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[2016] ZAGPPHC 213
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Maruka v Passenger Rail Agency of South Africa (8905/2014) [2016] ZAGPPHC 213 (15 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION:
PRETORIA
15/4/2016
CASE NO: 8905/2014
Reportable
Of interest to other
judges
Revised
In the matter between:
PHILLIP MARUKA
PLAINTIFF
And
PASSENGER RAIL AGENCY OF
SOUTH AFRICA DEFENDANT
JUDGMENT
MSIBI AJ
INTRODUCTION
[1] The plaintiff has
instituted proceedings against the defendant; (PASSENGER RAIL AGENCY
OF SOUTH AFRICA) for damages as a result
of injuries he sustained
when he fell out of a moving train at Thembisa Train Station.
[2] The defendant is
opposing the action; submitting that plaintiff did not fall from a
moving train; he was actually hit by a train
as he tried to cross the
railway line illegally.
[3] The parties had
reached an agreement that issues of quantum and merits should be
separated, and that the issue of quantum be
postponed sin die.
Accordingly, in terms of section 33 (4) of the Uniform Rules of Court
I have ruled that there be a separation
of issues.The present case
deals with the merits only.
ISSUES IN DISPUTE
BETWEEN THE PARTIES
[4]
(1) whether or not the
plaintiff was indeed a passenger of the defendant's train, during the
time that he sustained the injuries.
(2) whether the injuries
were sustained as a result of the defendant's negligence.
(3) whether defendant
failed to take reasonable steps to guard against the falling of the
plaintiff.
SUMMARY OF EVIDENCE
[5] The only evidence as
to the merits of the claim is that of plaintiff. Copies of his
medical records from Thembisa Hospital contained
in the Index to
Personal Documents Bundles were submitted as corroboration of the
plaintiff's claim.
[6] On 24 January 2014,
Mr Maruka, the plaintiff, was on his way to work when he bordered
train number 0152 at Thembisa Train Station.
It was between 06: 15
and 06:30 am.
[7] He had been using
railway transport since he started working in 2013. He boarded the
train as usual. There was a lot of shoving
and pulling from within
the train. The train pulled off, still with its doors open. Plaintiff
was suddenly pushed out as a result
of the shoving and pulling. He
fell out onto the platform; landing on the right hand side of his
body. They were pushed out being
three in number. One remained in the
train, the other jumped out to safety, while he fell out of the
train. He never lost consciousness.
As a result of the fall he
sustained a fracture of his right arm.
[8] He got up and went to
seek help from a ticket examiner, who called a security guard. The
security guard took him to another
room. He was together with the
male security guard and one female security guard.
[9] The guards asked for
his names and identity document. He produced a passport document. An
ambulance was called and he was transported
to Thembisa Hospital,
where he was admitted for three weeks.
DEFENDANT'S VERSION.
[10] The defendant
challenged the evidence of the plaintiff by calling two witnesses.
[11] Mr Helani Godfrey
Mabasa, testified that he is a security guard for Changing Tides
Security Services stationed at Limindlela
Station.
[12] On 24 January 2014
he was on duty at Thembisa Train Station. While at the guard room,
the ticket examiner told him about a
"liability". They both
fetched the man and took him to the guard room. While interviewing
him, they asked him what happened.
The person said he got injured
while crossing a railway line. He was hit by an oncoming train and
fractured his arm in the process.
He further stated that the incident
occurred while there was a stationery train on platform 1. An
ambulance was called that transported
plaintiff to hospital. No other
train reported similar incidents on this specific day. Mr Mabasa
confirmed that he personally wrote
a Metro Rail Services Statement
concerning this event.
[13] Mr Langton Masingi
employed by PRASA as the investigating officer. He was tasked with
the duty of investigating and compilling
a report in this matter. He
visited the alleged scene of the incident in the company of Mr Mabasa
and other officers. Plaintiff
was not present. Based on his own
observations of the scene and report from Mr Mabasa he compiled a
report which also included
photographs of the alledged railway line.
BRIEF ANALYSIS OF
EVIDENCE
[14] Mr Maruka testified
that he was standing one pace away from the train door. There were
two other passengers between him and
the door. During cross
examination Mr Maruka was asked about the presence of the steel poles
at the entrance of the train. He indicated
that there were none close
to him. It was put to him that he was not in a train. He did not fall
from a moving train; he was actually
hit by another train while
crossing the railway line illegally. To this statement, plaintiff
responded that he had a valid train
ticket he had no reason to do
that. (Copy of his train ticket for that day is included in the index
to merit bundles, numbered
2). Plaintiff also added that he is still
in possession of the original train ticket.
[15] The version that
plaintiff gave in court is the same version that he gave to the
hospital personnel upon his admission in Thembisa
hospital. He denied
the version of the defendant that he reported to Mr Mabasa, that he
was hit by a train while crossing a railway
line. He further stated
that he would not do such, knowing that it is unlawful to do so.
[16] It is clear to this
Court that Mr Maruka had been a commuter since 2013. It was not
disputed that he was on his way to work
on that morning. He testified
that a lady security officer took down his statement. On the other
hand Mr Mabasa insists that he
is the one that recorded the
statement.
[17] In his heads of
argument, Counsel for the plaintiff submitted that Mabasa was
energetic and confident in his evidence in chief
but under
cross-examination his demeanor had changed. Mr Mabasa conceded to the
following under cross examination.
(a) that it is illegal to
cross a railway line and that offenders are to be arrested.
(b) that he had a duty as
a security guard to arrest anyone who commits this
offence.
(c) that he was supposed
to have arrested Mr Maruka for crossing a railway line illegally. He
further gave an explanation that he
did not to arrest him due to his
injuries.
(d) that he did not
examine the extent of his injuries.
(e) that Mr Maruka, gave
them his full names and passport when requested to do so.
(f) that he however
referred to him as "the unknown injured commuter" in his
statement, despite the fact that he already
had established his
identity.
(g) that he made several
mistakes in his statement concerning this incident.
(h) that he did not take
the plaintiff to the scene of the incident, for him to point it out;
considering the fact that he was able
to walk.
[18] Counsel put it to
him that he is clearly trying to protect himself or someone due to
the nature of his evidence and the contradiction
contained therein.
[19] Mr Masingi's
evidence is to the effect that he investigated the matter and
compiled a report thereafter. He also conceded during
cross
examination that he based his final report on the information and
report that he obtained from Mr Mabasa, which was full
of mistakes.
[20] In his heads of
argument Counsel submitted that the plaintiff's version is a true
account of the events that led to his injury
at Thembisa Train
Station on 24 January 2014.
[21] Defendant's Counsel
submitted in her heads of argument that plaintiff was not injured in
one of their trains. His injuries
were proved and they are not
disputed, however they were not sustained, as a result of the
defendant's negligence. Should the court
find that he fell from the
moving train defendant further disputed the allegation that its
employees failed to take reasonable
steps to guard against the
falling of the plaintiff.
[22] Counsel further
submitted that there is nothing brought by the plaintiff before this
court which can provide a foundation for
a claim of liability against
the defendant. It is the defendant's contention that legal causation
has not been established by the
plaintiff, in that he did not prove a
nexus between the injuries that he sustained and the duty that was
owed to him by the defendant.
This duty was left to the court to
speculate or hypothesize.
[23] Counsel for the
defendant referred this court to the case of
IRVINE MASHONGWA
V
PRASA
(CC T 03/15)
held that
PRASA has a Constitutional duty to safeguard the physical wellbeing
of its commuters or passengers. The court's attention
was drawn to
the fact that PRASA's duty is in relation to its passengers only.
This submission is in the light of the defendant's
version that
plaintiff did not fall from any of their trains. Since he was not in
any of their trains, there was no duty owed to
him.
[24] Plaintiff gave
evidence that was clear, straight forward and not exaggerated. Even
during cross examination he was not evasive,
he did not struggle to
answer questions. The same cannot be said about Mr Mabasa, the
security guard. The discrepancies that I
highlighted in my evaluation
of his evidence leave much to be desired. His incident report is
incorrect in more than one instance.
The court cannot take his
evidence to be probable, after taking into consideration all the
discrepancies in his evidence. There
was no evidence led by the
defendant to the effect that doors were closed when the train
departed from Thembisa Train Station.
The time that this train
disembarked from the station has been disclosed by the plaintiff. The
train driver and conductor are unknown
to the plaintiff but known to
the defendant. Neither of the two was called to testify to the effect
that the train doors were closed.
Accordingly I am
satisfied that plaintiff has established that he was a lawful
passenger on train 0152 leaving Thembisa Train Station
on 24 January
2014 around 6:20 am and he was ejected from this moving train by the
pushing and jostling for space from fellow commuters
while the doors
were open.
WERE INJURIES
SUSTAINED AS A RESULT OF DEFENDANT'S NEGLIGENCE?
[25] The plaintiff
alleged in his particulars of claim that the defendant was negligent
due to the following:
"(5) The sole
cause of the plaintiff's falling from the train was the negligence of
the conductor, whose identity is to the
plaintiff unknown, who at the
time of the accident was employed by the Defendant and was acting in
the course of and within the
scope of his employment with the
defendant and was negligent in one or more or all of the following
respects:
(5.1)
He/she failed
to keep
a
proper
lookout
(5.2)
He/she
failed to close the doors timeously
or
at all
(5.3) He/she
allowed
the
train to travel
with open doors
(5.4)
He/she
signaled
to the driver that it
was safe to set the train in
motion
whilst
its doors
were wide open
(5.5)
He/she
signaled
to the driver to set
the train in motion
whilst
passenger
were still embarking
and/ or disembarking
from
a
train
(5.6)
He/she failed to pay
due regard
to the
safety of passengers
on
board of the
train
(5.7)
He/she failed to seek assistance from the defendant to provide
adequate equipment and personnel to control and/ or protect
passengers on board and/or alighting and/or boarding the train.
(5.8)
He/she
failed to present
the accident
when, by the exercise of still
and reasonable
care, he
could
and should have
done
so.
(6) Alternatively the
sole cause of Plaintiff's injuries was the negligence of the driver
whose identity is to the Plaintiff unknown,
who at the time of the
accident was employed by the Defendant and was acting in the course
of and within the scope of his employment
with the defendant and was
negligent in one or more or all of the following respects:
(6.1)
He/she set the train in motion at a dangerous and/or inopportune time
with the doors open
(6.2)
He/she failed to check that it was safe for him/her to set the train
in motion
(6.3)
He/she set the train in motion without checking that all the doors
were closed.
(6.4)
He/she set the train in motion whilst passengers were
still alighting from and!/or boarding into the train.
(6.5)
He/she
failed to keep a proper
lookout,
and/or;
(6.6)
He/she failed to prevent
the accident
when
by the exercise
of
skill and reasonable
care, he/she
could and should have done so.
(7) Further
alternatively the sole cause of plaintiff's falling from the train
was the joint negligent of the conductor and the
driver who their
identities are to the plaintiff unknown and were negligent in one or
more or all of the respects alleged in paragraph
(1) and (2) above
respectively.
(8) Further
alternatively the sole cause of plaintiff's falling from the train
was the unlawful conduct and negligence of the defendant
which in
breach of duty of care which it owed to its passengers specifically
the plaintiff was negligent in one or more of the
following respects:
(8.1) By failing
to provide
personnel
to guide,
control and/or protect
passenger
on board
and/or
alighting
and/or
boarding
the train
(8.2)
By
failing
to put
measures
in
place
to ensure
that the train was not
set in motion
whilst the doors are still open.
As a result of the
said omission plaintiff sustained serious bodily injuries consisting
of the following injuries:
(a)
Right fractured
arm.
(b)
General body
pains"
NEGLIGENCE
[26] The test for
negligence was laid down in
KRUGER
VS
COETZEE
(2)
SA 428 A
as follows.
"For
the
purposes
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."
[27] In the matter before
me defendants never conceded to possibility of harm nor that they
would or should have taken steps to
guard against such harm. Their
defense is based on denial that plaintiff fell from a train. Their
version is that plaintiff exposed
himself to danger by crossing a
railway line illegally.
[28] In
IRVINE VAN
SAM
MASHONGWA
AND
PASSENGER
RAIL AGENCY
OF
SOUTH
AFRICA
2015 ZACC
page 36
at para
[20] MOGOENG
CJ
states as follows:
'Public
carriers
like
PRASA
have
always
been
regarded
as
owing
a legal duty to
their
passenger
to
protect
them
from
suffering
physical harm while
making
use of their
transport
services.
That is true of 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
carriers
and
passengers,
usually,
but
not
always
based
on
a contract.
It
also
stems
from
its
public
law
obligation. This merely
strengthens the
contention
that
a
breach
of
those
duties
is
wrongful
in
the
delictual
sense and could attract
liability
for
damages"
[29] In this matter
plaintiff in his particulars of claim indicated that the conductor
and or driver of the train omitted to close
the doors of the train
before it could disembark from Thembisa Train Station.
[30] In applying the
approach which was formulated in Kruger v Coetzee the court will ask
itself the following questions.
· Would a
reasonable person in PRASA's position have reasonably foreseen harm
befalling Mr Maruka as a result of the train
disembarking with open
doors?
· If so, would she
have taken reasonable steps to prevent harm to Mr Maruka?
· If she would,
did PRASA take reasonable steps to avert the foreseeable harm that
ultimately occurred?
[31] In Minister of
Safety and Security v van Duivenboden 2002(6) SA 431 SCA Nugent JA
held at paragraph 21: "Where
the conduct
of the
State as represented
by the
persons who
perform functions
on
its
behalf,
is
in
conflict
constitutional with
its duty
to
protect
rights
in
the Bill
of rights,
in
my
view,
the norm
of
accountability
must necessarily
assume
an
important
role
in
determining
whether
a
legal
duty
ought to be recognized in any particular
case."
And p446 and447:
"However,
where
the
State's
failure
occurs
in
circumstances that
offer
no
effective remedy
other
than
action
for
damages, the
norm
of
accountability
will
in
my
view, ordinarily demand the recognition of
a
legal duty
unless there are other
considerations
affecting
the public
interest
that outweigh
that norm".
No evidence was led by
the defendant to rebut the version of the plaintiff that the doors of
the train were open while it was in
motion. I will deal with the
matter on the basis that the coach doors were left open.
[32] In Mashongwa case at
paragraph [46] and [48] Mogoeng AJ further held as follows.
"It
bears yet
another
repetition
that
there
is
a
high
demand
for
the use of
train
since
they
are
arguably
the most
affordable
mode
of
transportation
for
the poorest
members
of
society,
for this reason,
trains
are often
packed
to the point
where
some
passengers
have
to
stand
very
close
or
even
lean
against doors. Leaving doors of
a
moving train open therefore poses
a
potential
danger
to passengers
on board."
"Doors
exist
not
merely
to
facilitate
entry
and
exit
of passengers, but
also
to secure
those
inside
from
danger.
PRASA
appreciated
the
importance
of keeping
the doors
of
a
moving
train closed
as
a
necessary
safety
and security
feature. This is
borne
out
by
a
provision
in
its
operating
procedures requiring
that
doors
be
closed
whenever
the
train
is
in
motion.
Leaving
them
open
is thus an obvious
and well known potential
danger
to passengers."
[33]
In
SOUTH AFRICAN RAIL
COMMUTER CORPORATION LIMITED and AMMAH PHILISIWE THWALA
2011 ZASCA
170
the
plaintiff
had
sustained injuries
after
she
was pushed
out
of
a
train.
The
question
was
whether
the train
was
stationery or
in
motion. Plaintiff's
claim
was
dismissed due
to
the fact
that
she
fell
while
the
train
was
stationery.
Had the
court
made
a
finding that
the
train
was
in
motion
she
would
have
succeeded
in
her
action,
on
the basis
of
negligence.
It was
held
that
negligence
cannot
be
proved
where
the doors of the train were
open while the train was
stationery.
[34] It is my finding
that a heavier burden is placed on a defendant where greater risk
exists. In this matter the risk or harm
was to plaintiff's life and
limb. A reasonable person or organ of state would have reasonably
foreseen that Mr Maruka or any commuter
would fall as a result of a
train disembarking with open doors. It is also expected that PRASA
should have taken reasonable steps
to prevent that harm from taking
place.
[35] There are simple and
reasonable steps in making sure that the doors are always closed when
the train is in motion. In this
matter PRASA did not take reasonable
and necessary steps to avert the foreseeable harm. As a result of
this omission Mr Maruka
was pushed out of the moving train and fell.
Had the doors of the coach in the train that Mr Maruka was travelling
in been closed,
it is more probable that he would not have been
pushed out of the moving train. Plaintiff would not have sustained
the injuries
and the fracture to his arm.
[36] It is my finding
that defendant failed to ensure that doors of the coach remained
closed while the train was in motion. I do
find that defendant failed
to ensure that commuters in general and plaintiff in particular did
not fall from the moving train,
as claimed in the plaintiff's
particulars of claim.
[37] I find that
defendant was negligent, and such negligence was the sole cause of
the plaintiff's injuries.
ORDER
1.
The
defendant
i
s liable for
1
00% of
plaintiff's proven or agreed damages.
2.
Defendant
to pay plaintiff's costs in respect of the dispute on merits of
the
case.
3.
The
question of quantum
is postponed sine die.
_________________
MSIBI S M
ACTING JUDGE
OF
THE
HIGH COURT
OF
SOUTH AFRICA GAUTENG
DIVISION PRETORIA
HEARD ON: 17 MARCH
2016
DELIVERED ON:
COUNSEL FOR PLAINTIFF:
ADV T C MAPHELELA
ATTORNEYS FOR
PLAINTIFF: M A SELOTA
ATTORNEYS COUNSEL FOR
DEFENDANT: ADV M T MANKGE
ATTORNEYS FOR
DEFENDENT: JERRY NKELI AND ASSOCIATE INC