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[2016] ZAGPPHC 582
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Ngodi v Passenger Rail of South Africa (54226/2014) [2016] ZAGPPHC 582 (10 May 2016)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 54226
/
2014
DATE: 10 MAY 2016
In the matter between:
SABELO SIZWE SIBUSISO NGOQI
Plaintiff
and
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
Defendant
JUDGMENT
MAKHUBELE AJ
INTRODUCTION
[ 1] The Plaintiff, a 26 year old male fell from a
stationery train onto or near the tracks of oncoming trains at
Mabopane Station,
Pretoria, Gauteng Province. He was subsequently hit
by an oncoming train and sustained injuries described in the
particulars of
claim as
"Fracture
of
femur
and Fracture
of right knee".
He
instituted a claim for damages against the Passenger Rail Agency of
South Africa ("PRASA") alleging that the incident
was
caused solely by negligence on the part of its employees.
[2] The trial proceeded on the issue of liability
only after I granted an order of separation of issues in terms of
Rule 33(4) of
the Rules of this Court.
[3] The negligence of the Defendant is based on the
following alleged omissions;
[3. 1] Failing to prevent the incident by exercising
reasonable care and attention
[3.2] being inconsiderate to plaintiff and other
commuters;
[3.3] Failing to ensure that all doors of the train
are closed before departure; and
[3.4] Allowing the train to depart when it was
dangerous and inconveniet to the commuters.
[4] The Plaintiff described the circumstances under
which he fell from the train in paragraph 5 of his Amended
Particulars of Claim
which reads in part as follows;
"
The
palintiff was
standing
in
front
of
an
open
d
oor in
one
of
the
cartrid
ges
( sic) ,
holding
onto
a
steel bar.
When the
train
stopped ,
passengers and/ or
commuters
from the
other
cartridge
(sic J
forced
their way into the
plaintiff's
cartridge because the
d
oor
I
their
cartridge
was
not
functioning. They
forced and/ or
maneuvered
their
way
into
the plaintiff's cartridge
in such
a
manner
that
the
Plaintiff
was over-powered and pushed
and
fell unto
the
opposite
rai
l
way
lane,
resulting
in
an
oncoming
train
d
departing
the station
hitting
him
on his lower bo
d
y"
[4. 1] The Defendant's Counsel made a point during
cross examination that his oral evidence in this regard differs
materially
with what he has pleaded in this paragraph. I agree with
counsel for the plaintiff that on a proper reading of this
paragraph,
the plaintiff is not admitting that the doors in his
carriage were functional. I do not think that his evidence was
different
from what is pleaded in this paragraph.
[5]
In
its
Amended
Plea
[1]
,
the
Defendant
blamed
the
Plaintiff
for
the
incident.
The
Defendant
alleged
that
the
incident
occurred
because
he failed
to
keep
a
proper
lookout,
failed
to
heed
warnings
inside
the
train and
on
stations and positioning
himself
in
a dangerous position
and
"elected
to
disembark
the train
on
the
track side and not
on
the platform and
attempted
to
cross
the adjacent
track
in front of
an
oncoming
train, which
res
u
lted
in
the
Plaintiff
be
i
ng
injured"
(highlighted
for
emphasis).
[5. 1] Though the other defences were not formally
abandoned , the Defendant's case on trial was built around the
highlighted parts
and the alternative pleas arising from it.
[6] In the alternative, one applicable if the other
one fail, the Defendant pleaded that;
[6. 1] there was no causal connection between the
negligence of the employees of the Defendant and the injuries and
damages suffered
by the Plaintiff;
[6.2] The
actions of the Plaintiff indicated in paragraph 6.2.1 to
6.2.4 were negligennt and that such negligence is
Contributory negligence as contemplated in the Approtionment of
Damages Act, Act
34 of 1956;
[6.3] Plaintiff knew that it was dangerous to disembark
the train on the track side and he acted with dolus, which excludes
any
negligence on the part of the Defendant; and
[6.4] By disembarking on the track side and not
on the platform side, with full knowledge and
appreciation
of the risks, the Plaintiff consented to be subjected to
the risk of injury .
COMMON
CAUSE
I
SSUES
[7] On the totality of the evidence pleaded and
concessions made by the witnesses during cross examination, the
following issues
are common cause .
[7.1] The Plaintiff, is a regular commuter who at the
time of the incident, had a valid monthly ticket that he used to
board the
Defendant's trains between his home town, Soshanguve and
his place of work at Groenkloof, Pretoria.
[7.2 On 30 April 2014, the Plaintiff arrived at Pretoria
( Bosman ) Station at about 17:00. According to the train schedule,
his
usual train , Number 96, was scheduled to arrive just before
18:00.
