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INTHE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURTOF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 15140/2017

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

FITSCHEN PRISCILLA ANN                                                      PLAINTIFF

And

UNITRANS PASSENGER (PTY) LTD TRADING

AS GREYHOUND                                                                         DEFENDANT

JUDGMENT

NV KHUMALOJ

[1]                             This is an action instituted by an eighty one (80) year old pensioner from Howick in KwaZulu Natal, Mrs Priscilla Ann Fitschen ("the Plaintiff') against Unitrans Passenger (Pty) Ltd trading as Greyhound ("Greyhound") ("the Defendant") for compensation for damages she suffered as a result of personal injuries she sustained when she fell whilst boarding a Greyhound coach on 22 December 2015.  Insanity

[2]                         Greyhound conducts a business as a luxury coach operator carrying members of the public between major cities throughout South Africa on payment of a fare. The Plaintiff had paid the payable fare and was travelling from Howick to Johannesburg when the accident occurred.

[3]                  The Plaintiff, a frequent user of Greyhound coaches alleges that prior to purchasing the ticket her daughter, Amanda Fitschen {"Fitschen") made enquiries from Greyhound if a portable step would be provided to assist her when embarking or alighting from its bus since she has previously experienced difficulties doing so, due to her advanced age and the height of the coaches.

[4]                  According to Plaintiff, Ms Fitschen was advised by Mr J P du Buisson {"Du Buisson"), the customer care manager from Greyhound that the side of the coach where boarding takes place can be lowered hydraulically to facilitate the boarding process and that the driver and the cabin attendant would be alerted of the Plaintiffs travel arrangements and both would assist the Plaintiff when embarking or disembarking from the coach.

[5]                  The Plaintiff claims that having regard to the aforementioned communication:

[5.1] Greyhound was aware of the risk that she may fall when attempting to board the coach at the commencement of the journey at Howick, and undertook to take special steps to ensure that she safely does so;

[5.2] Greyhound owed to members of the Public and to her a duty to execute the carriage of the Plaintiff safely from the depot in Howick to the end of their destination in Johannesburg.

[5.3] However on 22 December 2015 when the Plaintiff boarded the coach at Howick, the steps leading to the coach were unsafe for boarding of the members of the public, in particular elderly people such as the Plaintiff in that they were too high from the ground. As a consequence when she attempted to board the coach, she fell and sustained a serious injury to her leg. No portable step was provided to assist her to safely embark or disembark from the coach. The side of the coach on which the Plaintiff attempted to board the coach was not lowered mechanically and neither the driver nor the cabin attendant offered or provided adequate assistance to her to safely board the coach, notwithstanding the prior communications and the assurances given to the Plaintiff, as represented by Ms Fitschen.

[5.4] The Plaintiff also alleges that her fall was reasonably foreseeable and preventable and Greyhound as a public passenger carrier was obliged to take reasonable steps to prevent the occurrence.

[5.5] The accident was as a result of the negligent breach by Greyhound and/or alternatively its employees acting in the course and scope of their employment, of its duty as a public carrier to safely carry and transport the Plaintiff, they being negligent in one or more or all of the following respects:

[5.5.1] They failed to ensure that the steps leading to the coach were safe for use by the members of the public and by the Plaintiff in particular.

[5.5.2] The driver of the bus failed and or refused to make use of the hydraulic operating system to lower the side of the coach to enable the Plaintiff to board the coach safely.

[5.5.3] They failed to ensure that additional safety measures were implemented to ensure that the Plaintiff could board the coach safely

[5.5.4] They failed to assist the Plaintiff in her attempt to ascend the stairs and board the bus, either adequately, properly or at all.

[5.6]                  As a result the Plaintiff suffered the following severed injuries:

[5.6.1] an injury to the right lower leg

[5.6.2] infection of the surrounding subcutaneous tissue

[5.6.3] developing of cardiac complication , septicaemia and delirium.

[5.7] As a result of the injuries sustained, the Plaintiff alleges to have received hospital and medical treatment, also experienced pain, discomfort and suffering which treatment and experience she says she will continue to receive and experience in the future. She also suffered emotional shock and trauma, loss of enjoyment and amenities of life which also she will continue to suffer in the  future.

[6]                   As a consequence of the aforesaid collision and the injuries sustained, the Plaintiff alleges to have suffered damages in the amount of R541993.07.00

[7]                   In its Plea, the Defendant has denied that it agreed or undertook to provide a portable step or that the side of the coach where boardingtakes place could be lowered and aver that:

(7.1] Du Buisson merely advised Ms Fitschen that most of Greyhound coaches were of a new generation of coaches, and the side where the boarding was facilitated could be lowered on such new generation coaches, as this was operated by hydraulics which would facilitate the boarding process.

[7.2] Du Buisson did not inform Ms Fitschen that the coach which the Plaintiff would be using would have the aforementioned boarding function. It however admits the driver and cabin attendant were to be alerted as alleged.

[7.3] It admits it owes the members of the public a duty of care as an operator of the public carrier service but denies that it breach ed such duty of care.

(7.4] It admits that no portable step was provided and that the coach was not lowered as it was already at its standard height setting. The chassis concerned could only be raised for purposes of certain ground clearance. It denied that the steps landing to the coach were unsafe for boarding and too high from the ground.

[7.5] It denied that it failed to take reasonable steps or that the incident was as a result of its negligence or that of its employees, however if it is found that they were negligent, it pleads that such negligence was not a cause of nor did it contribute to the said incident .

[7.6.] If it or its employees are found to have been negligent ·and such negligence to have caused or contributed to the incident it pleads that the Plaintiff was also injured as a result of contributory negligence in that she was also negligent as she failed to keep a proper lookout, exercise proper care when boarding the bus, fell in circumstances where it was unreasonable for her to do so, failed to use the assistance from the coach cabin attendant when boarding the bus and accepted assistance only from her husband, who was not in a position to assist her to safely board the bus.

[7.7] denies any knowledge of the injuries suffered by the Plaintiff or the damages resulted therefrom neither does he admit the contents of the report by Dr APJ Botha. He does not admit that the amounts claimed represent fair, reasonable and necessary damages.

