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[2013] ZAWCHC 109
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Seti v South African Rail Commuter Corporation Ltd (10026/2009) [2013] ZAWCHC 109 (8 August 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO.: 10026/2009
In the matter between
BONGANI SETI
...............................................................................................
Plaintiff
versus
SOUTH AFRICAN RAIL COMMUTER
CORPORATION LIMITED
.........
Respondent
JUDGMENT DELIVERED ON 8 AUGUST 2013
SAMELA, J
Introduction
[1] On the 25 February 2009 at
approximately 06h50 the Plaintiff, Mr Bongani Seti, was injured when
he fell while attempting to
board a South African Rail Commuter
Corporation train, which had left Khayelitsha station with the doors
of the carriage open.
As a result of the accident, the Plaintiff
suffered certain injuries namely; deep laceration to right hip,
fracture of left and
right hip and spinal cord injury.
[2] At the commencement of the trial
the parties agreed that only the Defendant’s liability be dealt
with and the question
of the Plaintiff’s quantum claim be dealt
with later. I made a ruling in terms of Rule 33(4) that merits and
quantum be separated
and that this court deal with the issue of
whether or not the Defendant is delictually liable to compensate the
Plaintiff for whatever
damages he may prove to have suffered as a
result of the accident. An inspection in loco was also conducted at
Khayelitsha station.
[3] The Defendant denied liability and
raised the following defences: (a) Volenti non fit injuria; (b)
Disclaimer and alternatively
(c) contributory negligence.
[4] The Plaintiff’s amended
particulars of claim alleges the following at paragraphs 4,5,6,7 and
8:
para 4: “The number of the train
and the driver of the train is unknown to the Plaintiff.
para 5: At all times material hereto,
the aforesaid train was owned and/or operated by the Defendant. The
aforesaid incident in
which Plaintiff was injured was caused solely
by the negligence of the driver of the train who at all times
material hereto was
a servant of the Defendant who was acting within
the course and scope of his employment as such, the driver having
been negligent
. . .” [in a number of respects].
para 6: “Alternatively, the
aforesaid incident was caused solely by the negligence of the guard
and/or conductor and/or controllers
of the train whose identities are
to the Plaintiff unknown, who at all times material hereto were
acting within the course and
scope of their employment with the
Defendant, they having been negligent . . .” [in a number of
respects].
para 7: “Alternatively, the
aforesaid incident was caused solely by the negligence of the
Defendant and/or their employees
of the Defendant who were at all
times material hereto were acting within the course and scope of
their employment with the Defendant,
such person (s), having been
negligent” . . . [in number of respects]
para 8: “In the further
alternative to paragraphs 5, 6 & 7 hereinabove, at the time of
the incident.
8.1. In terms of Sections 15 and 23(1)
of SATS (“the Act) it was a function of Defendants to provide
transport within, to
and from the Republic in the public interest.
8.2. Defendants, acting through its
employees thereto appointed, in fact maintained and operated a rail
commuter service as prescribed.
8.3. Defendants were under a legal
duty to Plaintiff to take such steps as were reasonably necessary to
ensure his safety while
travelling on one of its trains.
8.4. The aforesaid legal duty arose:
8.4.1 from the statutory provisions
cited in paragraph 8.1 above;
8.4.2
alternatively,
and in any
event, from the legal convictions of society, based upon one or more
or all of the following considerations:
the defendants were established in
the public interest, for the very purpose of providing a rail
commuter service, which in turn
had to ensure the same travelling of
its commuters;
the defendants were maintained and
operated by public money;
the vast majority of passengers are
compelled to make use of trains because they cannot afford other
transport;
the defendants commanded the
resources, manpower, and/or security with which to prevent any
danger to its commuters; and/or
the defendants were expected to
operate carriages which were safe for the purpose of conveying
passengers, which in turn demanded
that:
the doors to carriages were at all
times closed while the carriage was in motion;
the doors to carriages could not be
opened by passengers while the carriages were in motion;
a train should not be allowed to
leave a station while the doors to carriages are still open”.
Facts
[5] Mr Seti testified that he was born
in Port Elizabeth in 1983. At school, he failed grade 12. In 2005 he
came to Cape Town and
resided with his sister in Town 2, Khayelitsha.
Between 2006 and end January 2009 he was doing odd jobs, until his
friend Tsepo
got him a job as a labourer with Cassiem at the
beginning of February 2009. He was paid an amount of R90.00 per day.
To get to
the station it used to take him about 20 minutes’
walk, and from Bonteheuwel station to Cassiem’s place, it was
about
40 minutes’ walk.
[6] Mr Seti used to buy a daily train
ticket as he did not have enough money to buy a weekly ticket. He
never looked at what was
written on his train ticket. On the day of
the incident, he used his sister’s monthly ticket as she was
not working that
day. On that fateful day his working colleagues came
to his house as they used to walk together to the station. As he was
still
making his food, he told them that he would join them later. He
put his food and working clothes into his bag and ran to the station.
