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[2017] ZASCA 144
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Passenger Rail Agency of South Africa v Moabelo (1082/2016) [2017] ZASCA 144; [2017] 4 All SA 648 (SCA) (2 October 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1082/2016
In
the matter between:
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
APPELLANT
and
MMAKGABO
SIMON MOABELO
RESPONDENT
Neutral
citation:
Passenger
Rail Agency of South Africa v Moabelo
(1082/2016)
[2017] ZASCA 144
(2 October 2017)
Coram:
Ponnan,
Leach and Seriti JJA and Mokgohloa and Mbatha AJJA
Heard
:
23 August
2017
Delivered
:
2 October 2017
Summary:
Law
of Delict – Damages – appellant falling off the train and
sustaining bodily injuries when jostled by fellow passengers
–
claim based on negligent omission – negligence proved –
dissent – appellant injured not by train on which
he had fallen
off – no proof of patrimonial or legal causation of harm.
ORDER
On
appeal from:
Gauteng
High Court, Johannesburg (Moshidi, Masipa and Francis JJ sitting as
court of appeal):
The
appeal is dismissed with costs
,
such costs to include the costs of two counsel.
JUDGMENT
Mbatha
AJA (Seriti JA and Mokgohloa AJA concurring):
[1]
The respondent, Mmakgabo Simon Moabelo, a 37 year old man, sued the
appellant, the
Passenger Rail Agency of South Africa (PRASA), in the
South Gauteng High Court (per Monama J) for damages arising out of an
incident
in which the respondent was injured just outside Kaalfontein
Station, Gauteng, on 3 August 2009. 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 of Court. At the
conclusion of the trial, the trial court found that the
appellant’s
negligence was the cause of the respondent’s injuries and
subsequently liable for damages.
[2]
The appeal against the whole judgment was heard by the full court, at
the South Gauteng High Court, with leave of the trial
court. The full
court confirmed the order of the trial court and dismissed the appeal
with costs.
[3]
Following an application by the appellant, special leave was granted
on 14 September 2016 to proceed with the appeal in this
court. The
issues before this court are as follows:
(a)
whether the trial court was correct in accepting the version given by
the respondent to the extent that it could be relied upon
for
purposes of deciding whether the appellant had discharged the onus
upon him that he was pushed out of the train;
(b)
whether the trial court was correct in rejecting the version put
forward by the train driver, Mr van der Mescht, that the respondent
in fact ran in front of the train that ran him over; and
(c)
whether the finding by Monama J that the respondent’s version
was cogent, reliable, plausible and inherently probable
and the
rejection of the evidence put forward by the appellant’s
witnesses, was correct.
[4]
The background facts according to the respondent, Mr Makgabo Simon
Moabelo (Moabelo), are that he was on a train that was en
route from
Kempton Park Station to Tembisa Station. He boarded the train when it
was already dusk. He was a fare paying passenger
who was in
possession of a weekly ticket.
[5]
When he boarded the train he had to stand as the train was full to
capacity. He remained standing for the duration of the trip.
On the
way to Kempton Park Station, the train stopped on Platform 3 in
Kaalfontein Station where more people boarded. The train
was
overcrowded as it left Kaalfontein Station for Tembisa and Leralla
Stations. As the train departed for Tembisa Station, the
pushing and
jostling for door positioning began, as passengers were preparing to
alight at the next station. He remained standing
in between the
doors, holding onto a pole. He did not push as he was in between the
doors. He was pushed in all directions by other
commuters. When the
train changed lanes he was pushed more towards the side of the open
coach door. He tried to hold onto the pole
but lost his balance and
fell out of the moving train. He recalls falling out and only
regaining consciousness at the hospital.
The respondent’s
evidence was that he could not recall the number of the train he
boarded at Kempton Park Station. He estimated
the time he was pushed
out of the train to be towards 18h30. Mr Moabelo steadfastly stuck to
his version despite the lengthy cross-examination.
[6]
He sustained severe tissue injuries, a bilateral amputation of both
legs, amputation of third and fourth digits of the left
hand,
fractured left humerus, multilevel fractured cervical spine and a
resultant brachial plexus injury.
[7]
The version of the respondent was disputed in toto by PRASA. The
defence raised by the appellant was that the respondent ran/walked
in
front of an oncoming train outside the confines of the station, when
it was dangerous or inopportune to do so. Respondent was
a
pedestrian.
[8]
It is common cause that the respondent was hit by train number 1886
driven by Mr van der Mescht at about 19h13, that the trains
had been
running late for the whole day on the route between Kempton Park and
Leralla stations.
[9]
Mr Pelani Sam Baloyi (Baloyi), a security officer posted at
Kaalfontein Station on 3 August 2009 was called as a witness by
the
respondent. Baloyi worked for Sinqobile Security Company. He related
that he was on duty as from 18h00 on 3 August 2009 and
was posted
with Ramalata. Their patrolling post started from the beginning of
Kaalfontein train station towards the direction of
Tembisa Station,
covering an area of between 40 and 50 meters. They were not in
uniform that night as they operate undercover so
as not to be
identified as security officers.
[10]
They carried a radio, baton stick, firearm and a pocket book. The
place that they patrolled was well lit and visibility was
good as it
was a clear night. The high water mark of Baloyi’s evidence is
that ‘they would be able to see that there
walks a person’
but ‘not be in a clear picture to see who is that one …’
He related that when they received
a report about the person who fell
off the train, he recalled noticing two trains, one coming from
Tembisa and another one proceeding
to Tembisa. This was between 19h00
and 20h00. They found the injured respondent and made the necessary
report.
