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[2017] ZAGPPHC 21
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Moroana v Passenger Rail of South Africa (46493/12) [2017] ZAGPPHC 21 (1 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number:46493/12
1/2/2017
Reportable:
No
Of
interest to other judges: No
Revised.
In the
matter between:
MOKOENA
ELSIE
MOROANA
Plaintiff
And
PASSENGER
RAIL OF SOUTH
AFRICA
Defendant
JUDGMENT
MALUNGANA
AJ:
INTRODUCTION
[1] The
Plaintiff, Elsie Moroana Mokoena has instituted action for damages
against the Defendant, the Passenger Rail Agency of South
Africa
("PRASA"), arising out of the injuries which she sustained
on 16 July 2012.
[2] It
is common cause that the said accident occurred at Bosman station in
Pretoria. The damages being claimed by the plaintiff
are set out in
the summons.
[3]
Shortly before the commencement of the trial the parties reached an
agreement that the issues will be separated and accordingly
the trial
would proceed only in respect of the issue of merits. The plaintiff
further indicated that she intended to bring about
an amendment to
her particulars of claim during the course of the trial.
[4] The
primary issue in this trial is whether PRASA is delictually liable
for the bodily injuries sustained by the plaintiff at
Bosman railway
station.
PLEADINGS
[5] The
plaintiff's pleaded case as set out in its amended particulars of
claim is that she sustained injuries solely as a result
of PRASA's
negligence. Specifically, the plaintiff averred in her particulars as
follows:
"7.
The plaintiff boarded on
a
train
which number is unknown to the plaintiff when the other passengers
pushed her out of the train at Bosman station in Pretoria
which was
still in motion while its doors were open causing the plaintiff to
fall of the train.
8. The sole cause of the falling of the plaintiff in
the train was the sole negligence of the Defendant given that the
Defendant
negligently:
8. 1 caused and allowed the condition or state of the
train and or the coach and or infrastructure, stations
,
land and property supporting the
operation of the trains and or the coach to pose danger to commuters
at large and in particular
to the Plaintiff's;
8.2 failed to take and or any reasonable precaution
to ensure the safety of commuters in general and the plaintiff in
particular,
more particular failing to:
..maintain adequate crowd control in and crowd the
station, train
,
and
coach ;
..
ensure that the doors of the coach remained
properly closed while the train is in motion;
..ensure that the commuters in general and plaintiff
did not fall from or inside the train"
[6]
PRASA defended the action. In its plea to the original particulars of
claim PRASA simply admitted the identity of the plaintiff
and denied
the allegations and put the plaintiff to the proof thereof.
EVIDENCE
[7] The
plaintiff, a cleaner at the time of the accident, was the sole
witness who testified on how she sustained her injuries.
She
testified that she is a regular train commuter who lives in Mamelodi.
She boarded the train at Mamelodi Garden station on her
way to work
in Pretoria. The train was full to capacity causing her to stand and
balanced herself by grabbing the ropes (belts)
provided for for
standing passengers in the coach of the train. She stood between the
two doors of the coach, balancing herself
with the belts. She could
not describe with a degree of exactitude as to how many commuters
were in the coach. She further testified
that the train travelled
with its doors opened throughout her journey. On approaching the
train railway station in Pretoria the
train reduced its speed and
other commuters began to disembark, in the process they pushed her
causing her to fall onto the platform.
Whilst lying on the platform
other commuters trampled over her. She recalled being rescued by two
female persons.
[8]
During her testimony her legal counsel asked the plaintiff whether
she recalled any PRASA official speaking to her immediately
after the
incident. She replied that she did not speak to any PRASA official.
The plaintiff further denied having made a statement
to any person
immediately after the accident in question.
[9] She
further testified that she was in the company of her fiancee whom she
described as the father of her children on the date
of the accident.
He was called to the scene after being alerted of the incident.
According to the plaintiff she testified that
her fiancee is the one
who reported the incident to the security personnel of PRASA.
[10]
The plaintiff testified that she has a form 3 (JC) level of education
and that she communicated in English, albeit poor, with
doctors and
hospital employees who attended to her subsequent to the accident and
also the medico legal experts. The plaintiff
s counsel also asked her
whether she intended to bring about the amendment to reflect that the
train was not stationery but in
"motion" when she was
injured. She replied that she intended doing so. I pause to mention
that the amendment to her particulars
of claim were submitted to the
court with no objection from the defendant during the trial.