At the station he ran down the stairs to platform 1. At the platform,
he ran to the back of the train where his co-workers usually
boarded.
He saw Teboho who was at the open door way. The train started moving
with its doors open. He gave his bag to Teboho and
tried to grab the
rail on the Cape Town side to board the train. He was not sure
whether he had managed to grab it.
[7] As the train was not moving fast
he thought he would be able to jump into the train. Since he worked
for Cassiem he had been
using the train. The reason for boarding the
train was that he did not want to be late for work as Cassiem would
not employ him.
He testified that he had never jumped into a train
before. The next thing he remembered was a security guard standing
above him
asking his name and also if he had a ticket. He had never
seen the disclaimer board at the station nor had he read his ticket,
but confirmed seeing the sign written inside the train.
[8] Under cross–examination the
Plaintiff denied that:
he saw signs like the disclaimer
board to the left and right of the ticket windows at the Khayelitsha
station;
he knew that when riding in a train
there were certain rules that were applicable;
he was not allowed to smoke nor to
get into the train if it was moving;
that he knew when riding in a train
there were certain things which he was not allowed to do;
he knew the reason for not keeping
the train doors open while the train was in motion;
he ever saw the train guard blowing
the whistle, even on the day of the incident, he never heard the
guard blowing his whistle;
he knew that boarding a train with
its doors open was lawful or unlawful;
he knew that jumping between the
coaches of moving trains was dangerous;
he knew that there was another train
that would leave within few minutes after the train he attempted to
board.
He conceded having seen some signs
inside the railway coach. He testified that he had seen people
jumping into the moving trains
with open doors and also between the
coaches and never thought that it was safe. He did not know that he
could be badly injured
if he failed to succeed in jumping into a
moving train with it doors open.
[9] Mr Teboho Tsalau was a co-worker
with the Plaintiff. He was the one who got a job for the Plaintiff
with his employer Cassiem.
At the time of the incident he was working
as a tiler. Other Plaintiff’s co-workers were Tsepo, Loza,
Songezo and Mvenya.
He confirmed that the Plaintiff worked as a
labourer. The practise was that they all would take the morning train
and alight at
Bonteheuwel station, where Cassiem would either pick
them up or they would walk for 30 to 40 minutes to Cassiem’s
premises.
On the day of the incident, Cassiem was to pick them at the
station. They would get into the second or third train coach from the
back.
[10] On the day of the incident, the
train was full. He stood at the door as the Plaintiff ran down the
stairs. When the Plaintiff
was on the platform the train started
moving. At that stage the doors were open. He confirmed that the
Plaintiff gave him his bag,
turned and ran with the train towards
Cape Town. He attempted to board the train by holding on to a rail on
the Cape Town side
of the doorway. The Plaintiff failed and fell. He
attempted to grab the Plaintiff but did not succeed. He testified
that the Plaintiff
was running next to the train in a “jogging”
fashion. He did not see the Plaintiff falling as he looked away. The
train
stopped near the next station, and they came back to where the
Plaintiff fell. He had jumped into moving trains before the incident
and conceded that it was a dangerous practice. He had been travelling
by train then over five years. Under cross-examination he
confirmed
his evidence in chief.
[11] Mr Songezo Mvenya was born in
1986. In 1996 his family left Willowvale and relocated to Cape Town.
He resides in Khayelitsha
at Town 2. He confirmed that he was working
for Cassiem at the time of the incident. He also confirmed that the
Plaintiff was his
co-worker. He confirmed further that the Plaintiff
came running down the steps. He testified that the train started to
move when
the Plaintiff was 4 to 5 metres away from the door, and the
train left with doors open when the Plaintiff gave Teboho his bag,
and turned to run alongside the train. He testified that the
Plaintiff fell when he tried to board the train. He confirmed that
the train was not running fast and estimated the speed as jogging. He
testified that he thought that the Plaintiff could make it.
He told
the court that he had jumped into moving trains before the incident.
He denied that there was a pole in the middle of the
door. He told
the court that he did not hear the guard’s whistle before the
train started moving. He pointed out that after
the Plaintiff fell
the train doors remained open.
Under cross-examination, he confirmed
his evidence in chief. He told the court that on the day of the
incident the train was not
full. He testified that he had never seen
the disclaimer board, all what he saw at the ticket office were
warning signs that commuters
should not carry weapons. That was the
Plaintiff’s case.
[12] Mr Johan Ferreira is employed by
Metrorail as a driver. He has been in the employment of the Defendant
for more than 34 years,
31 years as a driver. On the day of the
incident, he arrived with his train on platform 2 at Khayelitsha
station. On his arrival
at the Khayelitsha station, the train on
platform 1 was already there. Khayelitsha station was then the end
station. He had to
leave his cabin, walk to the other side of the
station, as the train had to leave for Cape Town in a return trip in
about 10 minutes
time.
[13] As he walked to the other side of
his train, he heard the guard blowing his whistle on platform 1.
Shortly thereafter there
was a second whistle blown. The doors of the
train closed, and the train started moving. He saw the Plaintiff
running down stairs
very fast onto platform 1. As the Plaintiff ran
fast past him, he turned and looked to see where he was running to.
He noticed
that there was a carriage door which was held open by two
school children. He assumed that they were school children because
they
were clothed in white and grey pants. The train was picking up
the speed and the mistake the Plaintiff made was to jump into the
train from the opposite direction in which it was travelling. The
train at that time was travelling at about 20 km/h. The Plaintiff
jumped and managed to grab the middle pole. He missed his footing and
slipped between the train and platform. The Plaintiff was
pulled in
the opposite direction by the people inside the train, he was dragged
between train and the platform. Two people in the
train managed to
pull the Plaintiff up and threw him out onto the platform near the
bridge. The Plaintiff landed up between his
legs. He had informed the
Plaintiff that he was lucky to be alive.
Under cross-examination he confirmed
his evidence in chief. Mr Ferreira pointed out that Metrorail
employees in terms of working
rules must at all times consider the
safety of the public. He testified that according to the rules, a
train must not leave the
station before the doors are closed. He
testified that in Khayelitsha lane, he used to see people getting in
and out while the
trains were moving. He confirmed that it was the
guard’s responsibility to ensure that the train does not leave
the station
with its doors open. In
casu
, he confirmed that
the train left with its door open.
[14] Mr Christian Edson was a station
supervisor at the time of the incident working for the Defendant. He
had more than 25 years
experience working for the Defendant. His
duties were inter alia, overseeing the operations on the station
including rostering
staff working at the gates, managing the
cleaners, security, safety on the station, overseeing application
customer service, that
posters were up, announcements were made
regularly and looking at the income of the company. He testified that
at the time of the
incident both disclaimer boards were up. He also
told the court that there were more boards now than before. He
confirmed that
in the trains there were various safety signs put up
and in places where commuters would see them. He mentioned that there
were
no platform marshals at Khayelitsha station except Bonteheuwel
station. Under cross-examination, he confirmed his evidence in chief.
He testified that he did not know what was written at the back of the
train ticket because he never look at the back of it.
Issues to be decided.
[15] Firstly, the court is to decide
whether the Plaintiff was negligent in attempting to board a moving
train with its doors open;
Secondly, whether the Defendant was
negligent in allowing the train to depart the station with its doors
open; Thirdly, to decide
whether Defendant’s defences of volent
non fit injuria and disclaimer are to be regarded as complete
justification; Fourthly,
whether there is contributory negligence
between the Plaintiff and the Defendant.
Applicable Law.
[16] The following legal principles
and cases are relevant and applicable in this matter and are
mentioned here below.
Section 1 of the Constitution (Act 108
of 1996) provides:
“
The Republic
of South Africa is one sovereign democratic state founded on the
following values:
(c) Supremacy of the constitution and
the rule of law”.
Section 8 of the Constitution provide:
“
The Bill of
Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state”.
Section 12 of the Constitution
provides:
(2) “Everyone has the right to
bodily and psychological integrity, which includes the right –
(b) to security in and control over
their body;”
Section 41 of the Constitution
provides:
“
All
spheres of government and all organs of state within each sphere
must –
(c) provide effective, transparent,
accountable and coherent government for the Republic as a whole”.
(see also section 195
1(f) of the Constitution.
Section 239 of the Constitution
provides:
“
In the
Constitution, unless the context indicates otherwise –
“
organ of
state” means
(b) any other functionary or
institution –
exercising a power or performing a
function in terms of the Constitution or a provincial constitution,
or
exercising a public power or
performing a public function in terms of any legislation, but does
not include a court or a judicial
officer”.
[17] The well-known test for
negligence was formulated by Holmes JA in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430 D-F as follows:
“
For the
purposes of liability culpa arises if –
a diligens paterfamilias in the
position of the defendant –
would foresee the reasonable
possibility of his conduct injuring another in his person or
property and causing him patrimonial
loss; and
would take reasonable steps to guard
against such occurrence; and
the defendant failed to take such
steps”.
[18] Boberg “The Law of
Defamation” Volume 1, Juta 1984 at page 274” clearly
summarised the test of reasonableness
in a very simple and
understandable manner when he provided:
“
A person is
negligent if he did not act as a reasonable man (diligens
paterfamilias) would have done in the same circumstances.
Negligence
is a question of fact, and must be proved by the party alleging it.
To aid in determining whether a person
has been negligent, the court generally divides the inquiry into the
following stages: (a)
would a reasonable man in the position of the
defendant have foreseen harm; (b) would he have taken steps to guard
against it;
(c) what were those steps; and (d) did the defendant take
them?---In this sense negligence depends on the foresight of a
reasonable
man: but it does not depend only on what he would have
foreseen; it also depends on what he would have done about it--- our
courts
sometimes formulate the inquiry as to negligence in terms of a
duty of care. The questions then posed are: (a) did the defendant
owe
the Plaintiff a duty of care; (b) what was the content of the duty;
and (c) did the defendant discharge it? In as much as a
duty of care
arises when a reasonable man in the position of the defendant would
have foreseen harm and taken steps to guard against
it.”
[19] Metrorail as the provider of a
transportation service to the public bears an obligation to ensure
that reasonable measures
are taken to provide for the safety and
security of rail commuters on the rail commuter service they provide
(
Rail Commuters Action Group v Transnet t/a Metrorail
2005
(1) SA 301
(CC). It has now become well-established that a commuter
train departing from a station with open coach door consist an open
invitation
to commuters to board an already moving train, was
approved in Transnet Ltd t/a Metro Rail v Tshabalala
(2006) 2 ALL SA
583
(SCA) para 9 where it was held:
“
A reasonable
man in the position of the defendant would not have allowed the train
to operate with the doors of the coaches open
as he would have
foreseen that to leave the doors of the railway coaches open would
constitute an invitation to prospective passengers
to board the train
while moving and that it would be dangerous for them to do so”.
[20] The Supreme Court of Appeal in
Transnet Ltd v Witter
(517/2007)
[2008] ZASCA 95
(517/2007) (16 September 2008) it was again held that a train leaving
with open doors constitutes negligence. In both these cases
the open
doors were as a result of the malfunctioning thereof.
In casu
as I have pointed out, malfunctioning does not arise, I however do
not think that the difference is of any significance: it remains
the
duty of Metrorail to ensure that the train does not depart from the
station with open doors. That brings to the fore the question
whether
Metrorail could and should have taken reasonable steps to guard such
possibility.
[21] In the Transnet v Witter-case
supra the essential issue the Court dealt with was whether Metrorail
had taken all reasonable
steps to guard against the possibility that
the train would depart with doors open (
ie
the third
requirement in the test for negligence enunciated in
Kruger v
Coetzee
1966 (2) SA 428
(A) at 430E-G). In confirming the
finding of the Court a quo against Metrorail Cloete JA writing for
the Court, held that the duties
of the train guard were such that he
should have ensured that the train doors were closed before he gave
the signal to the driver
of the train to proceed, which he had failed
to do. The duties of train guards are set out in para 12001.2 of the
General Operating
Instructions of Metrorail and read as follows:
12001.2
Operation of sliding doors
on arrival at and before
starting from stations or other
stopping places
.
12001.2.1 Immediately after stopping
at a station or halt where the train is required to stop for
commuters, the metro guard must
release the sliding doors on the
platform side so that they can be opened manually.
12001.2.2 When the train is ready to
depart the metro guard has announced it orally, he must blow the
whistle as warning that the
sliding doors are going to be closed.
Thereafter he must press the “Door-CLOSING” button and
give the right-away bell
signal to the train driver.
12001.2.3 While performing their
duties, metro guards must observe whether or not sliding doors are
closing properly. If any sliding
doors are not operating correctly
the instructions in subclause 12001.4 must be complied with. They
must also warn commuters against
the undesirable practice of keeping
sliding doors open when the train is about to depart or en route.
[22] Apportionment of Damages Act 34
of 1956
The relevant portion of s 1 of the
Apportionment of Damages Act provides:
‘
(1)
(a) Where any person suffers damage which is caused partly by his own
fault and partly by the fault of any other person, a claim
in respect
of that damage shall not be defeated by reason of the fault of the
claimant but the damages recoverable in respect thereof
shall be
reduced by the court to such extent as the court deem just and
equitable having regard to the degree in which the claimant
was at
fault in relation to the damage.
(b)
Damage shall for the purpose of paragraph (a) be regarded as having
been caused by a person’s fault notwithstanding the
fact that
another person had an opportunity of avoiding the consequences
thereof and negligently failed to do so’.
[23]
Volenti non fit injuria
(Consent and assumption of risk
) (see Boberg at 724 supra and
Lawsa Vol 8 Part 1, Lexis Nexis Butterworths 2005 par 96)
Volent non fit injuria
(A
willing person who consents to the defendant’s act, in the form
of either a specific harmful act or an activity involving
a risk or
harm, cannot be wronged).
Volent non fit injuria
,whether in
the form of consent or voluntary assumption of risk, is a complete
ground of justification. The requirements for establishing
consent or
voluntary assumption of risk as a ground for justification are the
following:
The plaintiff must have had knowledge
of the harm or risk involved in the defendant’s conduct, as
well as the nature and
full extent thereof. This is also referred to
as “informed consent”.
Knowledge of the harm or risk
involved is not sufficient. The Plaintiff must also have
appreciated
the nature and extent of the harm and the risk involved.
Knowledge and appreciation will not
suffice. The maxim is not
scienti
non fit iniuria
but
volenti
not fit inuria
. The plaintiff must also have consented to
the infliction of the harm or assumed the risk implicit in the
defendant’s conduct.
Consent and assumption of risk imply that
the plaintiff intended his or her rights to be limited, for the
purpose of infliction
of the specific harm or exposure to the
hazardous conduct of the defendant. The plaintiff must therefore not
only have consented
to or assumed the physical harm and risk
involved, but also the legal risk of injury.
The defendant’s conduct must
have fallen within the limits of the consent. Should the conduct
violate the terms of the consent,
the defence falls away.
The consent must extend to all the
consequences which may arise out of the conduct. However, it is
possible to give conditional
consent, for example, that a manuscript
be shown to someone for approval prior to publication.
The consent must have been
freely
given and the risk
voluntarily
assumed. Whether consent has been freely given, and a
risk voluntarily assumed, depends entirely on the particular
circumstances
of the case and, in particular, on the moral, economic
pressures restricting the plaintiff’s freedom of choice.
Consent or voluntary assumption or
risk is, of course, a defence only in respect of injuries and harm
caused by the materialisation
of a risk which was subjectively
foreseen, appreciated and assumed by the plaintiff. If one exposes
oneself to dangerous or negligent
conduct, one does not necessarily
assume all the risks attached to it. In
Vorster v SANTAM
Insurance Co Ltd
Marais J observed: “The
volens
may relate to specific, separable parts of the risk or danger and
not to others.” He continued: “If it were proved
that
the plaintiff was fully
volens
in respect of one of these
factors of danger but the cause of the injury arose from an element
not covered by the
volens
, the defence or
volenti non fit
iniuria
would not succeed, in other words the required legal
consent must have been directed to that particular danger factor
which in
the even caused the damage; if not, the
volens
defence fails.”
The requirements for the defence of
volenti non fit iniuria
are not restricted to the subjective
requisites of knowledge, appreciation and consent or assumption of
risk. One’s freedom
of will and capacity to regulate
unilaterally the extent of one’s rights are not absolute.
Consent or assumption of risk is a
unilateral legal act whereby a plaintiff waives or restricts his or
her rights in respect of
certain harmful conduct by the defendant.
In order to constitute a legal act, the will and intention of the
consenting party
must be manifested by external conduct.
Consent or assumption of a risk is a
legal act. The execution of a legal act requires in principle that
the actor must have the
legal capacity to perform a juristic act.
Because consent is a unilateral act,
one may revoke it at any reasonable time. See
Santam v Vorster
1973 (4) SA 764
(A).
[24] Metrorail General Operating
Instructions
Sub paragraph 12017.12.1 (deals with
Metrorail guard’s duties on arrival at and before departing
from stations or other stopping
places) provides:
“
Immediately
after stopping at a station or halt where the train is required to
stop for commuters the Metro guard must release the
sliding doors on
the platform side so that it can be opened by commuters.”
Sub paragraph 12017.12.2 provides:
“
Metro guard
must position him/herself in such a manner to observe the ins and
detraining of commuters”.
Sub paragraph 12017.12.4 provides:
“
Prior to the
departure of the train the Metro guard must
Observe commuters
entraining/detraining
Blow the whistle
Close the train doors
Where platform marshals are deployed
the metro guard must obtain the “train may depart” hand
signal from the platform
marshal nearest to him/her before giving
the “right away” bell signal to the train driver
Give the train driver a once bell
code “right away” signal.
Sub paragraph12017.12.6 provides:
“
After
transmitting the “right away” signal the Metro guard must
observe the train until the last vehicle is clear of
the platform and
transmit a “stop” signal to the train driver should the
necessity arise”.
[25]
Rail Commuters Action Group
and Others v Transnet Limited
t/a Metrorail and Others
[2004] ZACC 20
;
2005
(2) SA 359
CC especially para 82, 83, 84 and 88.
[26]
Transnet Limited trading as
Metrorail and Another v Witter
[2008] ZASCA 95
;
2008
(6) SA 549
(SCA) at 555
D-G.
[27]
Transnet Limited t/a
Metrorail v Lazarus Tshabalala
[2006] 2 ALL SA 583
(SCA) para
9.
[28]
Sonwabo Mafa v South
African Rail Commuter Corporation
– unreported judgment
of the Louw J (Western Cape High Court) delivered on the 17 September
2012.
Analysis of the evidence.
[29] Mr Dane on behalf of the
Plaintiff submitted that the Defendant failed to establish that the
Plaintiff voluntarily assumed
the risk of injury and that in
attempting to board the train with its doors open, did so with
“knowledge, appreciation and
consent”. He pointed out
that on the facts the open door was an invitation to the Plaintiff to
board the train. He submitted
further having regard to the shortness
of time between the departure of the train and the Plaintiff’s
endeavour to board
the carriage, there was insufficient time for the
Plaintiff to have appreciated the risk and consented thereto.
[30] Mr Potgieter SC on behalf of the
Defendant submitted that it may be taken as axiomatic that an adult
person (in
casu
, the Plaintiff) who had been to high school
and who had used trains before, should know that it is extremely
dangerous to attempt
to jump into a moving train. He submitted
further that such person would most certainly have appreciated that
should such endeavour
fail he might be seriously hurt or even be
killed. He pointed out that the Plaintiff’s argument that he
had insufficient
time to appreciate the risk and consent thereto is
not borne out by the evidence.
[31] It is trite that a train that
leaves a station with its doors or door in one of the coaches open
amounts to negligence on the
part of the Defendant. Also attempting
to board a moving train while its doors are open as the Plaintiff had
conceded amount to
negligence. I agree with Mr Dave that a train
leaving the station with its doors open undoubtedly constituted an
invitation to
the Plaintiff to attempt to board it.
[32] It is common cause that the door
of the train was held open by some passengers on the train. According
to Mr Ferreira (the
Defendant’s witness), some school children
held the doors open. I have no doubt in my mind that Metrorail as the
provider
of public transport has a duty to provide reasonable
measures to ensure the safety and security of all the train users.
[33] It is regrettable in this case
that neither the guard nor the security personnel on duty on the day
of the incident were not
called to give evidence. Nonetheless, the
general operating and instructions of the Defendant which tabulate
the guard’s
duties are specific (see sub para 12017.12.4 at
page 17 above) that the guard must ensure that the doors of the train
are closed
before the departure. Similarly the platform marshal’s
functions clearly states inter alia “the duty to ensure that
the train doors are closed before departure”. In this case we
do not know what the guard did before the train departed because
there is a duty on the guard’s part to ensure that the door was
closed before the train departed.
[34] The Defendant mechanism of
ensuring that all doors are closed before the train departs left much
to be desired in Khayelitsha
station as there were no platform
marshals. There is no evidence before the court what reasonable
safety measures the guard did
before allowing the train to depart the
station. Surely in this case as one of the reasonable safety measures
the guard could have
leaned out of the right side at the end of the
back of the train and could have seen the door of the second or third
coach which
was open and could have signalled to the train driver to
stop. Where there are no platform marshals the guard’s duties
should
be that the guard must ensure that all doors are closed,
before the guard signals to the train driver to depart. As I stated
earlier
this was not the case here. Looking at the evidence
wholistically, I am of the view that the guard failed to observe that
all doors
were closed before he signalled to the driver that it was
safe for the train to depart. It goes without saying that had the
guard
kept a proper lookout before the train departed, he would have
observed that the second or third coach door was open and would have
taken reasonable steps to guard against the harm/injury that
followed.
[35] The Plaintiff had knowledge but
not an appreciation of the danger ahead. According to his evidence,
the train was travelling
at a jogging pace and he was confident that
he could make it (that is, would be able to board). He did not
foresee the injury to
himself. It would be incorrect to say that the
Plaintiff consented to be injured by the train. I disagree with Mr
Potgieter SC’s
submissions that the defence of
volenti non
fit injuria
is a complete defence to the Plaintiff’s claim.
I agree with Mr Dane that the evaluation of knowledge, appreciation
and risk
occurred when the train started to depart. However, I
disagree with Mr Dane that common law regarding consent should be
developed
as I am of the view that there are no compelling reasons or
grounds to do so.
[36] The next issue is the disclaimer
defence.
[37] Mr Potgieter SC submitted the
following regarding the disclaimer in paragraph 39 of his heads:
“
39.1 The
disclaimer notice (Exh1) was positioned next to the entrance to the
platform, where the Plaintiff would have passed every
time he used a
train at Khayelitsha station. The notices would have been visible to
the Plaintiff.
39.2 As testified by Edson, at the
time of the incident a similar disclaimer board was also positioned
next to the ticket offices
at Khayelitsha station. No gainsaying
evidence was in any event led by the Plaintiff.
39.3 The Plaintiff, although
Xhosa-speaking, would have been able to read and understand the
disclaimer notices aforesaid. In fact,
his first witness, Tsalau,
readily testified that he had in fact seen and read both of those
notices.
39.4 The language use on the
disclaimer board is clear, straightforward and unambiguous: Just
above the actual disclaimer, it reads
“
Stay clear of all
doors whilst the train is in motion
”. The actual disclaimer
can also not be more concise and easy to understand, reading
“
Metrorail will not be held responsible for injuries
sustained”
.
He submitted further that the
“Plaintiff argues, firstly, that the
contra proferens
rule should be applied insofar as the wording is not express enough.
In this regard, it is respectfully submitted that the wording
is as
clear as can be.
The specific action warned against
staying clear of doors whilst the train is in motion. To expect of
the Defendant in these circumstances
to spell out more exactly what
is being warned against would be superfluous and in fact amount to an
absurdity. Every person reasonable
intelligence would know and
understand that the warning means that it is dangerous to place
yourself in the vicinity of the doors
of the train whilst it is in
motion, whether the commuter is on the train or approaching the
train”.
[38] Mr Dane countered Mr Potgieter
SC’s argument by pointing out that it was not correct that
Exhibit 1 was positioned where
Plaintiff would have passed every time
he used the train at Khayelitsha station. This was wrong. At the
inspection
in loco
it was manifestly clear that where the one
board was to the right of the entrance to the stalls, people
approaching from the eastern
side of Khayelitsha would never see that
board as they would not walk past it. He submitted that as to the
Defendant’s submission
in paragraph 39.2 (see par 37 above)
that no gainsaying evidence was led in relation to Mr Edson’s
testimony that a similar
board was also positioned next to the ticket
office, this was simply not correct. It was clear under
cross-examination of the witness
that even if such a board had been
positioned ‘there’, there were four ticket windows and if
a commuter bought a ticket
at one window, she or he might not have
seen the so – called disclaimer board. In any event, Mr Edson
could not say with
any clarity, precisely, where this board had been
positioned.
[39] The Plaintiff testified that he
did not read nor see the disclaimer boards. I am of the view that at
6:50am on working days,
is usually during the peak hour rush and the
station would be full of people who are rushing to work, it is
possible that the Plaintiff
might not have seen the disclaimer board.
We must remember that the Plaintiff according to him had been using
trains for only 3
weeks then. Whilst I agree with Mr Potgieter SC’s
submission that the language used on the board is clear and
unambiguous.
Equally the disclaimer board in my view is not referring
to circumstances where the Defendant (in this case) did not take
reasonable
measures to safe guard its commuters, that is, ensuring
that the doors of the train are closed before it departs the station.
In
my view, the disclaimer defence comes only into operation in
circumstances where the Defendant has done everything right. In this
matter it is common cause that the train left the station with its
doors open. Therefore, the Defendant as I indicated above failed
to
take reasonable steps to ensure that the doors of the train were
closed, and therefore the Defendant’s defence fails the
test as
the Defendant was also at fault.
[40] The next issue is whether factual
causation has been established in this matter.
[41] Mr Potgieter SC submitted that
the Defendant accepted that factual causation has been established on
the basis of the “but
for” test: “but for”
the fact that the train left the station with open doors, the
Plaintiff would not have been
injured. However, he submitted that
legal causation has not been established for the following reasons:
41.1 Defendant’s negligence
consist in effect in its failure to guard against the consequences of
what can only be described
as the deliberate unlawful and
reprehensible conduct of passengers on the train;
41.2 Plaintiff acted recklessly in
attempting to board the moving train;
41.3 There was no evidence that the
guard would have or should have known or seen the doors were being
held open;
41.4 Plaintiff’s attempt to
board constituted a
novus actus intervenies
, breaking the
causal chain between Defendant’s negligence and the Plaintiff’s
loss;
41.5 There was no behaviour of the
Defendant directly linked to the injuries suffered by the Plaintiff;
41.6 The actual harm suffered by
Plaintiff was, in the circumstances, not a reasonable foreseeable
consequence of Defendant’s
negligence;
41.7 Most right-minded people would
regard the imposition of liability in a case like the instant one as
unacceptable.
[42] Mr Dane countered Mr Potgieter
argument by submitting that there is no merit in Defendant’s
contention. He supported
his arguments by quoting the decision in
Transnet Limited t/a Metrorail v Tshabalala
(referred
to above). He pointed out that the Defendant was at all material
times fully aware of the problem of people endeavouring
to board
trains when the doors were open and the incident occurred at the
second or third coach from where the guard was standing.
On all
probabilities this was clearly visible to the guard. It was not as if
the incident happened in front of the train where
he was unlikely to
have seen whether the doors were open or closed before he gave the
right of way whistle. The guard was deliberately
not called to give
evidence because the inference is overwhelming that he failed in his
duty. He submitted further that the type
of act was clearly
foreseeable to Metrorail and that is why procedures were put in place
for marshals to assist guards to see whether
the doors were closed on
a train before departing, Metrorail failed dismally in its duty to
commuters in regard to their safety.
[43] I agree with Mr Dane. It is
common cause that the train left the station with the doors open. It
is regrettable that the guard
on duty that day was not called. The
Defendant owed it to the public or its commuters that reasonable
steps are to be taken to
provide a safe and secure rail for all its
passengers. In
casu
, it is clear that at Khayelitsha station
there were no platform marshals and the guard as I indicated above
was duty bound in accordance
with the general operating rules of the
Defendant to ensure or make certain the train doors were closed
before its departure. The
Defendant could have taken reasonable steps
to guard against the possibility of the train departing with its
doors open as discussed
above. It follows that the Defendant by
allowing the train to leave the station with its doors open,
constituted negligence as
this was an invitation to commuters to
board the train. The Defendant should have taken reasonable steps to
guard against such
possibility. The evidence clearly show that the
Defendant failed to do so. I am of the view that the Defendants
failure to take
reasonable measures to see that the doors were
closed, is sufficiently linked to the Plaintiff’s loss for
legal liability
to ensue.
[44] The next issue is whether or not
the Plaintiff was reckless in boarding a moving train.
[45] Mr Potgieter SC submitted that
the Plaintiff recklessly attempted to board a moving train that was
picking up speed, while
passengers were deliberately and unlawfully
preventing the doors from closing. He pointed out that the Plaintiff
further attempted
to do so in a particularly dangerous way: by
running in the opposite direction to which the train was moving, to a
coach at the
back, and then trying to jump in. He submitted that
against this “the negligence of Metrorail consists in effect in
its failure
to guard against the consequences of what can only be
described as the deliberate unlawful and reprehensible conduct of
passengers
on the train” in keeping the door open.
[46] Mr Dane submitted that the
Defendant is liable to compensate the Plaintiff for his proven
damages. He submitted that the apportionment
to be applied should be
two thirds in favour of the Plaintiff because the Defendant was
substantially more at fault.
[47] It is undisputed that the
Plaintiff as well as the Defendant were negligent and an
apportionment of degrees of negligence ought
to be determined and
made. Though each case is determined according to its own merits,
comparative assessments of contributory
negligence from other
negligence train cases would be beneficial.
[48] The Plaintiff and his two
witnesses were reliable and credible witnesses. There were minor
differences in their testimonies
which were not material, for
example, Mr Tsalau testified that on the day of the accident the
train was full, whereas Mr Mvenya
told the court that the train was
not full.
[49] Equally, Mr Ferreira and Mr Edson
were also reliable and credible witnesses. Mr Ferreira pointed out
that on the day of the
accident he did witness the train leaving with
its door open. He had seen people getting in and out of the moving
trains in his
experience as a train driver in the Khayelitsha lane.
Findings
[50] Consequently, I make the
following findings:
50.1 the Plaintiff as a reasonable
person in the position of a prospective passenger would have foreseen
the danger of boarding
a moving train. He was sober and was of the
opinion that the train was running at the jogging speed and he could
make it. He should
have refrained from attempting to board it;
50.2 the Defendant is aware of the
decisions of the Supreme Court of Appeal that state amongst others
that a train may not depart
a station with its doors open because
that would constitute negligence;
50.3 a train that moves with its
door/s open (as it happened in the present matter) constitute an
invitation to prospective passengers
to attempt to board it;
50.4 the Defendant’s platform
marshals system which operates only in one selective station
(Bonteheuwel) in the Cape Town
- Khayelitsha is inadequate;
50.5 the Defendant (according to Mr
Ferreira’s evidence) was aware that commuters board and alight
the moving trains when
the doors are open, has made no attempts at
all to employ more platform marshals to assist the train guards on
the Cape Town -
Khayelitsha line since 2009 up to the hearing of this
matter;
50.6 Defendant’s defences of
volenti non fit injuria and disclaimer cannot in this matter be
regarded as complete justification
and therefore must fail;
50.7 it is common cause that
Defendant’s own witness (Mr Ferreira) agreed with the
Plaintiff’s contention that it is
the guard’s
responsibility to ensure that the train does not leave the station
with its doors open. In this matter he confirmed
that the train left
the station with the doors in one coach open. As a result, I find
that the train guard was negligent in his
duties for not ensuring
that the train left Khayelitsha station with all its doors closed;
50.8 Consequently a reasonable person
in the position of the Defendant would not at all have allowed the
train to move with the
doors of the second or third train coach open
as the Defendant would have foreseen that to leave a door of the
railway coach open,
constitute an invitation on the part of the
Plaintiff to board it while moving and would be dangerous for him to
do so.
Order
[51] In the result, the following
order is made:
51.1 The Plaintiff is entitled to
recover from the Defendant 50% (fifty per cent) of his proven
damages; and
51.2 The Defendant is ordered to pay
the costs incurred by the Plaintiff, such costs to include the costs
of two (2) counsel.
______________
SAMELA J