[8]                       The Plaintiff in replication denied having attempted to board the bus with the assistance of her husband and averred that her husband was not in a position to assist her to board, either safely, adequately or at all. The only assistance that was offered to her boarding the bus (which she accepted at the time) was the manual assistance of the hostess, who was neither capable nor trained to do so either safely, adequately, properly or at all.

[9]                    A homologation certificate was discovered which Greyhound alleges to prove that it has met all the legal requirem ents, having complied with National Regulator for Compulsory Specifications (" NRCS" )/South African Bureau of Standards standards, the Road Traffic Act and Road Traff ic.

[10]               On application by the parties, following their agreement that issues of liability and quantum be separated and the trial proceed only on the issue of liability and the issue of quantum be postponed for later determination, I consequently made an order for such separation and postponed the issue of quantum sine die. It was also agreed by the parties that the Plaintiff has a duty to begin.

Legal framework

[11]               In such an action for Plaintiff to succeed with her claim she is required to prove the usual elements of liability applicable in delictual action, namely that there was a breach of duty of care, that there was negligence and that the negligence was causally linked to the harm she suffered.

[12]              The test for liability on negligence has been stated in Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA), following Kruger v Coetzee 1966 (2) SA 428 (A) at 430 E-F to be as follows:

For purposes of liability culpa arises if-

(a)         A reasonable person in the position of the Defendant-

(i)             Would have foreseen harm of the general kind that actually occurred;

(ii)            Would have foreseen the general kind of causal sequence by which that harm occurred;

(iii)           Would have taken steps to guard against it; and

(b)           The Defendant failed to take those steps"

[13]              In Kruger supra, it was stated that liability on negligence is established if:

(a)              "a diligens paterfamilias in the position of the Defendant-

(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 reasonable steps"

[14]               The mentioned test as to whether the diligent paterfamilias in the position of Defendant would take any guarding steps at all and, if so, what steps would be reasonable should always be dependent upon the particular circumstances of each case, and no hard and fast basis can be laid down: See Kruger supra.

[15]               The onus of proving negligence on a balance of probabilities rests with the Plaintiff who manifestly therefore carries the duty to begin; see Arthur Bezuidenhout and Miebny 1962 (2) SA 566 (A) at 574H and 576G; Sardi v Standard and General Insurance Co Ltd 1977 (3) SA 776 (A) at 780CH. The Plaintiff will have to establish this in order to prove that the Defendant failed in his duty to take care and thereby negligent.

[15]          The relevant paragraph on negligence in the matter of The South African Rail Commuter Corporation Limited v Almmah Philisiwe Thwala 2011 ZASCA 170 (CC) reads as follows:

"11..........................the onus to prove negligence rests on the plaintiff and requires more than merely proving that harm to others was reasonably foreseeable and that a reasonable person would have taken measures to avert the risk of such harm. The plaintiff must adduce evidence as to the reasonable measures which could have been taken to prevent or minimize the risk of harm. (my emphasis)

Issues to be determined:

[16]          The issue of a public duty is common cause, as the Defendant has admitted that it carries the duty of care and hence owes members of the public reasonable care as an operator of the public carrier service. Moreover it is common cause that it undertook, as per its admission, that the driver and cabin attendant were to be alerted of possible assistance the Plaintiff and her husband might require (appropriate measures to avert the risk) and admitted that neither a portable step was provided nor was the coach lowered, alleging that the coach was already at its standard height . The issues therefore set to be still established were the following:

[16.1] Whether or not Greyhound failed to take reasonable steps/measures as per its legal duty ensuring the Plaintiff's safety (such as it would arise as a public carrier towards the fare paying passenger) which it undertook to the Plaintiff and Fischen to take; and

[16.2] if the accident was as a result of such (failure) negligent conduct of Greyhound's or its employees, if it would be reasonable to hold Greyhound liable (or to impose liability on it) for the harm that Plaintiff suffered as to have been resultant from Greyhound's failure to provide adequate assistance to the Plaintiff, and guard against such harm (causation) occurring; see Ramushi v Minister of Safety and Security (6895/20020) [2012) AGPPHC 175 (18 August 2012).

[17]         In a nutshell what this court should concern itself with is whether based on the evidence adduced, Greyhound has breached its duty and if the breach has resulted in the harm suffered. The conceded duty that Greyhound assumes as a public carrier, is a public liability or duty to carry out its duties with care. This can be interpreted as a duty to exercise reasonable care in the conduct of its duties upon which it would be held liable for any harm that is resultant from a breach of such duty. It should be clear from the duty thus formulated that it is a duty to ensure that reasonable measures are in place. It does not matter who provides the measures as long as they are in place. The responsibility for ensuring that measures are in place, regardless of who may be implementing them would rest with Greyhound; see Rail Commuters Action Group v Transnet Ltd t/a Metrorail & others [2004) ZACC 20; 2005 (2) SA 359 (CC)

Evidence led

[18]         The evidence on behalf of the Plaintiff was led by Mr Barry Grobbelaar ("Grobbelaar") an expert witness, Fitschen, the Plaintiff's daughter, the Plaintiff and her husband Mr Fitschen , in that sequence. On behalf of Greyhound, Pearl Simamane the hostess/cabin attendant ("the hostess") ("Simamane") on the date of the accident. Ms Simamane was the Defendant's key witness and a Mr Leon Nelson also an employee of the Defendant testified as an expert witness who has been in the employ of the Defendant since October 2015 when the incident occurred.

[19]         Grobbelaar who has his own business that he has been running since 2000 for consulting, reconstruction of motor accidents and vehicle dynamics, testified to have inspected a Marco Polo coach, the method of embarking and disembarking and compiled a repo rt . He said the bus is of the same type with similar operations and identical door to the one used by the Plaintiff on the day of the accident. He confirmed that the seats on the bottom may be for the hostess and of the passengers being on top where the driver also sits. The step on the door of the coach lead to the top level of the bus. He said it is a height of about 370mm to where one puts the foot or land on the bus which is where the Plaintiff had to lift her leg from the ground level to embark. He constructed a model height with a wooden box that he exhibited as an example. The top of the wooden box representing the height of the step from the ground level (the landing), illustrating the 370 mm height. One will have to lift one's leg to lift the other one to step into the bus.

