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1990
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[1990] ZASCA 148
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Ngubane v South African Transport Services (92/89) [1990] ZASCA 148; 1991 (1) SA 756 (AD); [1991] 4 All SA 22 (AD) (28 November 1990)
92/89 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
OTTO MALUSI NGUBANE
APPELLANT
and
SOUTH AFRICAN TRANSPORT SERVICES
.. RESPONDENT
CORAM
: JOUBERT ACJ, E M GROSSKOPF, MILNE,
KUMLEBEN JJA et NICHOLAS AJA
HEARD
: 12 NOVEMBER 1990
DELIVERED
: 28 NOVEMBER 1990
JUDGMENT
KUMLEBEN JA
:/...
1.
KUMLEBEN JA
:
Before and during July 1985 the appellant made daily use of the passenger
rail service, owned and administered by the respondent,
to travel from home to
his place of employment and back. He would board at Dube station and proceed to
Cleveland station where he
would alight and go to work. Grosvenor halt and
George Goch station are two of the intermediate stops along that route. It is
part
of an extensive railway network for the Southern Transvaal region operating
inter alia
to convey commuters living in the townships on the
Witwatersrand.
On the morning of 23 July 1985 the appellant was severely injured at
Grosvenor. He sustained a spinal fracture resulting in permanent
partial
paralysis. In due course he sued the respondent in the Witwatersrand Local
Division of the Supreme Court for
2/...
2.
payment of the sum of Rl 817 733,06 as damages,
alleging
that negligence on the part of the respondent
or its servants, or both,
caused his injuries. The
plea denied liability; alleged that the appellant
had
been contributorily negligent; and put him to the proof
of his
damages. The court (per Hattingh AJ) dismissed
the claim cm the ground that
the appellant failed to
prove that the respondent or its servants had
acted
negligently. The court, however, did indicate the
amount it would
have awarded under the various heads of
damages, had liability been proved.
The appellant was
granted leave to appeal to this court. The
respondent
successfully applied for leave to cross-appeal against
the
"findings", as they were described in the notice of
application to
cross-appeal, in respect of damages. S
20 of the Supreme Court Act, 59 of
1959, authorises an
appeal, which includes a cross-appeal, from
a
"judgment or order" of the Supreme Court. Since the
3/...
3. court a
quo
neither made an order nor gave a
judgment in favour of the appellant, the cross-appeal was plainly misconceived.
This Mr Burman,
who appeared for the respondent, conceded. It follows that any
costs arising from the "cross-appeal" are to be borne by the respondent
whatever
the outcome of this appeal.
The appellant's notice of appeal was not timeously served on the respondent
or lodged in this court. The reasons for this oversight
appear from an affidavit
of the attorney in an application for condonation. It was not opposed and was
granted at the start of the
hearing of the appeal on the understanding that the
appellant is to pay the costs, if any, incurred by the respondent arising from
this application.
The appellant gave evidence and told the
4/...
4
court how he came to be injured. That morning he was
a
passenger on the train from Dube to Grosvenor. He
arrived there at about
07h20 and alighted to await a
train to take him on to Cleveland. When one
arrived he
boarded a third class coach, which was more or less in
the
middle of the train. A series of photographs of a
similar coach (Exhibit A) and its interior (Exhibit E)
depict the doorway
and in its immediate vicinity the
configuration of the interior of the coach. Each coach
has sets of double doors opposite each other. When the
train stops at the station only those doors on the
platform side ought to be opened. There is a step
running below the bottom of each doorway, and a
vertical post in the middle, as shown in Exhibit A
page 1, both of which are intended to facilitate
entering and leaving the coach. In line with and
between the centre posts, hanging straps are attached
to the roof of the coach: they thus extend across its
5/...
5. width. When the doors are closed the sliding sections on each
side meet at the centre post. To continue with his evidence, the
coach which he
boarded was crowded,
particularly in the vicinity of the doorway through which he
and others entered: so crowded in fact that he was obliged to be close
to that
doorway. On entering he stood with his back to the post as he faced the opposite
doorway, which he noticed was open although
it was not on the platform side. He
held on to the overhead strap nearest that doorway with his one hand: he was not
the only person
holding on to it. (His evidence thus indicates that he was just
inside the coach and, had the doors closed behind his back, he would
have been
close to them.) As he secured himself in this position, people, as he put it,
"were pushing their way to get out" and "others
were pushing in". At this point
the train started with a jerk and continued moving forwards. Those passengers
near the doorway
6/...
6. who still wished to disembark, or were in the act of
doing so, started screaming and pushing past and against him. Before the train
started there were no signs of disorder or panic. The state of congestion and
the movement of people at the critical time when he
took up his position in the
coach, and immediately afterwards, were thus described by him during
cross-examination:
"Now the train that you tried to get into, was it full? -- Yes it was
full.
And was it also full at that compartment where the
door is? Yes my
lord.
And was it full to the degree that there were people standing right up to
where the door was? --Yes my lord.
In other words to get onto the train you had to move these people to make
room for yourself? -- My lord the people who were in front,
that is, next to the
door, some of them had already got out of the train and there was a little space
for me to squeeze in and then
I had to push in my iord to make way for me to get
in.
7/...
7.
And those people who also got on together with you, did they have to do the
same? -- My lord I assumed that they should have used
the same manner to get in.
My lord I was not the only one pushing in to get onto the train. There were
people pushing in on my right-hand
side as well as on my left-hand side.
Now when you got on the train, had everyone who
wanted to get
off, got of f or were there still
people trying to get off?-- Yes my lord there
were.
There were people still trying to get off? -- Yes.
Can you help us by telling us how many approximately? — No my lord I
cannot assist this . court to that effect because my lord
I already had had a
grip on the belt, that is the strap my lord, and even if there were people
pushing past me and then I had my
grip on that strap."
And at a later stage his evidence reads:
"When you got onto the second train it was stationary? -- Yes.
And you do not know. These people who then tried to get off, where were they
coming from? -- They came out of the train.
How many in number were they approximately? -- No my lord I cannot say or
estimate how many there were but there were many people.
Trying to get out? -- Yes those were coming out.
8/...
8.
You know everybody has got many ideas of what they think are many. What do you
think is many? 2, 4, 10? -- My lord it is difficult
for me to say because my
lord when I was already inside there were still people who were trying to get
out of the train my lord.
That is why then I cannot say how many there were.
And when you got on you could still see that there were people trying to get
off? — My lord there were people who were going
the opposite direction,
getting out of the train as we were getting onto the train."
(The passages I have italicised will be referred to later in this
judgment.)
The passengers pushing as they alighted caused him to
loose his overhead hold. He fell backwards out of the open doorway of the coach
and rolled onto his side. He remembers hearing an unusual noise and feeling warm
air on his body. (From these recollections he infers
that he had fallen between
the platform and the train and that he was injured whilst "underneath" the
train.) He next remembers lying
on the platform and talking to a policeman. An
ambulance was summoned. He was taken
9/...
9. on a stretcher from the platform and conveyed to hospital.
There were no eyewitnesses to the occurrence: the appellant's account
therefore stands uncontradicted by any direct evidence. The
trial court made no
adverse finding on the credibility of the appellant. Nor is it said in the
judgment that his demeanour on the
witness stand in any way pointed to his being
untruthful or unreliable. The court, however, after considering certain aspects
of
his evidence, concluded that it contained some unsatisfactory features and,
in the light of them, entertained a "serious doubt" as
to whether the appellant
was injured in the manner described by him. For this reason it
assumed
the correctness of his evidence and held, as I have said, that the respondent
was not proved to have been negligent. Before us counsel
for the respondent
went
10/....
10.
further: relying upon substantially the same aspects of the evidence of the
appellant as the trial court, Mr Burman submitted that
the appellant was an
untruthful witness. Thus one must, first and foremost, decide whether the
appellant's evidence ought to be accepted.
Although the respondent relies upon
the cumulative effect of the points of criticism raised in the judgment and in
argument before
us, it is necessary to examine them individually in order to
decide what weight, if any, ought to attach to each.
The first criticism, as stated in the judgment, is that:
"In his evidence in chief he stated that he thought that the people started
screaming and pushing because those who still wanted to
get off the train saw
that the train was starting to move before they had a chance to get off. When
asked under cross-examination
why the women were screaming he answered that he
did not know but that they seemed to be scared and when asked what
11/...
11.
they could have been scared of he replied that he did not know and that he
could not say what made them to be scared.
Once again he was asked whether he had no idea as to why they were screaming to
which he replied that he would say that what caused
them to scream was the fact
that the train jerked and then started pulling off. When asked why that would
have scared them, his reply
was that he did not know.
The women who were screaming were in front of him and according to him he did
not know whether they were trying to get off the train
because there were people
passing him on his left-hand side and on his right-hand side in order to get off
the train."
In his evidence-in-chief he did say that the
screaming began when the train started moving. He also said: "I think that the
screaming
was caused because people saw that the train was starting to move and
had not given them a chance to get off." The passage in his
cross-examination
reads as follows:
"Why were the women screaming? -- No my lord I do
12/...
12.
not know but they seemed to be scared.
Scared of what? -- No my lord I do not, I cannot say what made them to be
scared.
You have no idea why they were screaming? -- Well my lord I will say that what
caused them to scream is that it is because of the
jerking of the train and the
train starting, pulling off."
"Those woman were not trying to get off the train? -- No my lord I will not know
whether they were trying to get off the train because
there were people going
past me on my left-hand side and right side to get out of the
train."
His statement that the women
seemed
to be scared
when the train suddenly pulled off, and for that reason were screaming, are
inferences and, in my view, reasonable ones
at that. The fact that when pressed
in cross-examination he said that he did not
know
why they were scared
and screaming, does not appear to me to amount to an inconsistency.
The learned judge thought it strange that, on
13/...
13. the appellant's account, he alone was pushed from the train,
bearing in mind that the overhead strap was "some distance" from
the doorway and
the centre post was directly behind him. But his evidence makes it clear that he
was standing very close to the opening
with his back towards it and was holding
onto the strap nearest the doorway. There is no suggestion that anyone else was,
or could
have been, in a more vulnerable position in the event of passengers
pushing others in order to disembark. Moreover, it ought to be
mentioned that
the appellant said, in answer to an explicit question, that he had no idea
whether anyone else fell from the train:
there is no evidence that he alone
did.
The learned judge expressed great difficulty in understanding how the
appellant, if pushed from the train, could have fallen, as it
were, underneath
the
14/...
14.
train rather than onto the platform. He also remarked
on the
fact that the appellant, on the supposition that
he had been injured whilst
lying on or next to the
tracks, could not explain how he reached the
platform
where he was found by the policeman. It is also said in
the
judgment that where the appellant landed after he
had fallen from the train
was "not fully canvassed with
the appellant," He, as mentioned, gave two
reasons for
thinking that he had not fallen onto the platform and
could
say no more in this regard. The matter could
therefore not be further
canvassed with him. The
doctors were not asked whether the injuries
sustained
(there was also a head injury not of a serious
nature) made one
alternative more probable than the
other. It is therefore more accurate to
say that this
question, though canvassed, remains unresolved.
The
difficulty commented upon is therefore based on an
unwarranted
premise. In any event, had he fallen
15/...
15.
underneath the train, lt is quite understandable in
the
circumstances that he would not have any recollection
of how he reached the platform after being injured.
The court a
quo
found that his evidence
in
which he attempted to identify the train he took
from Grosvenor was unsatisfactory. Mr Burman went further and submitted that it
showed
that the appellant's version of how he came to be injured was false. To
judge the merit of this submission it is necessary in the
first place to refer
in some detail to the evidence which bears upon this question.
The evidence of the appellant was that he caught a train at Dube at about
06h30 that morning to go to Cleveland. He did not notice
the number of that
train. (Each train operating at the time had a four digit number on the front of
the locomotive: its
16/...
16. position and prominence can be seen on the photograph
on page 4 of Exhibit A.) The train stopped at Grosvenor at about 07h20.
As it
was not proceeding to Cleveland, he had to change trains at Grosvenor. The next
train arrived there after, as he estimated,
an interval of about five minutes.
As the locomotive approached and passed him, he noticed that the last two digits
of its number
were 27. This was the train he boarded and from which he feli.
When asked whether he had toid constable Mosime (the policeman who
came to him
where he lay injured on the platform) that the last three digits of that train
were 902 and that he had been injured
by a train from Soweto, he said that he
had no recollection of having told him so and added that he was in great pain at
the time.
During cross-examination he was referred to his further particulars in
which it is alleged that he "feli from a train at or near
the Grosvenor Railway
Station whilst he was on
17/...
17. route to George Goch Railway Station." This he
confirmed, saying that the train would have taken him as far as George Goch
where
he would have had to change trains for a second time to proceed to his
destination, Cleveland. He, however, added that "at times
it [the train caught
at Grosvenor] would go as far as Cleveland and at times it would stop at George
Goch." A rather protracted cross-examination
ensued on the question of the
trains he caught. His evidence amounted to this. He had a monthly ticket to
travel from Dube to Cleveland,
which was always his ultimate destination. He
invariably had to change at Grosvenor. On occasions the train he caught there
would
take him through George Goch and on to Cleveland. At other times he would
have to change at George Goch. (This was because the train
he was on did not
proceed further or from that station it continued along another route.) There
are, however, passages in his evidence-
18/...
18.
in-chief in which he.initially said that the train
he took from Grosvenor that morning would have taken him directly to
Cleveland.
A railway official, Mr Hollenbach, handed
in I
as Exhibit J2, a timetable ("the
schedule") showing the
scheduled times of arrival and departure of trains
each
day of the week along the entire route from Lenz to
Germiston, which
included in sequence Dube, Grosvenor,
George Goch and Cleveland. In addition
documents
purporting to record the actual times of arrival and
departure
of trains that morning at certain stations on
that route, were handed in as
part of Exhibit J2. Each
is a register on a separate sheet of printed
paper
("the register") for the following stations: Dube,
Langlaagte,
Braamfontein, George Goch and Cleveland.
Mr Hollenbach explained that at each
station a
railwayman is stationed in the
19/...
19.
signal cabin. It is his duty to
record in the train
register for that station the actual time of
arrival
and departure of each train. A note on each register
states
inter alia
: "the operator on duty must sign his
name immediately under
the entry made by him at the
expiration of his hours of duty." The registers
for
Dube and George Goch are unsigned. What is more there
is no train
register recording the time trains arrived
at or departed from Grosvenor.
