longer there after the
train has
passed.
He then tried to position himself and lift the right leg
only to discover that it was fractured . It all happened in a split
second
and cannot tell how exactly and slowly. He denied crossing the
railway line that day and also being arrested for that incident.
He
pointed out that the train did not stop after the incident and does
not know what the other passengers did after the accident.
He also
changed and said nobody came to the paramedics' assistance. He said
the paramedics were the first people he saw and denied
that he ever
said there were security personnel who came to help the paramedics.
[16]
That was the Plaintiff's case.
[17]
The Defendants' evidence was led by Mr Mokoena, a PRASA employee. He
is a Claims Investigating
Officer tasked with investigating the root
causes of any incident or an injury of a person within their system.
According to Mokoena
his investigation entailed consulting first with
the joint operation centre, then perusing the Occurence Book (OB) and
thereafter
following any existing lead. If there is no lead he said
he will proceed to the train operators, make enquiries from the
department
or customer service. He would then consult the hospitals
to which the third part y claims to have gone after the incident.
There
he will interview the hospital and emergency services
personnel.
[18]
On 29 January 2011
he used the joint operation centre offices
that operated within the railway sector where he perused the OB for
the 3 days, starting
from a day prior to a day post the incident.
They could not find anything relating to this matter or indicating
that there was
a person injured in their premises. He went to
Vereening and called the segment responsible for Skraamsdam. There he
perused their
OB for the 3 days.
The incident is described in the
OB as of an injured person that was hit by a train.
According to
their investigation nothing else was recorded for the 3 days except
for an incident of robbery and minor incidents.
After the discovery
he went through to train operations department to find out if there
were other reports. No information was
found . He proceeded to
customer services where he found that there were other incidents
reported but no incident reported on this
matter.
[19]
He then proceeded to hospital. He visited Johannesburg hospital where
he
was informed that there was a 3rd party brought to Hospital by
helicopter.
He then visited Baragwanath and Natalspruit
Hospitals.
He found out that Nkosi was transferred there for day
to day medication.
No other hospital was consult ed. He however
did enquire from the neighbours of the Plaintiff in Skraamsdam.
Skraamsdam Station
is used by PRASA for Goods Train.
Nkosi lives
in an old dilapidated house near the station. There are shacks that
are built around the dilapidated houses, maybe 10
or 12 shacks.
A
lady he found there told him that Plaintiff was injured in a train
related incident. None of them could give him any further
information.
He went to Kliprivierstation which is 2km from the
scene of accident
to ask about the helicopter. The SAPS said they
don't know of any incident there.
[20]
There was nothing that came up and nothing could be done.
He
denied that at the Kraamsdam station there are changing lanes when
the train departs. The railway tracks are straight. He said
it is a
holding station and empty. There are no security guards stationed
there, no ticket examiner in the vicinity in that
area. As a
holding station every ticket officer knows that there are no ticket
personnel. If he boarded the train at Skraamsdam
next station is
Kliprivier. They will charge him a normal fee ticket. He can get
inside a train and board the train at Klipri vier.
Skraasdam will be
500 meters on the left it is settlement on the right hand side is the
old Vereening road. There are two platforms
one to Germiston over to
Vereeniging.
The only way to come to the platforms would be
through the railway line.
The incident could not be traced. He
also cannot say it did not happen. Maybe it could be the Spoornet
train or another train.
He indicated that there are footpaths that
are for crossing where people walk through the railway line.
There
is no bridge. People cannot just walk from one side to the other. He
said he has been working there for a long time.
That being a halt
station there is no interchanging tracks or section that cross over
where the train can move from one side of
the tracks to the other.
He
said he was sure and adamant that it is so as he has been working in
that area for a long time.
[21]
He confirmed that he did not interview Nkosi and the fact that he
could not trace the accident
it did not exclude the possibility that
it happened. Skraamsdam Station does not have ticket examiners or
security personnel otherwise
the latter could have picked it up. He
did manage to trace the train that passes at that time. He
interviewed the lady who works
there and she said she did not see
anything. He could not agree or deny the statement that there was no
security person or people
to deal with crowd control. Their version
is in accordance with the summons and they work from there so they
cannot interview him.
