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1. Judg ment in favour of the Plaintiff;
2. Cost of the action on scale C.
[2] The reasons for the order follow below.
Introduction
[3] The plaintiff was travelling on a commuter train on 12 November 2018
between Naledi and Johannesburg Park Station , for which trip he was in
possession of a valid train ticket . The trip entailed that he had to change trains
at New Canada Station. As he was unemployed the purpose of his trip was to
go and look for employment as a security guard for which he was trained and
qualified on level C and D and has been employed as such since 1998 . The
train that he was travelling on was operated by the defendant.
[4] At the Ellis Park station he was pushed out of the moving train, fell onto the
platform and suffered injuries. He is claiming damages from the defendant for
the injuries he suffered as a result of being pushed from a moving train.
[5] The issue of liability and quantum was separated by a court order on 16
August 2021 and the tr ial consequently proceeded only on liability.
[6] The trial was initially set down for 12 April 2022 but was postponed sine die
for the parties to conduct further investigations.
[7] The defendant raised three defences to the particulars of claim namely that
the incident did not happen as the plaintiff was not on the train and that the
injuries sustained was caused by a fall from stairs, secondly the plaintiff
assumed the risk of injury when he volu ntarily disembarked from the train
whilst the train was in motion and thirdly that the plaintiff was negligent by
disembarking from the train whilst the train was in motion and in doing so
contributed to his injuries and damage should the court find that t he
defendant negligently failed in its duty of care towards the plaintiff.
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Evidence for the plaintiff
[8] The plaintiff was the only witness in presenting his case. He testified that he
was a frequent user of commuter trains which form of transport he used to
travel to and from work.
[9] He boarded the train on the morning of 12 November 2018 at Naledi to travel
to Johannesburg Park station to go and look for a job. He had all his training
certificates with him.
[10] When he boarded the train it was not full and he found a place to stand in the
passage between the benches where other commuters were sitting. As the
train travelled towards New Canada it stopped at the stations en route and
commuters boarded the train. By the time the train reached New Canada the
train was full. At New Canada he disembarked from the train and embarked
onto the train that was bound for Park station.
[11] On entering the train he found standing room about a metre from the door
next to the screen attached to the back of the last seats of the row of seats to
the right of the door from where he entered. He held onto the overhead straps
and leaned against the screen .
[12] The doors of the train did not close when the train departed and remained
open throughout the journey . Despite this he did not feel unsafe as he was
appropriately far from the door, had a firm grip on the overhead straps and
could support his weight against the screen.
[13] The train was full but not overcrowded. Immediately behind him there was
nobody else standing as there was sufficient space for him to be able to move
around should he needed to.
[14] When the train entered Ellis Park Station, commuters began to push and
shove in order to disembark from the train. As he was close to the door, the
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pushing and shoving dislodged him from his position and he was ejected from
the moving train through the open doors. He fell onto the platform and rolled
until he bumped against the railing of the stairs. In the fall and the roll he
injured his right wrist .
[15] He was dazed and was assisted by unknown hawkers who assisted him to
be taken by a taxi to the Hi llbrow clinic from where he was transferred by
ambulance to the Charlotte Maxeke hospital where he was admitted and
diagnosed with a fracture of the right wrist and remained there until 19
November 2018 when he was discharged.
[16] He testified that he did not report the incident to any official employed by the
defendant as there were no security guards on the platform where he fell or
any other employee of the defendant at the station. When he was assisted to
the Hillbrow clinic he passed the ticket offices on the station, there were no
ticket examiners present at the office.
[17] He only made a statement to the police about the incident three years after
the incident in 2021. This statement was dealt with comprehensively in cross
examination as the plaintiff did not mention in the statement where the
incident occurred. He only ment ioned that he was travelling between Naledi
to Park station. His explanation was that the statement was written by the
police officer and not by him.
Evidence for the defendant
[18] The defendant called two witnesses. The security guard that was on duty on
the particular day and the investigator who conducted the investigation of the
incident.
[19] The security guard testified that he was on day shift duty on 12 November
2018. He was posted to Ellis Park and Jeppe. As there was a huge problem
with criminality on that particular railway line with stealing of railway line clips
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and signal cables he was dressed in plain clothes so as not to raise suspicion.
His main purpose was the protection of PRASA assets. His subordinate
function was to attend to the safety of commuters.
[20] He denies that there was an incident of a commuter falling from a train on the
particular day and refers to the relevant registers which does not contain any
reference to an incident where a commuter fell from a train. He confirmed that
no such incident wa s reported to him.
[21] The investigator testified that he ha d been involved in the investigation of train
incidents for at least the past twenty five years and that he has testified on
behalf of the defendant in a court on numerous occasions.
[22] It was his testimony that he was informed of the incident when the summons
and the particulars of claim was served on the defendant. He used the
particulars of claim to initiate his investigation. He was not aware that the
particulars of claim was amended and had never seen the amended
particulars.
[23] By the time the investigation commenced the contract with the security
company who employed the security guards was suspended and he was not
permitted to interview the security guard. He did not attend to the scene of the
incident and did not enquire as to the existence of any witnesses or obtained
any statements of any witnesses to the incident.
[24] He furthermore did not do any investigations in respect of hospital records
either at the Hilbrow Clinic or the Charlotte Maxeke hospital, neither did he
enquire about any ambulance records. He did no investigations in respect of
the reporting of the incident at a police station despite the fact that the matter
was postponed sine die for the specific purpose of further investigations.
[25] He confirmed that the investigation report is specifically designed to provide
investigative guidance for situations where the incident giving rise to the claim
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is not reported in the PRASA records. It requires the investigator to follow up
on 13 investigative elements. The investigator only followed up on 4 of those
elements. According to his testimony the remaining elements were not
necessary for him to arrive at his conclusion .
[26] His report about the incident mentions that the security guard who was on
duty when the incident occurred, has a different surname than the one who
testified. He testified that he confirmed the identity of the security guard whose
details appear in his investigation report by referring to company records as
well as copies of the particular security guard’s identity documents. He never
contacted the security guard or conducted an interview with him. According
to him the security guard that was on duty is the one whose name appears
on his investigation report.
[27] The conclusion of the investigator after he concluded his investigation was
that the alleged incident was not recorded in PRASA registers and not
reported to PRASA.
[28] What is glaringly absent from the investigation report template is any
reference to possible witnesses to the incident. For a template designed
specifically for the investigation of a claim where there is no trace of the claim,
this is a critical piece of evidence that is not investigated.
Discussion
[29] At the time of the incident the plaintiff was a regular user of commuter trains.
[30] His possession of a train ticket to travel on the specific route on the specific
day was not disputed. It was furthermore not disputed that he was
unemployed at the time of the incident and that he was looking for work and
the best place to do so was in Johannesburg and that he travelled there on
a regular basis in his attempts to secure employment. Neither was it disputed
that he travelled there in the mornings as it was the best time o f the day to
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find employment.
[31] The probabilities in this regard clearly favours the plaintiff.
[32] The version of the defendant was that the plaintiff was injured at an
undisclosed location, in undisclosed circumstances and in an undisclosed
manner. The plaintiff steadfastly denied that he was injured in any other
manner than in being pushed from a moving train whilst the doors of the train
was open.
[33] The version of the defendant in this regard is vague and unsubstantiated
and stands to be rejected.
[34] The plaintiff’s evidence that the doors of the train was open during the
journey was not confronted during cross examination. Neither did the
defendant produce any door reports to indicate that the doors were in normal
working order.
[35] The probabilities in this regard likewise favours the plaintiff.
[36] That brings me to the second defence of the defendant, namely that the
plaintiff attempted to disembark from a moving train and in doing so he
accepted the risk of injury.
[37] During cross -examination the defendant changed its version to that by
travelling on a train of which the doors were open constituted a danger and
should the plaintiff have disembarked from the train at an earlier station and
boarded a different train that was safer. The plaintiff was cross examined at
length on this aspec t and it was put to him that nothing prevented him from
doing so and as he had no appointment for a specific time in Johannesburg
he could easily have disembarked from the train and boarded another trai n.
The plaintiff’s response was that he did not feel that he was in danger as he
was far enough from the door, he was holding on to the overhead straps, his
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back was leaning against screen and there was enough open space behind
him should he find it necessary to move.
[38] The version as pleaded by the defendant was not put to the plaintiff in cross
examination.
[39] The next defence, contributory negligence in that the plaintiff by attempting
to disembark was negligent, was likewise not put to the plaintiff in cross
examination.
[40] During cross examination the plaintiff was confronted with his allegation that
the train was overcrowded and that this increased the risk of potential injury
and should the plaintiff likewise have taken another train to limit his risk. The
plaintiff stated that the train was initially not full, but as it progressed along
the journey the coach in which he was standing filled up.
[41] On being confronted with the discrepancy between “full” and “overcrowded”
counsel for the defence explained that “overcrowded” means that there is a
stampede. The plaintiff then testified that he was not aware of that meaning
of “overcrowded” and that there w as no stampede.
[42] The plaintiff’s version of the mechanics of how the incident occurred was not
disputed. His evidence was that when the train entered Ellis Park station
there was pushing and shoving by commuters from the inside of the coach
wanting to disembark from the tr ain. The pushing and shoving dislodged him
from the overhead belts and he was shoved through the open door whilst
the train was entering the station and fell on the platform.
[43] This version was not disputed during cross examination.
Conclusion
[44] The defendant has not succeeded in disturbing the probabilities of the version