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[2016] ZAGPPHC 1200
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Sibiya v Passenger Rail Agency of South Africa (81527/2014) [2016] ZAGPPHC 1200 (29 November 2016)
IN
TH E HIG H COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Reportable:
NO
Of
interest to other judges: NO
CASE
NO: 81527/2014
DATE:
28/11/16
In
the matter between:
M
R
SIBIYA
Plaintiff
and
PASSENG
ER RAIL AG
ENCY OF SOUTH
AFRICA
Defendant
J
U
DG
M
ENT
J
W
LOUW. J
[1]
The plaintiff instituted a claim for damages against the defendant
following severe injuries which he sustained when he was
knocked down
by a train belonging to the defendant at approximately 05h40 on 2
July 2014 near the Dunswart station. Both the plaintiff's
legs were
amputated above the knee as a result of the accident. By agreement
between the parties, the quantum of the plaintiff's
claim was
separated from the merits and postponed
sine
die.
[2]
The action was instituted on 4 November 2014. In the plaintiff's
original particulars of claim it was alleged that whilst the
train
was in motion, the plaintiff was pushed by other passengers who were
jostling for space and that he fell out of the train
through open
doors. In a reply to a request for further particulars by the
defendant, it was stated on behalf of the plaintiff
that he boarded
the train at the Dunswart station, that his destination was Daveyton
and that he was on his way from work to Daveyton.
It was further
stated that the plaintiff was not pushed on purpose but that the
other passengers were jostling for space.
[3]
On 10 September 2015, the plaintiff's attorney filed a notice of
intention to amend the plaintiff's particulars of claim accompanied
by the amended particulars of claim in which the abovementioned
version of the accident was jettisoned and replaced with the
following
version:
"3.
On
the 2
nd
of
July
2014
and
at
approximately 05:40
am
at
or
near
between
Dunswart
train
station
Gauteng Province, Plaintiff
was walking
next
to
the
railway
line
when
suddenly
a
train approached from the
front
with
its
headlights off
and
without
hooting to
the plaintiff
suddenly
hit
the plaintiff.
4.
This train
that hit
the plaintiff
was not
visible at all
to the
plaintiff
as it had its head lights off and it never
hooted.
"
[4]
The plaintiff testified that he had been living in Daveyton at the
time and was working as a security officer for a firm called
Tebutt
Security. He had been posted to a train yard which he called Avenue,
where trains are cleaned and spray painted, about 2
to 3 weeks before
the accident. He was one of about 7 security guards and their duty
was to guard cables. He travelled to work
by train from Daveyton and
alighted at the Dunswart station. From there he walked to the Avenue
yard on a footpath alongside the
railway line. It is not a long
distance. He estimated it to be a 10 minute walk. After
completion of his work shift,
he would walk back on the same footpath
to the Dunswart station where he caught the train back to Daveyton.
The footpath was also
used by the other employees of Tebutt
Security.
[5]
On the morning of 2 July 2014, he knocked off work at about 05h40
after a night shift. He walked out the gate of
the yard
and proceeded on the footpath towards the platform of the Dunswart
station where the footpath ended. His evidence was
that as one exits
the gate, the footpath is next to the railway line. Thereafter the
path moves away from the railway line but
turns back to the line as
one approaches the station platform. As he walked, the railway line
was on his left. The next thing he
remembers is waking up being
injured. He does not know how he got injured. He did not see the
train before it collided with him.
It was dusk and he couldn't see
far, but if the train had its lights on he would have seen them. He
did not see any train with
lights and did not hear any train hooting.
If he had seen the train, he would have moved out of its way. After
the accident, he
saw a train which had stopped ahead of where he was
lying. A colleague of his approached him with his (the plaintiff's)
firearm
and other items which the colleague had found where that
train was standing. He said people told him that it was that train
that
had collided with him.
[6]
The plaintiff conceded in cross-examination that he knew that trains
were dangerous, that one should never cross a railway line
unless you
were absolutely certain that it was safe to do so and should also not
walk so close to a railway line that a train could
collide with you.
It was put to him that on his own version he had walked so close to
the railway line that a train couldn't pass
him without colliding
with him. His answer was that that was why he didn't know how he got
hurt because that was the route they
used every day. It was put
to him that a train makes a lot of noise. He agreed, but said that he
did not hear it. He agreed
that at 05h40 the train lines were already
busy with commuters on their way to work.
[7]
The plaintiff was asked whether he was sure that the train had come
from the front. He said that he had fallen on his back,
from which he
inferred that the train had come from the front. It was put to him
that the train had come from Daveyton towards
Dunswart, meaning that
the train had come from behind him. The plaintiff said he could not
dispute that because when he woke up
he was on his back. It was put
to him that the train driver would testify that the train was on its
way from Daveyton to Dunswart
and that the train's lights were on dim
because it was approaching a station. The plaintiff said that he
could not dispute that
but that he did not see lights. He denied that
he had crossed the train line in front of the train which collided
with him.
[8]
The parties prepared a sketch plan which was handed in as Exhibit "A'
and which depicts four parallel train lines which
respectively run
past platforms 1, 2, 3 and 4 of the Dunswart station. Each of the
platforms is indicated on the sketch plan and
the four lines were
referred to in evidence as lines 1, 2, 3, and 4. Lines 1 and 2 are
the lines which run from Springs to Johannesburg
and back. Lines 3
and 4 are the lines which run
from Daveyton to Dunswart to
Johannesburg and
back. The line at which the accident occurred was
line 4, which is the northern most line
and which is the line closest
to the Avenue yard.
[9]
The driver of the train in question, Mr Sibanyoni, testified that he
had been employed by the defendant as a train driver since
1999. On 2
July 2014 he was en route from Daveyton to Johannesburg via Dunswart.
When he approached Dunswart station, his train
was switched from line
3 to line 4 via a change-over track between the two lines because
there was another train standing at platform
3. He estimated the
distance from where the change-over track joins line
4 to the point of impact to be 300 m.
The distance from the point of
impact to where platform 4 started he estimated to be approximately
50 m. It was dark and the train's
lights were on dim. His attention
was focused on the people standing on the platform. He did not look
to the side of the train.
The next thing he saw was a person in the
middle of the train line, moving from left to right. He was 2 to 3
meters from the person
when he first saw him. The speed of the train
at that stage was approximately 40 kph. He applied all the train's
brakes but it
was too late. He pressed the hooter at the moment that
the train struck the person. The train came to a standstill when more
than
half of the front of the train was opposite platform 4. It was
not possible to bring the train to a standstill in a shorter
distance.
When the train came to a standstill, he got out and walked
back with security officers to the place where the incident had
occurred.
They found the plaintiff at the scene.
The plaintiff was found approximately 30
cm
outside the tracks on the right hand side of the tracks in the
direction in which Sibiya was travelling, i.e. on the side
where the
footpath was.
[10]
Mr Sibanyoni further testified that trains have a headlight which can
be switched to bright or dim. At the time of the incident
the light
was on dim because drivers are required to dim the train's headlight
when it approaches a platform or when it crosses
another train. If
the train's light was not working he would have noticed it as he
would then have had to drive it in the dark
from Daveyton to
Dunswart. At the point where the incident occurred there were no
outside lights and it was dark. Before the incident,
he had on
occasions noticed people crossing the train line at the beginning of
the platform, but not at the place where the incident
occurred. He
said in cross-examination that he would then make such people aware
of the approaching train, which I understood to
mean that he would
sound the train's hooter.
[11]
Mr Sibanyoni testified in cross-examination that from the point where
he changed lines he could see platforms 2, 3 and 4 where
there were
lights burning. He could see people on platform 3 and the people on
platform 4 who were waiting for his train. From
where he joined line
4, he did not see anyone moving in the open space before the
platforms. Exhibit "A" shows that the
tracks of line 4 run
in a straight line from where he joined line 4 up to platform 4. His
focus was on the platform where people
were moving around. The open
space was dark. If it was light he would have seen a person in front
of him. He was asked if he would
have been able to see a person 50 m
ahead. He said that he could have seen such a person in front of the
train, but not on the
side of the train. If the plaintiff had been 50
m away, he would have seen him but he did not see him before he was 3
m away. He
looked in front of him, not on the side. When people cross
the line in front of him he can see them and will warn them, but not
if they cross from the dark. He testified that he could see
approximately 100 m ahead of him when the train's headlight was
dimmed.
He said that the ray of the light reaches a distance of 1to 2
m on each side of the tracks. He does look at the sides of the tracks
in front of him but not directly at the side of the train. For a
distance of 100 m before the collision he did not see any person
on
the side of the tracks in front of him. He was asked to explain how
he did not see the plaintiff before he entered the tracks.
His answer
was that if he had noticed the plaintiff he would have blown the
hooter, but he couldn't tell why he didn't notice him
as it was like
a person who was committing suicide.