It was put to him that his story about the
investigation is uncorroborated how can it be trusted that it is not
fabricated if there
is no record of the investigation.
According
to the regulation they received from PRASA they are not allowed to
interview the Plaintiff.
He said he believed the police when they
said they did not see a chopper, but it does not mean Plaintiff was
not airlifted to Hospital.
He confirmed that the police denied
that there was a chopper, even though there was a report at the
hospital that Nkosi was brought
by helicopter.
[22]
Dr Pretorius, a trauma surgeon at
Baragwanath Hospital testified that Nkosi was admitted at the
hospital. He confirmed that a discharge
note that was part of the
hospital records contains a summary of the treatment Nkosi received,
and written when a patient is discharged.
It was prepared by Dr
Segobodi who was one of the interns he oversaw his in service
training at the time. He made sure that everything
they do was
correct. He also confirmed that the signature on the report was not
his signature but that of Dr Sebogodi. He explained
the kind of
information that is written on a discharge form, that it is a summary
of the whole initial history received from the
patient and the
treatment the patient received. It would entail recording the date of
admission, history of the treatment received,
when received and
whether surgery performed or just medical treatment. Treatment that
he will be taking at home (TTO) or thereafter
as an outpatient at the
hospital. The information on the note is therefore a summary of what
happened to the patient and the treatment
the patient received.
[23]
Dr Kabelo Sebogodi then an intern and at
the time of testifying a medical doctor still stationed at
Baragwanath Hospital, confirmed
that it is his handwriting on Nkosi's
discharge note signed on 10 February 2011. He read the diagnosis,
history for work and further
management written on the note. He also
confirmed that at the time he was still an intern as a result
accompanied by a consultant
Dr Pretorius when he was seeing patients.
The consultant gave him instructions on what to write. On the day of
Nkosi's discharge
he was doing the ward rounds with Dr Pretorius. He
wrote the summary of what happened to the patient since admission.
The admission
history he wrote on Nkosi was what was related by the
patient. The note he wrote on 10 February 2011 states on the heading
"as
per Dr Pretorius
"and
reads:
"The patient's date of
admission is 29 January 2011, Date of Discharge that is 10 February.
The final diagnosis was bilateral
traumatic below the knee
amputation/.
The history states that he is a 36 years old male hit
by a train while crossing the train tracks.
On the clinical
findings it states that there is an abrasion involving both legs and
abdomen. There is laceration, plus minus three
centimetres below the
left eye lid. The right foot amputated exposing the tendance and
broken fibular. The management was a below
the knee amputation, the
BKA on 29 January 2011. The TIO, that is the medication the patient
takes home, it is number (1) Spectropain
, 2 tablets to be taken
three times daily, that is the TDS for one month. Then there is the
dressing at the local clinic or alternative
days, that is the
dressing that he will apply and then number, the third point, he must
follow up at Natalspruit Physic OPD for
wheelchair as well as for
further management and number (4) it is the removal of stitches, and
removal of clips."
[24]
He did
the-dis-charge-as-per-instruction-of Dr Pretortus:-The procedure was
that they- will examine together and then after that
Dr Pretorius
will dictate or give them the instructions of what to do next, and
then they will then write what the consultant requests
or wanted them
to do. As it stated there, on 10 February 2010 he was doing the
rounds with Dr Pretorius who then would have instructed
him to
discharge a patient and write the discharge summary which he did. The
discharge summary is what happened to the patient
throughout his stay
at the hospital. They will write the date of admission, of discharge
that they can get from the whole file
thereafter it is the history
that was given upon admission and the clinical findings which he
wrote according to what was written
initially. So he wrote the
history, the clinical findings, the management that was given to the
patient, and the final diagnosis.
All the information basically
retrieved from earlier notes from the file.
[25]
The information about a 36 year old male
that was hit by a train whilst crossing the train tracks would have
been in the admission
notes when the patient left the hospital.
He
explained that when the patient arrives at casualty the receiving
doctor will have to ask what happened and that would be the
history
that would be recorded as per written hospital records, being the
story the receiving doctor at admission was told.
He
says that is why he wrote where the history starts that the patient
was injured in that manner. Apart from the note there is
nothing else
he wrote about the patient. He confirmed that what he has written on
the history is what was gleaned over and stipulated
in the admission
documents at casualty. All the information notes were retrieved from
earlier notes from the file.
[26]
He again confirmed under cross
examination that he wrote the summary note from what he gleaned over
from the admission documents
at casualty. He said he never questioned
Nkosi about what happened and all he can say to be fair is that all
he wrote was stipulated
upon admission and this was done.
[27]
At that time when the Defendant was to
close its case, and the parties to present their arguments in
closing, the Plaintiff applied
to amend its particulars of claim. He
sought to add to the particulars that the information could have been
sourced from the paramedics.
Agreed to severity of injuries, post
sedated and prior sedation. The parties also agreed on an inspection
in loco
to
be conducted at SKraamsdam Station where the accident took place.
[28]
An inspection
in
loco
of the SKraamdam Station took
place on 16 April 2018 before the trial resumed before me. In
attendance where the parties' representatives,
the Plaintiff led by
Mr Mkhambeni and the Defendant by Mr and an official from PRASA. It
was noted that the station is deserted
there are two railway lines,
one to the south and the other to the opposite direction which is the
North. There is no platform
per se. The line to the South is referred
to as number 2 Up main, it goes up to Johannesburg. The one that goes
to the opposite
direction is referred to as number 1 back to Cape
Town. That is the one that goes towards Daleside Station. The Station
is not
manned and there is no ticket office or officer. After the
station there is a level crossing for motor vehicles.
[29]
From the station we were shown a 12 Halt
mark on the Number 2 line that goes to Johannesburg (where the train
would stop) .
[30]
We were shown where the train' s
locomotive can change from line Number 2 to 1. It could be a 9
locomotive goods train. But the
rule is that the train stays on the
same line unless there is an indicator from TCT (Train Control
Ticket)]. The Halt Signal Points/Indicators
are where the train can
cross from line 1 to 2. If it indicates green the locomotive will
stay on the same line. The route/line
splits into three. The green
light on the indicator signals that the train is moving straight. The
red signals that the train is
to cross over and the yellow signals
that it is to go back to the right . If abnormal or route not
planned, following another goods
train to clear over, TCT clears over
and directs the t rain. Number 1 could only cross over before
Daleside. Yellow spec to go
back. It can also be told it will stop on
yellow or cross over back to Number 1. When there are special events
it will be closed
and personnel provided. From the station it is
about 1km to a bearing to the cross over. Beyond the signal to the
point it is 100
meters before cross over and 5 minutes from
Kliprivier.
[31]
The defendant then called a witness to
give more evidence on function of the station, namely, Jimmy Roger,
an employee of PRASA.
He was the safety specialist at PRASA at the
time overseeing the running of trains. He used that portion of the
corridor as a train
driver going to and fro for years. He testified
that there is a section manager who specifically makes sure that the
corridor trains
are running smoothly with specifics to its
destination without delay. They were divided into teams in
corresponding order "CBA
311 that is Vereeniging - Germiston,
Germiston - Vereeniging. The manager comes on duty at one of the
corridors and makes sure
there are no challenges on their specific
corridor. Figure out how are they going to fix the number of
challenges that come to
the depot, plan in advance during the day,
note the number of trains running from point A to point B, make sure
personnel available
for train to be run.
[32]
It was put to him that on 29 January
2011, the Plaintiff says he bought a ticket for 6h00. The train was
overcrowded, it changed
lanes whilst the doors were open. As a result
he fell out of the train and landed on his stomach. His legs were
caught under the
train . He explained the process of changing lanes
that. At the specific station a train if it needed to change lines
from line
2 to line 1. If it comes up it will be Daleside and
Skaamsdam normal CTC Clerk, where it would happen on an unplanned
route set
up. If there is a train in front on route to Kliprivief and
given a CTC to cross over the train from number 2 to number 1 line.
As to how it is known if there was a change over, unless they go back
to their report that they draw daily, it will appear if there
was a
deviation and a reason why. A Flimsy report indicates if there is a
fault. They will know that everything runs normal, train
running on a
straight line . They have what they call Flimsy deviations report
incidents where faults on the trains are reported.
All that was
reflected on the incident report for that day was according to him
was about RDR Rand water -Natalspruit block that
signal defective or
Randwater on the other side of Kliprivier .
[33]
In his record on changing lines
incident, it will not say the train changed from this line, and the
reason it switched lines will
not be indicated. The reason for
changing lines that would be if CTC Clerk has worked his route,
planned in advance knows which
train is travelling to which section.
If also train is from 0704. The train can be a goods or Metro Trolley
that delays the train,
the CTC will decide to cross the train from
number 1 to number 2 line to fastback which will result in a delay.
The delay will
then be noted with regard to what was observed with
the two lanes deviating from no 2 to no 1. The 2 lines worked from 1
point
being timed out from no 1 to 2. It would be
usually
for
goods train moving to the
central round. No metros will run there only goods trains.
On
a Saturday the trains do not run on a full service.
The
first train is from Vereeniging during that time and as corridor
manager up to Aungen Station, that is a 3rd train towards Germiston'.
There are not a lot of people, therefore it will never be overcrowded
from Augus Station. There will not be more than 12 people
up to
Augus.
[34]
If the Plaintiff fell at change over he
would have landed between the fields further on to no 1. The
intervals between trains on
Saturday is 30 minutes. If he had fallen
in between the trains the other driver of the other train would have
seen him and reported
the incident. It does not make sense that the
train then drove over the Appellant. He should have fallen to a
different direction
to the train for another meter, not directly
underneath but away from the train. He denied that he could have
fallen off at the
change-over, arguing that it is a smooth change
over and not rough that it could result to a passenger falling off.
He said also
if such an incident happened, it would have been in the
Flimsy Report. There is nothing mentioned. To find out which train
might
have been involved they took the date he was injured on the
train and look at the number. He confirmed that the Halt station in
Skraamsdam is not manned and that there is no ticket office or gate
for passenger to buy tickets. It is not the main station and
not
operational to sell tickets. There are also no security personnel.
[35]
Under cross examination he confirmed
that he is relying on his experience in giving evidence about the
incident and what was likely
to have happened. Also his knowledge
about the working of a flimsy report in relation to the incident.
With regard to the change
over he will know about it if recorded
in the report, if not, he will assume that the train went straight .
Assumption means that
as an experienced person he will know that
everything went well and there will be no report suggesting that the
train went straight
that day. On the delays it will not show change
over unless there were signals indicating why the train was so late.
Even if there
was a change over, if it was planned like that there
will not be a delay report . If change-over is not mentioned it means
that
everything went well. Any other thing will be reflected in the
flimsy report. It is irrelevant to delays that did not result in
a
cross over.
[36]
He said the driver will not see that
there is a person who has fallen over. A metro guard at the back of
the train will probably
be the one who sees and reports on the
incident. There are other trains that runs through that corridor so
if not noticed by the
Metro Guard others will and it will still be
reported. There is a train driver journal or Metro Guard Plan/Roster
(No train schedule/
Roster put in). He was adamant that there is no
way that such an incident could have happened. He said Nkosi could
have fallen
at least 2 metres away from the train. He cannot say if
the flimsy report is inaccurate. He confirmed to have worked for
PRASA
and driven the train for 35 years.
[37]
On re-examination he confirmed that he wouldn't know that there would
have been a planned changeover.
The CTC would have planned it. It
would be in the computer. The register would reflect 2011. They
worked according to the train
register.
ANALYSIS
[38]
The Constitutional Court has made it
clear that PRASA has a public duty to provide public rail transport
in a safe manner
(Rail Commuters
Action Group v Transnet Ltd t/a Metrorail
2005(2)
SA 35gc-(CC). The plaintiff bears the onus or proving that in the
present case, that duty was not discharged and fell short
of what the
reasonable rail provider would have done to ensure commuter safety in
the circumstances
(Kruger v
Coetzee
1966 (2) SA 428
(A)). The Plaintiff has the onus to
prove his allegations of how the accident occurred on a balance of
probabilities. Especially
were the court is reliant only on his
evidence to establish if indeed the Defendant is liable for his loss,
him being the sole
witness to his case. The fact that his evidence is
not directly contested does not make it probable, but the
circumstances that
are explained to the court by the Plaintiff should
carry the likelihood of having happened on a balance of
probabilities.
[39]
The cause that Nkosi had to prove during
trial to have likely happened is what was pleaded in his summons. The
critical question
to determine is whether Nkosi has established that
as a valid ticket holder commuter, the relevant PRASA employees,
contrary to
their duty of care acted so as to set an overcrowded
train in motion leaving the doors open and therefore causing his
injuries
when he was pushed out of the open doors by the other
passengers. That is the case the Defendant was to meet that was
pleaded in
his particulars of claim.
[40]
While the duty of the Plaintiff is to
allege the facts on which his claim is based, or the facts on which
he seeks the relief, once
such a matter reaches the trial stage his
further duty is to adduce evidence in substantiation of the facts set
out in the particulars
of claim . It serves no purpose to plead one
thing and when the witnesses testify they do so differently. When an
allegation is
made in the pleadings that allegation must, at the
trial, be supported by credible evidence. Evidence is the most
important information
required to prove the facts set out in the
particulars of claim.
[41]
Each case will depend on its own facts
but, in
Mokwena v Passenger Rail
Agency of South Africa
144465/2010,
Satchwell was prepared to adopt a robust approach and accepted that
on the basis of evidence tendered in several other
matters, where
there was evidence established that a plaintiff was injured when
pushed out of a moving train when the doors were
not closed, this
ipso facto
meant
that the railway authority was negligent, it being accepted that
there was a duty to care to ensure that the doors were not
opened
when the train was in motion, which duty was readily discharged by
putting reasonable controls in place.
[42]
On this basis, where it was found that
the plaintiff was pushed out of the open doors of a carriage whilst
the train was in motion,
negligence was readily found to have been
established
(Loveness Mhlongo v
Passenger Rail Agency of South Africa
(20594/2014)
[2016] ZAGPJHC353 ( 15 December 2016);
Maruka
v Passenger Rail Agency of South Africa
(
8905/2014) [2016] ZAGPPHC213 ( 15 April2016).
[43]
The version of the Plaintiff in his
summons as already mentioned is that
the
other passengers pushed him out of the moving train whose doors were
negligently left open whilst it was
pulling out of the platform, whereupon he fell with his legs going
under the train. The train
ran over him . His left leg was severed
and the right one fractured. According to him PRASA was negligent
because notwithstanding
the crowded train there was no personnel
security to exercise crowd control or other wise.
He,
for balance was holding onto a strap belt hanging from the train roof
and the doors open.
[44]
In his evidence in chief during the
trial he, contrary to the averments in his particulars of claim,
testified that he got into
the crowded train and therefore had to
stand by the door.
When the train was
pulling out of the platform it swerved and swayed such that he was
thrown out of the train.
He was
adamant that he was not pushed but had lost balance due to the
swerving train. As a result he fell out and landed on his
stomach
with his legs under the train .
There
was no personnel or security at the station taking any measures on
crowd control. He remained there alone for a long time
as the place
is not frequented by people.
[45]
Under cross examination he had
alleged that he boarded the train at Skramdam and there was not a big
crowd because the train was
coming from Vereeniging going to
Germiston, indicating that Skraamdam is a small station. He later
said the train was over crowded.
[46]
Another version was that furnished by the Defendant's witnesses that
he is alleged to have told
the hospital personnel when he was
admitted, that the accident occurred when he was crossing the railway
line. All these versions
are before the court for consideration. None
of them can be taken out as not being a possibility . Where there are
different scenarios
that can be a possibility including those that
indicate to the court that it was not possible should be evaluated
taking all the
evidence into consideration .
[47]
The four incidents that have been referred to by the court if
examined against Nkosi's other
evidence, it is apparent that the
accident is unlikely to have happened in any of the ways he had
alleged either in his testimony
or pleadings.
[48]
As a result the evidence that he gave information on his admission at
the hospital that he was
crossing the railway line, seems more likely
to be t rue.