It
did not arrive as
scheduled.
[7.3]
He
then
took
a
train
to
Attridgeville
and
ended
up
at
Hercules
where
he
took
another
one
to
Marabastad.
There
he
boarded a
train
to
Mabopane.
This
train
was
full,
but
it
loaded more
commuters
along its route
[2]
until
Kopanong
station
where
the
first
batch
of
commu
ters
started
to
disembark.
[7.4] When he boarded the train, he used the doors on
its right hand side, where the platform was. Each coach or carriage
has four
doors, two on each side.
The subsequent passengers before Akasia station also
boarded the train on its right handside. The train changed tracks at
Kopanong,
with the result that the platform now was on the left hand
side of the train.
[7.5] The right handside of the train, from which
Plaintiff boarded the train had no Platform. It was now parallel to
the tracks
by the time the train arrived at Mabopane Station.
[7.6] Mabopane Station is the last for the route and it
has what is referred to as a "LOOP/BALOON" where trains
make a
U-Turn after offloading commuters and travel back to Pretoria.
The train that hit the Plaintiff had just made such a U-turn, whilst
the one he was travelling in was still off-loading commuters.
[7.7] The train that he was traveling in was offloading
commuters at Platform 6.
The distance between Platform 6 and Platform 7 where
Plaintiff tried to climb onto before he was hit by the other train is
about
1,5 to 2 meters.
[7.8] The height of a platform is about 1,2 meters. The
train doors are on the same level with the platform ground.
[7.9J Loose small stones, with a mixture of concrete and
more or less the size of an ice cube cover the ground between the two
platforms.
[7.1OJ The Plaintiff fell on his back next to the tracks
of the train that was traveling in the opposite direction to the one
he
fell from. He did not stand u p, but crawled towards Platform 7,
touched the platform and lifted his body up. His upper body was
already on top of the Platform 7 when the train hit his legs.
[7. 1l J Platform 7 is not a beeline or "shortcut"
out of Mabopane Station.
ISSUES
THAT ARE IN DISPUTE
[8]
Whether there was any negligence on the part of the Defendant,
if so;
[9] Whether the Plaintiff contributed to the
negligence.
ORAL EVIDENCE
[ 1O] In view of the common cause facts , I will only
proceed to summarize the evidence in as far as the disputed issues
are concerned.
Plaintiff's case
[ 11] Ngoqi testified that the doors in the
compartment that he was m were and remained opened throughout the
journey.
During cross examination, the Defendant's counsel put
to him that evidence would be led to prove that the doors were not
open. However,
no such evidence was led by the time the hearing was
concluded.
Ngoqi
was also asked to confirm if he was aware that it is possible for the
doors to be forced open by passengers. He confirmed
that he knew that
this was possible.
[ 12] He testified further that after the platforms
were changed , the doors through which passengers had to alight from
the train
did not open , with the result that the passengers moved to
other carriages to disembark.
Initially
he disagreed with a suggestion from counsel for the defendant that
his carriage became emptier as passengers moved to
other carriages to
disembark. He indicated that passengers usually give each other a
chance to dismbark by going out and then coming
back in. He conceded
that it did become emptier as more passengers alighted along the
route.
[13]
He testified further that at Mabopane station he was pushed by the
people who wanted to go to the carriage behind the one he
was in to
disembark from the train.
[
14] He confirmed that one other person who was pushed also fell, but
he does not know what happened to him. Counsel for the defendant
put
it to him that there is an eyewitness that saw him and this other
person jump from the train. This other person got onto platform
7
before the train came. He denied having seen what became of this
person.
He denied having jumped . He knows the risks , and
furthermore, he knows Mabopane station very well. The lights are not
functional
at night and it is difficult to see the train when it
comes back from the loop. He would not have taken the risk of
jumping. He
always buy a monthly train ticket and would not board a
train without a ticket.
[15] He denied that he wanted to go to platform 7 as
alleged by the Defendant's witness and that this is the reason why he
jumped.
[16] He fell on his back, rolled over. He was on his
knees, he crawled and used his hands to touch the platform.
[17] It was suggested to him that he should have
remained between the two platforms because there is enough space for
a person to
do so whilst two trains pass . He testified that he did
not consider that as a safe option. His thinking was that because his
body
has already landed on the tracks, he thought that the safer
route would be to climb onto the nearest platform.
It was also suggested that it would have been safer
for him to go back to the train that he fell from. His response was
that it
would have been difficult to climb on the train as there was
no platform. The doors are high.
