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[2015] ZAGPPHC 128
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Manjo v Passenger Rail Agency South Africa (53316/2013) [2015] ZAGPPHC 128 (12 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION/ PRETORIA)
CASE
NO: 53316/2013
DATE:
12 MARCH 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
THOBILE
MANJO
...........................................................................................
PLAINTIFF
and
PASSENGER RAIL
AGENCY SOUTH AFRICA
....................................
DEFENDANT
JUDGMENT
HEARD ON: 03
MARCH 2015
JUDGMENT ON: 12
MARCH 2015
KUBUSHI, J
[1] The factual
matrix of this case is that on 26 June 2013 the plaintiff sustained
bodily injuries when he fell off from a passenger
train owned by the
defendant and there and then operated by the employees of the
defendant. The plaintiff’s evidence is that
he was at the time
employed in Pretoria working for Impact. He stayed in Kalkfontein
extension 2 in Tembisa. He travelled by train
to and from work on a
daily basis.
[2] On the day in
question he boarded a train from Bosman station in Pretoria to
Kalkfontein station. At Kalkfontein station he
had to take another
train which would take him to Limindlela station in Tembisa where he
was to alight. When he boarded the train
at Kalkfontein station it
was very full. He could not get a seat. He thus stood in the middle
of the train corridor opposite the
train doors. He balanced himself
by holding on to one of the train straps attached to a rail on the
ceiling of the train. When
the train started moving the doors were
stili opened and could not close because of the many people in the
train.
[3] When the train
changed rails whilst moving, he was pushed to the opposite door of
the train which was open and he fell off the
train onto the rail
tracks. He does not remember what happened thereafter. He woke up in
hospital where he was informed that he
was brought to the hospital by
Fanie. He does not know this Fanie and has never spoken to him. The
plaintiff, a forty two year
old man at the time of the incident,
sustained serious bodily injuries as a result of the fall. He stayed
in hospital for a month
and some weeks before he was discharged. He
went home to recuperate and did not report the incident either to the
police or to
the defendant. He is, therefore, claiming damages for
the injuries.
[4] His wife
testified on his behalf to confirm that she went to see him at the
hospital and the plaintiff informed her that he
was injured when he
fell off a train. His wife was informed by their daughter that the
plaintiff was in hospital.
[5] The defendant is
denying the claim on the basis that the plaintiff was never involved
in a train accident because such an incident
was not reported and
does not appear in its incident report books. The defendant pleads
also that in the event the court finds
that such incident occurred,
the defendant was not negligent in the circumstances of this claim.
Alternatively, it pleads that
in the event that the court finds
negligence on the part of the defendant that such negligence did not
contribute to the plaintiff
being pushed out the train. Further
alternatively, it pleads that in the event the court finds such
negligence to have contributed
to the plaintiff being pushed, that in
that event, the court should find that the plaintiff also contributed
to the negligence
and fault should be apportioned accordingly.
[6] The defendant
called Mr Coetzee, an investigator who it entrusted with the
investigation of the incident. According to Mr Cotzee’s
evidence, during his investigation he did not come across any report
made of the incident. He checked the segment incident occurrence
boob
in Kalbfontein and the occurrence boob at the joint operations centre
in johannesburg and did not find such a report. His
colleague Mr
Shandung investigated the matter at the Tembisa hospital where he was
told that a person fitting the name of the plaintiff
was admitted at
the hospital for an undisclosed diagnosis. He also investigated the
matter by interviewing people in the vicinity
of the area where the
plaintiff resides. He talbed to two people who claimed that they did
not bnow the plaintiff. The third person
he came across was the
plaintiff and he left it at that. According to him, with the
experience he has in such incidents, it is
improbable that such an
incident would happen and none of the defendant’s staff members
would be aware of it. At the time
at which the plaintiff alleges the
accident to have happened, around 17h30 and 18hOO, there would have
been about five trains moving
around that area and it is improbable
that none of the train drivers saw the plaintiff lying on the rails.
[7]
At the commencement of the trial, the parties having agreed to
separate the issue, the plaintiffs counsel applied for separation
of
the issues, I granted an order for the merits and quantum to be
separated. The matter proceeds before me only on the merits
and the
quantum
is
postponed
sine
die
.
[8] After the
plaintiff closed his case, the defendant’s counsel applied for
the defendant to be absolved from the instance.
I refused the
application on the basis that there was evidence before me on which a
reasonable court may find for the plaintiff
and undertook to provide
my reasons therefore in the main judgment.
[9] The defendant’s
application for absolution from the instance is based on what counsel
referred to as contradicting versions
put forward by the plaintiff.
According to counsel there are two versions by the plaintiff, namely,
his evidence that he was unconscious
after he fell off the train and
at the time he reached the hospital and the version stated in the
medical report discovered by
the plaintiff, in particular the TCM
report, which states that the plaintiff ‘came in’ the
hospital. The connotation
put on the version in the TCM is that the
plaintiff walked into the hospital without assistance.
[10] There is only
one version of events presented in court and that is that of the
plaintiff. What is contained in the TCM report
cannot be regarded as
a version presented by the plaintiff. The plaintiff specifically,
when giving evidence in chief and even
under cross examination,
denied any knowledge of the contents of the medical report. He did
not know who provided the information
contained in the TCM report.
[11] The minutes of
the pre-trial conference of 2 March 2015 states that the status of
documents in the file will be what they purport
to be without
admitting the correctness of the documents and parties will still be
entitiled to call witnesses. The information
therein is not correct
until it is proven by the author thereof. The contents of an unproven
document can only be accepted into
evidence with the consent of all
the parties. It being common cause that the plaintiff's counsel
objected to the use of the TCM
report by the defendant and no witness
was called to confirm the contents of that report the defendant
cannot rely in its contents.
[12] It is not in
dispute that the plaintiff suffered injuries. It is also not in
dispute that he was admitted in Tembisa hospital
as a result of the
said injuries where he stayed for a period of over a month receiving
medical treatment. What is in issue is
what caused the injuries.
[13] The plaintiffs
version is that he was on the train on the day in question; the train
was crowded and he had to stand in the
middle of the corridor
opposite the doors; the doors could not close due to the many people
in the train; when the train changed
lanes he was pushed and he fell
off the train and was as a result injured.
[14] The defendant’s
defence is that it is not liable because the plaintiff was not on a
train and did not sustain his injuries
by falling off a train. If he
was on a train and had fallen off a train the incident would have
been noted by the defendant’s
staff working at the station
and/or driving other trains and would have reported the incident to
either the segment or joint operations
centre of the defendant.
[15]
The
onus
is
on the plaintiff and he must prove his case on a balance of
probabilities. The judgment I was referred to by the defendant’s
counsel is apposite in the circumstances of the current case.
1
[16] The evidence of
the plaintiff was to me satisfactory. He was able to relate his story
with clarity and precision. He did not
contradict himself either in
his evidence in chief or under cross examination. There was also no
contradiction between his evidence
and that of his witness. He did
not appear to me to be someone sophisticated enough to have drummed
up a story that did not happen.
I am therefore prepared to rely on
his evidence.
[17] On the other
hand, the evidence of the defendant’s witness was not
satisfactory. There were discrepancies in his evidence.
Firstly, the
version that his counsel put to the plaintiff during cross
examination that the witness is the one who went to the
hospital to
investigate, turned out to be not the truth because a certain Mr
Shandung is the one who went to the hospital. Secondly,
his evidence
is that the medical report stated that the plaintiff was not brought
in by an ambulance but came on his own. This
is clearly not the truth
because the medical report does not specifically state that the
plaintiff was not brought in by an ambulance
nor does it state that
the plaintiff came on his own. What is stated in the medical report
is that ‘he came in’. This
does not mean that the
plaintiff came in unassisted, it is possible that he came in with
someone else.
[18] On the
probabilities, I am of the view that alt the defences raised by the
defendant in this respect cannot be sustained. Firstly,
the
defendant’s contention that the plaintiff was not on the train
because he could not produce a train ticket is fallacious.
This, as
argued by the defendant’s counsel is not a requirement for
claiming. The plaintiff's evidence is that he was on
a train on that
day. This piece of evidence is corroborated by his unchallenged
evidence that he worked at that time in Pretoria
and used the train
to commute between his place of employment and home.
[19] Secondly, the
defendant’s contention that the plaintiff could not have fallen
off the train without other passengers
falling off as well and thus
causing a commotion, is speculative. There could have been other
passengers who fell off as the plaintiff
fell off the train but there
is no such evidence before me to that effect.
[20] Thirdly, it is
also speculative that if the plaintiff fell off the train and landed
on the side of the rails other train drivers
should have seen him and
made a report. It is not known how long the plaintiff laid on the
side of the rails after he had fallen
off. There is no evidence as to
how the terrain there where he fell is like or whether where he fell
he could have been visible
to the other train drivers because it is
not known where he fell.
[21] Lastly, the
fact that the incident was not reported is not a ground for denying
the plaintiff his right to claim for his injuries
against the
defendant. Mr Coetzee conceded under cross examination that there are
a number of incidents where people are injured
from falling off a
train that go unreported and this might be one such incidents.
[22] When
considering all the evidence tendered in court, probabilities are
that the plaintiff was injured by falling off a train.
The hospital
record indicates as such. He made the same report to his wife when
she visited him. If it is to be accepted that he
was, at that time,
working in Pretoria, probabilities are that at that time of the day,
between 17h30 and 18hOO, he must have been
commuting from work to
home. His uncontroverted evidence is that he used the train on a
daily basis to commute between Pretoria
and Kalkfontein where he
stayed. Even though a ticket for this trip was not discovered, he
persistently stated that he had a ticket
- this was also not
challenged.
[23] There is no
evidence before me as to how the plaintiff could have negligently
contributed to the injuries he sustained. The
defendant is therefore
100% liable for such damages.
[24] The plaintiff
as the successful party is entitled to his costs of suit.
[25] Consequently I
make the following order
(1) The plaintiff
succeeds 100% in his claim.
(2) The defendant is
to pay 100% of the plaintiff’s agreed or proven damages.
(3) The defendant is
to pay costs of suit.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
Appearances:
On behalf of the
plaintiff:
Adv. T C MAPHELELA
Instructed by:
PHATUDI-MPHAHLELE
ATTORNEYS
C/O
ABEL MOEKETSANE ATTORNEYS
9
th
FLOOR,CHARTER HOUSE BUILDING
179
CNR BOSMAN&CHURCH STREETS
PRETORIA
On
behalf of the defendant:
Adv.
V
H
MUGWAMBANE
Instructed by:
MAKHUBELA
ATTORNEYS
169 ANDERSON STREET
Brooklyn
PRETORIA
1
See
Stellenbosch Farmers' Winery Group & Another v Martell Et
Cie And Others 2003 (1) (SCA) at 14-15.