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[2012] ZAGPPHC 118
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Shongwe v Passenger Rail Agency of South Africa (A512/2010) [2012] ZAGPPHC 118 (18 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: A512/2010
DATE:18/06/2012
In
the matter between
MFANAFUTHI
LUCAS
SHONGWE
.........................................................................
APPELANT
And
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
..............................................
DEFENDANT
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
The Appellant instituted an action against the Respondent for damages
which he suffered when he was injured attempting to board
a moving
train belonging to the Respondent at the Kopanong Station near
Pretoria on 28 October 2006.
[2]
For ease of reference I shall refer to the parties as the Plaintiff
and the Defendant.
[3]
The Plaintiff, in the court a quo, was represented by Advocate E.
Seima ("Mr. Seima") while Advocate J. G. Cilliers
SC ("Mr.
Cilliers") represented the Defendant. The Plaintiff, before us,
was represented by Mr. B. P. Geach and Mr. E.
Seima while Mr. J. G.
Cilliers represented the Defendant.
[4]
The parties, in the court a quo, at the commencement of the trial,
agreed that the issue of quantum be separated from the issue
of the
merits in terms of Rule 33(4) of the Uniform rules of Court. The
trial court, accordingly, made such an order.
BRIEF
FACTS
[5]
The Plaintiff had found himself a job. To go to work he needed to use
a train from Mabopane and he purchased a monthly train
ticket which
was valid between Pretoria and Mabopane. On 28 November 2006, which
was his 28th day using the train, he again was
to use the train from
Kopanong railway station on his way home. He arrived at the station
at approximately 20H00. It appears that
the train was on the platform
when he entered the main entrance gate called the access control. The
train pulled off before he
could board it. He testified that he ran
to the moving train and attempted to board it but failed as he
slipped and fell between
the moving train and the platform. He
sustained some injuries on his left leg which unfortunately had to be
amputated. This culminated
in the action he instituted against the
Defendant for the damages that he alleged he had suffered arising
from the incident. The
Plaintiff based his claim on the negligence of
the Defendant whose employees were said to have left the doors of the
train open
while the train was in motion. The Defendant defended the
action and raised the defence of volenti non fit injuria. On 20
February
2009 the court below dismissed the Plaintiffs claim with
costs. On 23 April 2009 leave to appeal to this court was granted to
the
Plaintiff.
[6]
The Plaintiff in the particulars of claim, as alluded to above,
alleged three grounds of negligence by the Defendant's employees,
namely that:
"6.1
They allowed the train to depart without ensuring that all intending
passengers were safely on board.
6.2
They allowed the train to depart whilst the doorfs) thereof were not
closed.
6.3
They failed to keep a proper look-out."
The
Plaintiff, during the trial, only relied on the second ground,
THE
ISSUES TO BE DETERMINED
[7]
These are:
1.
Whether the doors of the train were open or closed when the
Plaintiff attempted to board the train.
2.
Whether the employees of the Defendant acted negligently in the
causation of the relevant incident.
3.
If so, whether the Plaintiff negligently contributed to such
causation.
COMMON
CAUSE FACTS
[8]
These are that:
1.
The Plaintiff was a train commuter.
2.
He was a bearer of a monthly train ticket en route Pretoria -
Mabopane.
3.
He intended to board the train at Kopanong station near Pretoria on
28 November 2006 on his way home.
4.
The train, at the time the Plaintiff attempted to board it, had been
in motion.
5.
The Plaintiff slipped and fell ending up on the railway line next to
the lines.
6.
The Plaintiffs left leg was injured necessitating an amputation.
[9]
The Plaintiff bore the onus to prove the negligence of the
Defendant's employees.
[10]
To prove his case, the Plaintiff alone testified while the Defendant
called three witnesses. These are the witnesses who had
to assist the
court below in deciding whether the Plaintiff had discharged the onus
and whether the Plaintiffs conduct on 28
November
2006 excluded fault on the part of the Defendant.
