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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

DATE:  3/12/2015

CASE NO:  71408/2013

In the matter between:-

THAMARI ROSE PHALANE                                                                                      Plaintiff

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA                                             Defendant

JUDGMENT

 

A. NATURE OF THE MATTER:-

1. The Plaintiff had instituted action proceedings against the Defendant due to her sustaining injuries on the Defendant’s train.  The salient facts are that on or about 30 October 2013, at Mabopane Station, Pretoria the Plaintiff sustained a fracture on her righthand finger on the train.

 

B.THE ISSUES:-

2. The trial was confined to the issue on the merits only.  The issue of quantum was postponed sine die. The issue for this Court to decide is whether the Defendant owed a duty of care in respect of the Plaintiff.

 

C. THE PARTIES:-

3. The Plaintiff in this matter was a fare paying train passenger.  The Defendant (PRASA) managed and was in control of the train, the infrastructure and the station in issue.

 

D. THE PLEADINGS AND EVIDENCE:-

4. The Plaintiff alleged that the Defendant owed a duty of care to the public, including the Plaintiff, by ensuring inter alia the following acts on its part in that:

4.1 the boarding and dismounting from coaches would proceed without endangering the safety of the public, including the Plaintiff;

4.2 the coaches of the train would be safe for use by members of the public, including the Plaintiff;

4.3 safety regulations and precautions would be implemented to ensure safe passage of the train to the public, including the Plaintiff.

5. The Plaintiff specifically pleaded that the Defendant breached its duty of care in that it failed to:

5.1 ensure the safety of members of the public, including the Plaintiff;

5.2 take adequate steps to avoid the circumstances in which the Plaintiff was injured;

5.3 take any or adequate precautions to prevent the Plaintiff from being injured;

5.4 failed to employ an adequate number of employees to guarantee the safety of the passengers.

The Defendant’s pleadings

6. In defence, the Defendant denied any negligence on its part.  In the first instance, the Defendant specifically pleaded that the Plaintiff had not sustained the injuries as a result of a train accident.

7. In the alternative, the Defendant  pleaded contributory negligence in that the Plaintiff could have taken the necessary steps to avert the danger.

The Plaintiff’s evidence

8. The Plaintiff’s evidence was essentially the following:

8.1 On the said morning, at approximately 5:30 am, the Plaintiff boarded coach no 4 of train 9504 as she usually does every morning;

8.2 The overcrowding in coach no 4 was caused due to coach no 3’s doors not being opened.  The commuters who should have boarded coach no 3, then forced their way into coach no 4.  The train was stationary at the time.  She stepped into the said coach.  Whilst in the coach, the other commuters who should have boarded coach no 3, started pushing their way into coach 4.  During this pushing in she tried to hold on the sides of the train in order to maintain her balance and position.  At some point her right hand was on the interleading (small) door of the train which was open at the time.  The door swung closed and struck her causing a severe injury to her right hand finger.  This caused her to lose balance and she fell.  Realising that she had been injured, she then went to the nearby clinic for medical treatment;

8.3 She further testified that on that morning she neither saw any guards in the train, nor on the platform at the time she boarded the coach nor when she disembarked.  She recognizes the guards from the uniforms they wear.  She confirmed that she often sees them in the afternoons when she returns from work;

8.4 Her explanations for not reporting the incident to the Defendant and/or its guards , was the following:

8.4.1 That there were no guards on the platform at the time for her to report the incident to;

8.4.2 She did not bother to move around to search for the guards, as she did not know who to report the incident to;

8.4.3 She focussed on getting medical treatment urgently and thus proceeded to the clinic.

9. In cross-examination, she testified that:

9.1 she was on her way to work at Pierre van Ryneveld, a suburb in Pretoria;

9.2 she takes train 9504 because it is reliable and convenient for her.  The other train which travels the route which would get her to her destination directly, does not always run at the stipulated times.  This causes that train to be very full as the commuters who should have taken the earlier train often wait for the later train;

9.3 upon disembarking coach 4, she left the station through the access gates and persisted that she did not see any security guards at the time;

9.4 she exited the station at the point where no ticket examiner was stationed;

9.5 it was peak hour at the time and the station was busy;

9.6 she conceded that she is aware that the ticket examiners and security guards may have been around but she did not see them.

10. In cross-examination, she refuted the Defendant’s version that:-  she was not injured on the train.  If she was injured she would have reported it to the guards as they were always on the platform.  Hence the only probable explanation is that she was not injured on the premises.

 

The Plaintiff’s second witness

11. Freddy Makasane Ngubeni’s version corroborated the Plaintiff’s version and essentially testified that:

11.1 He knew the Plaintiff as they board the same train to work every morning.  He confirmed that he also boarded coach no 4 that morning at the same time as the Plaintiff;

11.2 On that morning commuters from coach no 3 were pushing their way into coach no 4 as coach no 3’s doors would not open;

11.3 He testified that some commuters were falling down as other commuters pushed their way into the coach.  The Plaintiff was certainly on the train at the time;

11.4 The Plaintiff was injured and had shown him her injury.  He advised her to seek medical help at the clinic nearby.  She disembarked whilst he proceeded to his work place on coach no 4;

11.5 He also testified that there were no guards on the platform at the time.

12. In cross-examination, counsel for the Defendant questioned  why the Plaintiff in her testimony did not testify that she had showed Ngubeni her injury.  No mention was made of Mr Ngubeni in her testimony.

13. He conceded that he did not see her getting injured but had only seen the injury thereafter when she showed him.

14. He further testified that the “small door” in question is not automated but could be opened and closed at the will of the commuters.

15. In re-examination he confirmed that there were no guards on the train at the time the Plaintiff injured herself.

 

The Defendant’s witness

16. The defence called one witness, Ms Johanna Sebola, a security guard employed with Enlightened Security Company, who basically testified as to the nature of the guards’ duties at the station and moreover how they are required to deal with inter alia commuters who are injured or if any incidences occur on the premises or in the trains.

17. Although her testimony set out the background regarding their duties, her evidence was of little assistance to the Court.  She stated that she was not on duty at the time the said injury took place. She like other guards are required to enter all reported incidents into the “OB” (Occurrence Book).  Since the incidence in issue has not been reported and entered into, she testified that the Plaintiff could therefore not have been injured on the train.

18. However in cross-examination she conceded that she could not confirm whether any guards were in the train or on the platform at the time of the alleged incident.

E. DUTY OF CARE:-

19. It is trite law that in alleging that the Defendant owed a duty of care to the Plaintiff, the nature of such duty of care must be stated.  The Plaintiff must allege and prove the omission in this instance, liability for an omission will only arise where the Plaintiff alleges and proves that the Defendant by a prior positive conduct created a potential risk of harm and failed to take reasonable steps to prevent the risk materialising.

20. Upon the Plaintiff relying on breach of duty of care the Plaintiff must set out the facts that could or should have been foreseen by the Defendant.

21. The onus is on the Plaintiff to establish that a diligens parterfamilias in the position of the Defendant:

21.1 would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss;

21.2 would take reasonable steps to guard against such occurrence;  and

21.3 that the Defendant failed to take such steps.

22. The Plaintiff therefore has to prove facts from which an inference of negligence may be drawn.

23. In other words to prove negligence the Plaintiff is required to prove only that harm to others was reasonably possible and that a reasonable person would probably have taken measures to avert the risk of harm.  The Plaintiff must adduce evidence as to the reasonable measures which could have been taken to prevent or minimise the risk of harm.

24. If the Plaintiff establishes that the Defendant was negligent, the Defendant bears the onus to allege and prove negligence on the part of the Plaintiff, before an apportionment of damages can take place.

Legal causation

25. In a recent matter, Mashongwa v PRASA CCT 03/15 [2015] (26 November 2015) the Constitutional Court has affirmed that PRASA’s legal duty emanates from its constitutional obligation towards their passengers.

“[20] … The duty arises, in the case of PRASA, from the existence of the relationship between carrier and passenger, usually but not always, based on a contract.  It also stems from its public law obligations.”

[26] Safeguarding the physical well-being of passengers must be a central obligation.  It reflects the ordinary duty resting on public carriers and is reinforced by the specific constitutional obligation to protect passenger’s bodily integrity that rests on PRASA, as an organ of State.  The norms and values derived by the constitution demand, that a negligent breach of those duties, even by way of omission, should, absent a suitable non-judicial remedy, attract liability to compensate injured persons in damages”.

26. The standard against which PRASA must be judged is that of a “reasonable organ of State”[1].

27. Relying on the aforesaid authority, there is no doubt that PRASA as a reasonable organ of the State would have foreseen the possibility of harm, the question arises whether it would have taken measures to prevent the occurrence of the foreseeable harm.  The answer depends on the circumstances of the case. 

28. There are, however, four basic considerations which influence the reaction of the reasonable man in a situation posing a foreseeable risk of harm to others, namely:

• the degree of extent of the risk created by the actor’s conduct;

• the gravity of the possible consequences if the risk of harm materialised;

• the utility of the actor’s conduct;  and

• the burden of eliminating the risk of harm[2].

Factual causation

29. It is a further requirement that the Plaintiff must allege and prove the causal connection between the negligent act relied upon and the damages suffered.

30. The inquiry then is whether the wrongful act is linked to the loss for legal liability to ensure, or whether the loss is too remote.

31. In order to establish causal connection our Courts have held that the application of the “but for test” is based on common sense, based on the practical way in which the ordinary person’s mind works against the background of everyday experiences[3].

32. In Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747A at 765A-B, the test for legal causation was defined as “a flexible one in which factors such as reasonable foreseeability, directness, the absence or presence of a novus actus interveniens legal policy, reasonability, firmness and justice all play their part”.

33. The test is based on –

“a hypothetical cause of lawful conduct and the posing of the question as to whether such an hypothesis the Plaintiff’s loss would have ensued or not.  If it would in any event ensued, then the wrongful conduct was not a cause of the Plaintiff’s loss;  [otherwise] it would not so have ensued.  If the wrongful act is shown in this way not to be a causa sine qua non of the loss suffered, then no legal liability can arise”[4].

 

F. ANALYSIS AND FINDINGS:-

34. Having regard to the evidence presented before me, I find that the Plaintiff’s version to be more probable.  Her version has been corroborated by an independent witness who witnessed the circumstances which led to the injury.

35. Mr Ngubeni gave his version only to the extent that he was involved.  He confirmed the following:

35.1 Both he and the Plaintiff were in coach no 4 on the morning of the said incident;

35.2 There was overcrowding in coach no 4 which was due to the door of coach 3 remaining closed. The commuters who were supposed to board coach no 3 then began pushing their way into coach no 4;

35.3 This caused extensive pushing in by the commuters who were trying to get into coach no 4;

35.4 The Plaintiff had shown him her injury.  During this time of the morning there were no guards in the train or on the platform.

36. I found him to be an honest and reliable witness, particularly during cross-examination where he conceded that he did not see how the Plaintiff was injured.  He saw the injury when she made the point to show him.

37. I further find that the Defendant failed in its duty of care in not ensuring that:

37.1 its coach doors remain functional;

37.2 in the process of boarding there was no overcrowding in the coach.  This could have been avoided if the guards were present and prevented the overcrowding and the pushing in by commuters.

38. The Plaintiff would not have been injured if there was no overcrowding in coach 4.  The overcrowding was precipitated by coach 3’s doors not being functional.  This caused the commuters to rush in the already occupied coach 4.

39. If there was no overcrowding the Plaintiff would not have been pushed around which caused her to find support on the sides and the interleading door of the coach.  In her attempting to secure herself, she injured herself at the interleading door.   

40. The Defendant could have foreseen that there are more commuters boarding during peak hours and could have ensured that the guards were present to ensure orderly boarding and disembarking on the trains as well as prevent overcrowding in the trains.

41. From the evidence presented before me, the only inference which can be drawn is that the guards were not in the vicinity and hence did not notice the overcrowding.  If they had become aware of the overcrowding they may have entered this event into the “OB”.  Moreover there is no assurance that they would have entered the incident of the overcrowding, even if they were aware thereof.

42. It is common cause that the Plaintiff did not report her injury to them.  Hence it takes the matter no further.  Her version is that she left the station to seek urgent medical help and whilst in the process of exiting the station she did not see any guards to relay the incident to, is accepted by this Court.

43. During argument I was not convinced that liability can only arise if the matter was reported to the Defendant.  This cannot be so, particularly as the Defendant was unable to show the Court that such requirement was a written and/or orally communicated policy, which was brought to the attention of its commuters.   No evidence was led that there were notices on the train or around the station to this effect.

44. Both the Plaintiff and Mr Ngubeni, who have been travelling on the Defendant’s trains for years further testified that they were not aware that incidents of this nature had to be reported to the Defendant.

45. I further am not convinced that the Plaintiff fabricated the incident in light of the “Soshanguve Cttc:  referral letter” which noted a referral by the Soshanguve Clinic to admit the Plaintiff to the George M Hospital:

45.1 This report recorded a time of call as 5:50 am, which in all probability was a call to the aforesaid hospital;

45.2 It was common cause that the clinic was approximately 10-15 minutes walk from the station.  The time of the call thus corresponds with the Plaintiff’s testimony;

45.3 It is crucial to note that the cause of the injury was also recorded on the form as “injured by train door and sustained injury, R1 finger…”;

45.4 The indication for referral to the hospital was “open fracture, R1 finger”;

45.5. In argument the Defendant was unable to challenge the contents of this referral note.

46. The Defendant vehemently argued that it cannot be held responsible for the unorderly behaviour of its passengers, and in particular when there is overcrowding on the coaches.  It was the overcrowding by the commuters which caused the Plaintiff to be injured.  This argument cannot stand in light of the Mashongwa decision referred to aforesaid.

47. I am thus satisfied that there existed a duty of care and that the Defendant breached such duty.  Furthermore a causal connection exists between the negligent act and the Plaintiff’s injury.

48. The precise notice of the harm to the Plaintiff need not have been foreseen[5].

49. It is sufficient to establish that the person sought to be held liable should have foreseen the general nature of the harm that might, as a result of his conduct, befall some person exposed to a risk of harm by such conduct.  In this instance, this Court is satisfied that the harm the Plaintiff suffered fell within the general nature of foreseeable harm.

50. I am further not convinced that the Defendant has made out a case for contributory negligence.  As aforesaid, the Plaintiff could not have averted the danger.  In that space of time, one could not have expected the Plaintiff to move away from the interleading door.  Her evidence was that she tried to  support herself by holding onto the sides of the coach as well as the door when the pushing in was occurring, reflects that she was proactive in avoiding danger to herself.

 

G. CONCLUSION:-

51. I therefore find that the Plaintiff has discharged the onus of proving on a balance of probabilities that the Defendant was negligent.

 

H. ORDER:-

I therefore make the following order:

(1) The Defendant is liable to the Plaintiff for the proven damages suffered as a result of the incident on 30 October 2013 on the Defendant’s train;

(2) Costs to be paid by the Defendant to the Plaintiff;

(3) The determination of the quantum herein is postponed sine die.

 

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H K KOOVERJIE

Acting Judge of the High Court

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