About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 406
|
|
Ndakana v Passenger Rail Agency (37086.2013) [2016] ZAGPPHC 406 (13 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE N0:37086/2013
DATE: 27 MAY 2016
NOT
REPORTABLE
NOT
OF INTEREST TO JUDGES
REVISED
In the matter between:
ANNAH
NDAKANAPLAINTIFF
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA DEFENDANT
JUDGMENT
RANCHOD J
[1]
The plaintiff instituted action against the defendant for damages as
a result of bodily
injuries
she sustained when she fell from a train at Saulsville railway
station on 27 March
2012.
[2] The parties agreed that the trial should proceed only in respect
of the merits. The
determination of the quantum for damages was accordingly postponed
sine die.
[
3]
In
the particulars of claim plaintiff pleads that
she was injured "when a train, belonging to the Defendant and/or
over which
the Defendant exercised control, suddenly and without
warning pulled off while the Plaintiff was in the process of exiting
from
the train, and in so doing causing the Plaintiff to lose her
balance
and
fall
to
the
ground
(the
"incident")."
[4] It is alleged that the
driver of the train was negligent in one or more of the following
respects:
4.1He
caused the train to suddenly
pull off without ensuring
that it was safe to do so
4.2
He
failed
to
exercise proper
or adequate control
over
the
train;
4.3He
failed to keep
a proper lookout;
4.4He
failed to prevent the
incident when he
was,
with the exercise of reasonable care in
a
position to do so.[5]
It
was
further pleaded
that
as
a
result
of
the
incident
the
plaintiff
suffered
a
severe
fracture
of
her
pelvis
and
left
arm,
as
well
as
severe
bruising
and
soft
tissue injuries over her
entire body.
[6]
At
the
commencement
of
the
trial
Mr Tisane,
who
appeared
for
the defendant
informed
the court that the defendant has abandoned reliance on negligence
on
the
part
of
the
plaintiff
as
set
out
in sub-paragraphs
4.2.5; 4.2.8; 4.2.11 and
4.2.13 of
its
(the defendant's) plea.
Defendant persists with
the
remaining
grounds
of
negligence
on
plaintiffs
part
as
set
out
in
theremaining
sub-paragraphs
of
paragraph
4.
[7]Three
witnesses testified for the plaintiff including the plaintiff herself
while
two
witnesses
testified
for the defendant, i.e. the train driver and the train guard.
[8]
In my view it is not
necessary to set out all the evidence
in detail. By the end of
the trial and in
written
heads of argument as well as oral argument, plaintiff
s counsel submitted that
the crux of the case was whether,
after the train
had
stopped
at
Saulsville
station
the
train
driver
caused
it
to
move
forward
again without prior warning and while the doors were open, causing
plaintiff
to
fall
down.
[9] The plaintiff testified that on 27 March 2012
she adjourned from school early and decided to take the train back to
her home
in Saulsville instead of the
bus,
which
would
only
have
arrived
later.
She
is
not
a
regular
train
commuter.
This was only the
second time that she travelled in a train.
At
Pretoria Station the intended train was delayed, hence the plaintiff
was only able
to
take a
later
train
from
Pretoria
to Saulsville.
The
train
was full as it
had
to accommodate more passengers as a result of the first train's
delay. It is common cause that the plaintiff
was
in
possession of a
valid train ticket at
the
time.
The
trip
from
Pretoria Station
to
Saulsville Station lasted
just
more
than half an hour.
The plaintiff testified that she travelled in
the third last coach of the train
(i.e. the
second
last passenger
coach
as the
last one
is a
motor
coach).
According
to
the
plaintiff
she
was
seated
in the
opposite
row
of
benches
from
the
sliding
door
which
would
lead
onto
the
platform
at
Saulsville Station.
When
the train stopped at Saulsville Station, the passengers got up and
the sliding doors opened and passengers disembarked from
the train.
Two to three minutes after the train had
stopped,
the plaintiff began disembarking but the train started to move
forward again.
At this
particular moment the plaintiff grabbed hold of the pole/railing next
to the door in the train coach in an attempt to maintain
her balance.
At that moment her body was already outside of
the
train,
enabling her
to notice a
person
waving a red flag at
the back of the train, who appeared to stand on
the railway track.
The
plaintiff
heard
an
extremely
loud
noise
(which
she
described
as
a
siren)
coming from the train and then lost grip of the pole/railing. The
plaintiff fell from
the
train
and
hit
the
platform
with
the
left
side
of
her
body
while becoming
stuck
in the
narrow
opening
between the
platform
and
the train
coach.
The train was still moving forward at this stage.
When the train had moved
far
enough
forward
for
the
plaintiff
to
reach the
gap
between
two
coaches,
the
plaintiff
fell
down
from
the
platform
underneath
the
train. Thereafter the
train
stopped again. The
time
which
elapsed
from
the
moment the plaintiff lost grip of the pole/railing in the train coach
until she fell on the train
tracks
underneath
the
train,
was
estimated
to
be
a
few
seconds.
