Transnet Ltd t/a Metro Rail v Tshabalala (151/05) [2006] ZASCA 24; [2006] SCA 25 (RSA) ; [2006] 2 All SA 583 (SCA) (22 March 2006)

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[2006] ZASCA 24
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Transnet Ltd t/a Metro Rail v Tshabalala (151/05) [2006] ZASCA 24; [2006] SCA 25 (RSA) ; [2006] 2 All SA 583 (SCA) (22 March 2006)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO 151/2005
In
the matter between
TRANSNET LTD t/a METRO RAIL Appellant
and
LAZARUS TSHABALALA Respondent
______________________________________________________________
Coram: Streicher, Brand and Jafta JJA
Heard: 27 February 2006
Delivered: 22
March 2006
Summary
:
Contributory
negligence – apportionment of fault – Appeal court’s assessment
differing substantially with that of the trial
court.
Neutral citation: This judgment may be referred to as
Transnet Ltd v Tshabalala [2006] SCA 25 (RSA)
______________________________________________________________
JUDGMENT
______________________________________________________________
JAFTA JA
[1] The respondent (the plaintiff) sued the appellant
(the defendant) in the High Court, Johannesburg for payment of the
sum of R762 650
as damages arising out of an accident involving
a train operated by the defendant. The court
a
quo (Berger AJ)
was asked to determine the issue of liability separately from the
other issues. It held that both parties were equally
negligent and
that such negligence had contributed to the injuries sustained by the
plaintiff. Consequently it reduced damages to
which the plaintiff was
entitled by half and ordered the defendant to pay costs of the trial.
This court granted leave to the defendant
to appeal on the following
limited issues:
‘
Whether, on the facts found by the trial court
together with any other facts on the record that are consistent with
those findings,
the trial court correctly found that the defendant is
liable for the consequences of the injuries sustained by the
plaintiff in the
accident, and if so, whether the trial court’s
apportionment of fault was correct.’
[2] The facts found by the trial court were the
following. On 21 September 2001 the plaintiff, a resident of Soweto,
Johannesburg
had visited his sister at Soshanguve, north of Pretoria.
He had travelled by taxi from Johannesburg to Soshanguve. On his
return
he decided to travel by train but did not know where he could
catch a train to Johannesburg. He boarded a train which travelled
from
Mabopane (also north of Pretoria) to Bosman station in Pretoria.
The train had to pass through Soshanguve. From Soshanguve station
it
stopped at Akasia Boom station before it proceeded to Winternest
station.
[3] At Winternest the plaintiff alighted from the train
with another passenger, Mr Gavin Emmanuel. He then asked for
directions as
to where he could catch a train to Johannesburg
whereupon Emmanuel told him to return to the train and alight at
Bosman station,
where he could get a train to Johannesburg. As he was
talking to Emmanuel the train started to move. He gave chase, running
past
three coaches from the rear. When he reached the fourth coach,
he held on to a vertical hand rail which was inside the coach near
the door. Unfortunately he lost his footing and fell onto the rail
tracks, where he was found shortly after the accident. His right
foot
was completely severed from the leg. An ambulance was summoned and
paramedics treated him on the scene before conveying him
to hospital.
[4] The doors were open when the train arrived at
Soshanguve station and remained open until the accident occurred. The
plaintiff’s
version of the accident which differed from that of the
defendant was correctly rejected by the court
a quo
. It held
that the plaintiff was negligent in attempting to board a moving
train. The defendant was also found to have been negligent
in
operating a train whilst the doors were open.
[5] In argument before us, counsel for the defendant
submitted that the plaintiff was not entitled to any compensation
because he
had intentionally contributed to the injuries sustained by
him. He argued that the plaintiff had acted with
dolus eventualis
in attempting to board the moving train. For this contention reliance
was placed on
Minster van Wet en Orde & ‘n Ander v Ntsane
[1992] ZASCA 210
;
1993 (1) SA 560.
In that case the second defendant (a policeman) had
intentionally shot and injured the plaintiff who was escaping from
lawful custody.
The plaintiff sued the minister and the policeman for
damages. The defendants sought apportionment of damages on the basis
that the
plaintiff’s negligence contributed to his injuries. This
court held that a defendant who has intentionally injured a plaintiff
was not entitled to an apportionment of damages in terms of the
relevant statute.