[ 18] On why he did not sustain injuries on his back,
the plaintiff explained that the concrete on the tracks is not slab,
bu t
loose stones.
Defendant's case
[ 19] The first witness was
Mr. Mathys Croukamp.
He testified that he was employed by PRASA as a train driver at
the relevant time. He arrived at Mabopane station at about 07:30
in
the evening. He made a u-turn at the loop after all passengers had
disembarked. He was heading back to the depot, at Wolmerton.
[20] Before he made the u-turn, he had stopped at
platform 6 where his passengers disembarked. After he left, another
train came
and stopped at platform 6. As he made the u-turn , he saw
a male person jump out of the train and he was followed by another
one.
He blew a hooter and applied emergency brakes. They kept on
moving to get onto platform 7. One of them made it, but one was hit
by his train . His upper body was on the platform and he was
struggling to lift his feet.
[21] Trains take long to stop because the entire carnage
fleet must come to a stand still. He stopped about 90-100 metres away
after
applying emergency brakes. He called Train Emergency control
from inside his train with his cellphone and requested medical
assistance
for the person that had been struck by his train. He
climbed out and walked back. He found this person lying on the
platform on
the yellow line. He was lying on his stomach with armed
crossed . He kept on saying that he could not feel his legs. He told
him
that help was coming. A lady security guard came running from the
back of platform 7. He told her what had happened. He had 33 years
service experience as a train driver at the time. He no longer works
for PRASA. He has seen people take chances like the plaintiff
did
before.
[22] He denied that the people who jumped from the
train fell down. According to him they were moving towards platform
7.
[23] The lighting at the station was good. His train
headlight was also on , but not bright because he was passing another
train.
He confirmed that he drafted the sketch plan that
depicts the layout of the Mabopane station.
[24] He confirmed that it is possible to force open
train doors from inside. The train guard at the back of the train
controls the
doors by pushing a button to open and close them. The
doors use air pressure.
If
a
door malfunctions, it could be a mechanical problem, but one can
still open them by applying force. Usually commuters notify
the guard
that the door has malfunctioned. The guard would then put a sign to
warn passengers not to use it.
[25]
Cross examination
elicited the
following responses;
[26] He saw the people jump as he was parallel to the
third or fourth coach of the other train .. He was about 40 meters
away from
them. He was travelling at about 40 kilometers per hour.
[27] He denied that there was anything that
obstructed his view and prevented him from clearly seeing the two
male persons jump
from the other train and walk towards platform 7.
His train has a big screen.
[28] He cannot dispute the Plaintiff s evidence that
there was commotion in the train he was traveling in because he was
not there.
[29] He demonstrated how people jump out of trains.
This entails putting hands on the platform. He saw the plaintiff
jump. He denied
a suggestion that it is possible that when he first
saw the plaintiff , he had already risen up after falling. He
reiterated that
he was the first person to arrive where the plaintiff
was lying .
[30] The second witness was
Margaret
Dimakatso
Chauke.
She testified that
she was employed as a security guard by a private company called
Enlightened Security and on the day in question
she was posted at
Mabopane Station.
[31] She did not see how the plaintiff was hit by the
train because she was at platform 6 checking the passengers that were
disembarking
from a train. The incident occurred at platform 7. She
went there after the incident and found him in a lying position. She
was
alerted to the incident by siren honking. She met with t train
driver and he was talking on the phone. He told her what had
happened.
[32] The train doors had no problem.
[33] She spoke to the plaintiff who told her that he
was hit by a train after he jumped the tracks and that the reason he
jumped
was because he wanted to take a shortcut as the other side was
full with people.
[33] She was checking passengers who were alighting
from a train at platform 6. She confirmed that she asked the
plaintiff if he
had a train ticket. She established that he had.
[34] She was
cross examined
by counsel for the
plaintiff
a
nd the following
responses were elicited;
[35] She recorded the incident in her pocket book,
but it has since been collected by her employer as it was full.
[36] She confirmed that she made a statement about
the incident . In the statement she did not indicate why plaintiff
chose to jump.
She did not read the statement back to the plaintiff.
She denied that what she wrote is not what he told her.
[37] Platform 7 is not a shortcut or shortest way out
of the station.
[38] It is an offence to to disembark from a train
through a wrong door. She made a statement about this and if
plaintiff was not
injured , he would have been arrested.
[39] The defendant closed its case.
ANALYSIS OF EVIDENCE
[40] The defendant did not lead any evidence with
regard to the ,issue of whether the doors were open or not. The
security guard
that was called to testify , Ms Chauke, is not
employed by PRASA. She testified that the doors were functioning.