[11]
Under cross examination she was asked to demonstrate the size of the
coach in which she was being conveyed. She demonstrated
by a show of
hands that the size of the coach was about 3-4 metres in breadth. A
diagram sketch was then drawn to indicate the
position in relation to
where she stood in the coach. She further testified that she found
the doors of the coach opened when she
boarded the train. It was put
to her whether she fell inside the train or in the platform. In this
regard she responded that she
fell onto the platform and further that
she is the only one who fell, no other person fell. Counsel for the
defendant further put
it to her that he found it strange that she is
the only person who fell whilst there were other people behind her
who did not fall.
She replied that other commuters pushed her from
the side.
[12]
Counsel for the defendant also questioned the plaintiff about her
eleventh hour amendment to her particulars of claim with
particular
reference to paragraph 7 thereof in which she sought to delete the
word stationery and insert the word "motion".
She replied
that she did not know how that came about.
[13] It
was put to the plaintiff that the defendant's witness would testify
that she, the plaintiff, was personally interviewed
by PRASA
personnel and she gave them her particulars and an account of how she
sustained her injuries. A statement made by a certain
Mahlangu, which
formed part of the trial bundle, was then read out to the plaintiff
which she tearfully confirmed contained her
particulars and the
circumstances relating to the accident. After the contents were read
out she said she did not know the names
of the security personnel who
took the statement though she confirmed that someone took the
statement next to the station's ticket
office.
[14]
Counsel for the defendant also put it to the plaintiff that in her
interaction with everyone including the doctors she told
them that
she fell from a stationery train and not as per the amended
particulars of claim. In her response to the question the
plaintiff
maintained that she was pushed from a moving train.
[15] In
amplification of his questioning, Counsel for the defendant
specifically referred the plaintiff to the medico -legal report
(page
6 of the report) by the Occupational Therapist, who examined the
plaintiff at the instance of her legal representatives,
Paul Sekati.
Paragraph 4 thereof reads as follows:
"4.
PRESENT MEDICAL HISTORY
How the accident happened according to the claimant:
Ms Moroana was
a
passenger
in
a
train from
Mamelodi to Pretoria Central in the morning around 06:00. The train
was too full and when it stopped at the Bosman station,
some of the
other passengers pushed her while getting off the train and
she fell to the ground. Some of the passengers
did not see her on the floor and tramped on her, causing her severe
injuries.
"
[16] It
was then put
to
the plaintiff that it is odd that all these
people claim to have been told the same thing that the train was
stationery when she
fell and sustained injuries. The plaintiff
replied that she was testifying about what happened to her and she
did not know where
all these people got the information about the
stationery train from.
[17] In
re-examination by her own counsel she was asked whether she had ever
spoken personally to the PRASA officials. She replied
as follows:
"They spoke to the father of my kids".
[18]
The Defendant led evidence by Erick Mahlangu, a former employee of
the defendant. He testified that he was in the employ of
PRASA since
2010 until 2014. He was employed in the Asset Protection Unit. His
role comprised of recording damage to property,
vandalism and
incidents at the defendant's station and reporting same to Joint
Operation Centre ("JOC"). He testified
that on the date in
question he was assigned to Pretoria Station by his employer.
According to him he recorded the incident in
which the plaintiff was
involved. He was working next to the gates at the access control
point, about 30 metres from the platform
where the incident occurred.
He stated that train number 9106 from Mamelodi usually arrives
at the station at around 6:00
in the morning. He observed that
amongst the people who disembarked from the train there was a woman
who was being aided to walk
by fellow commuters. He approached the
injured woman. As procedure he took out his pocket book and recorded
the incident as narrated
by the plaintiff. Amongst other things, he
observed that she had a monthly ticket from Mamelodi Gardens to
Pretoria. He testified
that the plaintiff told him that when the
train in which she was being conveyed stopped she was pushed by other
commuters and as
a result fell and sustained injuries. After
recording the incident he reported same to JOC who then called the
ambulance to attend
to the plaintiff. Subsequently the ambulance
removed the plaintiff to Tshwane Hospital for medical treatment.
[19]
Counsel for the defendant questioned him about the contents of the
statement which he made and the witness confirmed the authenticity
of
the statement relating to the incident (page 236 of the trial
bundle). He denied that the plaintiff was in the company of a
male
person as alleged by the plaintiff when he met her and maintained
that she was accompanied by two female commuters.