[11]
Though extensively cross-examined Baloyi was adamant that there was
no activity or movement in the vicinity of the area he
patrolled. He
disputed the train driver’s version that he saw a figure
running across the lines from his right to the left
and that that
person came onto the line on which the train was travelling. Baloyi’s
evidence was that if there had been any
movement he would have seen
it, as they could see both sides of the station from where they sat.
Furthermore, Baloyi testified
that there was no way that a person
could have approached from the direction that the driver mentioned as
the place is fenced and
there are industries behind the fence.
[12]
On being questioned about the lines proceeding to Tembisa Station,
Baloyi’s evidence was that at times the trains switched
lanes
though he knew the dedicated lines for trains to Tembisa.
[13]
Mrs Moabela’s evidence related to her finding of her husband’s
weekly train ticket in his wallet and that the respondent
had no
reason to be suicidal. The same sentiments were echoed by the
respondent’s supervisor, Mr Mathebula of Guardian Outsourcing
Company. He testified that the respondent was employed as a
supervisor and confirmed that the latter’s leave had been
approved.
The week he got injured was to be his last week at work
prior to going on leave.
[14]
The driver of the train 1886, Mr van der Mescht (van der Mescht),
testified on behalf of the appellant. He had been a guard
for 29
years and had been a train driver for four years preceding the
accident on 3 August 2009. His evidence was that, on his
return trip
back from Leralla to Elandsfontein, his train went past Tembisa
Station before proceeding to Kaalfontein Station. It
was 41 minutes
late. It left Leralla Station at 19h01 instead of 18h20 as on that
day the trains were running late.
[15]
When he was proceeding to Leralla his train had been on the down slow
line, but on his return it was on the down main line.
He went past
point 135T, a crossover point, where the train crosses over the down
slow line and after going past all the crossover
points he proceeded
to join the main up line.
[16]
He testified that as he was approaching Kaalfontein, a train went
past on the down slow line, proceeding to Tembisa Station.
At the
point when the front of his train went past the back of the other
train, he saw a movement from the right hand side from
underneath the
bridge. He saw this movement for the first time, just before the
bridge. When he looked again he saw someone running
over the rails,
who suddenly kneeled in front of the train and the train ran him
over. The movement he had seen was from the right
hand side. This
person was standing underneath the bridge. When he saw this movement
he was about 20 to 25 meters from the crossover
points.
[17]
He was driving at 30km per hour when he saw the movement. After the
train hit the person, he applied the brakes, stopped and
phoned
operations in Johannesburg. He made an entry in his daily journal
that he ran over a person at 19h13.
[18]
The cross-examination of the driver revealed that a different version
was given on the plea being that ‘Plaintiff was
injured after
he walked or ran in front of an incoming train outside the confines
of the station’.
[19]
It was also revealed during his cross-examination that when he passed
train 0547 on the down slow lane to Leralla, he saw a
movement, ‘when
I was clearing train 0547’. He explained that the movement that
he saw was from the right to the left,
moving towards his train. This
person came from West to East in a straight line, who then knelt in
front of the train, between
the lines with his back towards his train
‘like he was going to start a race’.
[20]
Having stopped the train he also phoned the guard Ms Beauty Masete
(Beauty), to check on the person that was hit by the train.
Beauty
reported back to him that it looked like the person was dead. They
were about 50 to 60 meters from Kaalfontein Station where
the
incident took place.
[21]
It was pointed out to him under cross examination that he had
reported that he saw a movement, was not sure what it was and
that
when the train came closer, he had seen someone kneeling on the rails
and heard a loud bang. This version was contrary to
his evidence in
chief that he had seen a person from a distance running from
underneath the bridge, crossing the rails and kneeling
in front of
the train.
[22]
The appellant had also called Ms Beauty Masete, who testified that
her duties are to see that the passengers are in and out
of the
coaches, close the doors and blow the whistle to alert the driver
that the doors are closed so that he can drive off. She
was asked by
the respondent’s counsel about the procedure in terms of
PRASA’s procedure book as to what happens when
people hang
outside the open doors of the train. Her response was that even in
that condition she would give the signal to the
driver to drive off.
[23]
Mr Kgare, the signal man, gave evidence as to the routes taken by
trains from Kempton Park to Leralla and Pretoria. His evidence
was
that in general, trains proceeding to Tembisa Station from Kempton
Park Station use the down slow line or the down main line.
Platform 3
serves the down main line and Platform 4 serves the down slow line.
[24]
What was significant about his evidence in chief was that where there
is another train on Platform 4, the train proceeding
to Tembisa may
be diverted to Platform 3. At times a train could leave Kempton Park
on the down slow, but may even cross to the
down main line before
reaching Kaalfontein Station. Therefore trains to Tembisa Station
could be on either line. At times the station
gets so busy that he
would be forced to switch the lines and platforms particularly at
peak hours between 15h00 to 19h00.
[25]
This corroborated the respondent’s evidence in a material
respect in that though the train which he boarded in Kempton
Park
Station was on Platform 4, at Kaalfontein Station it stopped on
Platform 3. Platform 3 serves the down main line which is
next to the
up main line. If the train that had stopped on Platform 3 on the down
main line proceeds to Tembisa Station, it will
crossover at certain
points to proceed to Tembisa Station just beyond Kaalfontein Station.
However, this was not reflected on his
train register of 3 August
2009. He also confirmed that no train went past between 18h20 and
18h30 that evening as estimated by
the respondent. The evidence
showed that the only trains that went past Kaalfontein Station were
trains no 1886 and 0547, respectively.
Train no 0547 which went past
the signal cabin at 19h13 was accepted by the respondent as the train
from which he fell.
[26]
Kgare was cross-examined about the entries in his register reflecting
the change in the lanes of certain trains, for example,
train 1887
and 0667. His answer was that the train could leave Kempton Park
Station on the down slow line, but could change lanes
before reaching
Kaalfontein Station. More significantly, it was pointed out to him
that there was no column on his control book
which is available to
reflect that he switched the trains, when they were late, to let the
express to Pretoria pass through or
to accommodate another train at
peak hours. This was raised as he had stated in his evidence in chief
that when a train is late
on the down slow line, it could be directed
to the down main line, if there was a train on the down slow line. On
the day in question,
van der Mescht’s evidence was that since
the morning of the 3 August 2009 the trains were running late.
[27]
The court below had found that Monama J’s approach was correct
in accepting that the versions of the respondent and the
driver were
mutually destructive, and dealing with the matter as advocated in
Stellenbosch
Farmer’s Winery Group Ltd & another v Martell et Cie &
others.
[1]
Monama J found that the probabilities prevailed in favour of the
respondent. The court below found that there was no irregularity
or
misdirection on the findings of the trial court.
[28]
The respondent in his particulars of claim based his cause of action
on the appellant’s negligence in that the appellant
‘owed
a duty of care to the plaintiff to ensure that the doors of the train
were closed before the train started moving into/from/out
of the
station, and to ensure that passengers on board the train would not
fall or be ejected therefrom before allowing any train
to commence
moving into/from/out of the station, and/or to take all reasonable
steps to ensure the safety of all passengers on
the train at all
reasonable times (“the duty of care”).’
[29]
The test for delictual liability is trite.
[2]
Reverting to the facts of this case, I accept that it has been proven
that the respondent was on the train, which was overcrowded
and was
in motion with open coach doors. And that the respondent fell as a
result of being pushed off by other passengers jostling
for positions
near the door and sustained injuries as a result thereof. PRASA
should have foreseen that by leaving the doors of
a moving train
open, this would pose potential danger to passengers, like the
respondent, who may accidentally be pushed off the
train and sustain
serious injuries. PRASA should have ensured that the coach doors were
closed whilst the train was in motion.
[30]
The onus to prove negligence rests on the plaintiff. The plaintiff is
required to prove that harm to others was reasonably
foreseeable and
that a reasonable person would have taken steps to guard against such
harm occurring. The plaintiff must adduce
evidence as to the
reasonable steps that ought to have been taken by the defendant to
prevent or reduce the risk of such harm.
[31]
The Constitutional Court in
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail & others
[3]
recognised that the rail commuter services carry a positive
obligation to implement reasonable measures to ensure the safety of
rail commuters who travel on the trains, and that such obligation
should give rise to delictual liability where there is a risk
of harm
to commuters resulting from falling out of the crowded trains running
with open doors, which is foreseeable.
[32]
The same court in
Mashongwa
v Passenger Rail of South Africa
,
[4]
in a unanimous judgment, held that PRASA had been negligent because
it did not ensure that the doors of the train were closed when
the
train left the station as a result, Mashongwa was thrown out of the
train by his assailants. This arose after a contention
by this court
that the open coach doors while the train was in motion did not
dispose of the issue of causation as the appellants
could have forced
open the coach doors to throw Mashongwa out of the train. The
Mashongwa
matter
centered around the issue whether PRASA’s conduct was wrongful
when physical harm befell passengers travelling on the
trains with
the coach doors open.
[33]
In
Mashongwa
it was found that PRASA’s wrongful conduct attracted liability.
The Constitutional Court held that public carriers like PRASA
have
always been regarded as having a duty of care towards passengers to
protect them from physical harm whilst making use of their
services.
[34]
Furthermore, the court had to also consider whether a reasonable
train operator would have foreseen the risk of harm befalling
its
passengers arising from such conduct and whether such operator would
have taken the necessary steps to guard against such harm
occurring
on its trains. The court held that the breach of the public duty by
PRASA should translate into a private law breach
in delict and that
such breach would amount to wrongfulness.
[35]
On the question of the overcrowded trains with open doors at peak
hours, the court found that this posed real danger to passengers
on
board. The harm was reasonably foreseeable, and PRASA had a legal
duty to keep the doors closed when the trains were in motion.
This
conduct attracts liability.
[36]
In the current case, the question is whether the respondent
discharged the onus of proof. The aspect of time, as estimated
by the
respondent as to when he boarded the train or when he was pushed and
fell off, cannot be held against him. It is in my view
that the
respondent established that it was already dusk when he boarded the
train in Kempton Park and that the incident occurred
within that
period. He was not aware that the trains were running late, his
estimate of the times could also be related to that
factor.
[37]
The respondent did not take note of the train number that he boarded
in Kempton Park. When one looks at the objective facts
of the case,
it was established that van der Mescht’s train crossed with
train no 0547 proceeding to Tembisa and Leralla
Stations. The
respondent was found in possession of a valid weekly ticket which was
produced to support that he had boarded the
train from Kempton Park
Station. Mathebula’s evidence explained that after a week of
the incident the respondent, would have
commenced his approved leave
of three weeks. In the light thereof, it is immaterial why he had not
gone to work on that day and
why he had gone to Kempton Park Station
as, possession of a valid train ticket proved that he had boarded the
train as a fee paying
passenger.
[38]
The fact that he did not know the number of the train that he
boarded, the exact time of the incident and the number of the
train
that hit him, is immaterial as long as he proved that he was on the
train. It does not absolve the appellant of its public
law duty to
have the doors closed at all material times when the train is in
motion. More so, the respondent was hit by a train
which had crossed
with the train proceeding to Tembisa Station.
