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[2019] ZAKZDHC 8
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Ngcobo v Passenger Rail Agency of South Africa (PRASA) and Another (4206/2016P) [2019] ZAKZDHC 8 (21 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 4206/2016P
In
the matter between:
GUGU
CAROL
NGCOBO
PLAINTIFF
and
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
(PRASA)
FIRST DEFENDANT
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE KWAZULU-NATAL DEPARTMENT OF
TRANSPORT
SECOND
DEFENDANT
J U
D G M E N T
Delivered
on: Tuesday, 21 MAY 2019
Olsen
J
[1]
The plaintiff in this matter, Gugu Carol Ngcobo, has sued Passenger
Rail Agency of
South Africa (which I shall call “PRASA”)
for compensation for injuries sustained when she fell on the platform
of
Congella station when exiting one of PRASA’s urban commuter
trains. The claim is made in delict. PRASA denies
liability; but pleads in the alternative that blame and liability
must be apportioned.
[2]
Three witnesses testified. They were the plaintiff, a first year
university student
at the time; a Mr Strydom, a retired train driver
previously in the employ of PRASA; and a Mr Govender, an electrical
fitter in
the employ of PRASA who was the only witness called by
PRASA. There is no need for me to make any further mention of
Mr Govender’s
evidence as nothing he said contradicted or added
to the evidence of Mr Strydom.
[3]
Admissions and facts recorded as being common cause aside, the other
source of evidence
in this trial is a video recording of the
incident. Judging from the recording it was made through a
camera placed at an
elevated position pointing down and along the
platform in the same direction as the train in question in this case
was travelling.
The side of the train from which passengers
would ordinarily emerge onto the platform of the Congella station is
clearly visible
in the video recording.
[4]
I turn to the facts revealed by these sources of evidence.
[5]
In 2015 the plaintiff was a first year student at the Howard College
campus of the
University of KwaZulu-Natal. She lived at
Ilfracombe, which is situated some distance to the south of central
Durban.
Each day she travelled on either a weekly or monthly
ticket by train from Ilfracombe to the Congella railway station.
There
she was accustomed to disembark and then walk up the hill to
the Howard College campus which is built on the ridge overlooking the
City of Durban.
[6]
On the day in question, 14 April 2015, the plaintiff undertook this
trip from Ilfracombe
to Congella station on train 0733, owned and
managed by PRASA. The train comprised eight coaches in all.
However the
train did not stop at the Congella station as it was
supposed to do. The plaintiff stepped off the train
notwithstanding
that it was still moving. She became a moving
body landing on and striking a stationary hardened platform, with
predictable
results. She tumbled and was thrown about and ended
up prone on the platform. She sustained,
inter alia
, a
blow to the head. She said in evidence that she cannot recall
the accident happening. She cannot recall how she
came to be
standing in front of an open door on a moving train. But
she has viewed the video evidence to which I have
referred, and she
confirms that it depicts her in the incident which brought her to
this court.
[7]
In her particulars of claim the plaintiff pleaded that the servants
of the defendants
were negligent in relation to the incident.
The grounds of negligence are pleaded repetitively, but, fairly
considered, they
amount to this.
(a)
When the train was underway and
in the vicinity of the Congella station the
coach doors were not secured
against opening.
(b)
The driver of the train failed
to stop at the station to allow passengers
to disembark.
(c)
The train was not in proper
working order. (This criticism, one
assumes,
was directed at the fact that the doors were capable of
being opened whilst the train was still in
motion.)
The
third of these complaints was not pursued at trial as the discovered
documents revealed that immediately after the incident
the train was
taken off the lines and examined. There was no defect in the
coach in which the plaintiff was travelling.
In other words,
the door from which the plaintiff emerged was operating as designed.
[8]
During the course of the opening address I asked the parties to
agree, if they could,
upon a verbal description of what it is that
the video recording depicts. Counsel obliged and produced the
following account
of the recording.
“
(i)
A Metro Rail train is seen approaching and then passing the Congella
platform.
(ii)
The train set described as 0733 comprises of eight coaches in total.
(iii)
The second of the coach doors on the fourth carriage is open.
(iv)
The plaintiff alone is seen standing at the exit with a bag in her
right hand.
(v)
The doors are open with no impediment visible preventing them
closing. The plaintiff’s
left hand is not visible and
there are no other visible occupants in the vicinity of the door.
(vi)
The plaintiff alights from the moving train onto the platform and
prior to the end of the
platform.
(vii)
The train does not stop at the platform but stops some distance after
the end of the platform
and passengers are noted emerging from the
left side of the train.
(viii)
The plaintiff continues to lie motionless on the platform.
(ix)
The train (0733) continues on the tracks.
(x)
The plaintiff continues to remain motionless on the platform.”
[9]
There are two other matters which in my view need to be mentioned
concerning the video
recording. The first constitutes mere
clarification of an aspect mentioned by counsel. The plaintiff
emerged from the
train to land on the platform very near to its end.
The platform is elevated above the surrounding ground level. If
the plaintiff had exited the train any later than she did she would
have missed the platform altogether and landed on ground lower
than
the level of the platform by some margin, which may very well have
resulted in more severe injuries than those she sustained.
[10]
The second observation is one I wish to add to those made by
counsel. It concerns the speed
of the train. It is not
possible merely by looking at the video recording to make an estimate
(in kilometres per hour) of
the speed at which the train was
travelling. However the video recording continues for some time
after the incident, and
one sees another train arrive in the same
direction as train number 0733. It stops at the Congella
station, presumably at
the point where train number 0733 should have
stopped. At the point at which it stops many of its coaches to
the rear are
behind the camera. Eventually that second train
moves off, gathering speed. By the time its rear coaches come
into
view on the video recording that second train has reached a
speed (i.e. those rear coaches are passing the platform at a speed)
which appears to me to be comparable to the speed at which train
number 0733 travelled as it passed through the Congella station
without stopping. The video recording allows the viewer the
vantage of an arm chair critic when considering the speed of
train
0733. Wearing that hat I conclude that the speed at which
the train was travelling, and accordingly the speed
at which the
plaintiff’s feet struck the platform, was such as rendered a
fall to the ground and some injury inevitable.
[11]
Mr Wessel Strydom was first employed by the then South African
Railways in 1971 and became a
train driver in 1976. In the late
1980s he took up a management position and also became a trainer of
drivers. He left
the then Spoornet in 1997 but was recalled in
2014 to drive trains on a contract basis as there was a shortage of
drivers.
He did that until he was compelled to retire in June
2018. Mr Strydom is familiar with the 5M and 10M units used by
PRASA
on urban railway lines. He has viewed the video of the
incident and confirms that the train set involved is the older type,
the so-called 5M.
[12]
Mr Strydom gave evidence identifying the following salient features
of the 5M type urban commuter
train.
(a)
Each train has what is called a
motor coach at the front and at the back. The driver rides in
the front and guard at the back.
Two motor coaches are employed
so that at journey’s end the driver and the guard can swop
coaches so that the train can proceed
on the return trip without
turning around.
(b)
The doors by which one gains
access to the motor coaches are manually operated.
(c)
The passenger coaches which are
placed between the motor coaches have doors which close
automatically. They operate pneumatically,
but an electrical
system is required for switching. (On the video one sees that the
doors are of a sliding type, with two leaves
for each door opening.)
(d)
The driver controls a switch in
the front motor coach which enables the operation of the pneumatic
system controlling the doors
to the passenger coaches. The
guard in the rear motor coach then controls the opening and closing
of doors.
(e)
When the train is about to
depart a station, once he has observed that everything is clear, the
guard must close the doors by pressing
the appropriate switch.
Pneumatic pressure then closes all doors to the passenger coaches.
Once they are closed they
cannot be opened manually. This must
be done before the train moves off.
(f)
When a train arrives at the
next station it must come to a standstill before the guard presses
the other switch. This switch
does not actually open the doors,
but in effect unlocks them by releasing pneumatic pressure.
That process generates a sound
which would indicate to passengers
inside the train that the doors can then be opened manually. It
is possible to open the
doors in this unlocked state from the outside
or from the inside. Accordingly, although one might say that
when the guard
presses the second button he or she is “opening”
the doors, this is not correct. They are merely unlocked so
that they can be opened manually.
(g)
The closing mechanism of the
doors is designed to avoid injury to a passenger if some part of her
body is in the way of closing
doors. If a person’s foot
is placed in the way of the closing doors the foot will not be
crushed; it is possible for
passengers to keep the doors open in this
fashion. Once the train is underway such a passenger, having
blocked the complete
closure of the door, might then open it fully
and hold it open by, for instance, standing legs apart so that each
foot is holding
one of the leaves of the sliding door. Opening
a door jammed in this fashion to its full extent requires
considerable upper
body strength. If a passenger has blocked
the closure of the door in this fashion, but then releases the
obstacle, the door
will close whilst the train is still underway and
will not be capable of being opened manually thereafter until
unlocked
at the next station.
[13]
Mr Strydom viewed and examined the video recording of the incident.
He points to the fact
that one can see that prior to her fall the
plaintiff was standing in the open doorway and that she was not
holding the door open.
That means that despite the fact that
the train was still moving the doors had already been unlocked.
A passenger inside
the train, having heard the sound of the
unlocking, could then have opened the doors preparatory to
disembarking when the train
came to a standstill. Mr Strydom
pointed out also the fact that passengers can be seen disembarking
from the train in question
after it had stopped some distance from
the end of the Congella platform, and doing so from the left side of
the train. It
is the right side of the train from which
passengers would have disembarked onto the Congella platform had the
train stopped there.
As I understood Mr Strydom’s
evidence it is to the effect that this opening of doors on both sides
could only have been achieved
by the driver disengaging the power
from the system, thereby unlocking all doors on both sides of the
train.
[14]
Mr Strydom’s analysis of what can be seen from the video is not
contradicted.
[15]
Given Mr Strydom’s description of how the doors of the
passenger coaches operated, it is
not possible to say whether the
fact that the doors were unlocked while the train was still in motion
was the fault of the guard
or the driver. Indeed, one does not
know for how long the doors on the right hand side of the passenger
coaches were unlocked
before the train arrived at the Congella
station.
[16]
At the commencement of the trial, shortly after counsel for the
plaintiff had completed his opening,
counsel for the defendant sought
to place on record that the guard and the driver responsible for the
train on the day in question
were not available to be called as
witnesses. His instructions were that one of them was deceased
and the other retired,
the retiree being untraceable. He could
not say which was which. However Mr Strydom revealed in
evidence that he knew
the driver and had indeed spoken to him in
March 2019. His unchallenged hearsay evidence was to the effect
that following
the disciplinary proceedings generated by the current
incident the driver was suspended for 12 months. After he was
restored
to his position as driver he again missed a station
and that resulted in him being demoted to the position of a guard.
Counsel for PRASA had this verified and advised the court that the
information given by Mr Strydom was in fact correct. The
driver
was accordingly available but was nevertheless not called.
[17]
It strikes me as of no moment that it is not possible from the
evidence before me to say which
of PRASA’s employees (the
driver or the guard) was responsible for the fact that the doors to
the passenger coaches were
unlocked. Neither, in my view, is it
significant that we do not know when this unlocking took place.
It is sufficient
from the point of view of the onus borne by the
plaintiff that it is proved that the doors on the right hand side of
the train
were unlocked when it was still in motion as it ran
alongside the Congella platform.
[18]
I found Mr Strydom’s evidence to be entirely satisfactory, and
that it constitutes a sound
basis upon which to reason further.
[19]
The plaintiff was unable to say whether it was she or someone else
who opened the door to allow
her to stand in the doorway waiting to
disembark. She has no memory for that aspect of the events of
the day in question.
As far as can be seen she is standing in
the doorway alone which suggests that it was her who opened the door.
It is more
probable than not that the plaintiff in fact opened
the door.
[20]
I have already mentioned that it was the plaintiff’s
established practice to get off at
the Congella station so that she
could walk from there up to the university. Anyone familiar
with the layout of the City
of Durban would realise that such a walk
would take some effort, both by virtue of the distance involved and
the climb up to the
ridge on which the university campus is
constructed. Missing the Congella station would only make
things worse. In
my view it is probable that the plaintiff was
of that class of passenger for whom it was more than just
inconvenient that she or
he should miss the station. When I
talk of such a class I have in mind, for instance, the worker
employed in that area who
would be late for work if he missed the
station and had to somehow find his way back from the next station to
his place of work.
[21]
When it was suggested to her during her evidence that she had jumped
from the train, the plaintiff
denied that vehemently saying that the
video depicted her stepping off the train. I agree with the
plaintiff’s description
of what one sees in the video.
She appears to be stepping off the train as if it was a stationary
one.
[22]
As already mentioned the video depicts a second train arriving after
the incident and stopping
at a certain position alongside of the
Congella platform. Assuming that to be the point at which the
plaintiff’s train
ought to have stopped, the point at which the
plaintiff stepped off the train was well beyond the point where the
driver’s
motor coach normally comes to a standstill. As I
have already pointed out the point at which the plaintiff got off the
train
was not only past the point at which the driver’s motor
coach ought to have come to a standstill, but was at a point where
the platform was about to end abruptly. It strikes me as
probable from all the evidence before the court that the plaintiff
was anxious to get off the train at Congella, realised at the last
moment that the train was in fact going to miss the Congella
station,
and accordingly decided to step off the train onto the platform at
the last moment despite the fact that the train was
still in motion.
She must have misjudged the speed of the train when she realised at
the last moment that the train was not
going to stop. In my
view there is no doubt that she was negligent in that regard. A
person acting reasonably would
have not taken that chance at that
speed, even if it was important not to miss that station. The
plaintiff’s negligence
was undoubtedly a cause contributing to
the injuries she sustained.
[23]
Counsel for PRASA conceded at the outset of his argument that PRASA’s
servants (assuming
both the driver and the guard were involved) were
negligent. The negligent conduct comprised the failure to stop
at the Congella
station and the unlocking of the doors so that they
could be opened when the train was still in motion.
[24]
However counsel sought to argue in the first instance that the
conduct of the plaintiff in manually
opening the unlocked door and
stepping onto the platform when the train was still in motion
constituted a
novus actus interveniens
which broke what might
otherwise have been a chain of causation between the negligent
misconduct attributable to PRASA and the
injuries sustained by the
plaintiff. He argued further, in pursuit of the same
conclusion, that it was not reasonably foreseeable
that if the doors
were unlocked, someone might open them and jump off the moving
train. These two arguments are in my view
interrelated.
In advancing them counsel referred to
Standard Chartered Bank of
Canada v Nedperm Bank Limited
1994 (4) SA 747A
at pages 764 –
5 and
OK Bazaars (1929) Limited v Standard Bank of South Africa
Limited
2002 (3) SA 688
(SCA) at para 32 – 33.
[25]
There is no difficulty in concluding that PRASA’s negligent
conduct was a
conditio sine qua non
of the injuries sustained
by the plaintiff. It is clear that the plaintiff would not have
been injured if the train had stopped
at the Congella station as it
was supposed to do. It is equally clear that the plaintiff
would not have been injured if,
despite the fact that the train did
not stop as it should have done at the station, the train doors had
remained locked because
the train was still in motion.
Factual causation was undoubtedly established.
[26]
As far as legal causation is concerned as pointed out by Corbett CJ
in
Standard Chartered Bank of Canada
at 765 A-B,
‘
the
test to be applied is a flexible one in which factors such as
reasonable foreseeability, directness, the absence or presence
of a
novus
actus interveniens
,
legal policy, reasonability, fairness and justice all play their
part.’
As
pointed out in
OK Bazaars
at para 33, a decision as to whether
any alleged new intervening cause should be regarded as having broken
the chain of causation
is affected by the foreseeability of the
intervening act occurring. Indeed it plays a prominent role.
As the learned
Judge said
‘
If
the new intervening cause is neither unusual nor unexpected, and it
was reasonably foreseeable that it might occur, the original
actor
can have no reason to complain if it does not relieve him of
liability.’
[27]
I do not agree with counsel’s submission, in regard to these
tests, that it was not foreseeable,
and indeed not to be expected,
that a passenger would try to disembark from a moving train at a
station at which the train was
expected to stop, if, contrary to all
instructions concerning the management of such trains, the doors were
unlocked at the relevant
time. This case is not about an
overnight express train flashing through a station at 100 kilometres
per hour. This
was urban commuter train. The speed at
which it passed the station was comparable to the speed it would
ordinarily achieve
within the confines of the station (i.e. whilst
still adjacent to the platform) if it had stopped and then taken
off. The
disembarkation of passengers at an urban commuter
station which is a scheduled stop is the expected, not the
unexpected.
Unless the guard’s negligence extended so far
as having allowed the train to travel all the way from the previous
station
with the doors unlocked, the unlocking of the doors would
have signalled to commuters wishing to disembark that the train was
going
to stop so that passengers could disembark.
[28]
In my view the negligent misconduct of PRASA’s employees
created a dangerous situation.
The doors to passenger coaches
are supposed to remain closed until the train is at a standstill,
inter alia
to prevent commuters who may be in a hurry from
swinging off the train onto the platform before the train has come to
a complete
standstill. The fact that on this occasion the train
was travelling at a speed at which one would not expect even a young
athletically inclined person to attempt to disembark does not change
the fact that the situation was dangerous for someone who
might
misjudge the speed of the train as, in my view, it has been
established the plaintiff did.
[29]
In my view it is undoubtedly foreseeable that if the doors to a train
are opened before the train
has come to a stop at a destination
station, the impatient traveller, or one displaying the exuberance of
youthful athleticism,
may attempt to disembark before the train comes
to a final stop. It is perhaps even more predictable that such
an attempt
will be made if it should become apparent that the train
is not actually going to come to a complete stop. People need
to
get off at their stations. All that has to be added into the
mix when, as here, the train travels through the station at a
speed
at which disembarkation will inevitably lead to some injury, is an
error of judgment concerning the speed of the train made
by the
person who attempts to disembark.
[30]
I conclude that it has been established that the negligent misconduct
attributable to PRASA was
a cause contributing to the injuries
suffered by the plaintiff.
[31]
Having decided that both parties were negligent, and that the
negligence of each contributed
to the plaintiff’s injuries,
what remains is to determine the extent to which any amount of
damages to be awarded to the
plaintiff should be reduced in terms of
s 1 of Act 34 of 1956.
[32]
Counsel for PRASA has argued that in considering an apportionment
PRASA should not have to pay
more than 15% to 25% of what the
compensation would have been if the incident had been solely caused
by the negligence of PRASA’s
employees. It is argued that
the plaintiff’s conduct was deliberate and that her negligence
was greater than that which
might be attributed to a commuter who
attempts prematurely to disembark from a train moving slowly.
There is merit in these
arguments, but one must take care not to
introduce an element of the discredited last opportunity rule into
the debate. Account
should also be taken of the fact that there
is no reason to suppose, in the absence of evidence from either the
driver or the guard,
that the premature opening of the doors was
anything other than deliberate.
[33]
Counsel for the plaintiff referred me to a number of cases involving
a passenger being injured
whilst attempting to board a moving train,
or exiting a moving train (not necessarily willingly) through open
doors which ought
to have been closed whilst the train was moving.
Some of the more helpful ones are
Khupa v South African Transport
Services
1990 (2) SA 627
(W);
Transnet Limited t/a Metro Rail
and Another v Witter
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA);
South African Rail
Commuter Corporation Limited and Another v Mojopelo
(A891-2008)
[2011] ZAGPPHC 169 (16 September 2011) and
Transnet Limited t/a
Metro Rail v Tshabalala
[2006] 2 All SA 583
(SCA). The
exercise of determining what is just and equitable in cases of
apportionment of liability is one which almost
inevitably generates
an outcome upon which reasonable people may differ. Previous
more or less comparable decisions are of
assistance, but each case
must be decided on its own facts.
[34]
In considering PRASA’s position sight should not be lost of the
findings and statements
of principle made by the Constitutional Court
in
Mashongwa vs PRASA
2016 (3) SA 528
(CC). Paragraph 16
of the judgment resonates in the present context.
‘
Many
rail commuters are constrained, by the long distances they have to
travel and limited financial resources, to use trains as
their
primary mode of transport. Understandably so, because this
well-subsidised public-transport system is affordable.
Presumably, passengers enter these trains reasonably believing that
the transport utility is alive to the dangers to which train
users
are exposed in the course of their journeys and has undertaken such
steps as are necessary to avert the reasonably foreseeable
harm
that could otherwise befall them.’
Under
the same heading (“Wrongfulness”) the following appears
in paragraph 26 of the judgment.
‘
Safeguarding
the physical wellbeing of passengers must be a central obligation of
PRASA. It reflects the ordinary duty resting
on public carriers
and is reinforced by the specific constitutional obligation to
protect passengers’ bodily integrity that
rests on PRASA, as an
organ of State. The norms and values derived from the
Constitution demand that a negligent breach of
those duties, even by
way of omission, should, absent a suitable non-judicial remedy,
attract liability to compensate injured persons
in damages.’
[35]
The court in
Mashongwa
pointed out (at paragraph 51) that
additional resources are not required for PRASA to perform the
obvious and mundane task of complying
with its own general operating
instructions by ensuring that the doors of all coaches are closed
before the train moves.
The court continued as follows.
‘
It
is something so easy to accomplish and yet so necessary that any
attempt to provide an “acceptable” excuse for not
doing
it would inevitably be met with resistance and likely rejection.’
I
venture to suggest that stopping at a scheduled railway station is
something just as easily achieved by a reasonable train driver
unless, of course, there is something wrong with the train.
There is no evidence of that in this case.
[36]
On the other hand the plaintiff’s own negligence was by no
means minor. Whilst one
appreciates why she might have done
what she did, it seems clear on the evidence before me that a person
acting reasonably would
have regarded it as perfectly obvious, given
the speed of the train, that alighting from it onto the platform, as
the plaintiff
did, was inevitably going to cause injury. I
reach that conclusion cautiously, bearing in mind that I assess the
speed of
the train with the benefits of an arm-chair critic; and also
bearing in mind,
inter alia
, that, judging from the video
evidence, the plaintiff would have had very little time to react once
she realised that the train
was not going to stop to let her off at
the Congella station.
[37]
I conclude that the plaintiff and PRASA should share equal blame for
the injuries suffered by
the plaintiff.
[38]
At the outset of the trial I made an order at the request of the
parties separating for later
consideration the question of the nature
and extent of the injuries suffered by the plaintiff, and the quantum
of compensation
due in respect thereof. The parties asked me to
make a declaratory order with regard to the liability of PRASA, if
any.
The parties were common cause in argument that a costs
order should be made at this stage, but PRASA’s counsel argued
against
the proposition that the costs of two counsel (where
employed) should be allowed. I agree that allowing the costs of
two
counsel would not be appropriate in this case.
I
make the following order.
(a)
The
defendant is declared to be liable for one-half of such damages as
the plaintiff may prove she suffered as a result of her fall
on the
platform at the Congella station on 14 April 2015.
(b)
The
costs of the action up to and including 7 May 2019 are to be paid by
the defendant.
OLSEN J
(c)
Date of
Hearing:
MONDAY,
06 MAY 2019; and
TUESDAY, 07 MAY
2019
Date of Judgment:
TUESDAY, 21 MAY 2019
For the Plaintiff:
Mr V Naidoo SC with Ms T Manicum
Instructed
by:
Kooben Chetty & Associates
Plaintiff’s
Attorneys
444 Jabu Ndlovu
Street
Pietermaritzburg
KwaZulu-Natal
(Ref.:
40/N398/0001/AG))
(Tel.: 033 –
394 8115)
For the 1
st
Defendant
:
Mr W Shapiro
with Ms R Arthmaram
Instructed by:
Woodhead Bigby Attorneys
92 Armstrong Avenue
La Lucia
Durban
(Ref.:
Subiah/MAT10342))
(Tel.:
031 – 360 9700)
c/o NGOCBO POYO
DIEDRICKS
190 Hoosen Haffejee
Street
Pietermaritzburg
KwaZulu-Natal