This is perhaps
because it is a halt and not a station. Be that as it
may,
the registers for Langlaagte and Braamfontein are
included instead. If one refers to the diagram of the
rail network for the Southern Transvaal region ("the
system diagram"), which was handed in as Exhibit G, it
will be seen that on the route from Dube to George
Goch, Langlaagte is the station immediately before
Grosvenor and Braamfontein is the next but one after
Grosvenor. (One does not know whether the
20/...
20.
intervening stop, Mayfair, is a halt or a station.) For the convenience of
the court a further document ("the summary") was handed
in as Exhibit J1. It
allegedly reflects the scheduled and actual times of arrival and departure of
certain trains that morning for
the relevant stations and halt. The actual times
are in brackets in this summary and purport to be taken from the registers to
which
I have referred.
Constable Mosime who was called by the appellant, made a written statement on
the same day as he came to the assistance of the appellant.
In it he said:
"Die swartman het aan my rapporteer dat hy h trein vanaf Soweto nl. 902 na
Johannesburg gehaal het, omrede die trein baie vol was
het hy by Grosvenorstasie
uitgeval by die deur terwyl die trein nog beweeg het."
The evidence does not disclose in what language they
21/...
21. conversed.
In the light of this evidence Mr Burman submitted: firstly, that the
appellant was not mistaken or genuinely confused about the train
numbers but
that his evidence was deliberately false; and secondly, that the evidence showed
that he could not have boarded a train
at Grosvenor that morning.
At the time the appellant gave evidence he was convinced that the train he
took from Grosvenor was one with 27 as its last two digits.
This he said
repeatedly and emphatically. If he was mistaken in this regard, it is in the
circumstances quite understandable. Before
the accident there was no reason for
him to have taken
special
note of the number of the train he was about to
board. And after he was injured, as Dr Froman stated without contradiction,
he
22/...
22.
had intervals of retrograde amnesia. Any reconstruction or
recollection on his part could, though incorrect, therefore have been guite
bona
fide.
The further, and rather more important, question is whether counsel is
correct in submitting that the two trains having as their last
two digits 27
(trains 9327 and 9027) passed through but did not stop at Grosvenor that
morning. This submission is based on a statement
in the summary that these two
trains: "Stop nie by Grosvenor nie." This on the face of it means no more than
that they were not
scheduled
to stop there, and the schedule bears this
out. There is, however, no evidence proving that either or both of these trains
did not
in fact do so. The train register for Grosvenor, if one exists, may have
resolved this question. But, as I have indicated, such a
register was not handed
in. Counsel was unable to give a
23/...
23.
satisfactory explanation for this omission or for the fact
that hearsay and unsubstantiated times of arrival and departure of trains
for
Grosvenor appear in the summary. Whatever the answer may be, without that
register this submission is unsound and any argument
based on the time of actual
arrival or departure of trains at or from Grosvenor is without foundation.
As regards the proposition that he caught train 9029 that morning, it is
submitted in paragraph 2.12.2 of the respondent's heads of
argument that: "If he
was on train 9029 then he would have been on it from Soweto and he would not
have been standing at the doorway
where he alleged he was." According to the
schedule this train did not pass through or stop at Dube. He could possibly have
boarded
it from some other station in Soweto but this would seem highly
improbable. He was more likely
24/...
24. to have taken an earlier train from Dube; for
instance, train 9331 which was
scheduled
to leave from Dube that morning
at 06h49 and
scheduled
to reach Grosvenor at 07h15 whilst train 9029 was
scheduled
to leave Grosvenor at 07h11. But in the absence of any evidence
as to when these trains arrived at and departed from Grosvenor, there
is no
reason why these could not have been the two trains involved. Finally, on this
question one notes in passing that, if the train
he took at Grosvenor waa 9027,
there is no contradiction between his statement to Mosime (902) and his evidence
in court (27).
Thus, such evidence as was produced by the schedule and the train registers,
assuming them to be accurate, does not establish that
he could not have boarded
and fallen from a train at Grosvenor more or less at the time he alleged.
25/...
25.
What is beyond dispute is that he was found injured at
Grosvenor. Mrs Thompson, an expert witness called on behalf of the appellant,
described him as an intelligent, serious and well motivated young man. Had he
decided to tell a false story, it is highly probable
that he would have worked
out the usual arrival and departure times of trains for Grosvenor and seen to it
that they fitted in with
his story rather than be vague, mistaken (or perhaps
contradictory) as regards the identity of the trains in question.
The further grounds of criticism levelled at the appellant's evidence in the
judgment and in argument before us can be more briefly
dealt with.
It is said that his evidence conflicted with the letter of demand and the
pleadings on his behalf. The former alleged that he boarded
a train at about
26/...
26.
07h25 in order to travel to George Goch Station and as the
train started he "fell" through the open doorway. And, with reference to
the
pleadings, it was contended that the first three grounds of negligence are
directed at the fact that the open door presented
a hazard and that these
allegations are inconsistent with the evidence he gave in court. But it is quite
accurate to say on his version
that he "fell" from the train. The criticism
based on the pleadings leaves out of account a further alleged ground of
negligence,
namely, that the respondent's employees failed to ensure at
Grosvenor that it was safe for the train to proceed.
The appellant is censured for not having told Mosime in more detail how he
came to be injured: that the train started suddenly and
people pushed him from
it. But in his injured condition a more explicit account could hardly have been
expected of him. In his
27/...
27.
evidence under cross-examination Mosime amplified what was
recorded in his statement by giving his "impressions" of what was told
to him by
the appellant. This is not the sort of evidence that can be effectively used to
cast doubt on the veracity of the appellant's
evidence. He is also faulted for
saying to the constable that he had caught a train from
Soweto
to
Johannesburg
. But, as the appellant explained when this statement was put
to him in cross-examination, he
had
come by train from Soweto, where Dube
is situated, and was on his way to work near Cleveland which, if one looks at
the system diagram,
is situated about midway between Johannesburg central
station and Germiston station and can no doubt be described as being in
Johannesburg.
I have already drawn attention to the fact that the court a
quo
found
no fault with the manner in
28/...
28.
which the appellant gave his evidence; nor did it make any
adverse finding on his credibility. The grounds for doubting the truth
of his
testimony are, in my view for the reasons stated, not significant. They do not
warrant its rejection in the absence of any
direct evidence that he was injured
in some other manner.
The liability of the respondent is therefore to be determined on the basis
that the appellant's account of the accident is in all
material respects
truthful and reliable.
I turn to this enquiry. The appellant alleged in his pleadings that the
servants of the respondent were negligent in the following
respects:
"(a) They allowed the train to commence moving without ensuring that the
doors thereof were properly closed;
29/...
29.
(b)
They
allowed the train to commence moving without ensuring that passengers thereon
would not fall or be ejected therefrom;
(c)
They failed to ensure that the doors of the train were properly
closed before permitting the train to commence moving;
(d)
They failed to ensure that it was safe for the train to commence
moving;
(e)
They failed to ensure that
passengers would not fall from the train or be ejected therefrom when with
reasonable care they could and
should have done so.
(f)
They allowed too many people onto the train, thus causing the train
to become overcrowded constituting a hazard to the passengers
thereon.
(g)
They failed to ensure that there
would be guards and/or people in authority to control the passengers in the
train or to ensure that
the overcrowding would not constitute a hazard to the
passengers of the train."
No doubt with ref erence
to (a), (c) and perhaps (e) above, a great deal of evidence was devoted to the
operation of the doors of
a passenger train and its effectiveness as a safety
measure. They are
30/...
30. operated electrically by a remote control switch in
the guard's van at the rear of the train. When the closing mechanism is engaged,
air pressure causes the doors to close; when released, the doors can be manually
opened. Various malpractices on the part of certain
passengers, particularly in
the third class coaches, disrupt the normal functioning of the doors. By placing
a foot between the vertical
post and one section of the closing door, it can be
prevented from closing completely and thereafter forced and kept open as a train
departs. By tampering with a unit in each coach, intended for the release of the
doors in that coach in an emergency, those doors
can be cut off from the central
closing mechanism. Persons illegally riding between the coaches can,
deliberately or inadvertently,
disconnect the electrical control system in which
event the doors of certain coaches can be opened at will. In the result the
existing
mechanism cannot ensure that
31/...
31 .
all the doors are closed and remain closed when a train
leaves a station or during the course of a journey. Mr Ancer, who appeared
for
the appellant, relied on the allegations in paragraph (d) above: the failure to
ensure that it was safe for the train to commence
moving. This ground of
negligence, as I shall in due course indicate, is not related to the problems of
the doors on which the evidence
for the respondent largely concentrated.
The evidence of the appellant quoted earlier in the judgment, and
particularly those passages I have emphasised, make it plain that
the train
started with a jerk at a time when persons were alighting from, and perhaps
boarding, the train. His evidence in this regard
was accurately summed up in the
judgment, though at that stage it was merely assumed to be correct:
32/...
32.
"Whilst standing in that position people were still trying to alight from the
train and were pushing passed him on both sides.
Suddenly and unexpectedly the train jerked and started moving off. People who
had not yet been able to alight started screaming and
pushing against him as a
result of which he lost his hold on the strap and was pushed out of the door of
the moving train."
There are normally two ticket examiners per
train. They are in charge of the passengers; though the evidence shows that on
this line
in the third class coaches they have great difficulty in exercising
their authority. When the train stops at a station it is the
duty of the ticket
examiner to alight and announce the name of the station, the destination of the
train and the stops it will make
along the way. He remains on the platform until
he is satisfied that it is in order for the train to depart. He then gives a
signal
to the guard that the train may proceed. As a ticket examiner, Mr van der
Schyff, who
33/...
33. was called by the respondent, put it:
"Sodra al die passassiers in- en uitgeklim het en ek is daarvan oortuig dat dit
nou veilig is vir die trein om te vertrek dan gee
ek h sein aan die
kondukteur."
and later in his evidence
"Alvorens ek die sein gee moet ek seker maak dat alle voornemende passasiers die
trein bestyg het en alle passasiers wat wil afklim,
afgeklim
het."
On receipt of this signal the guard, who at that stage is
also on the platform, must satisfy himself that the ticket examiner has
boarded
the train. He then blows his whistle to announce that the train is about to
depart and enters the guard's van. It is his
duty to check again, by looking out
of a window in the guard's van, that passengers are not entering or leaving a
coach before he
operates the switch to close the doors (or those of them that
are functioning) and before giving the driver the signal for the train
to
proceed.
34/...
34.
This evidence conforms to what is laid down in the
respondent's Interdepartmental Working Instructions. Paragraph 1002.2.2 reads as
follows:
"When the train is ready to depart and the appropriate hand signal intimating
that the train may depart has been received, the guard
or guard-conductor, as
the case may be, after blowing his whistle as a warning that the doors are about
to be closed, must press
the 'CLOSE' button concerned. The guard or
guard-conductor must then ensure that all is in order for the train to depart,
before
giving the 'right away' bell signal to the driver."
The
driver of a passenger train is taught to drive it efficiently and is expected to
pull off smoothly when the train leaves the station.
Liability in delict based on negligence is proved if:
"(a) a
diligens paterfamilias
in the position of the defendant -
35/...
35.
(i) would foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial
loss; and
(ii) would take reasonable steps to guard against such occurrence;
and
(b) the defendant failed to take such steps.
This has been constantly stated by this Court for some 50 years. Requirement (a)
(ii) is sometimes overlooked. Whether a
diligens paterfamilias
in the
position of the person concerned would take any guarding steps at all and, if
so, what steps wouid be reasonable, nmst always
depend upon the particular
circumstances of each case. No hard and fast basis can be laid down. Hence the
futility, in general, of
seeking guidance from the facts and results of other
cases." (
Kruger v. Coetzee
1966(2) SA 428 (A) 430 E -
G.)
As regards the requirement in paragraph (a)(ii) above in this
judgment, it is acknowledged that reasonable steps are not necessarily
those
which would ensure that foreseeable harm of any kind does not in any
circumstances eventuate. The contributor (Prof J C van
der Walt) in
36/...
36. "The Law of South Africa"
sub yoce
"Delict"
(Vol 8 para 43 page 78) comments in this regard that:
"Once it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would have
taken measures to
prevent the occurrence of the foreseeable harm. The answer depends on the
circumstances of the case. There are,
however, four basic considerations in each
case which influence the reaction of the reasonable man in a situation posing a
foreseeable
risk of harm to others: (a) the degree or extent of the risk created
by the actor's conduct; (b) the gravity of the possible consequences
if the risk
of harm materializes; (c) the utility of the actor's conduct; and (d) the burden
of eliminating the risk of harm."
The first two considerations
are recognised and
discussed in the well-known and oft-quoted passage
in
Herschel v. Mruoe
1954(3) SA 464 (A) 477 A - C,
which is as follows:
"No doubt there are many cases where once harm is foreseen it must be obvious
to the reasonable man that he ought to take appropriate
avoiding action. But the
circumstances may be such that a reasonable man would foresee the possibility
of
37/...
37.
harm but would nevertheless consider that the slightness of the chance that the
risk would turn into actual harm, correlated with
the probable lack of
seriousness if it did, would require no precautionary action on his part. Apart
from the cost or difficulty
of taking precautions, which may be a factor to be
considered by the reasonable man, there are two variables, the seriousness of
the harm and the chances of its happening. If the harm would probably be serious
if it happened the reasonable man would guard against
it unless the chances of
its happening were very slight. If, on the other hand, the harm, if it happened,
would probably be trivial
the reasonable man might not guard against it even if
the chances of its happening were fair or substantial. An extensive gradation
from remote possibility to near certainty and from insignificant inconvenience
to deadly harm can, by way of illustration, be envisaged
in relation to uneven
patches and excavations in or near ways used by other
persons."
On the evidence of the appellant it can hardly be
contended that the first two considerations ((a) and (b)) would not prompt a
reasonable
man to take steps to prevent the occurrence. The risk - in fact the
near certainty - of serious, if not fatal, injury resulting from
starting a
train when
38/...
38.
persons are in the act of leaving or boarding a coach is as
obvious as can be.
The third consideration ((c) above) is thus discussed by Prosser "Law of
Torts" (4th Ed.) para 31 page 148:
"Against this probability, and gravity, of the risk, must be balanced in every
case the utility of the type of conduct in question.
The problem is whether 'the
game is worth the candle. ' Many risks may reasonably be run, with the full
approval of the community.
Chief among the factors which must be considered is
the social value of the interest which the actor is seeking to
advance."
In the Privy Council decision of
Overseas Tankshio
(U.K.) Ltd. v The Miller Steamship Co. Pty. and Another
[ 1967 ] A.C. 617 at
642, in ref erence to the fourth factor ((d) above), it was said that:
"But it does not follow that, no matter what the circumstances may be, it is
justifiable to neglect a risk of such a small magnitude.
A reasonable man would
only neglect such a risk if he had some
39/...
39.
valid reason for doing so, e.g., that it would involve considerable expense to
eliminate the risk. He would weigh the risk against
the difficulty of
eliminating it."
Factors (c) and (d) have been referred to in a
number of decisions of our courts:
Herschel v Mrupe
(in the passage
quoted above);
South African Railways and Harbours v Reed
1965(3) SA
439(A) 443 E - G;
S v Makwanazi
1967(2) SA 593(N) 596 F - G and
Khupa
v South African Transport Services
1990(2) SA 627 (W) 630 D -E. In
Moubray v Syfret
1935 AD 199
at 202 this court stressed:
"(T)hat in order to determine whether in a particular case there was or was not
negligence, we must take into account all the surrounding
circumstances, time,
place, custom, local habits, as well as the special and peculiar facts of the
case."
(See too
F.P. van den Heever "Aquilian Damages in South
African Law"
Vol 1 pages 45 and 46.)
One may thus conclude that these two further factors
40/...
40. ( (c) and (d) ) are relevant ones to be taken into
account in certain circumstances in determining whether the steps taken to
avert
the risk of injury were reasonable. However, on the facts of this case, and
having regard to the ground of negligence which
is pertinent and relied upon,
they are not material. The evidence amply demonstrates, as I have said, that the
act complained of
creates a high risk of serious injury. To prevent its
occurrence, by carrying out the procedures prescribed, would have involved
no
extra cost to the respondent. And
in casu
the delay involved in allowing
all the passengers to alight at Grosvenor halt, if at all significant (as to
which there is no evidence),
could not possibly weigh against the other
considerations requiring the necessary safety precautions to be taken.
A great deal of evidence was led on the
41/...
41 . volume of rail traffic this line was obliged to carry
in the public interest; the problem of crowd control at stations and in
trains;
the difficulty of preventing overcrowding of coaches; the lack of discipline on
the part of certain passengers; and the cost
involved in introducing more ticket
examiners on each train and in using coaches with a door mechanism which could
withstand the
malpractices of commuters. Statistics of the volume of traffic and
the incidence of fatal and other injuries - some of questionable
reliability -
were also placed on record. This evidence led the trial court to say:
"I have chosen to base my decision on the simple grounds that the Plaintiff
has failed to prove that other reasonably effective precautions
could in the
circumstances have been taken by the Defendant to prevent the Plaintiff's fall
from the train in the circumstances described
by him. I am of the view that the
Defendant has proved that the risk to which the Plaintiff was exposed cannot be
eliminated or minimized
without substantial difficulties, disadvantages and
exorbitant costs
42/...
42.
and that these factors outweigh the magnitude of the risk so that the reasonable
man would not in the circumstances have taken steps
to prevent the risk of
harm."
This line of reasoning, with
respect,
misses the point. The "effective procedures" which
would have
prevented
this occurrence
are really
unrelated to difficulties of
costs and requirements of
public utility. The overcrowded coach in the
vicinity
of that doorway
may
have played some part in the
appellant
being thrust from it, but the real cause was
the conduct of the railway
officials in ordering or
allowing the train at that stage to
proceed.
Similarly, if these doors were at that time incapable
of being
closed (and there is no evidence to that
effect), this was not the cause of
the accident in this
case. If they had remained open and the train
had
taken off smoothly after all the passengers had
alighted, there is no
reason to believe that the
43/...
43.
appellant would not have remained on the train and travelled
in safety.
Khupa's
case (supra) bears a close resemblance to the facts of this
case. The essential facts, as set out at page 629 F - G of this judgment,
were
that:
"As the train approached the station the plaintiff proceeded from his seat to
the nearest doors of the coach in which he was travelling.
He had two plastic
bags containing groceries in either hand and a bag of sugar over his right
shoulder. He walked to the open 'coach
doors. At this point in time the train
had stopped at the station. The train stopped f or a short while and whilst the
plaintiff
was still in the coach in the process of alighting, the train started
moving. The doors remained open. The plaintiff, seeing the
danger of the open
doors, tried to puil back into the carrlage so as to avoid falling through the
open doors. Unfortunately for the
plaintiff there were other passengers behind
him who wished to get out of the train and these persons pushed him forward with
the
result that plaintiff fell from the train landing on the platform and from
there, according to the plaintiff, between the space between
the platform and
the train."
44/...
44.
Evidence on the problem of maintaining an efficient and safe
rail service, of the kind to which I have referred, was led in that case,
and,
with reference to such, the court concluded at 637 E - H that:
"In my view, and on the basis of the factual material which has been placed
before me by the defendant itself, and particularly the
defendant's own
awareness of the danger of open doors whilst trains are in motion, as well as
the reasonable possibility, even although
costly, of taking steps to prevent
such occurrences, the plaintiff has discharged the
onus
resting upon him
of showing negligence on a balance of probabilities, on the part of the
defendant's servants. In my view the defendant
must reasonably have foreseen
that on crowded trains at peak hours passengers would be likely to jostle and
push other passengers
in alighting from trains and if such trains were moving
and the doors thereof were open that this would create a serious source of
danger which the defendant was reasonably obliged to guard against in the
conduct of the train service being provided by it. I am
not persuaded that the
costs, even though great, on the basis of the figures estimated by the witnesses
who were called for the defendant,
are so 'astronomical' as to warrant the
inference that they should not reasonably be incurred by the defendant in order
to avoid
liability in those, possibly few, though certain
45/...
45.
cases where serious injury or even death occurs to a passenger conveyed by it.
Put differently, I believe that it can be fairly said
that the defendant must be
said to have accepted the risk of liability in those few cases, perhaps in
pursuit of greater efficiency
and economy. This is particularly so in my view if
regard is had to the enormity of the defendant's
undertaking."
Before reaching this conclusion authorities dealing
with the question of negligence generally, and factors (c) and (d) in
particular,
were comprehensively reviewed and the evidence relating to these two
considerations was evaluated. However, in my respectful view,
liability in that
case could also have been decided on the narrower approach which I have adopted
in this case.
My conclusion is therefore that it was proved that the negligence of the
respondent's servants caused the injuries.
The relevant ground of contributory
46/...
46.
negligence alleged is that the appellant was "teenwoordig op
'n plek en op 'n tyd en manier wat nie veilig was om so te wees nie."
I am
satisfied that neither this nor any other form of negligence on the part of the
appellant was proved. He positioned himself
within the coach and held on to the
roof strap to secure himself against being dislodged. He had no indication that
there would be
a sudden rush of persons to the doorway as a result of the train
moving off at an inopportune time. There is no evidence that such
unexpected
movement of trains is a frequent occurrence or one of which the appellant ought
to have been aware. I would think that
he was entitled to assume that the doors
behind him would be closed before the train departed. But, even without this
assumption,
in the ordinary course with the doors open he could have travelled
in that position without mishap. The only other option open to
him was to await
the arrival of a
47/...
47. less crowded train, as counsel was constrained to
admit in argument. Such an election would, to my mind, be that of an unduly
timorous commuter rather than a reasonabie one who is obliged to make daily use
of crowded trains in order to reach his work.
I turn now to the question of damages. The appellant was born in 1951 near
Kranskop, a small town situated in a mountainous region
of Natal roughly between
Greytown and Stanger. Having passed standard 8 at school, he trained as a motor
mechanic. In 1982 he came
to Johannesburg. During the following year he found
employment with OK Bazaars Ltd. He was a good worker with prospects of
advancement
with that company at the time he was injured.
As a result of the accident he was a patient in the Hillbrow Hospital,
Johannesburg, until December
48/...
48. 1985. He returned to that hospital for further
treatment at the end of January 1986 and was f inally discharged in June of that
year. He returned to his home in the Kranskop area.
The appellant described the extent of his disability and the distressing
consequences of his injury. There is no suggestion that he
exaggerated them: in
fact there is evidence that he tends to under-emphasize his problem. His left
arm is normal but his right arm
is weak. He cannot walk without a calliper on
his left foot and then only with difficulty even on level ground. He can walk
for a
short distance with the aid of walking sticks, and it follows that he
cannot carry anything when walking. He can stand for not more
than three minutes
at a time. Once or twice a week his bowels work unexpectedly with embarrassing
consequences. He said that at the
time of the trial he
49/...
49. was incontinent to the extent that he wets himself
about four times a week. This happens as a result of diminished bladder control
or his limited mobility or a combination of both. Sexually he is unable to
function normally as he did before the accident.
A wealth of medical and other expert evidence was called to substantiate this
evidence of the appellant and to explain in more detail
the extent of his
disability, the nature of future medical treatment he is likely to require, and
the extent to which his mobility
and amenities of life have been curtailed. Such
evidence was not controverted by witnesses called in rebuttal. I find it
necessary
to refer to only some of the more significant aspects of this
evidence. He has fairly extensive sensory loss: In the left ankle and
foot the
loss is almost total, and over other areas below his groin he has grades of
50/...
50. sensory perception. This lack of sensation makes him
prone to injury. He would, for instance, not know in an area where sensation
is
absent that he was being burnt or had cut himself. The malfunctioning of his
bladder may lead to infection and other problems
and will require constant
medical monitoring. The calliper has resulted in a pressure sore on his left
heel. The lack of sensation
makes it difficult for the appellant to give this
problem the attention it needs. If neglected, it can lead to serious
complications.
Medical opinion is that his condition generally will deteriorate with the
passage of time. An existing spinal deformity is likely
to worsen. He has a
large degree of spasm in his legs and suf fers from backache. The overall
prognosis is poor. A fall could accelerate
the spinal deterioration with
far-reaching consequences. His lack of adequate bladder
51/...
51. control and functioning could lead to urinary tract
infection. Should this become chronic, it could cause pyelonephritis, which
in
turn could give rise to a fatal kidney infection. These disabilities, which I
have no more than sketched, with their consequences,
present and potential, are
the main ones bearing upon certain of the disputed heads of damages.
The claims for damages must now be considered under the various heads.
Past Loss of Income
The parties are agreed that for this
loss a sum of R13 445,00 should be awarded.
Loss of earning capacity
Evidence was led from a Mrs Griffen, the personnel manager of the branch of
OK Bazaars where the
52/...
52.
appellant was employed. She spoke
highly of him as a
worker and his prospects of promotion. If he had
become
a senior grocery assistant, he would have earned
an income of R750 to R800
per month. The trial court
held that an estimation of his loss of future
earnings
should be calculated at the lower figure. This was
used by Mr
Rolland, an actuary called by the appellant
to calculate his loss of earning
capacity. It was
based on the supposition that he would have earned
this
basic monthly salary until he reach the age of 65
years. To determine
the present value of the loss, the
actuary, having regard to inflation and
capitalisation
of the award, used a nett capitalisation rate of 3%
per
annum compound. (Whenever the present value of an
award for future
expenditure is to be determined, this
is the rate to be applied in this case.
) With this
adjustment the amount is R154 713,00. The trial judge
said
that from this sum he would have made a
53/...
53. contingency reduction of 15% which would result in an
award of R131 506,00.
The respondent disputes this last step only, contending
that the contingency deduction should be 35%. An adjustment for contingencies
need not necessarily involve a diminution of the amount: Cf
Southern
Insurance Association Ltd v Bailey NO
1984(1) S.A. 98 (A) 117 B - D. The
often difficult, and in the nature of things imprecise, task of deciding on a
contingency adjustment
must depend on the particular facts of each case. As was
said in
Van der Plaats v South African Mutual Fire and General Insurance Co
Ltd
1980(3) SA 105 (A) 114 G - 115 D:
"Dit moet egter nie uit die oog verloor word nie dat die besluit of
voorsiening gemaak moet word vir die aftrek van die toegekende
skadevergoedingsbedrag van h sekere persentasie tov gebeurlikheidsfaktore binne
die diskresionêre mag van die Verhoorregter
val en daar word op appel met
die uitoefening van sodanige diskresie slegs ingemeng waar die uitoefening
daarvan nie behoorlik geskied
het nie. Dit is vanselfsprekend
54/...
54.
dat die korting onder hierdie hoof nie vir akkurate beraming vatbaar is nie.
Die Verhoorregter het op h korting van 10 persent besluit
en by die berekening
daarvan die volgende gebeurlikhede inaggeneem:
'Verlies weens siekte of weehs beserings wat verdienvermoë kan affekteer,
moontlikhede van werkloosheid, van vroeë aftrede
of van verandering van
werkgewer wat bestaande pensioenregte nadelig mag
tref.'
Bostaande is almal faktore wat by die bepaling van die
persentasie aftrekking tereg inaggeneem kan word. Word na die gewysdes gekyk
blyk dit dat die persentasiebedrae deur die Howe toegelaat baie uiteenlopend is.
In die saak van
Van Rensburg v President Versekeringsmaatskappy
(WLD
21.11.68) soos aangehaal in Corbett and Buchanan
The Quantum of Damages
band II 62 te 65 het LUDORF R te kenne gegee dat in die Transvaalse Afdeling van
die Hooggeregshof 'n gebruik bestaan om 'n korting
van 20 persent tov
gebeurlikhede toe te laat. h Soortgelyke korting is in die saak van
De Jongh
v Gunther and Another
1975 (4) SA 78
(W) te 81C - D gedoen. So ook in die
geval van die saak
Van Rij NO v Employers' Liability Assurance Ltd
1964
(4) SA 737
(W) aangehaal in Corbett and Buchanan
The Quantum of Damages
band I te 618. In die saak van
Sigournay v Gillbanks
1960 (2) SA 552
(A)
is 16 persent afgetrek en in
Goodall v President Insurance Co
1978(1) SA
389(W) slegs 10 persent. Weens die besondere omstandighede van die geval (die
beseerde het nog voor sy besering groot
moeilikheid ondervind om h betrekking te
bekom) is
55/...
55.
die korting in die saak
AA Mutual Insurance Association Ltd v Maqula
1978
(1) SA 805
(A) te 813 A-C op 50 persent gestel.
Hierdie voorbeelde dien slegs om te beklemtoon dat die bedrag wat by wyse van h
korting toegelaat word wisselend is en ten nouste
saamhang met die omstandighede
van die bepaalde saak waarin die Verhoorregter sy diskresie moet uitoefen. Ek
kan geen fout vind met
die uitoef ening van sy diskresie deur die Regter van
eerste instansie nie en die korting van 10 persent moet dus bly
staan."
In this case Mr Ancer submitted that the reduction
proposed by the court a
quo
was reasonable and sufficient. It was thus
common ground that a reduction rather than an increase was appropriate. Mr
Burman, put
forward no special circumstances which, in my view, would justify a
percentage deduction as high as 35. All things considered I think
that the 15%
suggested by the trial court is appropriate.
An ancillary argument raised by Mr Burman under this head of damages, as I
understood it, was
56/...
56. along these lines. This loss of earning capacity is
assessed on the supposition that the appellant would have spent his working
lif
e in Johannesburg or in any event in or near a city. Since he is in fact going
to be living in the Kranskop area for the rest
of his life, the benefit of his
having lower living expenses, and no expenses involved in the earning of his
income there, ought
to be taken into account. I am not certain whether logically
if such factors are to be reckoned, both ought to reduce the award under
this
head. Be that as it may, the short answer to this contention is that no evidence
was placed on record to prove, or even suggest,
that the translocation will
bring about a saving, and if so, to what extent.
Under this head I therefore consider that R131 506,00 should be allowed.
The purchase and use of a motor car
An award to cover the costs of purchasing and
57/...
57.
maintaining a motor car can only be justified in
special circumstances. There can be no doubt that if the appellant remained in
Johannesburg
or lived in or near another city, one would not have been
necessary. In such a case telephone communication and a reliable taxi service
would be readily available. Regular public transport, perhaps catering for his
disability and enabling him to load his wheelchair,
could probably be used by
him. The medical and other attention he will require in the future would be at
hand. Living at Kranskop
is a different matter. In this rural area the roads are
poor, there is no regular bus service and the buses are often crowded. It
will
be difficult, if not impossible, for him to board the available buses and the
seating arrangements in them may well make it
impossible for him to be
accommodated with his wheelchair. There is, as one would expect, no readily
available taxi service. Both
the bus stop and the taxi
58/...
58.
facilities are a considerable distance from his home. Having
travelled by bus, after alighting he would still have to find his way
to his
ultimate destination. The medical evidence is that two or three times a year he
will have to visit a hospital, probably in
Durban, to consult a urologist and
make use of certain radiologicai equipment. It is also necessary for him to pay
monthly visits
to a local hospital to obtain medicines and for certain routine
tests to be carried out. He will need a physiotherapist from time
to time. It
could happen that, as a result of an accident or for some other reason, he has
to have transport as a matter of urgency
to reach a doctor or a hospital.
These considerations clearly show that, if it is reasonable for him to make
his home at Kranskop, he requires a motor car. When asked
this question: whether
living in Johannesburg would not in all the
59/...
59. circumstances be preferable, his convincing - and
poignant - reply was that it would be an embarrassment for him in his disabled
condition to live with or amongst strangers.
Mr Burman, without elaboration in argument, questioned the cost involved in
purchasing the type of motor car envisaged by the trial
court in its assessment
of this expense. The court took into account the conditions in which such a car
would have to operate and
I do not consider that its conclusion in this regard
can in any way be faulted.
His need for the motor car was thus proved. The costs involved, after
capitalisation at the aforesaid rate, amount to R397 640,00.
Here too, future
contingencies are largely imponderable. The assessment of this expense, as
submitted by the
60/...
60.
appellant, makes provision for the car to be replaced every
five years at a purchase price of R32 500,00 and the insurance and running
costs
are determined at a fixed monthly rate. I am not persuaded that any reduction
for contingencies is warranted.
The award for future medical expenses and adaptive aids
The expert witnesses, called on behalf of the appellant, gave details of the
medical requirements and adaptive appliances the appellant
would probably
require in the future and their costs. (Since the same issue arises in respect
of both forms of expense, I shall henceforth
only refer to medical services.)
These costs were said by the witnesses to be reasonable on the premise that the
appellant would
be treated by private medical practitioners and, when
61/...
61 .
necessary, in a private hospital: in fact on the supposition
that all the expenses under this head will be incurred, as it were, in
the open
market. The total cost based on such evidence, after capitalisation at the
aforesaid rate, is R180 434,00. The appellant
claims that this is the sum to
which he is entitled. The respondent, however, contends that these medical
services can be provided
at state or provincial hospitals, free of charge, or at
no more than a nominal fee, and that it is therefore reasonable to expect
the
appellant to make use of such facilities. (I shall call
them for convenience "state medical services"). This argument, which was
based on certain answers given by the appellant's expert
witnesses during
cross-examination, found favour in the court a
quo
. It was of the view
that, although the need to provide for such medical services was proved, the
appellant is entitled to no more
than a nominal sum of R5 000,00,
62/...
62.
presumably to cater for isolated and exceptional instances
when the appellant will not be able to make use of state medical services
or
when a nominal charge is made. Before us it was not argued that the appellant
did not require those medical services. It is only
the amount to be awarded for
them which is in issue.
Once the possible alternative of state medical services is raised, counsel
for the respondent submitted that:
"There is no general authority that a plaintiff is entitled to be awarded the
costs of a private clinic in preference to the costs
of a public hospital."
and that therefore:
"When the possibility that cheaper treatment is possible than that claimed by
the plaintiff it becomes his duty in discharge of the
general onus resting on
him to deal with these possibilities. It is not for the def endant to quantify
his
63/...
63.
damages for him."
Though the onus of proving damages is correctly placed
upon
the plaintiff, this submission, which is really
concerned with the duty to
adduce evidence, is to my
mind unsound. By making use of private
medical
services and hospital facilities, a plaintiff, who has
suffered
personal injuries, will in the normal course
(as a result of enquiries and
exercising a right of
selection) receive skilled medical attention and,
where
the need arises, be admitted to a well-run and properly
equipped
hospital. To accord him such benefits, all
would agree, is both reasonable
and deserving. For
this reason it is a legitimate - and as far as I
am
aware the customary - basis on which a claim for
future medical
expenses is determined. Such evidence
will thus discharge the onus of proving
the cost of
such expenses unless, having regard to all the
64/...
64. evidence, including that adduced in support of an
alternative and cheaper source of medical services, it can be said that the
plaintiff has failed to prove on a preponderance of probabilities that the
medical services envisaged are reasonable and hence that
the amounts claimed are
not excessive.
This approach conforms, in my view, to the requirements of proof in any claim
for delictual damages.
Dicta
in the judgments of this court in
Erasmus
v Davis
1969(2) SA 1 (A), provide analogous authority and can be applied
mutatis mutandis
to the situation in this case. The point in issue was
the extent to which the cost of repair serves as proof of loss as a result
of
damage to a motor car. At page 9 E - G it was said (per Potgieter JA):
"The
onus
rests on plaintiff of proving, not only that he has suffered
damage, but also the
quantum
65/...
65.
thereof. Where, however, a plaintiff leads evidence which establishes the
reasonable and necessary cost of repairs to his vehicle
damaged in a collision,
proof of such cost would, in my judgment, ordinarily be
prima facie
proof
that payment to him of sucn cost would place him financially in the same
position as he would have been in had the collision
not occurred. If on all the
evidence adduced at the trial there is nothing to show that the reasonable and
necessary cost of repairs
might exceed the diminution in value, the
prima
facie
proof may become proof by a preponderance of probabilities and a
plaintiff has then succeeded in proving his damages (cf. Ex
parte Minister of
Justice: In re R. v. Jacobson and Levy
,
1931 A.D. 466
at
p.478)."
And at page 11 E - F (per Jansen JA):
"Wat (e) betref, [that there was no probability indicating that it would not be
worthwhile repairing the vehicle] moet geredelik
toegegee word dat aangesien die
verkoopwaarde na die botsing onbekend is, daar 'n moontlikheid (in teenstelling
tot 'n waarskynlikheid)
bestaan dat die redelike reparasie-koste die verskil
tussen die verkoopwaarde voór en na beskadiging oorskry. Diê
moontlikheid
is egter in die omstandighede hoogstens 'n spekulatiewe
moontlikheid sonder voldoende getuienisbasis. Om die eiseres vanweë
hierdie
moontlikheid te laat misluk sou noodwendig aanvaarding daarvan inhou dat die
bewyslas verg dat 'n eiser in alle gevalle positief
moet bewys dat geen
moontlikheid bestaan dat die redelike reparasiekoste die verskil in
verkoopwaarde vóor
66/...
66.
en na beskadiging oorskry nie. Die werklike probleem is dus geleë in die
kwessie van die bewyslas."
In an earlier decision the learned
judge had observed:
"Die bewyslas is op dle eiser om sy skade te bewys, en as sy getuienis aan die
einde van die saak slegs betrekking het op 'n maatstaf
wat uit die getuienis
blyk verkeerd te wees, dan kan hy nie slaag nie. Maar dit volg geensins dat
omdat hy nie getoon het dat alle
ander maatstawwe ontoepaslik is, sy eis van die
hand gewys moet word nie. .... As 'n eiser paslike getuienis voorlê dat sy
skade 'n sekere bedrag beloop, dan hoef hy nie by voorbaat 'n negatief te bewys
nie, naamlik dat daar geen ander maatstawwe toepaslik
is wat tot 'n kleiner
bedrag van skadevergoeding sou lei nie."
(
Janeke v Ras
1965(4) SA 583 (T) 588 D - F.)
Thus in the
instant case the respondent was required to adduce evidence - a "voldoende
getuienisbasis" in the words of Jansen JA -
in support of its contention, that
is to say, that f or the next 35 years, or for some shorter period, medical
services of the same,
or an
67/...
67.
acceptably high, standard will be available to the appellant
at no cost or for less than that claimed by him.
This the respondent failed to do. In giving
evidence on
behalf of the appellant, Dr Chait, a
surgeon, said that state medical
services would be
available to the appellant depending on his
"income
status" and his "classif ications": he was not asked
for more
detail in this regard. Dr Lissoos, a
urologist, confirmed that the
appellant's "earnings"
would be the determining factor. This evidence
stands
uncontradicted. Since the appellant will receive a
substantial
award as a result of this appeal, there is
nothing to suggest that the income
derived therefrom
(and perhaps the capital sum) will not disqualify
him
from such services. The probabilities are that it
will. Moreover, the
evidence fell far short of showing
68/...
68. that such services are likely to be available in the
future. What evidence there was in that regard suggested the opposite. Thus,
even assuming that the standard of medical attention and hospital facilities
provided by the State to be comparable, the evidence
in support of this
alternative source was wholly insufficient.
Here too the question of a contingency adjustment arises. The trial court
thought an 8 per cent deduction was appropriate. This rate
to my mind does not
pay sufficient regard to the fact that the appellant' s lif e span may be
shorter than his assumed life expectancy
and that certain of the future medical
expenses may not have to be incurred. In all the circumstances a contingency
reduction of
20% appears to me to be more realistic.
69/...
69. In the result the appellant's basis of claim under
this head is to be accepted. The award, after capitalisation at the said rate,
is accordingly 80 per cent of R180 434,00, that is, R144 347,00.
The cost of an attendant
The fact that the appellant would
need an attendant and the cost thereof was not in dispute. The sum capitalised
at the aforementioned
rate is R95 095,00. The respondent did not submit that
there ought to be any reduction of this sum for contingencies.
General Damages for pain and sufferinq, loss of amenities of life and
disability
It remains to consider an appropriate award
70/...
70. under this head of damages. The trial court considered
that R85 000,00 would be fitting. Mr Ancer agreed. Mr Burman, however,
submitted
that it was excessive and that the award should be no more than R60 000,00. He
correctly pointed out that one must guard
against overlapping and a resultant
duplication of awards for general damages and cited what was said by Hoexter JA
in
Administrator-General, South West Africa and Others v Kriel
1988(3) SA
275 (A) at 286 C - D:
"As pointed out by this Court in
Southern Insurance Association v Bailey
NO
1984(1) SA 98 (A) at 113E-F, where (as here) damages for bodily injuries
are awarded not in a globular amount but under separate
heads, a trial Court
should guard against the danger of duplication as a result of an overlapping
between separate awards."
In the present case, in addition to the
paramedical aids, there are other forms of relief provided for in the awards
thus far made,
which will ameliorate the hardship of appellant's disability and
his loss of
71/...
71. amenities. These include the use of a motor car for social and
what might be termed "non-medical" purposes. The fact that he is
now to live at
home with his family and an attendant, is likewise a compensatory consideration.
The trial court, it should be noted,
was mindful of this danger of duplication
when making an assessment of compensation for general damages under this
head.
In support of his contention that the sum should be restricted to R60 000,00,
counsel referred to some awards in more or less comparable
decisions. They were
Dlamini v Government of the Republic of South Africa
(Corbett and
Buchanan "
The Quantum of Damages in Bodily and Fatal Injury Cases
" Vol
III page 554);
Southern Insurance Association Ltd v Bailey NO
(supra)
120; and
Administrator General, South West Africa and Others v Kriel
(supra). I have paid due regard to
72/...
72.
these cases and in addition have sought guidance from the
decision in
Marine and Trade Insurance Co Ltd v Katz NO
1979(4) SA 961
(A) 982E - 983G, in deciding on compensation which "is fair in all the
circumstances of the case" (
Sandler v Wholesale Coal Sunpliers Ltd
1941
AD 194
at 199).
On appeal this court is loath to substitute, in the absence of any
misdirection or irregularity, its estimate of compensation for
general damages
unless there is a marked disparity between its assessment and the award of the
trial court. (cf.
A.A. Mutual Insurance Association Ltd v Maqula
1978(1)
SA 805 (A) 809 B - C). This reluctance is in part due to the fact that a judge
of first instance is immersed in the atmosphere
of the trail and is best able to
gauge the extent of a plaintiff's disability, loss of amenities and capacity to
endure hardship,
pain and suffering.
73/...
73. Though in this case no award was made, due weight must
plainly be given to these considerations and the court's estimation of
compensation in deciding on an appropriate award.
Taking all the circumstances into account I consider that compensation under
this head of general damages in the sum of R85 000,00
is in fact
appropriate.
To sum up the damages award:
Past loss of income R 13 445,00
Loss of earning capacity R131 506,00
Purchase & maintenance of motor car R397 640,00
Future medical expenses R144 347,00
Cost of an attendant R 95 095,00
General damages for pain and
suffering etc
R 85
000,00
R867 033,00
74/...
74.
In the result it is ordered that:
1. The appeal is allowed with costs, which are to include those occasioned by
the employment of two counsel and the costs of the
abortive cross-appeal.
2. The order of the court a
quo
is altered to read: "Judgment for
plaintiff in the amount of R867 033,00 with costs, which are to include the
qualifying fees of
Dr Chait, Dr Lissoos, Mrs Thompson, Mr Cohen and Mr
Rolland."
M E KUMLEBEN
JUDGE OF APPEAL
JOUBERT ACJ)
E M GROSSKOPF
JA)
MILNE JA) Agree
NICHOLAS AJA)