[39]
The appellant’s witnesses including the train driver, the guard
and the signal man confirmed that the trains were running
late on the
day in question. The guard, Beauty, confirmed that the train coach’s
doors were not closed. Taking all these
factors together, one can
only conclude that the respondent fell off the train.
[40]
The trial court had rejected the evidence of the train driver. It
found that it lacked credibility and was improbable and accepted
the
evidence of the respondent and Baloyi. The train driver gave a
completely different version when he reported the incident,
shortly
after it had occurred. Whereas, a different version was pleaded in
the plea and he testified to a different version in
court. It is my
view that the trial court correctly rejected the train driver’s
evidence as a fabrication.
[41]
The respondent had specifically pleaded, amongst other acts of
negligence or omissions, that the appellant’s train driver
was
negligent in setting the train in motion whilst the coach doors were
opened. The respondent had discharged the onus that the
train doors
remained open whilst the train was in motion. This was also confirmed
by the evidence of Beauty.
[42]
The issue that needs to be considered is whether it could not have
been reasonably foreseeable that a train operating at peak
hours,
with open doors in motion, would cause injury to the commuters. My
view is that injury was foreseeable and the train should
not have
been in motion with open coach doors.
[43]
On the issue of legal causation in
Mashongwa
, the court
acknowledged that ‘no legal system permits liability without
bounds’. Proximity has to be established, to
establish a nexus
between the incident and the harm caused. The court in para 69 held
as follows:
‘
That
the incident happened inside Prasa’s moving train whose doors
were left open reinforces the legal connection between
Prasa’s
failure to take preventative measures and the amputation of Mr
Mashongwa’s leg. Prasa’s failure to keep
the doors closed
while the train was in motion is the kind of conduct that ought to
attract liability. This is so not only because
of the constitutional
rights at stake but also because Prasa has imposed the duty to secure
commuters on itself through its operating
procedures. More
importantly, that preventative step could have been carried out at no
extra cost. It is inexcusable that its passenger
had to lose his leg
owing to its failure to do the ordinary. This dereliction of duty
certainly arouses the moral indignation of
society. And this
negligent conduct is closely connected to the harm suffered by Mr
Mashongwa. It is thus reasonable, fair and
just that liability be
imputed to Prasa.’
[44]
The respondent in this matter was hit by another train as he fell off
the train to Tembisa Station. It is my view that even
if he had hit a
pole or rails, the appellant should be held liable as the injury was
foreseeable. I therefore find that the trial
court cannot be faulted
in finding in favour of the appellant.
[45]
Accordingly the following order is made:
The
appeal is dismissed with costs, such costs to include the costs of
two counsel.
Y T MBATHA
ACTING
JUDGE OF APPEAL
Ponnan
JA (Leach JA concurring):
[46]
I have had the benefit of reading the judgment of my colleague Mbatha
AJA, with which I regret I am unable to agree.
[47]
This appeal is against a judgment upholding with costs, the claim of
the respondent, Mr Simon Moabelo, against the appellant,
the
Passenger Rail Agency of South Africa (PRASA).
Mr
Moabelo’s claim against PRASA is one in delict for physical
injury suffered on 3
August
2009. The issues of liability and quantum having been separated, the
matter proceeded to trial in respect of the former before
Monama J in
the South Gauteng High Court. Monama J held PRASA liable to
compensate Mr Moabelo ‘for all proven damages suffered
by him’.
But, he did grant leave to PRASA to appeal to the full court. The
appeal to the full court (per Moshidi J, Masipa
et Francis JJ
concurring) failed. The further appeal by PRASA is with the special
leave of this court.
[48]
The pleadings are a useful starting point. In the summons filed on
behalf of the respondent, it was alleged that:
‘
5.
On or about the 3
rd
of August 2009 and at approximately 18h20, at or near Kaalfontein
Station, Tembisa, within the jurisdiction of the above Honourable
Court, plaintiff was on board a train for which he had a valid
ticket. Whilst on board the train with the carriage’s doors
opened whilst the train was in motion, plaintiff was
forced/ejected/pushed/jostled out of the carriage by other
passengers, as
a result of which plaintiff lost his balance and fell
out of the carriage.
6.
The sole cause of plaintiff’s falling from the train, was the
negligence
of the conductor, whose identity is to the plaintiff
unknown, who was negligent in one or more or all of the respects.
9.
As a result of the Plaintiff’s falling from the moving train
and the negligence
of the defendant aforesaid, plaintiff sustained
the following injuries.’
[49]
The further particulars elaborated:
‘
3.5.
The plaintiff records that he boarded a train from Kempton Park which
was going to Tembisa, when the
train was moving out of Kaalfontein
Station it was overcrowded with its doors not closed and the
passengers were pushing each other
as they were preparing to
disembark the train at the next station. The plaintiff records that
he was pushed out of the train when
it was changing lanes and he
tried to hold an iron rail which is in between the doors but he lost
balance on his feet and could
no longer hold the iron rail and he
fell. The plaintiff also records that before he fell he was not close
to the open doors.
3.6.
The plaintiff records that he was standing far away from the open
doors.
3.7.
Plaintiff puts on record that the train was overcrowded and
passengers were pushing each other.
Plaintiff also records that he
was pushed whilst the train was changing lanes and lost balance and
tried to hold on the iron rail
in between the doors but also lost
balance and fell.’
[50]
The plea in response to those allegations was:
‘
4.3.
The defendant pleads that the plaintiff was injured after the
plaintiff walked or ran in front of an
oncoming train, outside the
confines of a station, when it was dangerous and inopportune to do
so.
5.1.
The defendant denies each and every allegation contained in these
paragraphs, as if specifically
traversed, and the plaintiff is put to
the proof thereof.
5.2.
Alternative to 5.1 above, the defendant pleads that, in the event of
the above Honourable Court
finding that the incident occurred in the
manner as alleged, and that the defendant was negligent in any manner
as alleged, then
the defendant pleads that such negligence was not
causally related to the incident and any injuries sustained by the
plaintiff.’
[51]
The respondent testified that he awoke on the morning of 3 August
2009 feeling ill. As a result he did not go to work. He consumed
medication and went back to sleep. At about 3pm that afternoon, he
made his way by train from his home in Tembisa to Kempton Park.
He
alighted at the Kempton Park station and made his way on foot to the
Festival Shopping Mall. Having withdrawn cash at an ATM
machine and
spent some time window shopping in the mall, he decided to return
home. In his evidence in chief he stated:
‘
Now,
do you know more or less what time it was when you decided to go
home? --- My estimation of the time says it could be 17:00
when I
left the mall on my way home now.
And
where did you go to form the mall? --- I went to the station.
Which
station? --- Kempton Park Station.
Why
did you go to Kempton Park Station? --- Well, I was at the mall which
is in Kempton Park, so I went back to the station. Kempton
Park train
station.
To
catch the train? --- Yes.
To
go where? --- On my way to Tembisa.
.
. .
Now
it was August month. When you got onto the train was it light or was
it already dark? --- Slightly dark.’
[52]
Although he was unable to identify the train, Mr Moabelo did say that
he boarded the first train on his arrival at the Kempton
Park
station. The train was already full and picked up more passengers at
the Van Riebeck, Birchleigh and Kaalfontein stations.
As the train
left Kaalfontein station, so stated Mr Moabelo:
‘
There
was some pushing your Lordship. Well, I was standing . . .
[incomplete]. As I was standing the people who were just in front
of
us they were pushing us.
Yes.
--- That moment is when the train pulled off leaving the platform,
that is when the pushing started as the train was leaving
the
platform.
Yes.
--- I have been pushed till such time when I noticed myself that I
was now near the doors. I had been pushed up to the doors.
Ja.
--- I turned so that I could hold onto the aisle which is situated on
the middle of the coach.
Ja.
--- Unfortunately they were powerful than myself then I fell, I had
been pushed out of the moving train.
Which
way did you fall? --- Backward your Lordship on my back. I fell on my
back.
And
when that happened, was the train still at Kaalfontein station or had
it left the station? --- It has left the platform at Kaalfontein
when
it happened.’
That
was his last recollection of the events of that day. He subsequently
regained consciousness in a ward at Tembisa Hospital,
when he became
aware that his lower limbs had been amputated.
[53]
As to how Mr Moabelo came to sustain his injuries, it is to the
evidence of Mr van der Mescht, a train driver in the employ
of Metro
Rail, that one must look. He was driving train 1886 en route from
Tembisa to Kaalfontein when, so he testfied:
.
. . ‘I saw a movement from the right hand side from underneath
the bridge. When I saw that movement it was just before the
bridge.
Then I saw the movement and when I look again I saw somebody is
running over the rails.
In
which direction? --- In the direction of my train. When he was
running over the rails he suddenly kneeled in front of my train
and
then I ran him over.
.
. .
You
say you see the movement and then you see him run toward your train
and you see somebody kneeling before your train. When you
saw that
did you do anything? --- When he kneels in front of my train it was a
shock. It was a shock. After I hit him then I applied
the brakes and
when the train stopped I phoned operating.
From
where? --- From inside the cab.’
It
is undisputed that this incident occurred at 7.13 pm.
[54]
The trial court recorded:
‘
There
are two train stations between Kempton Park train station and
Kaalfontein train station. These are Van Riebeeck Park and
Birchleigh. All these stations have four platforms [platform 1 –
4]. There are four lines or lanes or tracks that pass at
these
platforms.’
.
. .
The
down main line passes on platform three at each and every relevant
station. Like dsl it runs in the northern direction towards
Tembisa
and Pretoria. The tracks are 1.2m wide, the distrance between dsl and
dml is some 2.9m, the distance between the dml and
uml is 2.82m and
the distrance between dsl and uml is 6.92m.
.
. .
Train
No. 0547 was scheduled to depart at 18:52. It was 21 minutes late. It
passed the signal cabin at or just after 19:13 (i.e.
at the same time
as 18:86 passed the signal cabin approaching Kaalfontein station from
Leralla.
.
. .
Mr
Van der Mescht was the train driver of train number 1889. This train
was coming from Tembisa. He was travelling on the up main
line. As it
approached Kaalfontein he had to cross train No.0547 which was on the
down slow line . . .’
[55]
The trial court reasoned:
‘
The
plaintiff bears the onus to proof his case. The first question which
the court had to determine was whether the plaintiff was
on a train
as he alleges or whether he was a trespasser running across the train
tracks at Kaalfontein station as alleged by Mr
van der Mescht.’
It
approached that enquiry thus:
‘
The
versions of the plaintiff and Mr van der Mescht are important. To
determine whether the plaintiff was on a train or whether
he was
trespassing as stated above. The two versions are mutually
destructive. The court has developed a technique to resolve the
factual dispute where there are two irreconcilable versions. The
technique is formulated as follows: “To come to a conclusion
on
the disputed issue the court must make a finding on (a) the
credibility of various factual witnesses; their reliability and
(c)
the probabilities . . . But when all factors are equipoised the
probabilities . . . But when all factors are equipoised the
probabilities prevail.” In my view the factors are equipoised
save to state that the version of the train driver cannot be
relied
upon. He testified that he saw a movement under the bridge.
