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South Africa: North Gauteng High Court, Pretoria
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[2018] ZAGPPHC 265
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Rodgers v Passenger Rail Agency of South Africa (7392/16) [2018] ZAGPPHC 265 (12 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 7392/16
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
MORENA
NARE
RODGERS
Plaintiff
and
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
Defendant
JUDGMENT
RANGATA
AJ
INTRODUCTION
[1]
The Plaintiff , Mr Nare Rodgers Morena, is
claiming damages in the amount of R3 350 320 .00 allegedly suffered
as a result of injuries
sustained from falling off a moving a train
on the 19 October 2015. The defendant is disputing liability as
alleged or at all.
The Defendant alleges that the accident was caused
by the sole negligence of the Plaintiff.
[2]
The parties agreed on the separation of
merits and quantum in terms of Rule 33(4) of the uniform Rules of
court. The matter proceeded
on the issue of merits only and the
Quantum is postponed sine die.
BACKROUND
[3]
On the 19 October 2015 , at around 18h00
the Plaintiff boarded a train at Elantsfontein station to Tembisa,
his place of residence.
When he entered the train he could not sit as
the train was full. He stood on the passageway and supported himself
with the hanging
straps for standing passengers . He stood in the
middle of the passageway , approximately 1 metre from the door facing
the door
through which he entered the train. When the_ train
approached Kempton park station, there were a number of commuters who
wanted
to board the train and those that wanted to disembark from the
train. In the process of commuters entering and some alighting from
the train, he was pushed from where he was standing and he fell
through the open doors onto the platform. He was hit by an object
to
his right leg, which was later amputated above the knee.
[4]
The plaintiff testified that on the date of
the incident he was from work at Cargo Logistics, Jet Park ,
Elantsfontein on his way
home at Tembisa. He boarded the train at
Elantsfontein train station ("Elantsfontein"). The train
was full to the extent
that he could not find a seat as they were all
occupied and had to remain standing . Whilst standing he supported
himself with
the hanging straps used by standing passengers .
[5]
He testified that the doors of the train were , at least the door he
used when entering the train not
closed from the time the train
arrived at Elants fontein station and when the train left the said
station . The couch he occupied
was the second couch from the rear.
The train proceeded to the next station, lsando, then Rhodesfield
station without any incident.
At all times the train was full, but
passengers continued to embark on the train and others disembarking .
At Kempton park station
which is the next station after Rhodesfield
station , the train stopped at the platform . Passenge rs disembarked
and others embarked
onto the train. The plaintiff averred that there
were a lot of passengers at this particular station unlike the other
stations
that they passed . As the commuters entered the carriage and
others leaving the carriag e, there was a lot of pushing, however he
managed to hold onto the railings designed for standing passengers .
He held on the railings with one hand as others (rail ings
) were
already occupied by the other passengers.
[6]
He averred that at some point the train
started to move whilst the passengers were still embarking and
disembarking from the train.
The movement of the train caused the
passengers to panic and started pushing each other . He lost the grip
of the railing and was
pushed through the open door and fell onto the
platform . As he landed onto the platform he had his head away from
the train and
his legs were nearer to the train . He was hit by an
object from the body of the train on his right leg leaving him with
an injured
right leg which was later amputated . After he fell, the
train stopped and he was assisted by the security guards . He was
later
taken to the hospital by ambulance .
[7]
The defendant called one witness , the
driver of the train , Mr Tshabalala to testify. He averred that on
the date of the incident
he was the driver of train no 0659. Due to
the signalling problem at the platform, wherein the train control
office could not read
the signal, the train could not proceed at
Jeppe station for an hour. The delay created backlog on the scheduled
trains and as
a result, there were many people who wanted to board on
the train causing further overloading. After the signa lling problem
wasattended
to, the train proceeded to pass Jeppe station and train
stopped at the Kempton park station. It stopped for some time to
allow
commuters to board and to disembark . He furthermore averred
that he did not witness the incident; as a result he doe s not know
how the accident happened. He further averred that he heard of the
incident in 2016 when he was contacted by the investigator employed
by the defendant Ms Mojapelo requesting the details of the incident.
[8]
He averred that he was assisted by the
metro guard , Mr Johannes Selepe, who was
seated at the rear coach.
He could not confirm as to whether the
train doors were open when the train was in motion; however he
averred that if the doors
were opened when the train was in motion,
he would have seen the signal from the train panel showing the sign
of opened doors.
He averred that the guard is the right person who
could testify on this aspect as it is his responsibility to check if
the doors
are working and the condition of the carriages.
ISSUES
[9]
The issues to be determined by this court
are as follows:
9.1
Whether there is a possibility that the
doors of the train were not closed at the time of the incident;
9.2
Whether the defendant should have taken
steps to guard against such possibility and such possibility was
foreseeable
9.2
Whether the plaintiff contributed to such negligence.
THE
LAW
[10]
The law for negligence was formulated in the case of Kruger v
Coetzee1966 (2) SA
428(A) 430E-G , wherein it was held that:
''The
purpose of liability , culpa arises if-
(a)
a diligens paterfamilias in the
position of the defendant
-
(i)
Would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss
and
(ii)
Would take reasonable steps to guard
against such occurrence ; and
(b)
the defendant failed to take such
steps"
ANALYSIS
[11]
In the case at hand it is common cause that
the train was full on the date of the accident , in particular
immediately prior thereto.
The plaintiff submitted in his evidence in
chief that when he entered the train at Elantsfontein he could not
secure a seat and
had to stand at the passageway of the train. The
defendant submitted that when the train stopped at Kempton park
station , there
was a lot of people . When asked as to whether all
the people who were at the station could board the train prior to the
train
moving , he responded that, 'the train guard would be the best
person to answer the
question
as he is the one who would see to it that the passengers have safely
boarded and thereafter signal to the driver if all
is in
order'.
[12]
It was further submitted by the plaintiff
that from the time he boarded the train at Elantsfontein station, the
doors of the train
were opened. The train driver on behalf of the
defendant submitted that the train went through the inspection
process prior to
the journey and there was no report as to the
problems on the train doors. The train panel did not report any
malfunctioning. In
addition thereto he submitted that he would have
relied on the train guard who would have also noticed if the doors
were not closing.
The train guard was a crucial witness who would
have shed more light on the events of the date in question , as it is
the train
guard's duty to ensure that the train is safely operated
and the passengers are safe . The decision of the defendant not to
call
the train guard to testify compromised its case in disputing the
version of the plaintiff. From the evidence of the plaintiff it
can
be accepted that the doors of the train were not closed, as the
plaintiff fell whilst the train was moving. Had the doors been
closed
when it started to move the plaintiff would not have fallen onto the
platform when the passengers were pushing each other
.
[13]
In the case of Transnet Ltd t/a Metro Rail
and Another v Witter (517/ 2007)2008ZASCA 95 (16 September 2008) the
court remarked that,
"a train leaving with open doors constitute
negligence. Further that the duties of the train guard is to ensure
that all train
doors were closed before he gave signal to the
driver".
[14]
In
the case of Mashongwa
[1]
,the
Constitutional court stated that:
[66]
"... it is on this basis of the traditional test that causation
will be determined
. Had the doors of the
coach in which Mr Mashongwa was travelling been closed, it is more
probable than
not that he would not have been thrown out of the
train. . .. ".
[67)
"In all likelihood , he would not have been thrown out of the
train had the strict
safe ty regime of
closing coach doors, when the train is in motion . been observed .
Contrary to what the Supreme Court of
Appeal held, it strikes me as
highly unlikely , based on the evidence tendered
,
that the three attackers would have found it easy to force the doors
open and throw out Mr Mashongwa , who was resisting , as
quickly as
they did taking advan tage of the already open doors. On a
preponderance of probabilities Mr Mashongwa would not have
sustained
the injuries that led to the amputation of his leg had PRASA kept the
doors closed '
[14]
PRASA has an obligation to protect its
passenger 's bodi ly integrity and failure to do so attracts
liability to compensate for
damages suffered as a result thereof . In
dealing with the question whether the defendant should have foreseen
that the passengers
would be exposed to danger , if the train
travelled with open doors , the court is guided by the evidence of
the plaintiff which
confirms that the doors of the train were opened
at the time when the train was in motion. The situation of an
overloaded train
and the doors being opened whilst the train is in
motion was extremely insecure and exposed the passengers to imminent
danger.
The defendant has not provided any evidence to contradict the
plaintiff's evidence that the doors of the train remained opened from
Elantsfontein station until at the place of the incident, at Kempton
park station . Being pushed out of the train by passengers
pushing in
and out of the train is more likely if the doors of the train are
opened.
[15]
The plaintiff on the other hand, had the
responsibility to ensure that he does not expose himself to danger
when entering and disembarking
from the train. In his evidence he
averred that he used train as his daily mode of transport and that he
had bought a monthly ticket.
Being a frequent train commuter, it is
expected of the plaintiff to know that he should not expose himself
to danger.
[16]
In the case of Chauke v Passenger Rail
Agency of South Africa (8394/13) , para 81, Motepe AJ stated that:
"..
the plaintiff was pushed by other
commuters while he was already standing inside the train securing
herself on the rails inside
the train . She did not attempt to board
a
moving
train . In my view it will be unfair to hold it against her that she
boarded the train that was already full and remained
inside despite
more people coming in . She testified that she had
a
ticket for the train and could not
afford to miss it because she did not have money
to go catch
a
taxi
to work. In any event, there is no suggestion that when she
boarded the train she was aware that the
doors of the train were not going to be closed once it departed. I
can find no conduct in her part which indicates contributory
negligence ".
[17]
Section 1(1) (a) of the apportionment of
_damages Act 34 of 1956 , enjoins a court to reduce damages suffered
by a claimant 'to
such extent as the court may deem just and
equitable' having regard to the degree to which the claimant was also
at fault. A failure
to exercise reasonable care in one 's own
interest constitutes negligence on the part of the plaintiff. The
court must therefore
determine whether the claimant's actions or
omissions , causally linked to the harm , deviated from the norm of
the bonus paterfamilias
in the plaintiff's position.
[18]
Taking into account the legislation
referred to above , the court has to interrogate the evidence of both
parties to determine any
issues related to contributory negligence.
The plaintiff submitted that the defendant was negligent as indicated
at paragraph 5,
6 and 7 of the particulars of ctaim and that such
negligence was the sole cause of the accident. The plaintiff
submitted that the
doors of the train were not closing when the train
was in motion. He further submitted that the train was overloaded ,
and started
to move whilst the passengers were still alighting and
others entering the train. In that process the passengers panicked
and started
to push each other . Whilst pushing each other the
plaintiff fell off from the moving train and sustained his injuries.
[19]
It is submitted by the defendant that the
plaintiff's versio n as to how the incident took place is not
probable. It was submitted
that the fact that when he fell from the
train as a result of being pushed, he was the only one who fell off
from the train and
was injured. The defendant submitted that this
raises questions as to why other commuters did not fall off the
train. The defendant
submitted that the plaintiff caused and/or
contributed to the accident as alleged at paragraph 4 of the
defendant's plea. It is
the submission of the plaintiff that he
boarded the train at Elantsfontein en route to his place of residence
at Tembisa ; he had
no reason to be alighting from the train at
Kempton park station.
[20]
The defendant in its evidence did not
disprove the allegations by the plaintiff that the doors of the train
were not closed when
it was in motion. Further that at no stage from
the time the plaintiff boarded the train did the doors close. Failure
to ensure
that the doors of the train are closed when the train is in
motion is failure by the defendant to ensure safety of the commuters
and exposing them to danger. The defendant should have foreseen the
possibility of danger by overloading the train and not ensuring
that
the doors are safely closed before the train moved. Considering the
case Mashongwa, had the doors of the train been closed
when it
started to move , it is highly unlikely that the plaintiff would have
fallen off from the train onto the platform.
[21]
The defendant submitted that the plaintiff
was the cause of the accident as he was staff riding the train, and
as a result was injured.
It further submitted that should the court
find that the plaintiff's version is probable, it should also find in
the alternative
that the plaintiff entered a full train and knowingly
exposing himself to the risk of being injured, further that he
attempted
to embark and disembark from the train at the moment when
it was inopportune to do so, then the plaintiff contributed to the
accident.
[22]
The plaintiff testified that at no stage
had he attempted to alight from a moving train or enter the train
whilst in motion. There
is no reason for the court not to accept the
version of the plaintiff as no evidence was led by the defendant to
disprove it. The
defendant elected not to call the train guard to
testify in the matter, as he would have been the right person to
provide the details
of the occurrence as opposed to the driver. The
driver of the train could not assist as to the circumstances
surrounding the accident.
He submitted that he did not see the
accident; also that he was not aware that a passenger from the train
that he was driving fell
and sustained injuries. He submitted that he
heard of the incident from some of the commuters. He further
submitted that he was
made aware of the incident by the investigator
appointed by the defendant. As a result he could not assist the court
in responding
to the version of the plaintiff.
[23]
Therefore it is accepted that the plaintiff
sustained his injuries as a result of falling from the train. The
defendant failed to
take reasonable steps to ensure that the
commuters are safe and not unnecessarily exposed to danger. There is
no sufficient evidence
to sustain that the plaintiff contributed to
the accident.
In
the result I make the following order ,
(a)
The
plaintiff is entitled to recover from the defendant 100% of his
proven damages; and
(b)
The defendant is ordered to pay the
plaintiff's costs of the action
B
RANGATA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISIO (PRETORIA)
[1]
Mashongwa
v
PRASA.'
(CCT03 15)[2015) ZACC 36: :2016(2) BCLR 20.:J(CC):
2016 (3) SA
528(CC)(26
November 2015)