[12]
It was put to Mr Sibanyoni that if he had kept a proper lookout, he
would have seen the plaintiff approaching line 4. His answer
was that
if the plaintiff had entered the line when he (Sibanyoni) was far
away, he would have alerted him, but that the plaintiff
just came
from the side of the train and that he noticed him when he was in
front of the train between the two tracks moving from
left to right.
He was asked if the plaintiff had just been dropped there from
somewhere. His answer was that
the plaintiff just landed in
front of his train and that he did not know where he had come from.
[13]
The only other witness called by the defendant was Mr Melusi Mpofu
who has been employed by Metrorail since 2012. At the time
of the
incident, his position was that of chief electrical fitter
specializing in train sets. He went to the scene of the incident
on
the evening of 2 July 2014 and tested the train's hooter and head
light. He found no defects, both being in proper working order.
He
submitted a report in which his findings were confirmed. He said in
cross-examination that a driver is not permitted to depart
before all
critical items are working. He
explained that there are drivers who check all train sets
at night.
If something is found wrong, technicians such as himself are called
out to do the necessary repairs. When the driver
who has to drive a
train in the morning arrives, he is given a form on which faults
which had been reported by the other driver
have been booked.
The driver who has to drive the train then checks if such faults have
been fixed.
[
1
4]
The
version
of
the
plaintiff
and
that
of
Mr.
Sibanyoni
are
mutually
destructive.
I
n
Stellenbosch
Farmers' Winery Group
Ltd
and
Another
v
martell
et
Cie and Others
[1]
Nienaber JA said the following
at
par.
[5]:
"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. As to
(a),
the
court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as
(i) the
witness' candour and demeanour in the witness-box, (ii) his bias,
latent and blatant, (iii) internal contradictions in
his evidence,
(iv) external contradictions with what was pleaded or put
on his behalf, or with established fact or
with his own extracurial
statements or actions, (v) the probability or improbability of
particular aspects of his version, (vi)
the calibre and cogency of
his performance compared to that of other witnesses testifying about
the same incident or events. As
to
(b),
a
witness' reliability will depend, apart from the factors mentioned
under
(a)(
i
i
),
(iv) and (v) above, on (i) the opportunities he had to experience
or observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c),
this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of
(a), (b)
and
(c)
the court will then, as a final step, determine whether the party
burdened with the
onus
of proof has succeeded in discharging
it. The hard case, which will doubtless be the rare one, occurs when
a court's credibility
findings compel it in one direction and its
evaluation of the general probabilities in another. The more
convincing the former,
the less convincing will be the latter. But
when all factors are equipoised probabilities prevail."
[15]
As far as the credibility of the plaintiff is concerned, he was
cross- examined and criticised on why he did not tell his attorney
immediately when the attorney was told the version of the incident,
as first pleaded, by the persons who operated as touts and
had taken
the plaintiff to the attorney after the plaintiff's discharge from
hospital, that it was not the truth. His explanation
was that that
the persons told him that they had already given the attorney the
story, that he wasn't given time to speak and that
he was dependent
on these people to thereafter take him home. He didn't know the
attorney and these people told him this was how
they worked and he
couldn't argue with them. He did afterwards phone the attorney and
told him what the true version was, whereafter
the particulars of
claim were amended. His explanation of why it took him so long to
phone the attorney and inform him of the truth
was very unconvincing.
What was originally pleaded on his behalf was contradicted by his
evidence in court, but what counts in
his favour is the fact that he
did eventually give his attorney the true version and did not persist
with the original false version.
It should also be remembered that
his highest
educational
level
is
Standard 5
and
that
the
people he
was
dealing
with were
the
inventors
of
the
false
version.
[2]
I
found him
to
be
a
satisfactory
witness
in
court.
There
was nothing
improbable
in
the
version
to
which
he
testified.
As
far as the
reliability
of
his
evidence
is
concerned,
he
conceded
that his
evidence
that
the
train had
collided
with him
from
the front
was
an
inference
which
he
drew
from
the
fact
that
he
had
landed
on his
back
after
the
collision.
He
never
saw the
train
before
the
collision.
There can
be
no
doubt that,
on
his
version,
the train
collided with
him
from
the
back
and
not from
the
front.
[16]
As far as the
credibility of the
train
driver, Mr Sibanyoni, is concerned, Ihave
difficulty in accepting the probability
of his version. I find it
improbable that the plaintiff could have come from nowhere as was
testified by Mr Sibanyoni, that the
plaintiff would have attempted to
cross the railway line right front of the train when it was 2 or 3
meters away from him
in an
apparent attempt to commit suicide, and
that Mr Sibanyoni was
only able to see the plaintiff for the first
time when he was 2 or 3 meters away from him.
Further, on Mr Sibanyoni's
evidence, the plaintiff was attempting to
cross the line from his (Mr Sibanyoni's) left to his right so that
the injuries to the
plaintiff's body would have been on the right
side of his body. The plaintiff, however, testified that, apart
from his severed
legs, he had injuries on the left back back of his
head down to his neck and shoulders and to his left arm. Those
injuries
accord with the probability that the plaintiff was
struck from the back while walking along the railway line,
and not
while attempting to cross it.
As mentioned earlier, railway line 4 would have been to his left
when
walking on the footpath in the direction of platform 4 of the
Dunswart train station. A further improbability of Mr Sibanyoni's
version is that if the plaintiff was footpath in the direction of
platform 4 of the Dunswart train station. A further improbability
of
Mr Sibanyoni's version is that if the plaintiff was on his way from
the Avenue yard to platform 4, he had no reason to cross
line 4. The
Avenue yard and platform 4 are on the same side of railway line 4.
[17]In
my view, the probabilities are that
the plaintiff was struck from
the back
by the train while he was walking on the footpath alongside line 4.
This conclusion then raises the question of whose
negligence was the
cause of the accident. The plaintiff was himself clearly negligent
for walking so close to a railway line with
the knowledge of it being
a busy line. He clearly failed to keep a proper lookout for passing
trains, whether from the front or
the back. But the train driver was
also negligent by not timeously seeing the plaintiff walking close to
the line or, if he did
see him timeously, by not sounding the train's
hooter to warn the plaintiff of the approaching train.
[
1
8]
It
was
submitted
by
counsel
on
behalf
of
the
defendant
that
the
plaintiff voluntarily
accepted
the
risk
of
being
injured
by walking
so close to
a busy train line.
The onus
rests on a defendant to establish a defence
of
volenti
non
fit
iniuria.
The
defendant
must
allege
and
prove
that
the
plaintiff
had
knowledge
of
the
risk,
that
he
appreciated
the
ambit
of
the risk
and
that
he
consented
to
the
risk.
[3]
Consent may
be
express
or implied.
Although
consent
may
be
implied
from
a
plaintiff's
knowledge
and appreciation,
they
are not
tantamount
to consent.
Whether
consent can
be
implied
requires
a
subjective
inquiry
relating
to
the
plaintiff.
I
n
the circumstances
in which
I have
found
to
be the
probable
way
in which
the
accident
happened,
including
the fact
that the
footpath
was
regularly
used not
only
by
the plaintiff but also by other employees and there being no evidence
of
anyone
else
previously
being
injured
in the
same
way,
it cannot,
in my view, be inferred that the
plaintiff
subjectively
consented
to the risk
of being injured
by a train.
The
defendant
has
therefore
failed
to
discharge
the
onus of
proving
consent
by
the
plaintiff
to
the
risk of
being injured.
The
position would have been
different
if
the
accident had occurred in the manner testified to by Mr Sibanyoni.
[19]
An apportionment in respect of the plaintiff's claim for damages
therefore has to be made. In my view, a fair apportionment
will be to
assess the plaintiff's negligence at 60% and that of Mr Sibanyoni at
40%.
[20]
The order which I make is the following:
[a]
It is ordered that the defendant is liable for payment of 40°/o
of the damage which the plaintiff is able to prove or which
may be
agreed he has suffered as a result of the accident which occurred on
2 July 2014.
[b]
The defendant is ordered to pay the plaintiff's costs of the action.
Counsel
for plaintiff: Adv. N S Petla
Instructed
by: Mashamaite Attorneys, Kempton Park
Counsel
for defendant: Adv. J G Cilliers SC
Instructed
by : Stone Attorneys, Pretoria
[1]
2003 ( 1 ) SA 1 1 (SCA)
[2]
t was stated in the written heads of argument filed on behalf of the
plaintiff that practitioners at times do furnish documents
without
having taken full and clear instructions of the client. If this
statement is intended to convey that there are practitioners
who
plead facts and furnish further particulars on behalf of a client
which turn out to be false, it is, of course, a very serious
matter
which must require disciplinary action against such practitioners.
[3]
Santam
Insurance
Co
Ltd v
Vorster
1
973
(4) SA
764
(A)
779A-E