That bridge is in the vicinity of the signal cabin as
well as a place
where he diverted his train to up main line in order to give the
train from Kaalfontein station to Tembisa a space
on the down slow
lane. Consequently he could not have seen the events properly. To
suggest that the plaintiff wanted to commit
suicide is absurd. He was
happily married, happily employed and he was indeed looking forward
to a holiday. These factors militate
against any suggestion of
suicide. He had a valid train ticket and Mr Baloyi testified that the
area where the accident occurred
is sufficiently secured. This
strengthens my view that the plaintiff was indeed on the alleged
train. He was not trespassing. On
these objective facts there are
overwhelming probabilities which favour the plaintiff, in this
regard. Accordingly, I am not persuaded
that the plaintiff was
trespassing as alleged. I find that the plaintiff was a passenger
with a valid train ticket travelling on
a train to Tembisa township.’
[56]
The trial court ultimately concluded:
‘
In
my view, the version by Mr van der Mescht stands to be rejected on
account of the evidence of Mr Baloyi. It is therefore reasonable
to
infer that the plaintiff was on the train that passed the train
driven by Mr van der Mescht. The plaintiff fell from the train
in and
around the area of cross over by train 1886 to usl.’
[57]
In the main, the full court endorsed the approach of the trial court.
The full court made two important observations, both
of which find
support in the recorded evidence: first, ‘when [Mr Moabelo]
boarded [the] train at about 18h00, it was already
dusk’; and,
second, ‘[Mr Moabelo] could not point out the exact spot where
he was pushed out of the moving train, and
fell.’ Those
observations are destructive of the inference drawn by the trial
court that Mr Moabelo was a passenger on train
0547. If, indeed, Mr
Moabelo left the Festival Shopping Mall at approximately 5 pm and
boarded the first train heading to Tembisa,
he could not have been a
passenger on train 0547. Although all the trains were running late,
the evidence reveals that there were
in all some 17 trains that
departed from Kempton Park to Tembisa between 5 and 7 pm that
evening. According to the summons,
Mr Moabelo sustained his
injuries at 6.20 pm when he fell out of a moving train. The only
train that passed that area at around
6.20 pm was a business express
train to Pretoria that did not stop at Kaalfontein Station. There is
thus no support at all for
Mr Moabelo’s allegation that he
sustained his injuries at 6.20 pm.
[58]
I have great difficulty with the approach of both courts below that
the versions of Mr Moabelo and Mr van der Mescht were mutually
destructive. Even if Mr Moabelo’s evidence is to be accepted in
its totality it does not explain how he came to sustain his
injuries.
On the version of Mr Moabelo at least one hour remains unaccounted
for. Mr Moabelo’s account ends with him being
pushed off the
train. Mr van der Mescht was the only eye witness to the collision.
There was simply nothing to gainsay his version.
One therefore cannot
simply juxtapose the two versions and reject his version as the trial
court did. In any event, both courts
appeared not to appreciate that
the rejection of Mr van der Mescht’s evidence meant that there
was simply no evidence as
to how Mr Moabelo sustained his injuries.
Rejecting Mr van der Mescht’s version, in and of itself,
carried the destruction
of Mr Moabelo’s case. Importantly, the
trial court simply ignored Mr Moabelo’s evidence that: ‘I
was never
hit by a train. What I know is that I fell out of the
moving train. That is what I know, Your Lordship I was not hit by a
train,
no’. It accordingly found in his favour on a basis
entirely different to that sought to be advanced by him.
[59]
Mr Moabelo simply had no version or recollection as to how he got to
the up main line a little to the north of Kaalfontein
Station, where
the train driven by Mr van der Mescht collided with him. The evidence
of the signalman in the employ of PRASA, Mr
Kgare, supported by the
train schedule for the evening and the four-platform layout at
Kaalfontein station, is that Mr Moabelo,
having fallen off a train
travelling on the down slow line, would have had to have landed 6.92
metres away on the up main line
for Mr van der Mescht’s train
to have collided with him. Mr Moabelo was simply unable to proffer an
account as to how that
could have occurred.
[60]
Both courts below appear to have placed much store on the evidence of
Mr Baloyi for rejecting that of Mr van der Mescht. According
to the
trial court, Mr Baloyi ‘vehemently denied that the plaintiff
was running across the train’s line and kneeled
on the lane
uml. He stated that he could have seen him.’ But, Mr Baloyi did
not have a version as to how the plaintiff could
have ended up in
front of Mr van der Mescht’s train. Mr Baloyi did not see the
plaintiff fall from the train, run across
the tracks or the train
driven by Mr van der Mescht collide with Mr Moabelo. His evidence was
that when he walked from Kaalfontein
to a hut north of the signal
cabin, he did not see anything. His evidence in chief was to the
effect that it was whilst he and
his colleague were getting ready to
go on patrol, that they received a radio call instructing them to go
and look for an injured
person. In any event Mr Baloyi’s
opportunity for observation was far from ideal. According to Mr
Baloyi, he and his partner
commenced their shift at 6 pm. They left
the platform at Kaalfontein station at 6.05 pm and proceeded to their
‘post’,
which was located approximately 50 to 60 metres
from the platform, where they placed their personal belongings and
got ready to
patrol. Whilst at their post they received a radio call
instructing them to look for an injured person. They did so and found
Mr
Moabelo. Mr Baloyi did not vehemently deny that Mr Moabelo ran
across the lines and knelt on the up main line. He merely testified
that he did not see Mr Moabelo. Mr van der Mescht testified that it
was dark and he had his headlights on at the time that he collided
with Mr Moabelo. Moreover, train 0547 would have obscured Mr Baloyi’s
view. To the extent that Mr Baloyi made reference to
the fencing in
the area of the signal cabin, it is noteworthy that the plaintiff was
hit by Mr van der Mescht’s train under
the overhead bridge
which was some distance from the signal cabin. There was no evidence
about the state of fencing under the bridge.
