Mashala v Passenger Rail Agency of South Africa (2727/2014) [2015] ZAGPPHC 742 (16 October 2015)

IN THE HIGH COURT OF SOUTH AFRICA /ES

(GAUTENG DIVISION, PRETORIA)

CASE NO: 2727/2014

DATE: 16/10/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

IN THE MATTER BETWEEN

JAMES KOLOBE MASHALA

PLAINTIFF

AND

PASSENGER RAIL AGENCY OF SOUTH AFRICA

DEFENDANT

JUDGMENT

PRINSLOO, J

[1] The plaintiff was a fare paying passenger on one of the defendant's suburban trains at about 20:15 on 18 July 2013.

[2] While the train was in motion between the Atteridgeville and Saulsville stations, the plaintiff fell from the train and sustained serious bodily injuries.

[3] The plaintiff alleges that the employees of the defendant were negligent and that such negligence was the cause of his injuries and subsequent damages sustained and claims an amount of some R1,5 million in compensation.

The defendant denies liability.

[4] In the trial before me, Mr Kokela appeared for the plaintiff and Mr Cilliers, SC, appeared for the defendant.

[5] At the commencement of the trial, the parties, jointly, applied for the adjudication of the quantum of the claim to be separated for later decision. I granted the appropriate order in terms of the provisions of rule 33(4).

[6] No other technical issues were raised. The matter proceeded only on the question of liability.

[7] Before the evidence was led, I was informed by counsel that the parties held a joint inspection in loco on Friday 2 October 2015, just before the commencement of the trial on Monday 5 October 2015. At the inspection, which was attended by the plaintiff, and the legal representatives, it was observed that there was no bend in the railway line which was running in a straight line for about one to two kilometres which includes an area at both sides of the Atteridgeville station where the incident occurred. The platform is also straight, and about 800 metres long. After the incident, the plaintiff was found at a point about 65 metres from the end of the platform towards Saulsville, which was the next station. The train had been travelling from east to west.

Brief summary of the underlying circumstances and the issues

[8] The incident happened on an ordinary work, or week day, namely a Thursday.

[9] The route followed by the train was from Pretoria to Saulsville in the west.

[10] It was the last train for the day departing at about 20:00. The incident occurred at the Atteridgeville station at about 20:15 or 20:20.

[11] The stations on this route where the train stopped are as follows. Commencing from the Bosman Street station (also described as the Pretoria station), stopping at Pretoria West station, Kalafong station, Atteridgeville station and, lastly, Saulsville station.

[12] The train consisted of eleven coaches which would include the first coach, or locomotive and the last coach occupied by the train guard, who was the only witness called by the defendant. The plaintiff was in about the third coach.

The coaches are about 18 metres long so that the train was about 200 metres long.

[13] During the trial, an admission was recorded on behalf of the plaintiff that the doors on the coaches functioned properly at the relevant stages so that it was not necessary to call technical witnesses to establish this fact.

[14] It is common cause that the plaintiff had a valid return ticket from Pretoria to Saulsville on that particular day.

[15] I was not presented with any photographic evidence or other real evidence, such as sketchplans.

[16] There were only two witnesses, namely the plaintiff and the train guard on behalf of the defendant.

[17] The versions presented by the two parties are mutually destructive, in the true sense of the word. I will revisit the detail, but, broadly speaking, the versions are these:

1. The plaintiff's version is that he boarded the train at Bosman Street at about 20:00. The train was crowded. The third coach which he boarded was crowded and he could not get a seat. He took up a standing position about 1½ metres from the door. He was on his way home to Saulsville where he stayed in the hostel. He was able-bodied and about 25 years old. Evidence that he was wearing a fawn coloured jacket, was not disputed.

At each of the stations which I mentioned, the train duly stopped, whereafter the doors opened, and closed again before the train departed.

At the Atteridgeville station, the last station before Saulsville, the train stopped again and the doors opened. Passengers in the third coach housing the plaintiff disembarked in a hurry. A "last batch" of passengers disembarked so hurriedly that they bumped the plaintiff off his feet and out of the train. He fell between the train and the platform. He tried to get back onto the train by hanging onto some handles or other mechanisms in the vicinity of the door. He was unsuccessful. The train started moving, and the plaintiff was injured.

2. The defendant's version was advanced by Ms Pinky Penelope Mfeka ("Mfeka"). She was the train guard seated in the back coach. Before departure of the train she inspected all the doors and satisfied herself that they were in proper working order. The duties of the train guard, Mfeka in this case, can be described as follows. When the train stops at a station, the doors are still closed. The train guard is still in the back coach. She presses a button that releases the hydraulic pressure allowing the doors to open. The train guard alights. Passengers embark and disembark. The train guard stands on a yellow line running parallel to the train and observes all the coaches. After satisfying herself that all passengers have embarked and disembarked safely, she blows a whistle, enters her coach and presses the button to release the hydraulic pressure and close the doors. The train is then still stationary. The driver waits for the train guard to press a "ride away button" which she does after the doors have closed. The guard keeps on observing the side of the train until it leaves the platform.

[18] The incident of 18 July 2013 was the first one experienced by Mfeka involving serious injury to a passenger after she had completed 11 years of service with the defendant. She no longer works with the defendant, does not know the plaintiff and never met him before or after the incident.

[19] The incident which she observed on 18 July 2013 amounted to the following: after she re entered the cabin and closed the doors and whistled and pressed the ride away button the train pulled off. As the train was leaving the platform she saw "this gentleman" wearing fawn clothing which must have been the plaintiff disembarking and again attempting to embark the coach. She pressed a "stop button" but it was too late and the "gentleman" fell and got injured. The "stop button" is an emergency bell which she has to press three times in rapid succession to alert the driver to immediately stop the train which he did. Because of its size, the train cannot stop immediately. After the train stopped she left her cabin and went to inspect the scene where she had observed the plaintiff falling and found him lying, not underneath the train, but underneath the platform. He was not lying on the tracks but on the side of the tracks underneath the platform and was seriously injured.

[20] What the plaintiff did before getting injured was to embark upon a rather bizarre, but well-known activity called "Sparra parra" or "staff riding". I was not informed about the spelling of "Sparra parra" so I decided to go the phonetic route and trust that the spelling I employ is not too far off the mark. "Sparra parra" seems to be a daring type of game played by daring young men, often in their teens or early twenties. It involves, broadly speaking, the "participant" jumping off the train, while holding onto the pillar between the doors and then re embarking, often repetitively. It is obviously an extremely dangerous pastime, which led to the downfall of the plaintiff, (in more ways than one) according to the observations of Mfeka.

[21] Both Mfeka and the plaintiff, in their evidence, confirmed, without hesitation, that they knew all about this activity of "Sparra parra". According to Mfeka, when doors are closed hydraulically, some commuters, intent upon playing "Sparra parra", will forcefully open the doors, sometimes anchoring them with their legs, in order to allow the "participant" to exit and re enter the coach.

[22] Under cross-examination, each witness disputed the version of the other.

[23] So much for the underlying facts and the contesting versions. I turn to a brief analysis of the evidence.

Brief analysis of the evidence

[24] I have, in broad terms, summarised the evidence. This brief analysis will be limited to aspects which, in my view, appear to be relevant for purposes of deciding the dispute.

James Kolobe Mashala

[25] He confirmed the background detail sketched by myself. This includes his age, that he was able-bodied, that he boarded the last train to Saulsville at about 20:00, the sequence of the stations, and, perhaps importantly, that everything went smoothly up to Atteridgeville and that the doors opened and closed after the train stopped and before it departed as it was supposed to do at all the preceding stations.

[26] The doors closed after he boarded the third coach, he could not get a seat and he stood about 1½ metres from the door. All went well at Rebecca, Pretoria West and Kalafong.

[27] At Atteridgeville, many commuters alighted. He said he saw commuters opened the doors. This I do not understand as it is not in line with the evidence by Mfeka. It may well have happened after the train departed, as illustrated by Mfeka, if there were to be "Sparra parra" activities. As the train entered Atteridgeville he was still safely in his coach. As the train was about to pull off, there were still commuters trying to disembark and in that process "I fell off between the train and the platform edge". The momentum of the people, as they disembarked, pushed him. He landed between the train and the platform. He realised that he was in danger. The door was still open. When he landed underneath "on the floor" he looked up and saw that the doors were still open. He tried to get a grip on some of the mechanisms near the doors but was unsuccessful to hoist himself back on.

[28] The train started to move and "the train drove over me". Afterwards an unknown male came and picked him up and put him on the platform and later a security person in uniform also attended the scene.

[29] When asked about the lighting on the scene, he said "it was dusk".

[30] In chief, the version of the defendant, in broad terms, was put to him, and he placed it in dispute.

[31] In cross-examination he confirmed his age at the time, and that he passed grade 11 at school. He described himself as an intelligent person. He realised that one must be careful when embarking a train and disembarking therefrom and that it was extremely dangerous to do so if the train was moving.

[32] He was aware of the activity of "Sparra parra", and had observed it before. He knows it as "staff riding" but denies having ever engaged in the activity himself.

[33] It was put to him that the peak hours for train commuters on this route, during week days, was between 16:00 and 18:00, when most people go home, and that the late train, leaving at 20:00, is generally not full. This he disputed. In my view, the proposal put to him is inherently probable and was also confirmed by Mfeka in compelling terms. I consider the plaintiff's denial of this proposal to be evasive and unimpressive.

[34] He confirmed that there will be more people disembarking than embarking on the late train because the train only goes as far as Saulsville. The train will therefore become progressively even emptier before it gets to Atteridgeville, which is the second last station. It was put to him that when the train gets to Saulsville it is quite empty. This he denied, again evasively and unreasonably in my opinion. He also denied that the train was not crowded, something which Mfeka insisted to have been the case.

[35] As to the incident itself, he confirmed that when the train stopped at Atteridgeville he was still safely in the coach. The doors opened after the train had stopped. People from inside started disembarking. In my view, he could not adequately explain how it came about that he lost his balance. He had been standing in that position, 1½ metres from the door, as an able-bodied young man of 25 years, since the departure about 15 minutes earlier from Bosman Street. He confirmed that when the people started disembarking he was still standing safely in the coach. He insisted that the volume of the commuters, in the process of disembarking, dislodged him from his position.

[36] It turned out to be common cause that no one else fell or got injured during the train stoppage at Atteridgeville.

[37] As far as he knows, he was the only person that fell. At that stage the train was still motionless. He says as and when he fell the train started moving. The people who ultimately pushed him out were still in that coach when he fell down, because they pushed him from the inside to the outside. As he fell, others "jumped over my head". As he fell, "on one end people started jumping over my head and the train was now in motion".

I find this evidence inherently improbable: it is common cause that everything went according to the rules at the preceding stations, and even until the point when the train stopped at Atteridgeville before the doors were opened. The scenario described by the plaintiff must have been, on the probabilities, quite chaotic, with the train in motion, the plaintiff having fallen, and commuters jumping over him in order to disembark. On the evidence of Mfeka, who, it is common cause, strictly applied the rules and adopted the prescribed routines at the earlier stations, it is extremely unlikely that she would not have observed the shambles and refrained from closing the doors and giving the "ride away" signal to the driver.

[38] He conceded that, on his description of the chaotic situation of people jumping over him as the train was in motion, it was strange that no one else fell and got injured. He confirmed that on his version, people were still disembarking and jumping over him when the train was already in motion. To boot, the doors had not yet closed. For the reasons I have mentioned, I consider this evidence to be inherently improbable.

[39] It was put to him that, where it is common cause that everything happened in an orderly fashion at the preceding stations, the incident at Atteridgeville, as he described, with people rushing out of the train while it was already in motion was difficult to understand. This he confirmed. It was put to him that "for some reason, the train personnel acted properly and safely at all the preceding stations but for some reason, started acting recklessly and unreasonably at Atteridgeville". This he confirmed. This is inherently improbable.

[40] He denied that he saw a guard on the train that night. It is not disputed that Mfeka was there, disembarked at all the stations, opened and closed the doors, blew the whistle and properly performed her duties. I consider the plaintiff's apparent attempt to deny her presence (although it was not officially his stance during the trial) to be evasive and unreasonable.

Similarly, when it was put to the plaintiff in cross-examination that the train stopped soon after the incident (on the initiative of Mfeka) he simply denied that this happened. There was no basis for this denial. In his injured position he would not even have known whether the train stopped or not. This is another unsatisfactory feature of his evidence.

[41] He also disputed, quite unconvincingly, that the lighting on the platform was bright and adequate. This was confirmed by Mfeka. At times he appeared to suggest that there were no lights and then he said that "outside there was no illumination that one could see". He said that he "saw no illumination". This, clearly, is inherently improbable.

[42] When quizzed about the findings at the inspection in loco and the position where he was found after the incident (on the common cause version of both parties) he disputed that and even denied that plaintiff's counsel measured the distance. There was no basis for this denial and this is another aspect of serious criticism of the evidence of the plaintiff.

[43] Generally, and for the reasons mentioned, I found him to be an unimpressive and unsatisfactory witness.

[44] After he gave evidence, the plaintiff's counsel confirmed that nothing about the inspection in loco was in dispute and that what was described by defendant's counsel about the inspection, was correct.

[45] It was at this point where defendant's counsel informed me of the admission by the plaintiff that the doors on the coaches were functioning properly at all relevant stages.

[46] The plaintiff, at this point, closed his case.

Pinky Penelope Mfeka

[47] I have, by and large, dealt with the testimony of this witness.

[48] In general, I found her evidence to be impressive and satisfactory.

She had already been working as a train guard for the same employer (the defendant) for 11 years without any serious incidents by the time this occurrence took place.

[49] She did not know the plaintiff, and had never met him. She had no reason to maliciously fabricate a false version. By the time she testified, she was no longer employed by the defendant and had no reason to, for example, be concerned about disciplinary steps which could be taken against her.

Indeed, in cross-examination, she was confronted with a statement she made under oath on 9 April 2014 which was similar to her evidence in court. In paragraph 5 she says -

"As the train set was at Atteridgeville train station train set stopped later pulled off after getting on and off commuters train set doors were closed. As the train set was in motion a male commuter was getting on and off the train set while in motion or staff riding unfortunately fell between the train set and station platform sustained injuries ..."

This is exhibit D13-14.

[50] For all the reasons mentioned, I found Mfeka to be a more credible and impressive witness than the plaintiff.

[51] As to the inherent probabilities of the two versions, I have illustrated my reasons for finding the testimony of the plaintiff to be inherently improbable. It is not necessary to revisit that subject. I find nothing inherently improbable in the version of Mfeka, particularly where it is common cause that "Sparra parra" is a well-known occurrence on this train line. It is also common cause that Mfeka did everything by the rules at least until the train got to Atteridgeville. There is no apparent or plausible reason why she would have drastically deviated from her dedicated approach and acted almost in a reckless fashion by allowing the train to leave the station at Atteridgeville without even closing the doors and without observing the calamitous state of affairs illustrated by the plaintiff.

Moreover, there is no plausible reason, neither was such a reason advanced, for Mfeka, in these particular circumstances, to fabricate a false version.

A brief remark about the pleadings

[52] In his particulars of claim, the plaintiff advanced only general alleged grounds of negligence on the part of the defendant's employees. He does so in the following terms:

The defendant breached its obligation which amounted to negligent conduct on its part in one or more or all of the following aspects:

4.1 the defendant failed to ensure the safety of members of the public;

4.2 the defendant failed to take any or adequate steps to avoid the incident in which as the result the plaintiff sustained injuries, when by the exercise of reasonable care they could have or should have done so;

4.3 the defendant failed to take any adequate precautions to prevent the plaintiff from being injured;

4.4 the defendant failed to employ employees, alternatively, failed to employ an adequate number of employees to guarantee the safety of passengers in general and the plaintiff in particular the coach the plaintiff was in;

4.5 the defendant failed to employ employees, alternatively failed to employ an adequate number of employees to prevent passengers in general and the plaintiff in particular from being injured in the manner in which he was;

4.6 the defendant allowed the coach in which the plaintiff was in to be filled to capacity, to an extent that passenger (sic) had to force their way out; (my note: this was not the case presented by the plaintiff. He never said that it was because the coach was so full that the passengers had to force their way out.)

4.7 the defendant failed to ensure that the train in particular the coach in which the plaintiff was in was not overcrowded (note: this was also not the case of the plaintiff);

4.8 the defendant neglected to employ security staff on the platform and/or on the coach in which the plaintiff was in to ensure the safety of the public in general and the plaintiff."

[53] Indeed, on the case as pleaded, it is difficult to find any support for the case as presented by the plaintiff in court. Moreover, on the plaintiff's version, it is also difficult to find negligence on the part of the defendant.

[54] The defendant, on the other hand, properly pleaded a defence, firstly by denying negligence and offering an alternative plea of an apportionment of negligence in terms of Act 34 of 1956, and, secondly, by, in paragraphs 4.3 and 4.4 of the plea, fully pleading the "staff riding" activities of the plaintiff.

[55] Indeed, the defendant also offered a further defence of voluntary acceptance of risk or injury by the plaintiff or volenti non fit iniuria. The plaintiff filed no replication in rebuttal. In his closing address, Mr Cilliers indicated that, although this additional defence was pleaded, he did not deem it necessary to fully argue the point and left it at that. I shall do the same.

The onus of proof

[56] