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[2017] ZAGPPHC 55
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Mongatane v Passenger Rail Agency South Africa (85538/2014) [2017] ZAGPPHC 55 (22 February 2017)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT
PRETORIA
LOCAL DIVISION
CASE
NO: 85538/2014
REPORTABLE:
Yes
OF
INTEREST TO OTHER JUDGES: Yes
REVISED.
22/2/2017
In the matter
between:
NTHETHE
WELHEMINA
MONGATANE
Plaintiff
and
PASSENGER RAIL
AGENCY SOUTH
AFRICA
Defendant
JUDGMENT
Senyatsi
AJ
Introduction
1.
This
is a claim for damages of bodily injuries amounting to R2 million
arising out of injuries sustained by the plaintiff as a result
of
allegedly being pushed as he was getting out of a train owned by the
defendant at Shortpark Station on the 27
th
of September 2013.
2.
By
agreement between the parties the issue of quantum was deferred to a
later date and the court was required to make a determination
of the
merits.
3.
The
plaintiff testified and called one witness in support of her
evidence. The defendant called three witnessed to testify on its
behalf.
Facts
4.
On
the 27
th
of September 2013, the plaintiff was a passenger in a train.
5.
She
had boarded the train at Olifantsfontein. The station was full of
passengers due to the delays occasioned by other trains which
had not
yet arrived to ferry the passengers.
6.
She
forced her way into the coach which was jam-packed with other
passengers. The coach was so full that she could not see her handbag
and had to hold on to it whilst standing in the train.
7.
She
stood all the way from Olifantsfontein to Sport Park station where
she was going to alight. She had boarded train number 0611
in the
morning at about 6h00 that day.
8.
There
were no train guards in her coach. Some passengers alighted at the
stations between Olifantsfontein and Sports Park station
which is on
the way to Pretoria.
9.
When
she reached Sports Park station with the train still full, she forced
her way through to alight and according to her she was
pushed by
other fellow passengers. She tripped as a result, and fell on to the
platform.
10.
She
sustained a fracture to her ankle. No evidence was led on the extent
of her injuries.
11.
The
second witness for the plaintiff was Polumia Kgadimisha Kgare who
testified that the train from Olifantsfontein was full. She
was not a
friend of the plaintiff and only knew her as a fellow passenger as
they always used the same train to work from Olifantsfontein
station.
She became acquainted with the plaintiff.
12.
She
confirmed that the train was full on the day in question.
13.
As
she alighted the train from Sports Park station, she heard the scream
of a woman from behind her as she was walking away from
the platform.
When she looked back, she discovered that it was the plaintiff on the
ground who was sitting down.
14.
She
went back to assist her and was informed by the plaintiff that she
had fallen from the train. The plaintiff asked her to use
her(the
plaintiff’s) mobile phone to let her daughter know of the
accident which she did. She did not see how the plaintiff
fell from
the train.
15.
She
confirmed that the coach she was in was full of passengers.
16.
The
train had no guards on board save for one who sat in the back seat of
train. The passengers were pushing one another to get
on board and
alight from the train when they left Olifantsfontien station. It
appeared to her that there were delays of other trains
as the volume
of passengers on the platform at Olifantsfontein station was
unusually high.
17.
She
provided pictures of a full train with the passengers hanging over
doors and at the back. She testified that she normally takes
those
pictures if she could not board the train due to over congestion of
passengers to use as evidence for the reporting late
to work.
18.
On
the day in question however, she was able to board the train although
it was full. She did not for that reason take the pictures
of the
extend of the passengers on board the train.
19.
She
was joined by a female security officer and together they helped the
plaintiff to a nearby bench where then proceeded to sit
down.
20.
An
ambulance was called and the plaintiff was taken to hospital.
21.
Three
witnesses testified on behalf of the defendant.
22.
Fumani
Brony Mashaba testified that he was employed by the defendant as a
train guard from 2012 to date with eight years of experience
in that
role.
23.
He
was on duty on 27 September 2013 and went to Johannesburg from
Pretoria at 3h30 in the morning on train number 044. He then,
on the
same morning, took train number 0611 from Johannesburg to Pretoria as
part of his guard duties.
24.
He
sat at the last coach in back of the train. His job was to open and
close all the train doors after the passengers have boarded
or
alighted the train. He did this by sticking his head out of his coach
and once satisfied that all have boarded or alighted
he would
close the doors that he had opened before the train came to halt.
25.
Usually
when the station is on a straight line platform , this would require
him to stick his head through the winding to see ahead
,but he has to
alight the cabin of his coach if the station has a curved line to
ensure that passengers safely board or alight
the train before he
goes back to his cabin to close the doors.
26.
His
testimony was that when train no. 0611 arrived at Olifanstfontein
station, the station was not unusually full of passengers.
According
to him, the volume of passengers was quite normal. He did not observe
any pushing of the passengers alighting or getting
aboard the train.
27.
When
arriving at the Sports Park station, the passenger volume was also
normal and not unusually full. He did not see the plaintiff
or the
platform as the train was pulling away from the station. He conceded
that where he sat in the train he did not have an idea
as to how full
the coaches were. He was also the only guard on the train the day of
the incident.
28.
He
testified that Olifantsfontein is an average station with neither too
many nor too few passengers thereof. Sport Park on the
hand, is a
small train station with a low volume of passengers.
29.
According
to him he has never seen a train full of passengers and said
passengers hanging onto the door handles. He further testified
that
he had never seen passengers pushing and shoving one another to
either board or alight the train. He did not see the plaintiff
fall
to the platform or see her lying down as the train was leaving Sport
Park station.
30.
Konani
Constance Mudau, a female security officer working for R1 Security
contracted by the defendant testified as a second witness.
31.
She
was on duty and based at Sport Park station on the day the incident
occurred. She did the patrolling and observation duties
on behalf of
the defendant having started working on a 06h00 to 18h00 shift. She
was at platform 2 where train 0611 came to a halt
which arrived at
Sports Park station at about 07h00.
32.
Her
duties involve observing passengers getting aboard or alighting the
train. After train No: 0611 departed , she noted two ladies
standing
and enquired as to if all was well upon which she was told by one of
them that she slipped when she was getting out of
the train due to
her sandals. She took the injured lady, the plaintiff, to a chair
nearby and informed her colleague who then called
the supervisor.
33.
An
ambulance was called as it was clear that the plaintiff was injured.
When her colleague arrived at the scene, the plaintiff stated
that
she slipped and fell due to the sandals she wore on the day.
35.
Upon
arrival of the ambulance personnel at about 8h00, the plaintiff was
asked about the cause of injuries in her presence and she
stated that
she slipped at the platform whilst getting off the train. The
plaintiff was taken to Tshwane District Hospital for
treatment.
36.
According
to this witness, the train was not full and she did not see people
pushing one another to board or disembark the train
on the day in
question. She also that she had never seen people hanging on
the doors of the train due to it being full.
37.
She
conceded under cross examination that she did not prepare the
statement of the incident but same was prepared by one Donald
Macwele
who works for the defendant. She conceded that she signed the
statement at the same time that Molimi , the other
witness, signed
his statement.
38.
Another
witness, Mr Mahlatse Nicents Molimi, testified for the
defendant. He was on guard duty on the day of the
incident as
he was employed by R1 Security as a security officer and was
stationed at Sport Past Station.
39.
He
observed a lady being assisted by his colleague, the second witness,
Constance Modau at the exit point of the station.
The lady, who
we now know was the plaintiff, was injured from a fall which
she claimed was caused by her slipping on the
platform as she left
the train due to the sandals she had put on.
40.
This
witness also testified that the plaintiff claimed that the cause of
her injury was due to slipping caused by the sandals shoes
she wore.
41.
He
called his supervisor who contacted the Joint Operation Centre of the
defendant as a result of which an ambulance was called
to take her to
hospital.
42.
He
also testified that he was present when the plaintiff informed the
ambulance personnel that she slipped and fell as she disembarked
the
train due to the sandals she wore on the day of the incident.
43.
He
confirmed that when he saw the plaintiff for the first time, she was
in the company of his colleague Ms Mudau and another
unknown
lady and they were about 10-20 metres away from him
44.
This
witness was not helpful regarding the volume of passengers inside the
train as he was patrolling the platform parameters.
He however
conceded under cross-examination that the statement that formed part
of the bundle of evidence was taken by one Donald
Macwele, who is
employed by the defendant and read out to him to sign. He
confirmed that he was employed by R1 Security and
was stationed at
Sport Park Station
Legal issues to
be determined
45.
The
issue to be determined is whether or not the defendant owed duty of
care to the plaintiff and whether the defendant failed to
take
reasonable steps to ensure the safety of the plaintiff as a passenger
in the train. Furthermore, the Court needs to
determine as to
whether failure by the plaintiff to amend her particulars of claim to
support the evidence to be adduced at trial
was fatal to her claim.
Legal Principles
46.
The
plaintiff bears the onus of proving her case.
47.
In
Carmichele v Minister of Safety and
Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC)
Ackermans
and Goldstone JJ held that in order to succeed with the claim, the
applicant would have to establish at the trial that:-
“
(a)
the
defendant owed a legal duty to the plaintiff to protect her;
(b)
Its
employees or agents acted in breach of such a duty and did so
negligently;
(c)
There
was a casual connection between such negligent breach of the duty and
the damage suffered by the plaintiff”.
The
court went and held that if such onus is not discharged by the
plaintiff, the defendant’s denial of liability should
be found
to be reasonably possibly true, and the only probable evidence before
the court.
48.
The
principle had been confirmed in
National
Employers’ General Insurance v Jagers
1984 (4) SA 347
AT 440
E-G
by
Eksteen AJP where he held at 440D-F that “
It
seems to me, with respect, that in any civil case, ……………..,
the onus can ordinarily only be
discharged by adding credible
evidence to support the case of the party on whom the onus rest.
Where the onus rests on the
plaintiff as in the present case, and
where there are two mutually destructive stories, he can only succeed
if he satisfies the
court on a preponderate of probabilities that his
version is true and accurate and therefore acceptable, and that the
version advanced
by the defendant is therefore false or mistaken and
falls to be rejected. In deciding whether that evidence is true
not the
Court will weigh up and that the plaintiff’s
allegations against the probabilities. The estimate of the
credibility
of a witness will therefore be inexplicably bound up with
a consideration of the probabilities of the case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably true. If however the
probabilities
are evenly balanced in the sense that they do not
favour the plaintiff’s case any more than they do the
defendant’s,
the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true
and that the defendant’s
version is false.”
49.
In
Stellenbosch Farmers Winery Group
Pty Ltd and Another v Mutual Ex cie and Other 2003(1) SA 11 SCA
at 141
the Court held that :- “
The
technique generally employed bby Courts in resolving factual disputes
of this nature …..the Court must make a finding
on (a) the
credibility of the various factual witnesses; (b) their reliability
and (c) the probabilities …as to (c) this
necessitates an
evaluation of the probalbilities or improbability of each party’s
version of each of the disputed issues.
”
50.
As
to whether or not the defendant owes a duty of care to the public
making use of their trains as a mode of transport, the court
in
Mashongwa v Prasa 2016(3) SA 588 CC
held
that:-“
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 services. That is true of the
taxi operators, bus services and the railways, as attested
to by
numerous cases in our courts. 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 contention that a
breach of those duties is wrongful in the delictual sense and could
attract liability for damages. Safeguarding
the physical well-being
of passengers must be a central obligation of PRASA. It reflects the
ordinary duty resting on the 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.
”
51.
Overcrowding
in trains has been held by our courts as a breach of such duty of
care. See
Rail Commuter Action Group
v Transnet/ Metrorail 2005(2)SA 359 (CC) and Phalane v PRASA
(71408/203[2015] ZACTPPHC 804.
52.
In
Shabalala v Metrorail
2008 (3) SA 142
(SCA) the court held that the
onus to prove negligence rest on the plaintiff and it requires more
than the onus to prove that harm
was reasonably foreseeable and that
a reasonable person would probably have taken measures to avert the
risk of such harm.
53.
I
now turn to deal with the issue of failure to amend the pleading.
Rule 28(10) of the Uniform Rules of this Court provides
as
follows on amendment of pleadings and documents:- “
The
court may, notwithstanding anything to the contrary in this rule, at
any stage before judgment grant leave to amend any pleading
or
document on such other terms as to costs or other matters as it deems
fit
”.
54.
Our
Uniform Rules of the High Court require each party to set out in its
pleading a clear and concise statement of material facts
upon
which it seeks to rely for its claim with sufficient particularity to
enable its opponent to reply thereto. See
Minister
of Safety and Security v Slabbert 20102 ALL SA 474 (SCA).
55.
In
other words, the opponent must be properly informed of the case he
has to meet and not be ambushed at trial with material evidence
that
deviates from the material facts pleaded. See
Hillman
Brothers Ltd v Kelly and Hingle
1926 WLD 153.
56.
It
is impermissible for a plaintiff to plead a particular case and seek
to establish a different case at trial. It is also impermissible
for
a trial court to have recourse to issues falling outside the
pleadings when deciding a case. See
Minister
of Safety and Security v Slabbert
(
supra
).
Reasons for the judgment
57.
It
can never be argued in general that the defendant, as a commuter rail
carrier of passengers owes the duty of care towards its
passengers to
ensure that their safety is guaranteed when boarding its trains.
58.
That
duty of care would include ensuring that the coaches of its trains
are not over crowded.
59.
On
the day of the incident, the Plaintiff was a commuter in the train
owned by the defendant.
60.
In
her particulars of claim, she alleged that she was pushed by other
commuters whilst disembarking and the train was pulling out
of the
train station with its doors open.
61.
In
her reply to further particulars required by the defendant the
plaintiff alleged that she was pushed whilst sitting and this
is on
page 160 of the reply to further particulars by the defendant.
62.
The
court has not been asked to consider the amendment of the plaintiff’s
particulars of claim and this contradiction remained
throughout the
trial. It was contended on behalf of the defendant that the plaintiff
fell as a result of the sandals she was wearing.
This contention was
denied by the plaintiff and she claimed that the sandals she wore on
the day of the incident were reasonably
new.
63.
The
court heard and has no reason to doubt that the train was probably
full on the day in question. This was not
only
established by the plaintiff but also collaborated by Ms Kgare who
was a commuter on the day of the incident.
64.
The
court is not persuaded by the evidence of the train guard Mr Mashaba
as to the volume of passengers in the coaches as he sat
at the last
coach of the train and was not, in my view, able to see the extent of
volume of the passengers in the coaches. He was
at pains to show that
the train was carrying a normal volume of passengers and that as
train guard; he had never seen a full train
with passengers hanging
on the doors. I am not convinced by his evidence on that assertion.
65.
Having
made that conclusion, I am having difficulties with the evidence in
support of her claim pleaded in the particulars
of claim by the
plaintiff.
66.
The
case pleaded in the particulars of claim is that the plaintiff was
pushed as she was disembarking the train and fell as the
train was
leaving the platform but in her reply to further particulars to
the defendant, the incident took place whilst she
was seated.
67.
No
application was brought to this court to amend the pleadings to be
consistent with the particulars of claim and this is in my
view fatal
to the case of the plaintiff.
68.
As
stated is trite that in any civil case, each party is required to set
out in its pleadings a clear and concise statement of the
material
facts upon which it seeks to rely for its claim with sufficient
particularity to enable its opponents to reply thereto.
[1]
This requires that the opponent must be properly informed of the case
he has to meet.
69.
The
evidence adduced by the plaintiff as to the reason for her fall, is
not supported by any documentary evidence. On the
contrary, the
hospital records stated that the plaintiff advised that she slipped
and fell due to the shoes was wearing. The hospital
personnel had not
reason to record the information as such and did so on the strength
of what the plaintiff told them.
70.
The
defendant called two witnesses who contended that they were informed
by the plaintiff that the reason she slipped was due to
the sandals
she wearing on the day of the incident.
71.
As
a consequence of these material contradictions and failure to allege
a consistent concise statement of her case in the particulars
of
claim, the Court is not persuaded that the plaintiff has discharged
her onus to prove her case on the balance of probabilities
that she
was pushed from an overcrowded train and sustained injuries as a
result.
72.
If
that were so, the plaintiff would have been consistent in her
statement to all concerned that she was pushed from an overcrowded
train by fellow passengers and sustained injuries as a result of
falling.
ORDER
73.
The
claim is dismissed with costs.
______________________
Senyatsi AJ
Gauteng High Court, Johannesburg Local
Division
Appearances:
For the Plaintiff: Advocate M.E.
Phiyega
For the Defendant: Advocate M.T.
Mankge
Date of hearing: 1 November 2016
Date of judgment: 22 February 2017
[1]
(See
Minister of Safety and Security v Slabbert(
supra
).