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[2013] ZAGPPHC 409
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Zitha v Buscor (Pty) Ltd (19022/2010) [2013] ZAGPPHC 409 (11 November 2013)
REPUBLIC OF SOUTH AFRICA
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 19022/2010
DATE:
11 NOVEMBER 2013
In the matter between:
AARON
ZITHA
..............................................................................................
Plaintiff
and
BUSCOR (PTY)
LTD
...................................................................................
Defendant
JUDGMENT
MNGOIBISA-THUSI J:
1. The plaintiff has instituted an
action for damages against the defendant as a result of injuries he
allegedly sustained when
he
allegedly fell off a moving bus owned
by the defendant and driven by one of its drivers, Obed Nkosi
("Nkosi").
2. From the hospital records it appears
that the plaintiff presented the following injuries: 'rotator cuff
soft tissue injury to
the right shoulder, pain in the left hip and
soft tissue injury to the left knee'. It appears that the plaintiff
went to hospital
on 20 August 2007.
3. In his particulars of claim, the
plaintiff is seeking damages in the amount of R490 163.27 calculated
as follows:
2.1 Past medical expenses
...................
R6
643.27
2.2 Future medical expenses
…..........
R87
785.00
2.3 Loss of earning capacity/ loss
…...............
of
employability
...........................
R193
500.00
2.4 General damages
...........................
R200
000.00
4. In its plea the defendant denied
that the accident ever happened. In the event that it is found that
the accident did happen,
the defendant denies that its driver was
negligent, alternatively, that the plaintiff had contributed to the
loss he suffered.
Furthermore, the defendant is relying on an
indemnity notice posted inside its busses which it claims is written
in eSiswati and
English.
5. An order in terms of Rule 33 (1) was
granted, separating the merits from quantum.
6. The plaintiff testified and also
called Elias Madolo as his witness.
7. The plaintiff testified that on 7
August 2007 he boarded a bus belonging to the defendant on his way
home from work. When the
bus reached Likazi township, extension 5,
Kanyamazane, next to the Gaza church, he was in the process of
alighting from the rear
door of the bus, with his right foot on the
stairs of the bus, when suddenly the door closed and the bus started
moving slowly.
His left foot was caught just above the ankle between
the two folds of the double door of the bus. The bus then dragged him
for
approximately 12 metres. The plaintiff further testified that the
bus dragged him on the gravel shoulder of the tarred road which
had
little stones. He managed to get his foot loose and fell to the
ground, injuring his left knee, hip, shoulder and had a headache.
He
admitted that he had no injuries on his hands or ankle even though he
testified that he was dragged next to the tarred surface
of the road
where there were little stones.
8. Plaintiff denied that he suffered
from TB of the hip even though
9. In cross examination the plaintiff
testified that when the bus reached a curve of the road, on the
corner of Chris Hani and
Liphayini streets, his leg came loose,
and he was thrown off the bus and rolled on the tarred until he
landed on the grassy pavement.
Further that he hit the ground with
his left knee.
10. Further under cross examination,
the plaintiff testified that as he was trying to get his leg loose,
he was hopping alongside
the bus with his right leg, screaming.
11. The plaintiff admitted that he made
a statement to his lawyers, that his lawyers wrote the statement and
admitted that the signature
on the statement was his. However, he
testified that he could not recall if the statement was read back to
him. He denied that
he had told his lawyers that the accident
occurred at the Way Inn bus stop which is further from the place
where he alleges the
accident occurred. He testified that he had told
his lawyers that the accident happened near the Way Inn but next to
the Gaza church.
He further denied that he told his lawyers, as
reflected in his affidavit that his right hand was caught in the
door.
12. On being shown the statement he
made to the police, the plaintiff denied that he told the police
officer who was writing hid
statement that his arm was caught in the
door. He testified that he merely answered to questions put to him by
the police officer
and was later asked to sign.
13. With regard to the indemnity
notices placed allegedly in the defendant's busses at its terminals
and allegedly written in English
and eSiswati, the plaintiff
testified that he was not aware of what was written on what appeared
to be a notice in the bus nor
that he ever saw the alleged notices at
the bus terminal where he usually bought his ticket.
14. The version put to the plaintiff in
cross examination was that the driver of the bus would deny that
there is a bus stop where
the plaintiff alleges the bus stopped and
he alighted. Further that the bus stop is about 200m from where the
plaintiff alleges
the bus stop and that the driver of the bus would
deny that he allows passengers to alight at the place the plaintiff
alleges he
alighted. Furthermore, that the driver would testify that
he did not hear any people screaming. The plaintiff insisted that the
same bus always stops to allow passengers to disembark.
15. The plaintiff called Mr Elias
Madolo ("Mr Madolo") as a witness. Mr Madolo testified that
he lives next to the Gaza
church where the defendant's busses
normally stop to let passengers off. On the day in question he was
busy tendering his garden
when he heard people screaming. On
investigating he saw the plaintiff lying on the ground next to his
yard. He went to him to assist
the plaintiff who told him he had
fallen from the bus. He testified that he did not see how the
plaintiff fell from the bus.
16. In cross examination, Mr Madolo
reiterated that he did not see how the plaintiff fell from the bus.
On being questioned about
a statement he made to his lawyers in which
it is stated that he saw the plaintiff alighting from the rear door
of the bus and
the door suddenly closing, dragging the plaintiff for
some metres. He denied having told the person who wrote his affidavit
that
he saw the plaintiff falling from the bus and that the bus
dragged him. He testified that he answered questions asked and his
answers
were written down and thereafter he was made to sign the
statement without it being read back to him.