[1O] Mr Sibusisu Masilwana
testified that he was travelling in the same train coach
as the plaintiff on the day
in question. He did not sit close to her, but more to the
back of the coach. He said
that after the train had stopped at Saulsville station, the
doors opened and commuters
started to disembark. As the plaintiff stepped out of the
coach, the train started
to move forward again. In the process of moving forward, the
train doors closed again
and trapped the plaintiff's leg. He testified that the doors of
the coach closed when the
train was in the process of pulling away. Mr Masilwana
conceded that he could not
see the entire body of the plaintiff when she stepped out of
the train, but only her
upper body. There were passengers between him and the plaintiff
that obstructed his view.
He could not say which leg she used to step out or which leg
was trapped by the door. He
furthermore conceded that he did not see how and when
the plaintiff fell, but
that he was only later told by other passengers that someone had
fallen underneath the
train.
[11] Mr Mpho Lehabe - the
third witness for the plaintiff testified that he also
travelled from Pretoria to
Saulsville on the particular day in the same train, but
was seated in a different
coach, i.e. the passenger coach in front of the coach in which
the plaintiff was
travelling. He testified that the train stopped at Saulsville
Station,
whereafter numerous
commuters exited the train, including himself. Mr Lehabe estimated
that it took him less than
a minute to exit the train. Moments after he had stepped out
of the train onto the
platform, he heard people screaming behind him. He turned around
to look and saw that the
train was moving again, while the doors were open. He noticed the
plaintiff outside the
train on the platform being dragged by the train, whereafter the
plaintiff eventually fell
down from the platform in-between two coaches. Mr Lehabe was
frightened by the prospect
of seeing the plaintiff whom he knew well having been mutilated
by the train. He therefore
did not go to where the plaintiff had fallen from the platform, but
left the platform and went
outside of the station. He was called back by some of the spectators.
When he returned to the scene,
he found that the train had been moved
away from the plaintiff.
He testified that other
persons attended to the plaintiff before he reached her. He was then
asked
to go down onto the train
track tocomfort the plaintiff, which he did. He confirmed that the
paramedics removed the
plaintiff and took her to hospital.
[12] The train guard, Mr
Sydney Masumbuko testified that he is a trained guard having 8
years' experience as such.
He said on arrival at Saulsville Station the train was brought to
a complete stop by the
train driver. Masumbuko opened the doors to allow passengers to
disembark. Immediately thereafter an employee
of the defendant
approached and informed him
that a passenger had
fallen from the train. He, Masumbuko, immediately went to where the
passenger was lying on the ground between
the lower end of the
platform and the train tracks.
The plaintiff was taken to
hospital by paramedics after the train was moved further forward
into the station to allow
access to the plaintiff.
[13] Mr Prinsloo testified
that he had 43 years' experience as a train driver at the time of the
incident. He was retired when he
testified. He said on arrival at
Saulsville Station he brought
the train to a complete
stop at the 12 coach mark. The train guard opened the doors to allow
the passengers to
disembark. Prinsloo got off the train for purposes of the 'turn
around' procedure which involves him exchanging
places with the guard
so that he could drive the train back to Pretoria. As he walked
towards the back of the train he noticed
a throng of commuters and
the defendant's personnel, including the train guard towards the rear
end. On arrival at the scene
he noticed the plaintiff
lying on the ground between the lower end of the platform and the
train tracks.
[14] He denied having moved
the train forward after it had initially stopped. He further
testified
that he only moved the
train deeper into Saulsville station so as to expose the fallen
passenger's position after obtaining permission
from Central Train
Control (CTC) to do so. Paramedics took the plaintiff away from the
scene.
[15] It is clear that there
are mutually destructive versions as to whether the train had moved
forward again, whilst the plaintiff
was disembarking, afterhaving
came to a stop. In this
matter the onus is on the
plaintiff to prove negligence on a balance of probabilities on the
part of the defendant's
employee or employees, in this instance the train driver or the guard
or both of them. See
Pillay
v Krishna
1946 AD 946
at 951-952.
[16] It was held in
SFW Group Ltd
&
Another v Martell et cie
&
Others
2003(1) SA 11 at
14 para [5]:
"On the central issue, as to what the parties actually decided,
there are two irreconcilable versions.
So, too, on a number of peripheral areas of dispute which may have a
bearing on the probabilities. The technique generally employed
by
courts in resolving factual disputes of this nature may conveniently
be summarised as follows. To come to a conclusion on the
disputed
issues a
court must make findings on (a) the credibility of the various
factual witnesses; (b) their reliability; and
(c) the probabilities."
[17]
The plaintiff said she boarded the train at Pretoria at about 14h30
and it took just over 30 minutes to get to Saulsville station
which
means it arrived there at about 15h00. It is not in dispute that the
incident occurred at about 14h22. Yet she said under
cross-examination that she
was
very sure that she boarded the train at 14h30. Plaintiff testified in
evidence-in-chief that she was sitting on a seat near
the exit door
yet it took her two to three minutes to get off the train. She said
when the train stopped some people got off and
she proceeded to get
off as well. It seems improbable that it would take 2 to 3 minutes to
do so in the absence of a reasonable
explanation for the delay. Her
explanation was that it took so long to get off because there were
other passengers who were getting
off as well but her evidence was
that she was sitting close to the exit door.
