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[2018] ZAGPPHC 732
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Thatha v Passenger Rail Agency of South Africa [2018] ZAGPPHC 732 (16 February 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE
(2)
OF INTEREST TO OTHER
JUDGES
(3)
REVISED
CASE NO: 79535/2016
16/2/2018
In
the matter between:
SELLO
THAHA
and
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
JUDGMENT
MTATI
AJ:
[1]
The
plaintiff, Mr. Sello Thaha, is an adult male born on 22 September
1977 who was injured in an accident on 20 July 2016. He has
instituted action against the Defendant , the Passenger Rail Agency
of South Africa hereinafter referred to as PRASA. As per agreement
between the parties the Court was requested to separate the issues
between liability and the amount of damages and as a result
the trial
proceeded only on the question of liability on the part of PRASA.
[2]
According
to plaintiff's evidence , he is a regular train user and on 20 July
2016 he walked together with a co-employee from their
work place to
Olifantsfontein train station to board a train to Germiston station .
He would then thereafter board another train
to Kwesine station which
is apparently within Katlehong Township.
[3]
He
indeed boarded the train at Olifantsfontein and on arrival at
Germiston station waited for his connecting train to Kwesine .
This
train apparently arrived late and was full of commuters on arrival.
He boarded the train and stood against a steel pole to
balance
himself. It transpired that this steel pole is not far from the
entrance/exit door. Plaintiff testified that the door of
the coach
was open during the movement of the train and at no stage were the
doors ever closed.
[4]
The
train stopped at Kutalo station being the first stop after Germiston
and thereafter proceeded to Elsburg but just before Elsburg
station
the train stopped . Plaintiff does not know of the reason why the
train stopped . After a period of about 5 minutes the
train pulled
out again and it is at this point that plaintiff testified that he
was pushed from behind and fell outside the train
. He believes that
the momentum of the many commuters inside the train led to the push
to the outside . As he was pushed outside
he lost his bag which had
his train ticket and his work uniform.
[5]
Having
fallen outside the train two gentlemen appeared and asked him what
happened and it is these two gentlemen who assisted him
to walk to
the platform of Elsburg station. There they met two women who were
wearing security uniform and they offered to help
asking if they
should call and ambulance and plaintiff said that he is "okay".
The two gentlemen assisted him further
to board the same train which
was now stationary at Elsburg station.
[6]
The
train arrived at Katlehong station and it is where plaintiff was
experiencing excruciating pain in comparison to when he immediately
fell off the train. The train did not proceed any further and a
message was conveyed that the train will no longer proceed further
to
Lindela, Pilot and then to his destination being Kwesine station.
[7]
One
Thabo assisted him to get
off
the
train at Katlehong station and he lay down and the next moment he saw
the police and fire brigade and there nearby was a traffic
officer
who called for an ambulance .
[8]
In
cross examination the plaintiff agreed that he should not enter the
train when it is not safe for him to do so. Plaintiff also
stated on
being asked how long he walked to Elsburg platform that he does not
remember the exact time but it less than five minutes.
He did not see
any ticket examiners at the station. Plaintiff confirmed that he had
a valid ticket and this got lost with his bag
when he was pushed
outside. Upon putting to him that he was partly negligent plaintiff
did not deny this.
[9]
Mr. Mabone Kobe was also called to testify and in brief stated that
he was indeed
in the company of the plaintiff when they were to board
the train at Olifantsfontein station. He stated further that they
both
bought return tickets at the station since they to return to
work for a night shift on the same day. He also testified that he was
called later that same day by plaintiff's wife advising him that
plaintiff will not come to work as he fell
off
the train and
was hospitalized.
[10] This was the case
of the plaintiff and at this stage Mr. Ford for the defendant applied
for an absolution
from the instance arguing that the plaintiff did
not make a prima facie case upon which a reasonable Court may find
for the plaintiff
and that the defendant has no case to answer to.
[11] Without delving
too much on this application, the Court found that it was primarily
based on probabilities
of what could have happened on the day in
question and not whether or not the version of the plaintiff
constituted the elements
of the claim made, the credibility of the
witnesses , unacceptability of evidence adduced etcetera.
(See
Neon Lights (SA) Ltd v Daniel 1976 (A) SA 403; Atlantic
Continental Assurance
Co
of SA v Vermaak 1973
(2) SA525;
and
Marine and Trade Insurance
Co
Ltd v Van der Schyff
1972 (1) SA 26
).
[12] The Court
dismissed the application for absolution from the instance and the
defendant called Mr. Albertus
Edward Coetzee who testified that he
was employed at PRASA as an investigator whose profile includes
investigating crimes against
his employer as well as claims of
injuries similar to this case.
[13] His
investigations of this claim revealed that it was not reported. He
observed on visiting
the scene where the alleged accident took place
that it was approximately 120 metres from Elsburg station . The walk
to the scene
of the accident from the station takes approximately 3
to 5 minutes.
[14]
In
cross examination he testified that about 2% of incidents are
described as "no trace" meaning they would not have been
reported.
Issues to be determined
[15]
In
my view the only issues to be determined is whether plaintiff was a
lawful train user on the day in question and, if so, if there
was
negligence on the part of PRASA. Further, the Court should also
determine whether there was any contributory negligence on
the part
of plaintiff.
[16]
In
doing so I have to examine if the evidence of the plaintiff is
reasonably possibly true. It needs to be noted that whilst defendant
did not present any factual evidence, that per se, does not qualify
plaintiff to judgment in his favour . All the evidence evaluated
holistically should be considered to satisfy the Court that the claim
has been proven on the balance of probabilities.
[17]
The plaintiff testified that he lost his
bag which contained his ticket and work uniform. Whilst on behalf of
the defendant it was
disputed that there was existence of this
accident, defendant did not dispute that Mr. Kobe was in the company
of plaintiff when
they left Olifantsfontein station . In fact the
evidence of Mr. Kobe was also not disputed when he testified that
plaintiff's wife
called him to inform him that plaintiff will not be
going to work since he fell off the train and has been hospitalized.
[18]
The
Court does not understand the basis of the improbabilities raised on
behalf of the defendant suggesting that there cannot be
persons
walking along the rail line who may assist an injured person. There
was no evidence tendered to thwart this evidence of
the plaintiff .
[19]
If plaintiff left the station together
with Mr. Kobe and we accept the testimony of Mr. Kobe, then in all
likelihood plaintiff was
going home since he had to return back to
work on the same day for another shift, hence he bought a return
ticket. This is amplified
by the call received from plaintiffs wife
that he will not be going to work on that day. The Court finds that
plaintiff was an
honest witness who did not attempt to amplify his
evidence because of questions posed on him. He even made a concession
that he
may have been partially negligent. The Court finds that he
has proven his case on the balance of probabilities.
[20]
I find that plaintiff was indeed a
lawful passenger on the train from Germiston to Katlehong .
[21]
Plaintiff
testified that the train doors from Olifantsfontein to Germiston were
closed whereas the train doors from Germiston to
Katlehong were open.
This evidence was not disputed. It could not be disputed because the
defendant did not call any witness who
was privy to the happenings of
the 20t h July· 2016 when plaintiff got injured. The second
question is whether the defendant
had an obligation towards plaintiff
to ensure that the lives of all the commuters including that of the
plaintiff were safeguarded?
The obligations to protect commuters like
the plaintiff has not been disputed by the defendant. However, I
refer to the well-known
constitutional court decision in the matter
of
Mashongwa v PRASA
[2015] ZACC
36
where Chief Justice Mogoeng
quoted as follows:
"
Public carriers like PRASA have always been regarded as owing a legal
duty to their passengers to protect them from ·suffering
physical harm while making use of their transport service . That is
true of taxi operators, bus services and the railways,. as
attested
to by numerous cases in our court . That duty arises, in the case of
PRASA from the existence of the relationship between
carrier and
passenger, usually. but not always ·, based on a contract. It
also ·stems · from its public law
obligations. This
merely strengthens the content ion that a breach of those duties is
wrongful in the delictual sense and could
attract liability for
damages.
[22]
The
next question to be determined is whether there was any contributory
negligence on the part of the plaintiff. Plaintiff conceded
in cross
examination that he may also have been negligent. He boarded a train
that was full and whose doors could not close. Further
, he appeared
have not been far from the door. It was argued on behalf of the
defendant that damages should be apportioned by 50%
whereas on behalf
of the plaintiff it was argued that the apportionment of contributory
negligence should be 10%.
[23]
Apportionment
of negligence is not an easy task for the Court but in my view the
Courts cannot just thumb suck the level of contributory
negligence.
In order to come to what I consider acceptable contributory
negligence , the Court needs to look at past decisions
and thereafter
decide what is fair in the circumstances . It is common cause that
the plaintiff was not far from the door hence
he was easily pushed
outside of a moving train.
[24]
In
the case of
South African Rail
Commuter Corporation Ltd v Mojapelo (AB91/2008) [2011] ZAGPPHC 169
Prinsloo J quoted many
authorities that provide a guide on the apportionment of damages. It
is apposite that I quote the authorities
as they appear as I find
same relevant for this matter:
"[68]
Our courts · have held repeatedly that a railway authority,
such as the appellants, allowing a train to travel with open doors,
particularly · an overcrowded suburban train is
negligent. One of the leading cases is that of Khupa v South African
Transport Services 1990 2 627 (W). The over-crowded train
travelled
with open doors. The plaintiff tried to disembark from the train
while it was till in motion. He was carrying a number
of parcel. The
court held that there was contributory negligence on his part in
seeking to alight from such a train laden a ·
he was with
parcel but the percentage negligence attributed to him was only 25
percent. By comparison, the present respondent,
in my view, did not
make himself guilty of conduct as negligent as that of the plaintiff
in Khupa. The present respondent did not
attempt to disembark from
the moving train. He leaned out of the train which was over-crowded
and was surprised by the collision
with the temporary pole obviously
constructed too close to the train. He was not warned about the
existence of the pole. The witness
Potgieter conceded that the pole
posed a danger. The pole in my view, had to be closer to the train
than what is depicted on exhibit
"A", because on the
exhibit "A" scenario, with the passenger leaning out of the
train with his whole body and
stretching out his hand and still not
being able to touch the pole, it is inconceivable how this particular
incident could have
happen, bearing in mind the undisputed evidence
of Mmako that the respondent was holding on to the grab pole with
both his hand
.
[69]
In Transnet Lid t/a Metro Rail & Another Witter
[2008] ZASCA 95
;
2008 6 SA 549
(SCA) the trial court apportioned 50 percent against the plaintiff
who had attempted to board a moving train through an open carriage
door. The supreme Court of Appeal was not prepared to interfere with
this apportionment. Ln Ngubane v South African Transport Services
1991 1 SA 756
(AD) the plaintiff had boarded an over-crowded train.
He was jostled by other passengers and lost this grip on the overhead
strap
and fell out of the open door. It was held that the railway
authorities were solely to blame for the injurie .
[70]
In Transnet Ltd t/a Metro Rail Tshabalala
[2006] All SA 583
(SCA) the
plaintiff was in a state of intoxication when he ran alongside a
moving train trying to board same and fell. It was held
that his
damages had to be reduced by two third.”
[25] I do not agree
with the assertion from PRASA that apportionment of damages should be
decided on 50/50
basis. In the light of the above authorities I'm
inclined to agree with the Counsel for the plaintiff.
[26] Having considered
all the evidence and authorities , I order as follows :
Order
1.
Defendant
is liable for 90% of the plaintiff's proven or agreed damages;
2.
Defendant
is ordered to pay plaintiff's costs on the merits including costs of
plaintiff 's witness; and,
3.
The
determination of quantum is postponed sine die.
MTATI AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
FOR
THE PLAINTIFF : ADVOCATE: ADV JF VAN DER MERWE
INSTRUCTED
BY: SPRUYT INCORPORATED
FOR
THE DEFENDANT: ADVOCATE B FORD
INSTRUCTED BY: JERRY NKELI & ASSOCIATES INC