Brief Summary

Delict — Negligence — Duty of care — Passenger injured while boarding train — Plaintiff alleging negligence on part of Defendant for failing to ensure safety of passengers — Plaintiff sustained severe injuries after being pushed from moving train — Court to determine merits of claim based on alleged breach of duty of care by Defendant. The Plaintiff, a passenger on a Metrorail train, sought damages for injuries sustained when he was pushed from the train while boarding at a crowded station. The Defendant, Passenger Rail Agency of South Africa, was alleged to have breached its duty of care by failing to ensure passenger safety and adequate staffing. The court held that the Defendant owed a duty of care to the Plaintiff and that there was a prima facie case of negligence based on the evidence presented, warranting further examination of the merits of the claim.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a delictual damages action in which the plaintiff claimed compensation for severe personal injuries allegedly caused by the negligence of the defendant as a public rail carrier. The proceedings took place in the High Court of South Africa, Gauteng Division, Pretoria, before Magardie AJ.

The parties were Shadrack Nkosana Makgopa (plaintiff) and the Passenger Rail Agency of South Africa (defendant), operating Metrorail services. The plaintiff sued for damages in the total amount of R6 000 000.00, alleging a breach of the defendant’s duty to ensure passenger safety.

Procedurally, the parties agreed to a separation of issues in terms of Rule 33(4) of the Uniform Rules of Court, with the trial proceeding only on the merits (liability) and the issue of quantum standing over for later determination. Although the defendant had served an amended plea at some point, it was expressly stated that the defendant was no longer pursuing that amendment, with the result that the matter proceeded on the basis of the defendant’s original bare denial.

The general subject-matter of the dispute was whether the plaintiff’s injuries were sustained as a passenger who was pushed out of a moving train with open doors, as alleged by the plaintiff, or whether the plaintiff was instead a pedestrian unlawfully walking/crossing near the railway line who was struck by the train, as suggested by the defendant’s witnesses at trial.

2. Material Facts

It was common cause (or treated as effectively not in issue) that the plaintiff sustained very serious injuries, including traumatic brain injury and the amputation/severing of a leg, and that these injuries were connected to an incident involving a Metrorail train on 12 December 2014 in the vicinity of Eerste Fabrieke on the Mamelodi–Pretoria line.

On the plaintiff’s version, the material events occurred as follows. Early on the morning of 12 December 2014 at approximately 05h00, the plaintiff boarded train number 91 at Mamelodi Gardens Station, travelling towards Pretoria for purposes of getting to work in Gezina. The train was very full, and the plaintiff positioned himself inside the coach near the door while holding onto a handrail. The plaintiff’s evidence was that the doors were open and could not close because of overcrowding. After leaving Eerste Fabrieke Station and proceeding in the direction of Denneboom Station, commuters were pushing and jostling, and the plaintiff was pushed by another commuter out of the moving train. He fell and lost consciousness, later regaining awareness in hospital, where his injuries were treated.

The plaintiff maintained that he was a lawful passenger and testified that he had a valid train ticket for December 2014. He denied that he would have been walking next to or crossing the railway lines while holding a valid ticket.

The defendant’s witnesses advanced a materially different factual account. Their evidence, in substance, was that while the train (train number 91) was travelling towards Eerste Fabrieke Station, the train driver observed a pedestrian walking very close to the railway line near a curve, hooted, reduced speed, and eventually applied emergency braking, but the train nevertheless collided with the pedestrian. The pilotsman similarly testified that the pedestrian crossed from the left to the right side of the railway line and was struck before the train reached Eerste Fabrieke Station. The defendant’s version therefore placed the plaintiff outside the train as a pedestrian rather than inside as a passenger, and located the incident before reaching Eerste Fabrieke Station rather than after leaving it.

A further fact relied upon by the court was the state of the defendant’s pleadings. The defendant’s operative plea was described as a bare denial, and the factual version presented through the defendant’s witnesses at trial—namely that the plaintiff was a pedestrian unlawfully on/near the tracks—was not pleaded as the basis of the defence.

3. Legal Issues

The central legal questions were whether the defendant was delictually liable for the plaintiff’s injuries and, more specifically, whether the plaintiff proved on a balance of probabilities that the defendant was negligent in relation to passenger safety by permitting a train to travel with open doors, with the foreseeable consequence that a passenger might fall or be pushed out and be seriously injured.

A key subsidiary issue was factual and evidential in character: the court was required to resolve mutually destructive versions as to how the incident occurred, namely whether the plaintiff was pushed from inside a moving train or was a pedestrian struck by a train. The resolution of that factual dispute directly determined the application of legal principles concerning duty of care, foreseeability, and negligence.

The dispute thus primarily concerned fact (what happened), together with the application of law to fact (whether the established facts satisfied the requirements for negligence and delictual liability). The assessment necessarily entailed an evaluative judgment on credibility, reliability, and probabilities.

4. Court’s Reasoning

The court approached the matter by first addressing the function of pleadings and the difficulty created by the defendant’s bare denial. Relying on authority emphasising that pleadings exist to define the issues and enable parties to know the case they must meet, the court considered it significant that the defendant’s trial version (that the plaintiff was unlawfully on/near the tracks) was not properly articulated in the plea. In the court’s assessment, this meant the plaintiff proceeded to trial without fair notice of the factual case he was required to answer, and it also affected the evaluation of the defendant’s witnesses insofar as their evidence diverged from the pleaded defence.