[18] Plaintiff said she saw a person with a red flag standing on the
railway track and it seemed he was trying to stop the train.
This
seems improbable in that the person (presumably the train guard who
had in his possession a red flag) would be standing on
the tracks to
stop a train moving forward where the driver is in the front coach of
the train and he is at the rear.
[19] Plaintiff said when the train began moving forward again she let
go of the pole she was holding onto while getting off and
she fell
down which begs the question why she did not keep holding on for then
she probably would not have fallen down - if her
version is to be
accepted.
[20] The crisp issue is whether after having came to a stop, the
train moved forward whilst plaintiff was getting off. Plaintiff
was
adamant that that is what happened. Her demeanour in the witness
box cannot be criticised. She was calm and gave her evidence in a
fairly forthright manner.
[21] However, plaintiff's witness Mr Masiloana was not an impressive
witness at all. He speculated about things he had no first-hand
knowledge of.
[22] Mr Masiloana testified that when the train stopped all the
passengers stood up. As the plaintiff stepped out the train moved
forward again. He said in evidence-in-chief that he did not see
plaintiff falling as he was still inside the train and she had
already gone out of the train. He himself got off together with other
passengers after the train had moved forward. He said the
train doors
closed as the plaintiff was disembarking. Under cross-examination he
said he was seated far from the plaintiff in the
same coach but that
plaintiff was sitting on the seat near to the platform, which is
contrary to what plaintiff said. When asked
three times if there was
anyone between the plaintiff and the door when she was disembarking
he repeatedly gave evasive answers
and then finally said there were.
He said plaintiff was standing with one leg and her body outside when
the doors closed and trapped
her other leg which was still inside. He
said there were 3 people between him and the plaintiff but he had a
clear view of her
but then said he did not see her whole body because
of the people in between him and her. Asked how he could have seen if
any part
of her body was outside he said it's because when one gets
off the body moves out but the leg goes outside first. Asked further
if he was speculating or whether he in fact saw it happen he said he
did see it happen. He then claimed he saw her being pulled
by the
train after she fell. After having earlier said he did not have a
clear view of the plaintiff he then said he saw her falling
and then
again that he heard passengers saying a person had
fallen
off the train.
He
estimated
that the train had stopped for about a minute before it moved again
unlike plaintiff's estimation of 2 to 3 minutes but
then said
he
is
not
sure
and
agrees
with
plaintiff's
estimation
of
the
time.
His testimony
is
rejected
as
being
unreliable.
[23] Mr Lehabe was sitting in a
different coach and did not see plaintiff falling off the train. When
the train stopped he disembarked
and, he said, the train moved
forward within a few seconds. Under cross-examination he said he was
on his way to the exit point
of the station when within a few seconds
he heard screaming. He turned around and saw the train moving,
contrary to his evidence-in-chief
that the train moved within a few
seconds of him disembarking. He attributed this to the fact that it
all happened a long time
ago. Still later he said the incident
happened after the passengers had disembarked. When it was put to him
that the train driver
will testify that the train did not move again
he said he had no comment but when pressed on this point he said he
did see the
train moving. While it cannot be said that this witness
was deliberately being untruthful, it does appear that his
recollection
of events is not reliable.
[24] Mr Masombuka the train
guard explained his duties when a train arrives at a station. He gets
off and stands on the platform
checks if passengers have embarked or
disembarked then blows whistle and if it's safe for the train to move
he would close the
train doors. He then signals to the driver via a
bell communication that he can move the train. This duty applies only
when the
train is about to leave the station - not when it arrives.
On arrival his duty is to open the doors once the train has come to a
stop. On the day of the incident, once the train came to a halt he
opened the doors and immediately thereafter a security guard
came to
report to him that a person had fallen underneath the train.
[25] Mr Masombuka
made a good impression.
There were
no
contradictions in his evidence.
He was calm and gave
considered
answers
under lengthy cross-examination.
[26] The train driver, Mr Prinsloo, tended to express himself in
rather colourful language. He on several occasions gave somewhat
confusing answers but this was clearly due to him not understanding
the questions properly and it certainly was not because of
dishonesty
on his part. In fact, he made an overall good impression on the court
and I find his evidence to be reliable. He said
on the day in
question he had stopped the train then got off to go to the back of
the train as he was going to drive the train
back to Pretoria. He
said he did not move the train forward again after stopping except
when the plaintiff had to be reached by
the paramedics. And then too,
he only moved it with the permission of the CTC.
[27] In my view, the plaintiff has failed to discharge the onus to
prove negligence on the part of the defendant's employees.
[28] In all the circumstances, there shall be absolution from the
instance with costs.
RANCHOD J
JUDGE OF THE HIGH COURT
Appearances:
Counsel
on
behalf
of
Plaintiff
: Adv N.F. De Jager
Instructed
by
: Gert
Nel l
Counsel
on
behalf
of
Defendant
: Adv
S.M. Tisani
Instructed
by
:
Diale
Mogashoa
Inc.
Date
heard
: 13 May 2016
Date
delivered
: 27
May 2016