[20] He referred to the landing function of modern coaches referred to by Du Buisson as the new generation coaches, which is capable of being lowered on the sides when a passenger embarks or disembarks. He pointed out that when the coach is driven it needs a certain height below for it to negotiate steeps and bumps. It is also sufficient for the coach to use a general height conducive for passengers to board. It will be lowered on the left front where the passengers enter and exit comfortably. Once all of them are in, the kneeling function is cancelled by taking the height to normal. In respect of the hydraulics air fluid, he did not establish whether or not the coach involved had this function.

[21] The function of the steps is also captured in a video. The right front wheel on the same side with entrance door. The right front is lowered when the doors open and after climbing into the bus, the door closes. He said he was not specifically aware of a portable step, but aware of a simple step that can be bought. Also not sure of the height of the step, to the landing of the coach, where the passenger will step up from ground level. From the bottom of the box the height is 170 mm which makes the effort in entering the bus much easier. It can be broken into two ste ps.

[22] Under cross examination he testified that in respect of the staircase the standard referred to is of building regulations which is not applicable to locomotives. He confirmed that what is shown on page 5 of his report are similar coaches. Below the photograph, there are two steel bars or railings that a passenger can also use for purpose of embarking. Their functionality .is for opening and closing the door but he would not want personally to use them. He said the mechanisms of how the door opens and closes is also depicted. He said he was not familiar with the homologous process that is in vehicles as to how it is related to buses.

[23] It was put to him that the provision of the step might make embarking from the coach more dangerous, if the ground is not level or stable due to wetness or put on the gravel the step will not be stable. He responded that it will depend on the step or the surface and also depending on the design of the step and the applicable height. He pointed out that one step will work in one environment and not work in another environment. It was also put to him that the step might also cause harm if one of the passengers misses the step. Especially steps in front of the doors placing the passenger further back by 200mm from getting into the bus. The passenger will also have difficulty in reaching the railings. According to Grobbelaar it will not cause any difficulty, the main issue being to make elderly people climb up. They can still reach the railings and do not have to lean forward when one looks at the dimensions. It also depends on the stretch of the arms of a passenger. He said if the step the passengers are to use is of 350mm height, the arms' length of a person is an average of 500 to 600 mm. Therefore one will still have a 300mm length available to reach the handle.

[24] He could not comment on the bus' high rise or normal functionality. He agreed that the high rise functionality is to obvert obstacles. Also that he inspected a double decker and could not say if the one on video is a single decker bus. When asked if the single decker has a double door in the middle. He said it is not generally like that there are some who do have doors in the middle. The left front axils of such a bus will not have a kneeling function, and drops the whole side of the left hand side. He understood that the double decker did not have a kneeling function. He agreed that the bus itself did not constitute any harm but that the provision of the step would have made it better as the bus height did constitute a danger to the ability of the elderly people to climb the bus, so there must be ways to help them. It must allow all shapes of people, it must make provision for their inability and for all ages. It was put to him that if a portable step is used, hand railings would be difficult to negotiate. He said the railings would not be out of reach if they use a step . An elderly person will need some support. The step should be able to collapse and would not be a danger to normal people. It would be of assistance to a child as well, even though they would still need assistance specifically where there is no curb. The curb will make a difference if the bus will have to stop at a curb. It will be on road height (ground level). The curb would be on 200mm providing the required 200mm height.

[25] The testimony of the Plaintiff's daughter, Ms Fitschen, was that her parents were coming to visit for Xmas travelling from Howick to Gauteng. They had various options to consider. She got the ticket price from Greyhound which was the simplest and practical way of travel for her parents. The Plaintiff had travelled a number of times in the bus and Ms Fitschen had some concerns, as Plaintiff experienced some difficulty going in and out of the bus. She decided to see which mode of transport Plaintiff could use as she was now +-80 years old. She looked up Greyhound's website, checking their routes where they start and end, the duration of the trip and also if they cater for passengers with special needs, which indicated they did. She then called Greyhound to find out if they really mean what they are advertising on their website. She was told to send an email to the customer care manager which she did. The follow up she got was from the call center. She received a letter on liability and she requested provision to be made to provide a step for the Plaintiff.

[26] On the first email she sent, she received a reply from Du Buisson, the customer care manager agreeing to assist. Her parents were consequently allocated a seat on the lower deck. Greyhound confirmed that they may provide for special requirements. She felt comfortable because she was talking to and being assisted by the customer care manager, a responsible person. Du Buisson according to her went beyond the call of duty to ascertain that the incapacity was to be taken care of. He spoke of their new generation coaches that could be lowered. She therefore would not have booked her parents with Greyhound if she has felt that their incapacity could not be accommodated . Du Buisson sent another email to her on 14 November 2015. She then bought her parents' tickets through the call center, had them printed at the centre then emailed the ticket numbers to Du Buisson. She, on 19 December 2015, received a response on an email from Du Buisson. She called Du Buisson again because her parents thought since they were coming to Pretoria they might just as well proceed with Greyhound to Pretoria.

[27]         They were very satisfied with the service promised by Du Buisson and convinced that her parents were safe and were going to be taken care of. She says she was at ease after the messages. The next email she got was from her sister telling her that the Plaintiff fell from the bus. They had arranged a shuttle to get her parents to Pretoria as the coach did not bring them through to Pretoria. The sister went to fetch their parents and their bags. The sister brought the Plaintiff and her husband from Park Station straight to where she leaves. The Plaintiff had a very large injury and abrasions of her skin. She was also embarrassed that she fell in public.

[28]         As soon as she found out what has happened she contacted Du Buisson to inform him that there was an incident that led to the fall. Du Buisson told her that no medical team was dispatched because the Plaintiff had said she did not want medical att ention. On page 21 is the email from Du Buisson asking after the passenger . Although Plaintiff said she did not want to go to a Doctor, by 6 January 2016 the Plaintiff had not recovered from the fall. She still had pain on the knee and toe. She treated the wound at home. She then saw her GP in Howick who put her on anti- biotics to make sure the wound heals well. She confirmed that if the reply to her initial email enquiry was that sorry they do not offer special assistance, her parents would not have travelled with Greyhound but looked for other options.

[29]         She was asked about the e-mail she sent to Du Buisson thanking him and also about the fact that her parents used the bus again to go home. She said if there was no special assistance given she would not have used the Greyhound bus. She said Du Buisson promised to be personally present when her parents travel back home. She was not sure if a step was in existence, and if it was there at Park Station. The station is a very different experience than Howick and they are assisted, unlike in Howick. She confirmed that the Plaintiff had used the services of Greyhound before and the issue was not the bus but the difficulty Plaintiff had embarking on the bus. She was not sure if they were offered a step in other travels with Greyhound. She was just concerned with the present.

[30]         It was put to her that the employees of Greyhound were aware of Greyhound's new generation coaches with hydraulics therefore they would not have an agreement that a portable step would be pro vided. Hydraulics are made for the climb or just a step provided. She said the customer care manager assured her that, for an elderly that will be getting on the bus, whatever the means will be, it was going to be made easy for her. The mere fact that she asked for the step and she was assured that there would be no problem with her mother using the bus comforted her and she bought the ticket. It was however not clear if they will provide a step. She confirmed that she did not tell them how old her parents were or what her mother's height was because it was not relevant in her correspondence. If Greyhound needed those details they would have asked her all those questions she omitted to provide answers to. She was assured that whatever their needs were, her parents would be able to travel at their service. She was not able to say how the accident occurred. Her mother told her that during her fall her entire body fell and her leg was part of the fall. When she spoke to Du Buisson she has just found out that the Plaintiff had fallen. It was after 14h00. Sasson assured her that they will travel well getting back from JHB.

[31]          In her testimony, the Plaintiff confirmed to be 82 years old as at date of trial. Also that on the date of the incident she was a passenger in the Greyhound bus travelling from Howick to Johannesburg. She has been in the Greyhound bus before and had found it very difficult to get into the bus, as the step is very high where the bus parks at Howick due to the fact that there is no depot or station , the bus just stops under the trees. There are no pavements. The road is not level and the bus comes off the road a little bit. She told her daughter that they don't mind going on to the bus but worried about getting into (boarding) it. The last time she was in a bus before the incident was three (3) years ago. Fitschen assured her that she will make enquiries for her and proceeded to phone the Greyhound. Fitschen came back and told her what was said. She asked if there would be any help also when she embarks since she also has arthritis of the knees. She said they kind of said it was ok. She therefore was not worried after that though it is a public service . She had to trust them, if they said they are going to do it .

[32] She cannot really remember the exact time, it was in the morning when it happened. They got a shuttle service to the depot and had a fair amount of luggage. When they arrived the bus was not there. It later arrived and drew up under the tree. She just thought she would wait till the end because she needed help. Her husband went around the bus to pack the luggage. She remained standing there and waited. She then spoke to the young hostess on the platform and inside the bus. Although she has been told that people will help her or the bus can be lowered or something to stand on will be provided, there was none of those. When she asked the bus driver if he was going to lower the bus, he just walked up the street. She looked at the young hostess and asked for her assistance whilst standing on the platform . She told the hostess that she has been assisted by the hostess before, if she hold on to the bars the hostess can pull her up. She held on to the bar and the hostess held her hand. She managed to put her foot on the platform. She told the hostess to hold her tight and pull and as she lifted her foot for her to pull hard, the hostess was still holding her hand. She told the hostess to pull harder. Although she was aware that she was not a small woman she does not think the hostess pulled hard, so when she was trying to put her foot on the platform she fell backwards and doubled under the platform.

[33] By the time she fell she has not seen her husband since he was still busy fiddling with the luggage . When her husband heard her scream his name, he came running and pulled her leg out. She had fallen on her stomach and rolled over. So he pulled her leg out. After she fell the hostess never came out of the bus instead it was the luggage man/porter who also came to her assistance. There was a large man sitting on the upstairs part of the bus. Her husband was outside with another elderly passenger. The large man told her husband to leave it he will assist her. The man put his arms around her and lifted her into the bus. There was no problem. She does not know where the driver was at the time.

[34]         She afterwards told the hostess that she must not worry she was ok. She only enquired upon her during a change-over of hostesses in Montrose. The hostess who took over said someone called Bridgette has phoned her and told her about the incident. Her leg was not hurting at the time. To her the tragic thing is that it never hurt, she had a very mild road lash. She therefore told them that she does not want any medical attention as she was already on medication. When they enquired, she was already in Johannesburg anyway and she thought what was the point. The next day on 23 December 2018 a blood blister had come out overnight, two days before Christmas. It however still did not hurt that much. After she was back at home she did not seek medical assistance because she still felt alright and able to sit. It then started with pus coming out, that is when she decided that ·perhaps she should consult. She saw a Doctor who told her that it was going to take a long time to heal. The Doctor gave her antibiotics .

[35]         She furt hermor e confirmed that she reluctantly went back by bus. It was because the gentleman from Greyhound said he will be at the station to see to it that they got into the bus safely. She did not experience anything bad on their journey back. The previous driver of the bus was not there it was another one together with the luggage man. They both helped her to get inside the bus.

[36]         Under cross examination it was put to her that there was no porter (whom she referred to as the luggage man) at Howick but only a driver and a host ess. She insisted that according to her husband there was a porter that was loading their luggage. The driver she saw was a little man. She confirmed that she was t old that there was a new bus, and there was no portable steps. She does not know if it was lowered any fu rther. It was put to her that she had the opportunity to refuse to go into the bus despite that, she decided to go in. She said she was already on the platform and about to go into the bus but the hold of the hostess was very gentle. It was put to her that she had put her hand into the hostes s' s left hand and her left foot was already on and the right was almost on top, but as there was no leverage, the hostess could not get her any higher. She replied that it must be remembered that she was turning 80 years old and she cannot be assumed to have been strong enough. She cannot remember any pulling but, her hand slipped, even though she had her grip on the hostess. It was put to her that when she tried to get onto the bus her husband tried to push her in, also that the bus was also on the sand not gravel. It was therefore not the height of the step or the absence of a portable step that made her fall. She indicated that hostess has always helped her into the bus. With this one she just puts it down to inexperience. It was put to her that she was almost in the bus and out of danger and that she would not have been assisted any further when she fell. She said her toe was almost on when the hand slipped from the hostess. Her other foot still on the platform. She had tried before getting into the bus being helped by the hostess therefore she decided to do the same. It was put to her that the hostess enquired about her well being when she was seated and instead the Plaintiff asked for coffee.

[37] In addition she pointed out that she was told that the gentleman was going to be at Park Station, that is why she still opted to travel by the same bus. It was easier getting into the bus at Park Station than at Howick. She sought help from the other fellow travelers especially from the big man, the luggage loader. She thought that is the reason they were there. No other passengers as far as she was aware, experienced any difficulties. She said a portable step is not a problem and was manageable. She has one at home that is a solid wooden step but even with a step she would still have sought help from the hostess and held on to the rails. Her right leg got injured and she suffered hypamatopia, that is when it started to sip. She then decided to go and see a doctor.

[38]         The Plaintiff's husband, who also in his early 80's testified that, when the accident happened he had taken the luggage to the luggage compartment which was on the right hand side of the bus. A man there was helping them with their luggage. The boarding took place on the left hand side. He was not at the door when the accident occurred. He heard the Plaintiff calling his name saying " Ern ie". He went to the door and was shocked when he realized that Plaintiff had fallen over. He helped her to take one leg that was under the bus.

[39]         It was put to him on cross examination that the person who helped him with the luggage was the driver, and as only two people were working on the bus on that day, that is the driver and the hostess, he could not have seen anybody else except the two. He vehemently disputed that and the suggestion that he tried to help his wife by pushing her from behind. He said he has never used a portable step to board the bus although they have used the Greyhound bus before.

[40]          The Plaintiff closed its case upon which Mr Bouwer, the Defendant's counsel moved for absolution from the instance arguing that there was no positive act from the Defendant that has caused Plaintiff's injuries. He argued that Plaintiff is the one who failed to hold onto the hostess when her hand slipped and she fell on her face. Plaintiff was therefore clumsy, and that is what caused the accident. There was no agreement of a step and nothing wrong with the bus. A portable step was never used before. They also argued the but test" that if the step was provided would it have prevented the fall as she has agreed that even if the step was provided she would have been required to reach the rails, and therefore that proposition would have not assisted the Plaintiff. On these arguments Greyhound called for absolution.

[41]          Ms Lingenfelder in converse argued that the Defendant has not taken reasonable precaution to make sure that the Plaintiff is safe having been warned of the Plaintiff's disability, specifically that due to her elderly age she might experience difficulties boarding the coach by not being able to climb into the bus without a measure of some assistance . The Applicant said there is sufficient evidence upon which the court might find in favour of the Plaintiff. The Defendant was supposed to have put reasonable measures in place which it seems not to have been done because the cabin hostess seem also not to have known what was expected of her. Besides, the hostess assistance only cannot be regarded as a reasonable measure in place to avert the happening of an incident. The Application was refused.

[42]          The Defendant proceeded to lead evidence of Pearl Simemane the hostess, who is said to have been holding Plaintiff's hand when Plaintiff slipped and fell under the bus. According to the hostess when they approached Howick the road surface was normal and not gravel. They went through three humps before they stopped . At the entrance the road is sandy with no pavement. When the bus stopped she jumped out and some of the passengers started boardin g. She had a passenger report with everybody's details which indicated where they are picked up, going and their contact details. She said on the report there was no instruction in relation to the Plaintiff and her husban d. The Plaintiff was not the first person to board the bus. By the time Plaintiff came to the door she was standing on the side of the bus and Plaintiff asked for a portable step. She told Plaintiff that they don't have one but they can only lower the coach which was done. Plaintiff still said to her the bus was high. She told the Plaintiff that they can ask the driver to help her and Plaintiff told her that she will ask her husband.

[43]         When Plaintiff started boarding she was already inside standing near the doorway. Plaintiff's husband said he will assist her when she comes into the bus which he did and Plaintiff fell on the doorway. She was standing there ready to grab the Plaintiffs hand but Plaintiff did not reach her. She does not remember which railings they used. After the Plaintiff fell, the driver, the Plaintiffs husband and 1 of the passengers assisted the Plaintiff to get into the coach. She says she then showed the Plaintiff her seat, she was booked downstairs. She told Plaintiff that they have medical assistance on board and Plaintiff said she was fine. She again checked on her and her husband and they asked if she can recline their seats, she thereafter offered them coffee which they declined. She continued to serve refreshments and helping them with DVD'S and screened a movie.

[44]          In respect of the luggage, she said the passengers usually hand over their luggage to the driver before they board the bus and there are no porters available. They are only available in Johannesburg. The Plaintiff and her husband were not the only ones elderly. When the Plaintiff's husband assisted her to board, pushing her from behind, Plaintiff fell forward into the doorway. Plaintiff had tried climbing using one foot the other one was still on the ground. After the incident occurred she did not report it because she took Plaintiff's word when she said she was fine. She handed over to the second hostess at Montrose and did not mention the Plaintiff's incident since she said she was fine. During the trip someone from the call centre had called her and enquired from her about the incident. She told them about what had happened to Plaintiff. She says she was told that it was already reported. She then told them that Plaintiff said she is fine. They kept on calling to check on Plaintiff. She confirmed that Greyhound does not use portable steps.

[45]          She denied that the Plaintiff fell on her face and that any disciplinary action was ever taken against her. She also denied the allegation that Plaintiff's husband was not present when Plaintiff boarded the bus. He said he will push the Plaintiff from behind so that she can reach her but Plaintiff never reached her and instead fell before she could climb on to the bus. She said she was standing on the doorway waiting for Plaintiff to reach her hand when she fell before she can hold her. If there is a passenger that is experiencing difficulties in boarding the bus, the driver, herself and other passengers will help the passenger. If the passenger does not want assistance they let the passenger board on their own. There was nothing that alerted her that Plaintiff and her husband needed special attention. That was her evidence in chief.

[46]          Her testimony under cross examination was that she had told Plaintiff that she was obliged to report but the Plaintiff said that she was fine. She confirmed that she was required to record the incident on the trip sheet that they have for each of the passengers. She could not remember telling the other hostess at the end of the trip about the Plaintiff's incident. She was not sure if they got free tickets. She could not recall if she noted the incident down after the call centre's enquiry on it. They called her and after that somebody reported the incident. She confirmed speaking to Du Buisson but does not remember how many times. She told him that everything was fine and did not mention to him what has happened. She confirmed having been employed by Greyhound since October 2015 and to have been found guilty by her previous employer in a disciplinary hearing for failure to report an incident. She also confirmed that she was trained to assist drivers. The failure to report was happening for the 2n d tim e. It was put to her that she does not have the strength even if she offers her elbow to hold on her arm. She said she was inside the bus, higher than the Plainti ff. The Plaintiff's husband had offered to help her. Plaintiff did not refuse her assistance and if she is small, the driver could still assist her. She says Plaintiff refused the assistance they offered them and said her husband  will assist her. When they offered the Plaintiff help after the incident, she did not fall. Plaintiff refused the medical assistance offered on board she said she was fin e. She also admitted that she was trained that if the passenger refuses medical attention on board it must be recorded in the incident/ trip sheet and the passenger made to sign it . She also did not do that. She said she did come outside the bus, even though the evidence that was put to witnesses is that she was always inside the bus. She again denied that she took Plaintiff1s hand and said that Plaint iff never reached her so she denies that she let go of the hand. She also denied that Plaintiff fell on her face which was also not put to the Plaintiff that it will be denied.

[47]          The last testimony was that of Leon Nelson, the person responsible for maintenance, safety and compliance at Greyhound. His evidence is that, a portable step should be designed to certain specifications in an operation line of Greyhounds with various stops or entries, since they stop on tar, unlevelled surfaces, under the tree and on gravel. It is a risky solution for users, as a purpose of a step is to use it in front of the bus and it pushes the coach away from the ground and increases the distance between the bus and the passenger as a result of the location of the step. Its position would be lower than the surface of the road or the pavement, which then would be away from the door. With the hand railing, the passenger has to reach to the hand rail and looking at the passenger who will use such a facility like the elderly or people with problems, the hand rail would be too far to be used, if  a step is used. The law will have to be designed to fit with such occurrence. If the passenger stretches to reach out for the rails it can create a situation where the passenger can fall moving his body forward as it makes his body unbalanced. Since as the passenger moves his body weight, it affects your balance.

[48]          He said there is no standard step for each bus, com paring this bus with other buses whether 400mm or 350 mm. The step height measured 370mm compared to the school bus in Michigan with its step height being 350mm. It has the same broadness as one's finger thickness. They also have hand rails for school children. It should be taken into consideration that they are shorter than the one of the Plaintiff . The bus is designed by a manufacturer going through the process of safety and everything. For elderly citizens before she boards the bus the step can be lowered to 200mm. It then would have been easier for her to climb the steps. He was not aware of portable steps designed for buses. He said he has never seen the design nor such a step in South Africa. He was asked then how can he counter and conclude that certain portable step designs were not suitable or that they are risky. It was put to him that there cannot be a risk if the step is designed for a particular purpose. He said there is a risk. It was put to him that he cannot say whether or not a design for different surfaces is required . He admitted that he has never seen a design of a portable step or enquired or conducted an investigated about such a step. He was referred to Greyhound website where it states that passengers with special needs that require assistance will be accommodated, and asked about those that are unable to ascend or descend. He said there is a recliner on the lower deck on single decker couches and Greyhound Specialists assistance that can be required from customer care department, he is from maintenance department . It was put to him that hostess said driver assisted passengers with a problem. He said the images and information in the report on page 13 were sourced from the internet and put it in a document. According to him there are no specified step heights for buses and Regulations in South Africa. He confirmed that the height of 350mm was also difficult for children to climb. His evidence did not take the matter further.

ANALYSIS

[49]         Greyhound does not deny that it owes members of the public as an operator of the public carrier, a legal duty of reasonable care, and also confirmed that it did undertake to alert the driver and cabin attendant that the Plaintiff and her husband might require possible assistance, and that it did not provide a portable step nor was the coach lowered as according to it, it was already at its standard height setting. The only outstanding issue the evidence had to establish was whether there was breach, (if Plaintiff has proven that Greyhound failed to act with reasonable care as required and undertaken), if the hostess and the driver were alerted), and if not if their conduct can be said to have caused the harm suffered by the Plaintiff. Blessings Sorely

[50]         It is the Plaintiff's evidence that when she arrived at the Howick depot she first requested the portable step and then the coach to be lowered which were both, admittedly not attendant to, with Greyhound giving various reasons why, inter alia, that the bus was already at its lowest level and denying that it promised to provide a step. Plaintiff said she then requested assistance from the driver of the coach who just ignored her and walked away. There was therefore no assistance offered or help from the driver. Having already asked the hostess that the bus be lowered and none of that happening Plaintiff says she consequently requested the hostess to assist her whom the Plaintiff alleges was by then in the coach. She asked the hostess to pull her by the hand into the coach whilst she hold on to the bar. Her hand slipped out from the hostess' hands and she fell because the hostess is a small young lady and she is bigger and she was not pulling harder, her grip not firm and inexperienced. Her evidence is that she requested the hostess for assistance not that she was offered assistance by the hostess. She was a truly honest witness and her evidence straightforward and simple.

[51]          Whereas it was put to Plaintiff that the hostess testimony, (being Greyhound 's case) was going to be that:

[51.1] Plaintiff put her hand into the hostess's left hand and her left foot was already on and the right was almost on top, but as there was no leverage, the hostess could not get her any higher.

[51.2) She was almost in the bus and out of danger, after having been pulled in, and that she would not have been assisted any further when she fell.

[52]         The hostess however contradicted what was put to Plaintiff as her version and also Greyhound's case on the pleadings. She testified that Plaintiff's husband said he will push the Plaintiff from behind so that she can reach her, but Plaintiffs hand never reached her and instead Plaintiff fell before she could climb on to the bus. She said she was standing on the doorway waiting for Plaintiff to reach her hand when Plaintiff fell before she can hold her. The evidence on behalf of Greyhound is therefore of no probative value, not in line with what was pleaded or the version put to the Plaintiff .

[53]          Furthermore notwithstanding Greyhound admitting in its pleadings to having undertaken to the Fitschens (confirmed also in the correspondence exchanged), to alert the driver and the cabin attendant to the Plaintiff's requiring assistance, it was however the hostess testimony that she was not informed of the possible assistance the Plaintiff and her husband might need. She said on the passenger report there was no instruction relating to the Plaintiff and her husband and nothing was !here that alerted her that Plaintiff or her husband needed special attention. The evidence that was there by Greyhound confirms that it did not keep its undertaking, as the measures that the customer care manager undertook to take to ensure the safety of the Plaintiffs' were not in place. Du Buisson did not testify, even though he was directly implicated in the ineptness of the Defendant. Greyhound's own witness having testified that there was no such alert or notification, it therefore goes without saying that it failed to reasonably ensure Plaintiff's safety when it the appropriate reasonable measures that were undertaken were not put in place. Greyhound was therefore in clear breach of its duty which duty it had agreed that it owes to the Plaintiff and had undertaken to take the necessary steps to guard against any potential harm in line with that its duty.

[54]          The evidence of the Plaintiff must therefore in all probability be true then with regard to the conduct of the driver. It therefore explains the driver's unreasonable attitude and indifference to Plaintiff's request for assistance, and the halfhearted assistance she received from the hostess to whom she had to turn to after the driver refused to assist her. They were not alerted that Plaintiff will seek assistance when boarding the bus.

[55]          In the light of the aforementioned the hostess' version that the driver and herself had offered to help the Plaintiff and Plaintiff refused their assistance preferring that of her husband who then assisted by pushing the Plaintiff from behind whilst she was waiting to pull the Plaintiff into the bus is certainly unlikely. If she was waiting to assist the Plaintiff into the bus, that is in contradiction to the statement that Plaintiff refused their help. Plaintiffs version was clear and consistent that her husband was not there and neither was the driver when she requested the hostess to hold her hand and pull her into the bus which the hostess let slip. Plaintiff also said that she would not have relied on her 82 year old husband to lift her up into the bus. I find her to have been a credible witness compared to the hostess whose evidence did not only contradict the Defendant's case on the pleadings but also her version as put to the Plaintiff. According to Plaintiff she was not offered but she requested assistance.

[56]          It is also part of Greyhound's case as was also put to the Plaintiff that the couch was never lowered as it was already low and no step provided. Which is also Plaintiff's version that, when she asked for the couch to be lowered it was not done. The hostess on the other hand has testified that she told Plaintiff that they don't have a step but they can only lower the coach which was then done, but Plaintiff still said to her the coach was high. The hostess' evidence evidently controverts what Greyhound had pleaded, which is that the couch could not be lowered anymore as it was already low. As Greyhound's accounts are contradictory, they are unreliable and therefore carry no probative value. From the contradictory accounts it cannot be said if the couch was lowered on Plaintiff's request or it was already low when she made the request. According to the Plaintiff the bus was not lowered and posed a difficulty for her to embark, a situation of potential harm that Greyhound was warned about and promised to guard against, by ensuring that she is assisted. As there is no reliable evidence to rebut Plaintiff's evidence, I find that to have been the state of affairs and that no assistance was offered or arrangements made to ensure that the required and adequate assistance is at hand to avoid her suffering any harm.

[57]         Seeing that the hostess had said that she/ they were not alerted to the Plaintiff's needs and confirmed that neither was it noted on the Trip sheet or passenger report that the Plaintiff and her husband would require special assistance, whilst the averment in the Plea is that Greyhound admits that the driver and the cabin attendant were to be alerted, and alerted. It is clear that Greyhound was aware of the potential harm to the Plaintiff. Furthermore she had testified that she did not report the incident or note it in the passenger report because she took Plaintiff's word when she said she was fine and also because of that she handed over to the second hostess at Montrose without mentioning the incident. It is a fact that she also did not note the incident on the Trip sheet or Passenger report as was shown in court. Her subsequent statement under cross examination that she could not remember if she noted the incident down after the call centre's enquiry or if she told the other hostess at the end of the trip about the Plaintiff's incident was disingenuous. The Plaintiff was just a downright insincere witness. She even admitted that she did not record the Plaintiff's refusal of medical assistance even though she was aware that she was required to do so.

[58]         Greyhound was very inept going about the whole thing, having been warned, they should have foreseen that their failure to alert the driver and the hostess might result in Plaintiff suffering harm and guard against such har m. They were reckless in failing to do so and opened up the Plaintiff to the risk of suffering harm either embarking or disembarking from the coach.

[59]         In addition, the incongruence of the hostess testimony was also apparent during her cross examination when·she turned around and testified that Plaintiff did not refuse her assistance and if she is small, the driver could still assist her. When she has said Plaintiff refused the assistance they offered them and said her husband will assist her, which was evidently incorrect. She also alleged that after Plaintiff fell she asked her if she was fine, she then assisted her and her husband to recline their seats, offering them coffee which offer they declined. Whilst what was put to the Plaintiff to be the hostess' version was that she enquired about the Plaintiff's wellbeing when she was seated and Plaintiff had said to her that she was fine and asked for coffee instead. Then again at some point it was the Plaintiff who declined whilst her husband accepted the offer for coffee.

[60]         From the evidence of these two key witnesses Greyhound's negligence was clearly established, not only did it breach its own undertaking to alert the driver and the hostess about the Plaintiff but also the duty of care, as the trip sheet and the Passenger report had no alert that the Appellant and her husband will need assistance when embarking or disembarking from the bus. The driver and the hostess' s failure to give Plaintiff any or proper and or adequate assistance is as a result of there being no alert given to them .

[61) The hostess' reasons for not reporting the matter after the incident also exhibits a clear dereliction of duty. She failed to report even to Buisson, after being aware that someone else reported the incident. Du Buisson learnt of the accident from Fitschen as indicated in the letter he sent to Fitschen even though he had spoken to the hostess soon after the bus departed from Howick and called her several times. Seemingly, there was never any alert to any Greyhound employees of the special attention and assistance the Plaintiff and her husband may have required when they boarded the bus, during their conveyance or when they disembarked from the bus due to the failure of Greyhound and its employees to put the alert in the Trip sheet, and to report the incident after it happened, highlighting their need for assistance for the remainder of their trip.

[62) The Plaintiff and her husband are elderly and Buisson was told as made out from Ms Fitschen's uncontested evidence corroborated by the correspondence she had with Du Buisson. The Plaintiff due to her age, found it challenging to embark or disembark from the bus. Fischen indicated that as a result she was concerned about her being able to do that on her own safely. Greyhound was therefore not only reasonablY expected to have been aware but was aware of the possible harm that might result if Plaintiff embarks with no or inadequate assistance. They must have foreseen that without appropriate measures the Plaintiff may suffer harm or be injured whilst boarding the bus and expected as a reasonable carrier to guard against such harm but, as illustrated failed to do so.

[63]          The evidence of Fischen (Plaint iff' s daughter) that she made enquiries and that an undertaking was made that Greyhound will ensure that everything runs smoothly and Plaintiff's special needs for assistance will be communicated to the relevant driver and hostess was primarily not disputed. The only aspect of her evidence challenged was the provision of a portable step, which she did indicate that there was no undertaking per se about it but an assurance that her parents will be taken care of as the buses landing steps could be lowered and the driver and the cabin attendant alerted to their need for assistance. It does take out the portable step out of the question as a measure that Greyhound undertook per se.

[64]           As a result further evidence led on the question of whether or not a portable step was promised, if it was necessary, its height vis a vis the couch's landing step when embarking does not take the matter much further as the Plaintiff had established that Greyhound failed on its own version to act reasonably as promised. The failure by the driver to assist the Plaintiff and the inadequate assistance she received from the hostess was as a result of Greyhounds failure to have alerted the hostess and the driver which had in turn resulted in the Plaintiff not receiving adequate assistance, falling and sustaining injuries. The Plaintiff therefore sustained her injuries as a direct result of negligence by Greyhound and its employees.

[65]          Plaint iff 's husband corroborated her. He assisted her to take out her foot under the bus. They were assisted by a fellow passenger as well to get her inside the bus.

[66]         I am therefore satisfied that the evidence led on behalf of the Plaintiff established Greyhound's negligence. It had failed to act reasonably to guard against such occurrence (putting the necessary measures in place), after having been made aware of the possible danger that the Plaintiff might suffer.

[67]         As indicated even when the issue of provision of a step or lowering of the coach for her to be able to board with ease is taken out of the equation, Greyhound has acted negligently based on what it admits to have been the reasonable steps it promised to take in keeping with its duty and failed to do. Its conduct to leave it to the hostess to provide such assistance, without proper warning, was contrary to the reasonable care that is required of a public carrier in its position that has so much experience in conveying the public. It did not deal reasonably with its duty and also of the harm that might be caused to the Plaintiff if it breaches its duty, a conduct that was grossly unreasonable.

[68]    The enquiry goes further, to determine the element of causation. Causation involves two distinct enquiries. Home Talk Developments (Pty) Ltd & others v Ekurhuleni Metropolitan Municipality [20171 3 All SA 382 (SCA) para 45. The first is a factual one and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim. The enquiry as to factual causation is generally conducted by applying the so-called 'but-for' test. Lack of factual causation is the end of the matter. No legal liability can follow. But, if factual causation is established the second enquiry arises, namely whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote: Minister of Police v Skosana 1977 (1) SA 31 (A) at 34E-G. According to Brand JA in ZA v Smith 2015(4) SA 574 (SCA) para 30): 'The application of the "but-for test" is not based on mathematics, pure science or philosophy. It is a matter of common sense, based on the practical way in which the minds of ordinary people work, against the background of every-day experiences.

[69]        The negligent omission by Greyhound failing to take the appropriate measures to warn its employees, and the employees's refusal to properly assist the elderly Plaintiff was a a causa sine qua non of the injuries she sustained. Had Greyhound (through Du Buisson) properly alerted the employees and if the employees, specifically the driver, had as a result assisted the Plaintiff right from the onset Plaintiff would not have dependent only on the assistance of the hostess and the harm avoided. Greyhound's negligent omission thus gave rise to legal liability being closely linked to the harm suffered. Plaintiff's injuries were directly as a result of such negligence.

[70]         Greyhound has also raised the issue of contributory negligence on its papers which it did not explore any further during the trial. It has been alleged on her behalf that it is not open to a public carrier that breaches its duty to exercise reasonable care to raise the plea as a defence against a claim for damages that arises as a result of its breach. No authority was cited. I however had an opportunity to look at the matter of Thoroughbred Breeders' Association v Price Waterhouse 2001 (4) SA 551 (SCA). In its view the Apportionment of Damages Act No 34 of 1956 is not, as matter of law, applicable to cases of damages for breach of contract. The Defendant has but not persisted with this contention. Besides there was no evidence that the plaintiff was negligent as she had sought assistance from the driver as well as the possibility of the bus being lowered, to no avail. Even after all that no assistance was offered, she had to rely on the hostess to be able to assist her to get on to the bus.

[71]      Under the circumstances the following order is made:

1.             The issue relating to liability is hereby separated from the issue of quantum which is to be determined at a later stage.

2.             The Defendant is liable for such damages as the Plaintiff may prove at the resumed hearing of the matter.

3.              The Defendant to pay the Plaintiff's costs of suit to date,

NV KHUMALO J

JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA

On behalf of Plaintiff:       M M LINGENFELDER

Instructed by                     Adams & Adams

Tel: 012 432 6000

Ref: JLLG/P2168

On behalf of Defendant: RJ BOUWER

Instructed by :                  NORTON ROSE FULBRIGHT SA

Ref; G Bouwer/K Naidoo/UN1675

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