[6] The contention that the plaintiff had acted
intentionally was based on an inference sought to be drawn from the
fact that he was
under the influence of liquor; he chased a moving
train and held on to the hand rail in an attempt to board it. These
facts do not
support the inference which counsel sought to draw but
clearly show that the plaintiff was negligent.
[7] It was also submitted on behalf of the defendant
that its negligence did not contribute to the injuries sustained by
the plaintiff.
Dealing with the issue of causation the trial court
relied on
Road Accident Fund v Russel
2001 (2) SA 34
(SCA) and
held that had the defendant ensured that the doors of the train were
closed before it left the station, the plaintiff could
not have
attempted to board it in the manner described in evidence. The court
a
quo held further that the defendant’s failure to close the
doors was sufficiently linked to the plaintiff’s loss for legal
liability
to ensue. I cannot find fault with these conclusions. In
rejecting a similar argument in
Marine & Trade Insurance Co
Ltd v Singh
1980 (1) SA 5
(A) Rumpff CJ said at 12H-13A:
‘
On behalf of the appellant it was argued that the
omission to close the door was a
causa sine qua non
and not a
causa causans
. This simple argument shows a lack of
appreciation of the problem of causation. In the present case, the
omission to close the door,
in the circumstances described in the
evidence, is sufficiently linked to the injury of the plaintiff so as
to establish legal liability.’
(See also
Ngubane v South African Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A)).
[8] With regard to the apportionment of fault, the
defendant’s counsel argued that the court
a quo
incorrectly
assessed the degree to which each party was at fault. He submitted
that the plaintiff’s fault should have been fixed
at 90 per cent
and his claim reduced by that percentage. Section (1) (a) of the
Apportionment of Damages Act 34 of 1956 confers a
discretion on the
trial court to reduce damages to an extent it deems equitable having
regard to the degree to which the claimant
was also at fault. In the
absence of an irregularity or misdirection the appeal court will not
interfere with such apportionment
unless its own assessment differs
substantially with that of the trial court (
Shield Insurance Co
Ltd v Theron NO
1973 (3) SA 515
(A) at 518B-D).
[9] In this case my assessment of the relative degree of
negligence of the defendant on the one hand and the plaintiff on the
other
does differ substantially from that of the trial court. A
reasonable man in the position of the defendant would not have
allowed
the train to operate with the doors of the coaches open as he
would have foreseen that to leave the doors of the railway coaches
open would constitute an invitation to prospective passengers to
board the train while moving and that it would be dangerous for
them
to do so. Similarly, a reasonable man in the position of a
prospective passenger would have foreseen the danger of boarding
a
train after it had started to move and would have refrained from
doing so. Both the defendant and the plaintiff were therefore
negligent. Had the plaintiff been sober and had he attempted to board
the train shortly after it started moving the degree to which
he was
at fault may well have been the same as that of the defendant. That
is however not what happened. The plaintiff was at least
somewhat
intoxicated at the time and he tried to board the train after it had
moved a considerable distance and had probably gathered
some speed.
The court a quo summarised the evidence of Emmanuel, whose evidence
it accepted, as follows:
‘
The train started to leave the station. When the
plaintiff realised that the train was leaving he started to run after
it. He was
running in the direction of the first class coaches. He
ran past the coach in which he had been travelling and two further
third
class coaches. The next coach was a first class coach. Mr
Emmanuel could see that the plaintiff was not going to make it. He
was
staggering as he ran. Eventually he managed to reach the first
class coach. He grabbed onto the rail in the middle of the entrance
to the coach and ran for approximately three metres alongside the
train whilst holding onto the rail. Then he lost his footing and
disappeared from sight.’
In the light of this evidence the conduct of the
plaintiff deviated from the norm, being that of a reasonable man, to
a substantially
greater degree than that of the defendant. In the
circumstances it would, in my view, be equitable to reduce the
damages suffered
by the plaintiff by two thirds.
[10] The appeal is upheld with costs and the order of
the court a quo is replaced with the following order:
‘
1. Whatever damages the plaintiff may prove to have
suffered are to be reduced by two thirds in terms of section 1 of the
Apportionment
of Damages Act 34 of 1956.
2. The defendant is ordered to pay the costs incurred by
the plaintiff excluding the costs of Tuesday 30 March 2004 and half
of Wednesday
31 March for which a separate costs order has been
made.’
_____________________
C N JAFTA
JUDGE OF APPEAL
CONCUR: ) STREICHER JA
) BRAND JA