Given the two conflicting narratives, the court applied the methodology for resolving mutually destructive versions, which requires findings on credibility, reliability, and probabilities, followed by an assessment of whether the party bearing the onus has discharged it on a balance of probabilities. The court emphasised that the plaintiff bore the onus of proof and that the correct standard was the balance of probabilities, assessed with reference to oral evidence, documentary evidence, surrounding circumstances, and inherent probabilities.

On the evidence, the court found the defendant’s version improbable and inadequately supported by objective material. A central concern for the court was the nature of the defendant’s evidence: the train driver did not personally identify the injured person and did not leave the train to verify the circumstances, and aspects of her testimony were said to be based on what she had been told (including the plaintiff’s identity and details of injuries). The court considered it unlikely, in human terms, that a driver who had struck a pedestrian would not meaningfully engage with what became of the injured person, and it noted the absence of clear evidence as to the subsequent handling of the injured person, including the absence of contemporaneous records.

The court also regarded the defendant’s stance on an incident register as problematic, describing the claim of privilege over such a register as “bizarre” in context, particularly because such a document would be central to corroborating the defendant’s account if the defendant’s version were correct. The absence of that intrinsic record, coupled with the pleaded bare denial, weighed against accepting the defendant’s trial narrative.

In relation to the pilotsman’s evidence, the court criticised his demeanour and responsiveness, including what the court viewed as evasiveness on straightforward points and an unwillingness to make concessions even when confronted with documentary indicators (such as hospital stamps). These credibility concerns fed into the overall reliability analysis.

By contrast, the court accepted the plaintiff’s evidence as coherent and consistent in its essentials. While acknowledging that there were inconsistencies identified in cross-examination (including references in a letter of demand and medico-legal reports), the court treated these as minor discrepancies that did not detract from the core account maintained by the plaintiff: that he was inside a crowded coach with an open door and was pushed out of the moving train. The court further considered it improbable that a person with a valid train ticket would choose to walk along or cross the railway line, and it similarly regarded as unlikely the proposition that a pedestrian would move toward a train while being repeatedly hooted at.

Having accepted the plaintiff’s version, the court turned to negligence. It framed the question as whether the harm was foreseeable and whether the defendant acted negligently by failing to foresee and prevent it, measured against what a reasonable person would have done in the circumstances. The court relied on Constitutional Court authority affirming that PRASA, as a public carrier, owes passengers a legal duty to protect them against physical harm while using rail services, and that operating a moving train with open doors is conduct that may attract delictual liability.

Applying these principles to the accepted facts, the court found that there was no evidence contradicting the plaintiff’s assertion that the coach doors were open while the train was in motion. It held that the defendant should have foreseen the danger posed by open doors, particularly in a crowded and chaotic commuter environment, where pushing and jostling were occurring. The plaintiff’s injuries were found to have resulted from precisely the kind of risk created or magnified by leaving doors open—namely a passenger falling from (or being pushed out of) a moving train and suffering catastrophic injury. On that basis, the court concluded that the defendant breached its duty of care and that the plaintiff established negligence on a balance of probabilities.

5. Outcome and Relief

The court found in favour of the plaintiff on the merits and held the defendant liable for 100% of the plaintiff’s proven or agreed damages.

The court ordered the defendant to pay the plaintiff’s costs.

The determination of quantum was postponed sine die, consistent with the earlier separation of issues.

Cases Cited

Nieuwoudt v Joubert 1988 (3) SA 84 (SE); Stellenbosch Farmers' Winery Group and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA); Santam Bpk v Potgieter 1997 (3) SA 415 (O); Mashongwa v Passenger Rail Agency of South Africa 2016 (2) BCLR 204 (CC).

Legislation Cited

No specific legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 33(4).

Held

The court held that the plaintiff proved, on a balance of probabilities, that he was a passenger in the defendant’s moving train and was pushed out through an open door, resulting in catastrophic injury including the severing/amputation of his leg. It further held that the defendant owed the plaintiff a duty of care as a public carrier and was negligent in failing to ensure that the train doors were closed while the train was in motion. The defendant was therefore held 100% liable for the plaintiff’s damages, with costs awarded to the plaintiff, and quantum postponed sine die.

LEGAL PRINCIPLES

The judgment applied the principle that pleadings serve to define the issues so that each party knows the case it must meet; where a defendant proceeds on a bare denial and advances an unpleaded factual version at trial, that divergence may materially affect the assessment of the defence and the probabilities.

Where a court is confronted with mutually destructive versions, it must resolve the dispute by assessing credibility, reliability, and probabilities, and then decide whether the party bearing the onus of proof has discharged it on a balance of probabilities, having regard to oral evidence, documentary evidence, and the surrounding circumstances.

A plaintiff in delict bears the onus to prove negligence on a balance of probabilities, and negligence is assessed with reference to foreseeability of harm and what a reasonable person (or reasonable operator in the defendant’s position) would have done to prevent it.

As a public carrier, PRASA owes passengers a legal duty to take reasonable steps to protect them from physical harm while using rail transport services, and operating a moving train with open doors may constitute negligent conduct giving rise to delictual liability where the risk materialises and causes harm.

Makgopa v Passenger Rail of South Africa (9830/2015) [2016] ZAGPPHC 506 (3 June 2016)