[11]
The Plaintiffs evidence which is worth noting is as follows:
"1.
Whilst I was approaching the gateway (as he calls it) where the train
guards are located, at that stage the train was pulling
in."The
gateway is the main gate or the access control. (Vol. 1 page 29 lines
20 - 22).
2.
The train pulled off when he was on the last step leading to the
platform (Vol. 1 page 30 lines 1-2 and Vol. 1 page 43 lines
6-9).
That is when he was at the distance of 6 - 7 metres from the train.
3.
He "wanted to board the train to go home because the train was
being boarded" (Vol. 1 page 45 lines 11 - 12).
4.
He knew at all times and on 28 November 2006 in particular, that to
board a moving train may injure himself and/or even cause
his death
himself. (Vol.
1 Page 46
lines 6 - 10).
5.
"With that full knowledge" he "decided to take the
risk and board the moving train". (Vol. 1 page 46 lines
11-12).
6.
He "knew that it was extremely dangerous to board a moving
train" (Vol. 1 page 43 lines 15 - 18).
7.
Notwithstanding that it was extremely dangerous, he decided to take
the risk and jump onto the train whilst it was moving because
he felt
unsafe on the platform. It was, as he put it, "a 22 catch - 21
catch situation." (Vol. 1 page 44 lines 4-7).
[12]
WHETHER THE DOORS OF THE TRAIN WERE OPEN OR CLOSED
The
Plaintiff testified that the door that he targeted was open while the
others were closed. His further testimony was that he
slipped and
fell between the platform and the train. What bothered Mr. Cilliers
regarding this evidence was that the legal teams
had measured the
distance between the platform and the train that the Plaintiff was
attempting to board and the distance was found
to be approximately 23
centimetres which meant that the Plaintiff could never have fallen
through. Besides, the injuries that he
could have sustained, had it
so happened, would have been terrible. There is, indeed, merit in
this argument. This argument rules
out the Plaintiffs contention that
the door that he had targeted had been open. Mr. Cilliers referred
the Plaintiff to page 247
of the court record which is page 80 of
Exhibit "A". The photograph appearing there shows coaches
of the train. The distance
between two coaches is approximately a
metre and a half and it allows a person to stand and to fall through
and land on either
the railway lines or next to them. Falling through
here is possible and probable and not as contended for by the
Plaintiff. This
again gives credence to the Defendant's version that
the doors were closed. Mr. Justice Maigo ("Maigo")
testified that
the doors of the train, indeed, were closed. They, on
the day of the incident, according to Mr. Lawrence Thamsanqa Jafta
("Jafta"),
had been operating properly. The court a quo
therefore cannot be faulted for accepting Maigo's evidence and
finding that the doors
of the train had been closed.
A
photograph appearing on page 325 of the court record bears the
message ... "Stay clear of all doors whilst the train is in
motion. Do not ride in between coaches. Metrorail will not be held
responsible for injuries sustained."
It
appears there is consensus that should the court find that the doors
of the train were closed, as Mr. Cilliers contended, then
that would
bring an end to the Plaintiffs claim which, in that event, will have
failed.
Mr.
Geach's submission that the doors of the train could have been opened
from inside the train was not only dealing with an issue
which had
not been covered by the pleadings but also with an issue which was
also not supported by evidence. This was nothing but
speculation
which in no way advanced the Plaintiffs case.
VOLENTI
NON FIT INIURIA
[13]
This simply means that he who consents cannot receive an injury. It
is voluntary assumption of the risk of being injured which
is a
ground of justification which excludes the element of unlawfulness.
(Neethltng, Potgieter, Visser: Law of Delict 6«-
ed. Page 106:
7.5,3)
This
defence has properly been dealt with in the well known case of Santam
Insurance Company Ltd v Vorster
1973 (4) SA 764
(A) which gives a
summary of the approach which the court should follow when dealing
with the defence. To render the claimant volens,
it must be
established that he or she had the knowledge and appreciation of the
danger and foresaw the risk of injury to himself.
