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[2017] ZAGPPHC 31
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Mafole v Passenger Rail Agency of South Africa (64994/14) [2017] ZAGPPHC 31 (1 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number 64994/14
1/2/2017
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
THABO
GIVEN
MAFOLE
Plaintiff
And
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
Defendant
JUDGMENT
MALUNGANA
AJ:
[1]
The Plaintiff, Thabo Given Mafole, instituted proceedings against the
Defendant for damages arising out of the bodily injuries
which he
sustained at the Naledi railway station. The damages which the
Plaintiff claims are set out in the summons.
[2]
The basis of the plaintiff's claim is that the defendant the
Passenger Rail Agency of South Africa ('PRASA') acted negligently
in
that it failed to operate its train services safely by not ensuring
that all the doors of the train were closed whilst conveying
commuters. Specifically the plaintiff's claim as pleaded is grounded
on the defendant's omission of its legal duty towards the
plaintiff
or the inaction of its servants in the execution of their duties with
the defendant.
[3]
The defendant denies that it acted negligently as alleged in the
plaintiff's particulars of claim, and pleaded that the plaintiff's
exclusive negligence is the sole cause of the incident.
[4]
Prior to the commencement of the trial the parties agreed that the
question of merits and quantum be separated. The matter therefore
only proceeded in respect of liability.
[5]
The plaintiff testified that he was a regular commuter on the
defendant's train. On 4 February 2014 he boarded the train from
Croesus to Naledi on his way from work at about 18:30. Whilst so
being conveyed the train doors were opened, and as the train was
full
to its capacity he stood inside the coach and held on to the belts
provided for standing passengers. When the train approached
Naledi
railway station other commuters started pushing and in the process he
was pushed and exited the train through the opened
door and fell onto
the platform. Whilst lying injured on the platform the security
officers came and offered him assistance. An
ambulance was
subsequently summoned to move him to the hospital for medical
treatment.
[6]
Cross examination of the plaintiff brought the following to the fore:
The plaintiff boarded the defendant's train at about 18:30.
He stated
that he fell onto platform 4 after being pushed by other commuters.
Counsel for the defendant put it to him that according
to the
pleadings, in particular his Reply to the Defendant's Further
Particulars, the incident in question occurred at platform
3 of the
railway station. He disagreed and stated that he never told his
attorneys about platform 3, and maintained that according
to him it
was platform 4.
[7]
It was further revealed during cross examination of the plaintiff
that the defendant's security personnel discovered him in
the early
hours of the morning at platform 1 of the railway station, at about
02:45. He again disagreed that it was platform 1,
he, however,
conceded that the time at which the security found him was as stated
by the defendant's witness. He also conceded
that he was admitted to
hospital at about 04:30.
[8]
It was further put to him that the defendant's witness would testify
that he, the plaintiff, told her that he was intoxicated
and as
result fell asleep in the coach of the train and subsequently jumped
out of the train using the wrong side of the door.
He replied that he
would disagree with that version. He further stated that he was dizzy
when the paramedics attended to him on
the scene.
[9]
The defendant led evidence by its security personnel Mervis Khoza.
She testified that she was on duty with her colleague Shibyeni
on the
day in question. They were busy patrolling the area when they
discovered the plaintiff next to the parked train. He told
them that
he became intoxicated and fell asleep. When he woke up he used the
wrong door to exit the train coach thereby injuring
himself. He smelt
of alcohol and apologized for his conduct. She further testified that
she found the plaintiff on platform 1 and
not platform 4 as testified
by the plaintiff. She and Shibyeni checked whether he was injured and
subsequently reported the incident
to the joint operation unit. An
ambulance was summoned to the scene. Bongikosi Mkwanazi from the
joint operation unit also came
to the scene and recorded the incident
in the occurrence book. Her evidence was corroborated by Bongikosi
Mkwanazi, who testified
that he was told by the security that the
plaintiff was intoxicated, fell asleep in the coach and later got up
and jumped out of
the train through the wrong door of the train. His
report is contained in Exhibit "A" of the Trial bundle.
[10]
Having regard to the totality of the evidence, the question which
this court has to answer is whether the plaintiff has discharged
his
onus of proving that the defendant was delictually liable for his
damages.
[11]
In my view in order for the plaintiff to succeed with his claim, he
is required to prove the usual elements of liability applicable
in
delictual action, namely that there was a breach of duty of care,
that there was negligence and that the negligence was causally
linked
to the harm which he suffered.
[12]
Counsel for the plaintiff argued that the defendant should be found
to have been negligent for having failed to ensure that
the train
doors were closed at all times when the train was in motion. In
failing to do so the defendant had acted in breach of
its duty of
care. He referred this court to the Constitutional Court decision in
Irvin Mashongwa v Prasa
(2015) ZACC 36
and
Kruger v Van der
Merwe and Another
1966 (2) SA 266
(A) at 272F. Counsel for the
defendant, however, argued that the facts in
Mashongwa
are
quite distinguishable from the facts in the present case. To a
certain degree I agree with him in that the facts in
Mashongwa
relate to the defendant's failure to provide adequate security
personnel and measures to rail commuters. It, however, highlighted
once again the need to keep coach doors closed as a security measure
when the train is in motion to prevent acts of criminality.
[13]
It is settled in our law that the defendant has a duty to protect its
commuters and that cannot be disputed. What this court
should concern
itself with is whether based on the evidence adduced the defendant
has breached that duty. It is therefore necessary
to deal with the
issue of negligence on the part of the defendant.
[14]
The test for establishing whether the defendant was negligent is set
out in
Kruger v Coetzee
(2) SA 428 at 430E - F where the court
held that:
"For the purposes of
liability culpa arises if-
(a) A
diligens
paterfamilias
in the position of the defendant -
(1) would foresee the
possibility of his conduct injuring another in his person or property
and causing him patrimonial loss; and
(2) would take reasonable
steps to guard against such occurrence ; and
(b) the defendant failed
to take such steps.
[15]
This court should, however, point out that Counsel for the plaintiff
in advancing the plaintiffs case lost sight of the fact
that before
one indulgences in that kind of enquiry the plaintiff had to cross
the hurdle of causality. In essence any liability
which may otherwise
be attributed to the defendant under the circumstances should be
judged having regard to the general principles
governing the law of
delict, otherwise we end up with negligence in vacuum.
[16]
In this regard the test for determining legal causation in the law of
delict was described by Corbett CJ in
International Shipping
Co
(Pty) Ltd v Bentley
1990 (1) SA 680
as involving two distinct
enquiries, namely factual causation which is designed to determine
whether a postulated cause can be
identified as causa
sine qua non
of the loss in question. The other is a remote one involving
juridical problem in the solution of which considerations of public
policy may play a part.
[17]
Turning now to the present case, the inconsistency in relation to the
platform at which the plaintiff fell and later discovered
by the
security personnel of the defendant as well as the time during which
he was discovered cast sufficient doubt in the court's
mind regarding
the truthfulness of his version. His reply to further particulars
states that the incident occurred on platform
3. He testified that
the incident occurred at platform 4; the defendant's witnesses who
testified without contradiction said they
found him at platform 1
next to where the train parked on the wrong side of the platform. On
this score the probabilities do not
favour the plaintiff.
[18]
Counsel for the defendant had argued that the contemporaneous
documents and reports created after the accident cannot be ignored.
He further stated in his argument that it is highly improbable that
the plaintiff would exit the train through the open door passing
through a number of people, regard being had to where he was standing
in the coach, as he testified. In support of his submission
he
referred me to the decision in
South African Rail Commuter
Corporation Limited v Almmah Philisiwe Thwala
2011 ZASCA 170
(CC).The relevant paragraphs of this case read as follows:
"11.......................
...
the
onus to prove negligence rests on the plaintiff and requires more
than merely proving that harm to others was reasonably foreseeable
and that
a
reasonable
person would have taken measures to avert the risk of such harm. The
plaintiff must adduce evidence
as
to
the reasonable measures which could have been take to prevent or
minimize the risk of harm.
15. But I have
difficulty with the factual finding made by the court below that the
train, in particular, the respondent's coach,
was 'overcrowded ',
from which inference of negligence was drawn . The sum of the
respondent's evidence on this aspect was merely
that the train was
'very full '.. .even up to the door'. She neither pleaded nor
established in evidence that the appellant had
a duty to regulate the
numbers of its rail passengers nor what reasonable measures it ought
to have implemented in that regard
to ensure passenger safety that it
omitted to take. She led no evidence, for example, on the passenger
capacity of the coach when
the train reached her station etc. One
cannot assume simply from the fact there were standing passengers
that the coach carried
an impermissible number as appellant's policy
and applicable safety standards might well legitimately have allowed
that practice.
18. As indicated above
, the premise of the respondent's case was that she fell and
sustained injury as
a
result
of being pushed by excessive crowd 'from inside
'
a
moving train
.
Quite
apart from the finding that the evidence does not establish
that she was pushed and fell because the coach
was overcrowded an her failure to establish the reasonable
precautionary measures
that the appellant could have taken to prevent
passengers knocking one another down when disembarking from the
stationary trains,
the respondent's single, insurmountable hurdle is
her failure to establish that the train was in motion when she was
ejected from
it. It seems that once the court accepted that the train
was stationary when she the respondent disembarked and the accident
occurred,
that should have been the end of the respondent's case.
"
[19]
Upon careful evaluation thereof, the evidence adduced by the
plaintiff falls short of the requirements and standard of proof
stated in
Thwala's
case. This court finds that the evidence
establishes that there is no causal nexus between the defendant's
alleged negligent behavior
and the damages suffered by the plaintiff.
Accordingly, plaintiff failed to adduce sufficient evidence to prove
causation.
[20]
In the result, the plaintiff s action is dismissed with costs.
_________________
P
H MALUNGANA
Acting
Judge of the High Court
Of
South Africa
Gauteng
Division, Pretoria
Appearances
FOR
THE PLAINTIFF: ADV.Z S RASEKGALA
INSTRUCTED
BY : MAKWARELA ATTORNEYS
TEL:
012 326 1603
FAX:
012 326 1604
REF:
MAK 0124/CIV
FOR
THE DEFENDANT: MR. B L SHABANGU
INSTRUCTED
BY : LEDWABA MAZAWAI ATTORNEYS
TEL
: 012 346 7314
FAX
: 012 346 7313
Mr.
B Shabangu/LIT.93/2014/BLS