[20]
The plaintiff's counsel had an opportunity to cross examine the
witness. He asked the witness whether he read the statement
to the
plaintiff to verify the correctness of the contents with the
plaintiff. The witness replied that he did not read back the
statement to the plaintiff. The cross examination did not yield any
new evidence in addition to what had already been mentioned
above.
APPLICABLE
LEGAL PRINCIPLES
[21]
The case advanced by the plaintiff is premised upon the negligent
omissions, namely that it is in breach of a duty of care
towards the
plaintiff and other passengers in general and that it had failed to
take the necessary reasonable measures to prevent
the incident.
[22] A
proper approach for establishing the existence or otherwise of
negligence was formulated by Holmes JA in
Kruger v Coetzee
1966(2)
SA 428 at 430E-F , as follows:
"For the purposes of liability culpa arises if-
(a)
A
deligens paterfamilias in the position of the defendant-
-would foresee the reasonable possibility of his conduct
injuring another in his person or property and causing him
patrimonial
loss;
-would take reasonable steps to guard against such
occurrence; and
(b)
the
defendant failed to take such steps."
[23]
The reasonableness of the steps taken by PRASA must be evaluated in
light of the evidence adduced before this court. It should,
however,
be pointed out that the defendant is only obliged to provide measures
consonant with the proper appreciation of the constitutional
and
statutory responsibilities it bears as a state organ.
[24] In
Minister of Safety and Security v Van Duivenboden
2002 (6) SA
431
SCA Nuget JA held at paragraph 21 that:
"When
determining whether the law should recognize the existence of a legal
duty in any particular circumstances what is called
for is not an
intuitive reaction to a collection of arbitrary factors but rather a
balancing against one another of identifiable
norms.
Where the
conduct of the state, as represented by persons who perform functions
on its behalf . is in conflict with its constitutional
duty to
protect rights in the Bill of Rights , in my view the norm of
accountability assume an important role in determining
whether a
legal duty ought to be recognized in any particular case"(Court's
emphasis)''.
[25] It
is not disputed that the defendant provides a rail commuter service
in the public interest and as an organ of state bears
the obligation
to protect the rights to dignity, life and security of commuters as
well as the general public that utilizes facilities
under its
control.
[26]
The central issue, however, is whether the plaintiff has adduced
sufficient supporting evidence in this court against which
this court
would be able to come to her assistance.
[23]
Essentially the plaintiff bears the onus to prove on a balance of
probabilities that there is a casual nexus between the defendant's
negligent behavior and her resultant injuries. Grappling with the
intractable question of causation the Constitutional Court seized
the
opportunity in
Lee v Minister of Correctional Services
2013
(2) SA 144
(CC) paras 40-41 and enunciated the correct legal approach
to causation as follows:
'Although
different theories have developed on causation, the one frequently
employed in determining causation is
conditio sine qua non
theory
or 'but -for test. This test is not without problems, especially when
determining whether a specific omission caused a certain
consequence.
According to this test the enquiry to determine causal link, put in
its simplest formulation, is whether 'one fact
follows from another'.
The test "may involve the metal elimination of the wrongful
conduct and the substitution of a hypothetical
course of lawful
conduct and posing of the question as to whether upon such a
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; [otherwise ] it would
not have ensued . If the
wrongful act is shown in this way not to be a
causa sine non
of
the loss suffered, then no legal liability can arise."
[24] In
International Shipping
Co
(Pty) v Bentley
1990 (1) SA
680
, the test to be applied for determining causation was further
described by Corbet CJ as "a flexible one in which factors such
as reasonable foreseeability, directness, the absence of a
novus
actus interveniens,
legal policy, reasonability, fairness and
justice all play a part". In
Lee
(supra), the
Constitutional Court in its salutary warning stated in para 73
thereof as follows:
'Our
law has always recognized that the but - for test should not be
applied inflexibly. A court ultimately has to make a finding
as to
whether causation was established on the balance of probabilities on
the facts of each specific case.
[25]
Turning now to the facts of this case. The following salient facts
cannot be disputed; that the plaintiff was at the railway
station on
the ill fated day and that she fell onto the railway platform and
sustained certain bodily injuries.
[26]
However, what is not clear is how the plaintiff fell and ended up on
the railway platform as there is a paucity of evidence.
There is
material evidence from the trial bundle which is in sharp contrast
with the testimony in chief of the plaintiff. The plaintiff
testified
in her evidence in chief that she did not give account of what had
happened to the officials of the defendant. When pressed
under cross
examination she said that her fiancee is the one who gave the
defendant's security personnel information about how
she was injured.
What is strange about this information is that she said that the
alleged fiancee was notified by other commuters
that she was injured
and later came to the scene. There is no evidence adduced to
corroborate this part of her version. This does
not accord with
common sense that her fiancee suddenly appears on the scene and gives
account of what had happened to the defendant's
employees. Which
calls for a sensible retrospective analysis of what would have
occurred, based on the totality of evidence before
this court than
metaphysics.
[27] In
cross examination the statement made by the defendant's former
employee, Erick Mahlangu, was read out to the plaintiff.
According to
the statement, which was made shortly after the incident, the
plaintiff informed Mahlangu that she fell onto the platform
after the
train had stopped at the railway station. The relevant extract from
the handwritten statement which appear from page
237 of the trial
bundle reads as follows:
"The
injured commuter informed me that the train .., the train number
9106 at 06h00 stopped on platform one,
as
she was getting off
she was pushed by other commuter, fell onto the station platform and
sustained injuries mentioned above.
"
[28]
Cross examination also brought to the fore that the hospital records
also contained the same information. It was put to her
that the
Occupational Therapist's Report which was compiled at the instance of
her attorneys also states that she fell when the
train was
stationery. Counsel for the defendant further put it to her that her
previous pleadings albeit amended during the trial
also state that
she fell from a stationery train, which contradicts her current
version.
[29]
That being the totality of the evidence I pause to state that it is
clear from the adduced evidence that the probabilities
do not favour
the plaintiff.
[30]
The approach adopted by the court in
Lee
never sought to
replace the existing approach to factual causation. It adopted the
approach to causation premised on the flexibility
that has always
been recognized in the traditional approach. It is particularly apt
where the harm that has ensued is closely connected
to an omission of
a defendant that carries the duty to prevent harm. Regard being had
to all the facts, the question is whether
harm would nevertheless
have ensued, even if the omission had not occurred.
[31]
Counsel for the defendant referred this court to
South African
Rail Commuter Corporation Limited v Almmah Philisiwe Thwala
661/2010
ZASCA 170 in which the court held in para 18:
".
.. . ..It seems to me that once the court accepted that the train was
stationery when the respondent disembarked and the
accident occurred,
that should have been the end of the respondent's case. This,
clearly, was the result contemplated by the parties
themselves when
they defined the issue; that only
a
finding
that the train was in motion when the respondent was pushed and fell
would give rise to liability."
[32]
Based on the available facts, common sense and simple logic dictates
to me that the train was stationery when the plaintiff
fell onto the
platform after having been pushed by impatient fellow commuters.
Whilst dealing with the same problem the court held
in
Minister of
Finance
&
Others v Gore No
2007 (1) SA 111
(SCA) that:
'Application
of the 'but-for' test is not based on mathematics, pure science or
philosophy. It is matter of common sense, based
on the practical way
in which the ordinary person's mind against the background of
everyday life experience.
'
[33] In
his closing argument, counsel for the defendant argued that the
reports regarding the manner in which the plaintiff sustained
her
injuries were contemporaneous to the time of the accident and urged
this court to reject her eleventh hour change of version
as contained
in the amended pleadings. The probabilities in favour of the
defendant are that the plaintiff did not fall from a
moving train, as
the medical records and other material evidence show that the train
was stationery when the plaintiff sustained
injuries.
[34] In
my view, the plaintiff's evidence falls short of satisfying the
standard of proof required.
[35] I
accordingly make the following order:
[35.1] The plaintiff's claim is dismissed with costs
____________________
P
H MALUNGANA
Acting
Judge of the High Court
Of
South Africa
Gauteng
Division, Pretoria
Appearances
FOR THE
PLAINTIFF: Adv. T Chauke
Instructed
by: MAKOKGA SEBEI INC
TEL:
011 975 6626/6016
FAX:011
975 7147
REF:
MAKOKGA/MM/M728/2012
FOR THE
DEFENDANT: Adv. L.M Mataboge
Instructed
by: MAKHUBELA ATTORNEYS
TEL:
012 362 3742
FAX:
012 362 7234
REF:
PRAS 339.528