17. Mr Madolo further denied ever
seeing any indemnity notices on the busses, as they were not there
when he used the bus to work
whilst still employed. Furthermore, he
denied seeing the notices at the terminal building as it was a new
building.
18. The plaintiff then closed its case
and the defendant applied for absolution from the instance, which
application was dismissed.
19. Mr Obed Nkosi ("Mr Nkosi"),
the driver of the bus testified on behalf of the defendant. He
testified that he had 24
years of experience as a driver and that
during that period, after his initial training, he received training
for two weeks in
each year. He testified that the
bus stop where he usually allows
passengers to get off is about 12 meters from the corner of Chris
Hani and Lephayini streets. He
denied that on the day in question the
plaintiff had alighted from the rear of the bus as he is the only one
able to open the doors
of the bus with a lever from the front once
they are closed. He testified that at the rear door of the bus and in
front of the
inside of the bus there are indemnity notices which
every passenger can see. He testified that had the plaintiff fallen
off the
bus he would have seen him as he constantly checks the rear
view and the outside mirrors of the bus.
20. The defendant called Antony Van der
Westhuizen, a motor vehicle accident assessor who did an
investigation at the scene of the
accident. In his opinion if a
person is trapped between the two folders of the door of the bus
which has a rubberised lining, the
pressure on the door would not be
that strong, and the driver would not be able to lock and it is
possible that the driver would
not be aware that the door was not
locked. He further testified that if the plaintiff was trapped in the
door in the way he says
he was, on falling, he would have fallen
under the bus. However, he did concede that when the bus turned, on
falling, the plaintiff
would have fallen to the left of the bus as he
testified.
21. In cross examination, Mr Van der
Westhuizen testified as to the statement made by Mr Madolo to him on
4 January 2011. He testified
that Mr Madolo told him, contrary to his
evidence, that he had seen the plaintiff alight from the bus and the
bus dragging him.
Further that Mr Madolo had told him that before the
accident, the plaintiff was limping. Mr Van der Westhuizen also
expressed his
surprise as to why the plaintiff's hands were not
injured if he fell the way he claims.
22. After Van der Westhuizen's
testimony, the defence closed its case.
23. The onus rests on the plaintiff to
prove on a balance of probabilities that the incident occurred and
that it was as a result
of negligence on the part of Mr Nkosi, the
bus driver. If I find that the driver was negligent, then I will have
to find that the
plaintiff is vicariously liable for any proven loss
suffered by the plaintiff as Mr Nkosi in his evidence testified that
at the
time the accident is alleged to have happened, he was
performing his duties as the defendant's driver.
24. It is the plaintiff's version that
on 7 August 2007 while alighting from a bus driven by Mr Nkosi and
owned by the defendant,
he fell from the bus after Mr Nkosi suddenly
closed the doors whilst his left foot was still in the bus and
started driving away.
As a result, he testified that the bus dragged
him for 12 metres but later changed said he hopped along the bus
until he managed
to get his leg free. The defendant's version is that
the incident never occurred as Mr Nkosi testified that he never saw
the incident
and never heard any screaming.
25. I have before me two conflicting
versions as to what happened on the day in question. When faced with
two mutually destructive
versions, the test for deciding whether the
plaintiff has discharged the onus he bears was set out in National
Employers' General
Insurance v Jagers
1984 (4) SA 437
(ECD) where the
court stated at 440D-G that:
”...
where the onus rests on the plaintiff as in the present case, and
where there are two mutually destructive stories, he
can only succeed
if he satisfies the court on a preponderance of probabilities that
his version is true and accurate and therefore
acceptable, and that
the other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding
whether that evidence
is true or not the court will weigh up and test the plaintiff's
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inexplicably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the court will accept
his version as being probably
true. If, however, the probabilities
are evenly balanced in the sense that they do not favour the
plaintiff's case any more than
they do the defendant's, the plaintiff
can only succeed if the court nevertheless believes him and is
satisfied that his evidence
is true and that the defendant's version
is false."
26. The plaintiff is the only witness
as to what actually happened as Mr Madolo clearly testified to the
fact that he did not see
how the plaintiff fell from the bus as he
was busy attending to his garden.
However, the plaintiff could not
explain the contradictions in his testimony and what he told the
police and his lawyers. Although
the plaintiffs evidence is that his
left foot was caught in the door, in his sworn statements he
indicates that his arm or hand
was trapped in the door. I find it
improbable that the plaintiff would have been dragged by the bus and
people screaming that the
driver would not have realised that
something was amiss. Furthermore, I find it difficult that the
plaintiff would have hopped
or been dragged alongside a moving bus
for a distance of 12 metres without sustaining more severe injuries.
I also find it difficult
to accept that the plaintiff would have
fallen from a moving bus without injuring his hands. I am therefore
of the view that the
version of Mr Nkosi, taking into account the
evidence of Mr Van der Westhuizen as to where the plaintiff would
have landed had
he fallen in the manner he described, that the
incident did not happen to be probable.
27. Taking into account all the
evidence before me, I am satisfied that the plaintiff has not
discharged his onus of proving that
he fell from and was dragged by
the defendant's bus. Consequently, the issues of the driver's
negligence and the indemnity notices
do not arise.
28. Accordingly the following order is
made:
'The plaintiff's
action is dismissed with costs.'
MNGIBISA-THUSI J
Appearances:
For the Plaintiff : Adv B P Geach SC
Instructed by : Nell, Kotze & Van
Dyk
For the Defendant : Adv R N Groenewald
Instructed by : Naude Attorneys