Having heard the
evidence of Croucamp that the train guard is the one
who controls the train doors, I do not think that one can attach any
probative
value to the evidence of Ms Chauke. Her duties, according
to her is to check that passengers do not cross the railway line,
answer
their questions, and check tickets.
[41]
A train guard, or any other person who knows something about
functioning of train doors on the other hand would have told the
court about the actual state of affairs with regard to the
functioning of the doors of the specific train on the day in
question.
Ms Chauke, in response to a question to clarify why she
stated that the train doors were functioning, indicated that when a
train
leaves the station, she watches it and see that the doors are
closed.
She did not observe the doors of this particular
train. Furthermore, it is not her job. She could not explain how it
is possible
for her, even ; f it was her job, to see that all doors
are closed when she remain standing on the platform whilst the train
saunters
away.
[42] I do not understand why she was called to
testify. Having heard her testimony and considered the statement she
made, it would
appear that she is the one that came with the version
that the plaintiff jumped from the train. She destroyed that defence
herself
by conceding that platform 7 was not a shortcut or the
shortest way out of the station.
[43] Croucamp on the other hand appeared to me to be
an over-enthuastic witness. He has seen it all, and to him train
commute s
often jump off trains. It may be so, but the question is,
did plaintiff jump off the train on the day in question?. He did not
see what was happening in the train.
[44] This defence of contributory negligence or
self-assumption of risk appear to have been premised on the evidence
of Ms Chauke
as I have indicated above. Now, the plaintiff had a
monthly train ticket, and there is no apparent reason why he would
have wanted
to go to platform 7 because , as Ms Chauke conceded , it
was not a shortcut out of the station.
[45] On the other hand, I find the version of the
Plaintiff to be more probable. He was consistent and in my view
truthful.
LEGAL PRINCIPLES
[46] I agree with counsel for the both parties that
the " ers10ns presented before me as to how the plaintiff found
himself
on the tracks of an oncoming train are totally irreconcilable
and thus mutually destructive. Under the circumstances, two issues
arise for consideration:
[46.1] which of the two irreconcilable versions is
most
[46.2] whether the defendant has any duty of care
towards the plaintiff as a train commuter as alleged in the
Particulars of his
Claim, and if so, whether it has discharged it.
[47]
With
regard
to
the
first
issue,
the
approach
is stated
in
the
matter
of
Ste
llenbosch
Farmers
Winery
Group
&
Another
v
Martell
&
Others
[3]
.
The
co
u
rt
summarized the
technique
generally
employed to
resolve
factual
disputes
in
order
to
come
to
a
conclusion.
The
court
is
required to make findings on (a) the credibility of
the various factual witnesses; (b) their reliability; and (c) the
probabilities.
[48] On
the
question
of
onus,
the Supreme Court of Appeal, per Mhlanta
JA
had
this
to
say
in
the
matter
of the
City
of
Johannesburg
metropolitan
Council v Patric
Ngobeni
[4]
had
this
to
say:
"[50] It
is trite
that
a part
y
who
asserts
has
a
d
uty
to
discharge
the
onus
of
proof
In
African Eagle
Life
Assurance
Co
Ltd
v
Cainer,
11
Coetzee
J
applied the principle set
out
in
National
Empl
o
yers'
General
Insurance
Association v
Gany
1
931
AD
187
a
s
follows:
'Where
there
are
two stories
mutual
l
y
destructive,
before the
onus
is
discharged the
Court must be
satisfied that
the
story
of
the litigant upon
whom the
onus rests is
true
and the
other false.
It
is
not enou
g
h
to
say
that the
story
told by Clarke
is
not satisfactory in
every respect, it must be
clear
to
the
Court of first instance that
the
version of the
litigant
upon
whom
the onus
rests
is
the
true
version
. . . . '
[51]
The
approach
to
be
adopted when
dealing
with
the
question
of
onus
and the probabilities
was
outlined
by Eksteen
JP
in
National
Empl
o
yers'
General
v
Jagers,
12
as
follows:
'It
seems
to
me,
with
respect,
that
in
any civil
case,
and
in
any
criminal case, the onus can
ordinarily only be discharged by adducing credible evidence to
support the case of the part y on whom
the onus rests. In a civil
case the onus is obviously not as heavy as it is in a criminal case,
but nevertheless 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
satisfied the Court on a preponderance of
probabilities that his version is true and accurate and therefore
acceptable, and that
the other version advanced by the defend ant is
therefore false or mistaken and fall s to be rejected . In deciding
whether that
evidence is true or not the Court will weigh up and test
the plaintiff s allegations against the general probabilities. The
estimate
of the credibility of a witness will therefore be
inextricably bound up with a consideration of the probabilities of
the case and
, if the balance of probabilities favours the plaintif
f, 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
t
han they do the
d
efend
ant'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
i
s
false.'
[52]
In
the present case
the plainti
f
f,
d
uring
the
trial,
abandoned
his
main
ground and pursued his claim on the basis that Ledwaba negligently
discharged the firearm. It follows that the plaintiff bore
the onus
of proof and had to prove that Ledwaba had been negligent.
Accordingly, the defend ant no longer had a duty to prove the
defence
of justification as it could not raise such a defence against a claim
of negligence. In the result, the plaintiff had to
prove the element
of negligence on Ledwaba's part in order to succeed . Regarding the
question of onus, Spilg J remarked:
'I
am
satisfied
that
after
subjecting the
evidence in
this
manner the truth
is
readi
l
y
discernible. Moreover I am satisfied
that
irrespective of who
was required
to
d
ischarge
the
onus,
the
result
will
be
the same.'
[53]
I
d
o
not
agree
with
the
trial judge
when
regard is
had to
the
facts. It
is
difficult to
comprehend how the judge
could make this
statement unless he had pre-judged the
issues. He a
d
opted an
approach that
is
flawed and which
cannot be
applied when
faced
with two
mutual
l
y
destructive
versions.
It
was
imperat
i
ve for Spilg
J
to
have
been
al
i
ve
to
the
issue
relating
to
the
onus
and to
make
a
determination
in
that
regard .
Had the
trial
judge
ad
opted
a proper
approach
and applied the principles set
out
in
the
Jagers case,
the
result
would have
been
different.
I
will
hereafter
show
how
the
trial
judge erred
in his approach."
[49] I have no doubt in my mind, as I have already
stated above, that the version of the plaintiff is more probable.
[50]
The enquiry is not complete though because even if he was pushed, the
next question is whether this and the resultant harm
was foreseeable,
and if so, whether there is anything that the Defendant could have
done to prevent the harm, which should also
be foreseable.
[5
1
]
The defendant concentrated on proving that the Plaintiff
jumped and forgot to place facts before me with regard to the issue
of
negligence.
[52] I t is the defendant that should have led evidence
with regard to measures that it took to ensure that train passengers
are
safe.
The test for negligence
is
as formulated in the matter
of
Kruger v Coetzee
. Jolmes JA formulated it as
follows in paragraph 430E
[5]
"For
the purposes of
liability
culpa
arises
if
-
(a) a diligens
paterfamilias
in the position
of the
defendant
-
{i) would foresee the
reasonable
possibilit y
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 defend ant failed
to take
such
steps.
[53] It is a basic fundamental requirement for the
safe operation of a passenger train that it should not depart with a
door open.
The defendant should in my view have placed evidence
before me with regard to standard operating procedures and how they
were complied
wit h on the day in question.
In
the
matter
of Transnet
Ltd
t/ a Metrorail and
Another v Witter
[2008] ZASCA 95
;
2008
(6)
SA
549
(SCA),
this was indicated as evidence that would satisfy the
first two requirements in paragraph (a) of the test for liability as
formulated
by Holmes JA in the matter of Kruger v Coetzee.
[54] The defendant bore the onus to place such
evidence as I have already stated above. In the absence of such
evidence, I am bound
to find in favour of the plaintiff that the fact
that he would be pushed off the train and that he would suffer
injuries as a result
thereof was foreseable.
Furthermore,
the defendant failed to take steps to prevent it.
[55]
The
duty
to
care, and
to
protect commuters
was
denied by
the
Defendant
in its plea
[6]
,but
suprising enough
no
evidence was tendered
in this
regard.
CONCLUSION
AND ORDER
[55] Under the circumstances, I make the following
order;
[55.1] The defendant is liable to compensate the
plaintiff to the full extent of his proven damages and costs of the
trial on
merits ;
[55.2] The determination of the quantum of the claim is
postponed sine die.
TAN MAKHUIBELE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
PLAINTIFF : ADVOCATE NR RALIKHUVH ANA
INSTRUCTED BY:MIKE MABUNDA INCORPORATED
ARCADIA, PRETORIA
DEFENDANT: JG CILLIERS SC
INSTRUCTED BY STONE ATTORNEYS
MONUMENT PARK, PRETORIA
[1]
Paragraph 6.2
[2]
Hercules, Daspoort, Mountain View, Wolmantin, Winterness and Akasia.
[3]
2003(1) SCA 11 at
[4]
supra
[5]
1966(2) SA 428 (A)
[6]
paragraph 3 of the Defendant's Plea