[49]
At 5h00 on a Saturday morning besides not being able to prove that he
was indeed a commuter in
the train at the time of the accident, he
could not give a plausible explanation why he was in the train where
he was coming from
or where he was travelling to at the time. He did
not have a ticket. Evidence has been tendered that the place is not a
station
per se for normal travelling by train . For that reason there
was no ticket examiner for the station or security personnel or a
ticket sale off ice. He confirmed that he stays not far from the
railway line in Skramsdam and works in Daleside just nearby. So
the
area where he works and lives are close by the station and there is
no need for him to use the train. He however averred in
his summons
that he had a ticket he purchased for commuting from Vereeniging to
Germiston which got lost when his clothes were
taken off by the
paramedics. Under cross examination he said he had a monthly ticket
for travelling from Daleside to Natalspruit
which he purchased at
Kliprivier, and since he stays in Daleside he for that reason does
not need to be commuting in the train,
therefore the ticket was for a
daily visit to his girlfriend in Natalspruit. He was also employed at
Blockhouse in Daleside. Skramsdam
is the name of the station in
Daleside.
[50]
Further it is not certain who according to Nkosi exactly caused him
to fall out of the train,
whether it was due to overcrowding and the
open doors which resulted in him being pushed by the crowd or was it
as a result of
the train that he alleges was swerving, criss
crossing out of the station. It was not clear what _ he blames PRASA
of, whether
for the overcrowding inside the train that has resulted
in him being pushed out or for the train's swerving and turning with
the
doors open.
[51]
The Court must be satisfied that that
the version of the litigant upon whom the
onus
rests is the true version.
[52]
Nkosi was a very poor witness,
non-committal to any version he gave. He gave different versions of
how the accident occurred. He
changed cause as soon as he started
giving evidence in chief. From alleging that the train was swerving
and turning and to having
been bumped or pushed out of the train. The
particulars even then were not amended to that effect even though the
Defendant's witness
was cross examined on that evidence.
[53]
He also said there was a crowd from the
shelters being people that live in the farm and on the day they
overcrowded the station.
He however says that he was lying there for
a long time because the place is deserted and has not a lot of people
. During the
inspection in loco, the place looked deserted and
resembled a non-functioning station . Why would a crowd of people be
there, especially
on a Saturday between 5h00 and 6h00 in the morning?
[54]
However, that is not necessarily the end
of the matter, as it has been found that overcrowding may itself
amount to negligence where
a plaintiff is pushed out of a train by
other passengers, even if it had been stationary
(Phalane
v Passenger Rail Agency of South Africa
(71408/2013)[2015]ZAGPPHC804(3
December 2015) and
Makgopa v
Passenger Rail Agency of South Africa
(9830/2015)[2016]ZAGPPHCS06(3
June 2016).
[55]
Nkosi has himself denied that the crowd
pushed him and caused the accident. Therefore the court cannot arrive
at a conclusion that
the uncontrolled crowd that he says was in the
train caused his fall and therefore no link between the train, the
crowd and the
injuries he sustained. There was therefore no credible
evidence before the court by Nkosi. Prasa can therefore not be held
liable
as alleged. He has failed to prove the negligence of Prasa.
[56]
In order to succeed with his claim
against the Defendant, the onus rests on the Plaintiff to allege and
prove that the Defendant
has committed a delict. So far as it relates
to the duty of the Plaintiff to allege and prove see
Pillay
v Krishna and Another
1946 SA (AD)
946, 951, which deals with the fundamental rules governing the
incidents of onus in our law. The Plaintiff must prove
that the
Defendant has breached a duty imposed by law on it which he has
failed to do.
[57]
In the premises Plaintiff's claim may
not succeed and the following order is made:
1.
The Plaintiff's claim is accordingly
dismissed with costs.
N
V KHUMALO J
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
On
behalf of Plaintiff : ADV
MAKHAMBENI
Instructed
by:
DENGA INCORPORATED
Tel: 011 492 0068
Fax: 011 492 9085
Ref: Mr Denga/ jk/ AN14/11
On
behalf of Defendant: ADV OPPERMAN
Instructed
by:
Majavu Incorporated
CIV/0136/11
PRASA 210
TEL:
011 9411525
Fax: 011941 3594