[61]
In a matter such as this we would do well to carefully distinguish
inference from conjecture or speculation.
The
trial court inferred that: first, Mr Moabelo was on train 0547; and,
second, he ‘fell from [that] train in and around
the area of
cross over by train 1886 to usl’.
I
am far from persuaded that each of those inferences are indeed the
most readily apparent and acceptable inference in the circumstances
of this case.
[5]
Moreover,
with
respect to the trial court, it appears to have impermissibly reasoned
by way of an inference upon an inference. As I have already
shown, Mr
Moabelo was neither able to identify train 0547 as the one on which
he travelled, nor point out where train 1886 collided
with him. Even
if it were permissible for the trial court to have drawn the first
inference, the second, which lacked a proper
factual foundation and
was clearly dependent upon the first, was impermissible. What is
more, in straining to find for Mr Moabelo,
the trial court appears to
have reasoned backwards from effect to cause.
[62]
It goes without saying that such sympathy as we may have for Mr
Moabelo should not impel us to a conclusion in his favour.
W
e
would do well to remind ourselves, as
Harms
JA did in
Telematrix
(Pty) Ltd v Advertising Standards Authority SA
2006
(1) SA 461
(SCA) par 12,
that:
‘
The
first principle of the law of delict, which is so easily forgotten
and hardly appears in any local text on the subject, is,
as the Dutch
author
Asser
points out, that everyone has to bear the loss he or she suffers. The
Afrikaans aphorism is that ‘skade rus waar dit val’.
Aquilian liability provides for an exception to the rule and, in
order to be liable for the loss of someone else, the act or omission
of the defendant must have been wrongful and negligent and have
caused the loss. But the fact that an act is negligent does not
make
it wrongful. To elevate negligence to the determining factor confuses
wrongfulness with negligence and leads to the absorption
of the
English law tort of negligence into our law, thereby distorting
it.’
[63]
At the close of Mr Moabelo’s case, his counsel placed on
record:
‘
M’lord
it can never be nor would it be the plaintiff’s case that Mr
Van der Mescht was responsible for the plaintiff’s
injuries’.
In that, counsel was undoubtedly correct, for it was no part of Mr
Moabelo’s pleaded case that Mr van der
Mescht had in any
respect been negligent in colliding with him. Mr Moabelo’s case
was confined to PRASA’s negligent
failure to ensure that the
doors were closed whilst the train was in motion. On that score the
trial court held: ‘Accordingly
I find that the plaintiff has
proven negligence on the part of the defendant’s servants.’
It then added: ‘It
is trite law that negligence is a question
of fact and there is no such a thing as negligence in the air.’
[64]
Insofar as that last proposition is concerned, the trial court was
plainly wrong. It is useful to revisit first principles
in this
regard. In
Overseas Tankship
(U.K.) Ltd v Morts Dock and
Engineering Co. Ltd
[1961] UKPC 1
;
[1961] 1 All ER 404
(PC) (
Wagon Mound No
1
) at 415A Viscount Simonds explained:
‘
But
there can be no liability until the damage has been done. It is
not the act but the consequences on which tortious liability
is
founded. Just as (as it has been said) that there is no such
thing as negligence in the air, so there is no such thing
as
liability in the air.’
In
Premier of The Province of the Western Cape v Fair Cape Property
Developers
(Pty) Ltd
[2003] 2 All SA 465
(SCA), it was put thus:
‘
Just
as there cannot be negligence in the air,
[6]
so too there cannot be wrongfulness (the breach of a legal duty) in
the air: “it is as well to remember that conduct which
is
lawful to one person may be unlawful towards another” –
per Harms JA in
S
M Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd
.’
[65]
The enquiry did not end, as the trial court appears to have thought,
with a finding that PRASA was negligent. It remained for
the trial
court to have considered the element of causation.
Causation
involves two distinct enquiries.
[7]
The first is a factual one and relates to the question as to whether
the negligent act or omission in question caused or materially
contributed to the harm giving rise to the claim.
The
enquiry as to factual causation is generally conducted by applying
the so-called ‘but-for’ test. Lack of factual
causation
is the end of the matter. No legal liability can follow. But, if
factual causation is established the second enquiry
arises, namely
whether the wrongful act is linked sufficiently closely or directly
to the loss for legal liability to ensue or
whether, as it is said,
the loss is too remote.
[8]
According
to Brand JA in
ZA
v Smith
2015(4) SA 574 (SCA) para 30): ‘The application of the “but-for
test” is not based on mathematics, pure science
or philosophy.
It is a matter of common sense, based on the practical way in which
the minds of ordinary people work, against
the background of
every-day experiences.’
[66]
To succeed in an action for damages, Mr Moabelo had to establish that
it was probable that the negligent conduct found by the
trial court,
namely PRASA in allowing the train to travel with open doors, caused
the harm. Mr Maobelo simply did not know the
source of the harm. Had
he known the source it is possible that he might have established a
causal link between it and the specific
negligent conduct sought to
be established. Regard being had to the evidence of Mr van der
Mescht, Mr Maobelo’s injuries
were caused not by him having
fallen out of a train, but by another train driven by the former
colliding with him. Those two occurrences
are not inextricably linked
to each other. From the bar in this court counsel for Mr Moabelo
sought to meet this difficulty with
the argument that after having
fallen from the train, Mr Moabelo must have knocked his head become
disorientated and, consequently
at some time later, wandered in front
of Mr van der Mescht’s train. However, there is simply no
evidence to support that
speculative hypothesis. And, as I see it Mr
Moabelo failed the test for factual causation. It follows that on
this ground as well,
Mr Moabelo should have failed.
[67]
But even if Mr Moabelo had succeeded in establishing factual
causation – which as I have demonstrated he had not –
his
claim should in any event have failed at the legal causation stage.
The issue of legal causation or remoteness is determined
by
considerations of policy. It is a measure of control. This is
basically a juridical problem in which considerations of legal
policy
may play a part. It serves as a ‘longstop’ where
right-minded people, including judges, will regard the imposition
of
liability in a particular case as untenable, despite the presence of
all the other elements of delictual liability.
[9]
Even if one accepts that: (i) Mr Moabelo was a passenger on train
0547; (ii) PRASA was negligent in allowing that train to travel
with
open doors; (iii) Mr Moabelo fell off that train as a consequence of
PRASA’s negligence; and (iv) factual casation has
been
established - the issue of remoteness still looms large in this case.
In reality, Mr Maobelo’s injuries and consequent
loss were not
caused by those events. It was instead attributable to something very
different – train 1886, which was driven
by Mr Van der Mescht,
colliding with him. And, as I have already pointed out, it was no
part of Mr Moabelo’s case that Mr
van der Mescht was negligent
in any respect or that this occurrence is in any way causally
connected to the earlier events.
[68]
In my view, for the reasons given, PRASA’s appeal ought to
succeed.
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
the Appellants:
T J Bruinders SC
Instructed
by:
Norton
Rose Fulbright, Johannesburg
Webbers,
Bloemfontein
For
the Respondents:
M Chaitowitz SC (with him M Sibuyi)
Instructed
by:
Mafori
Lesufi Inc., Johannesburg
Morobane
Inc., Bloemfontein
[1]
Stellenbosch
Farmer’s Winery Group Ltd & another v Martell et Cie &
others
2003 (1) SA 11
(SCA) at 14-15
.
[2]
Kruger v Coetzee
1966
(2) SA 428
(A) at 430 E-F.
[3]
Rail Commuters
Action Group v Transnet Ltd t/a Metrorail & others
[2004] ZACC 20
;
2005
(2) SA 359
(CC) para 84:
‘
In
these circumstances, I conclude that Metrorail and the Commuter
Corporation bear a positive obligation arising from the provisions
of the SATS Act read with the provisions of the Constitution to
ensure that reasonable measures are in place to provide for the
security of rail commuters when they provide rail commuter services
under the SATS Act. It should be clear from the duty thus
formulated
that it is a duty to ensure that reasonable measures are in place.
It does not matter who provides the measures as
long as they are in
place. The responsibility for ensuring that measures are in place,
regardless of who may be implementing
them, rests with Metrorail and
the Commuter Corporation.’
[4]
Mashongwa v
Passenger Rail of South Africa
2016
(3) SA 528
(CC) para 52:
‘
It
must be emphasised that harm was reasonably foreseeable and PRASA
had an actionable legal duty to keep the doors closed while
the
train was in motion. Not only has it expressly imposed this duty on
itself, its importance was also alluded to in
Metrorail
.
It is also commonsensical that keeping the doors of a moving train
closed is an essential safety procedure. Mr Mashongwa would
probably
not have sustained the injuries that culminated in the amputation of
his leg had PRASA ensured that the doors of the
coach in which he
was, were closed while the train was in motion. It was thus
negligent of PRASA not to observe a basic safety-critical
practice
of keeping the coach doors closed while the train was in motion and
therefore reasonable to impose liability for damages
on it, if other
elements were proved.’
[5]
AA Onderlinge Assuransie Bpk v De
Beer
1982 (2) SA (A); see
also
Cooper and Another NNO
v Merchant Trade Finance Ltd
2000
(3) SA 1009 (SCA).
[6]
Per Lord Russell
of Killowen in
Bourhill
v Young
[1943] AC 92
(HL) (Sc) at 101--2.
[7]
Home Talk
Developments (Pty) Ltd & others v Ekurhuleni Metropolitan
Municipality
[2017] 3 All SA 382
(SCA) para 45; In International
Shipping
Company (Pty) Ltd v Bentley
[1989]
ZASCA 138
;
1990 (1) SA 680
(A);
[1990] 1 All SA 498
(A) para 64-66,
Corbett CJ expressed the position thus: ‘. . . i
n
the law of delict causation involves two distinct enquiries. The
first is a factual one and relates to the question as to whether
the
defendant's wrongful act was a cause of the plaintiff's loss. This
has been referred to as "factual causation".
The enquiry
as to factual causation is generally conducted by applying the
so-called "but-for" test, which is designed
to determine
whether a postulated cause can be identified as a
causa
sine qua non
of the loss
in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis
plaintiff's loss would have
ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of
the plaintiff's loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa sine
qua non
of the loss
suffered, then no legal liability can arise. On the other hand,
demonstration that the wrongful act was a
causa
sine qua non
of the loss
does not necessarily result in legal liability. The second enquiry
then arises, viz whether the wrongful act is linked
sufficiently
closely or directly to the loss for legal liability to ensue or
whether, as it is said, the loss is too remote.
This is basically a
juridical problem in the solution of which considerations of policy
may play a part. This is sometimes called
"legal causation".’
[8]
Minister of
Police v Skosana
1977
(1) SA 31
(A) at 34E-G.
[9]
Fourway Haulage
SA (Pty) Ltd v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA);
m
Cubed
International v Singer
2009
(4) SA 471
(SCA);