The risk which
culminates in the injuries must fall within the ambit of the thus
foreseen risk. The court, it was said, must "resort
first to an
objective assessment of the relevant facts in order to determine
what, in the premises, may fairly be said to have
been the inherent
risks of the particular hazardous activity under consideration.
Thereafter the court must proceed to make a factual
finding upon the
vital question as to whether or not the claimant must, despite his
probable protestations to the contrary, have
foreseen the particular
risk which later eventuated and caused his injuries, and is
accordingly to be held to have consented thereto".
[Santam
Insurance Co. Ltd v Vorster (supra) at 781 B - E).
In
Moepya v Transnet Limited and Another Case Number 2475/05 delivered
on 12 July 2007
Mynhardt
J said that there are serious risks of injury and perhaps even death,
inherent in someone trying to board a moving train.
It was to any
person obvious, he said, that if one tried to board a moving train,
especially one that is picking up speed, that
the risk of injury, and
possibly also death, is not a farfetched risk and the possibility of
injury is not a farfetched possibility.
[14]
It was submitted on behalf of the Plaintiff that the Defendant owed
the Plaintiff a duty of care which was bourne out by its
rules and
regulations. The doors of the train had to be closed when the train
was operated. Failure to operate the train with its
doors closed and
to ensure that all passengers had safely boarded or alighted and
cleared the vicinity or demarcated area of the
railway or train
before it started moving, it was further submitted, was the proximate
cause of the Plaintiffs fall. This, in the
light of the Plaintiffs
evidence under cross examination, cannot be correct. The Plaintiffs
evidence and the concessions he made
during cross examination namely
that the train had been in motion when he intended to board it and
that it was extremely dangerous
to board a train that was in motion
reveal that he had the necessary knowledge of the risks involved in
what he was trying to do.
He appreciated the danger and the
consequences of his action. He nevertheless persisted in doing what
he knew was wrong and dangerous
and that persistence brought about
the injuries for him. The court below, correctly in my view, arrived
at no other conclusion
but that he consented or assumed the risk of
being seriously injured in attempting to board a moving train.
[15]
That the court below found that the train was already on the platform
at the time that the Plaintiff entered the main gate
cannot help the
Plaintiff who testified that whilst he approached the access gate
where the train guards are located the train
was pulling into the
station. The Plaintiff was clearly still a distance from the platform
while the train had pulled into the
station. In any event the train
started moving before he was on the platform. On his own version he
was at a distance of 6 - 7
metres from the train when it pulled off
from the platform. In answer to a statement by Mr Cilliers that he
had been solely responsible
for what happened and that he had
deliberately taken the risk of boarding the train that was in motion
fully aware and knowing
the risks involved and still decided and
consented to take the risk, the Plaintiff answered that there was
hardly a day going by
without him blaming himself for what
transpired. He testified that he, because of his action, had lost a
limb. What better truth
can one look for than this.
[16]
In the light of the Plaintiffs evidence, it cannot be correct that
the court below erred when it found that the train had already
gained
speed at the time that the Plaintiff saw it; that the three doors had
already moved past and that he had decided to run
after the fourth
door. The coaches were moving past according to his evidence. It must
also be borne in mind that the train was
in motion. He, on his own
version, did not target all the doors but the one door that he had
intended to use to access the train.
Resulting from what I say in
paragraph 12 above we now know that he could not have targeted any
door.
[17]
The Plaintiffs evidence clearly reveals that this case and Transnet
Ltd t/a Metrora.il and Another v Witter
2008 (6) SA S49
(SCA) are
distinguishable. First, in the Transnet case the train indeed had
just started to move slowly when the Plaintiff emerged
onto the
platform whereas the train in this case gathered speed before the
Plaintiff reached it. It is not correct that the Plaintiff
tried to
board the train when it was pulling off because on his own version he
was at a distance of 6 - 7 metres when he saw it
pulling off. The
train was in motion when he got to it and by then the danger and the
risks existed. Second, the door in the Transnet
case was open while
the doors in this case, as demonstrated above, were closed.
[18]
The evidence of Justice Maigo and Lawrence Thamsanqa Jafta, the
Defendant's witnesses, on the question of negligence is noteworthy.
The court below found Maigo to be a satisfactory witness. In fact the
court below found that the Defendant's witnesses were credible
and
rejected the version of the Plaintiff. Maigo testified that he had
personally checked that all the doors of the train had been
closed
before the train departed. He maintained this evidence when cross
examined by Mr. Siema. He explained how he would stop
the train in
the event that he saw something which obliged him to stop the train.
He saw the Plaintiff running parallel with the
train and later
disappeared from his sight. He did not see the Plaintiff fall between
the train and the platform. This, indeed,
shows his honesty.
[19]
Robert Makgoto who was employed together with Maigo by Hlanganani
Protection Services and also deployed at Kopanong Railway
Station on
28 November 2006 was at the main gate i.e. the access control. He
testified that the Plaintiff ran past him at 20H30.
He told him not
to run as he might injure himself. A colleague later called him and
asked him to go and render assistance at the
platform as he had been
working downstairs. There he found the
Plaintiff
whom he identified and who at the time had been injured. The
Plaintiff himself confirms this evidence. Maigo's testimony
is that
he screamed at the Plaintiff telling him not to board the moving
train.
[20]
Lawrence Thamsanqa Jafta was an artisan employed by the Defendant on
28 November 2006. He inspected the relevant train on 28
November 2006
and 12 December 2006 and found the doors of the train to be operating
properly.
[21]
The three defence witnesses were indeed honest, reliable, credible
and satisfactory witnesses. Accepting Maigo's evidence means
that the
doors of the train were closed when it departed. The court below, in
my view, was correct when it found that the Plaintiff
indeed should
have waited for the next train while under the protection of the
guards. The court below was also correct in finding
that the reason
that the Plaintiff furnished for attempting to board the train on 28
November 2006 was unacceptable.
[22]
A consideration of the evidence as a whole reveals that:
1.
The Plaintiff consented to the risk of injury and to the injury.
2.
He was capable of volition.
3.
He had full knowledge of the nature and the extent of the (possible)
prejudice.
4.
He realised and appreciated fully what the nature and extent of the
harm would be.
5.
He subjectively consented to the prejudicial act.
6.
The doors of the train were closed.
7.
The Plaintiff could not have targeted the door when he attempted to
board the train but the area between the coaches.
The
requirements for valid consent as set out in the work of Neethling,
Potgieter, Vtsser (supra) are indeed met. The Plaintiffs
evidence in
cross examination reveals that the question of contributory
negligence on the part of the Defendant or its employees
does not
even come into the equation. The Plaintiff himself and alone created
what transpired and he does not seem to forgive himself
for that.
Indeed he verbalises it. The suggestion that the Plaintiff was 50%
negligent with the other 50% being attributed to the
Defendant,
therefore, has no merit. The court below, in my view, was correct in
finding that the Plaintiff was 100% negligent.
No basis exists to
upset the court below's factual and credibility findings. The
Plaintiffs injuries were indeed, self created
and he only has himself
to blame for that and he is indeed correct when he verbalises it. The
Plaintiffs claim, in my view, was
correctly dismissed. The appeal
therefore stands to be dismissed.
[23]
I would in the result propose that the appeal be dismissed with
costs.
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT
I
agree.
R.
G. TOLMAY
JUDGE
OF THE HIGH COURT
I
agree.
And
it is so ordered.
C.
P. RABIE
JUDGE
OF THE HIGH COURT
Heard on: 18 April 2012
For
the Appellant: Adv. B. P. Geach (S.C.) with Adv. E. Seima
Instructed
by: Lepule, Mokoka Inc
For
the Defendants: Adv. J. G. Cilliers (S.C.)
Instructed
by: Stone Attorneys
Judgment
delivered on: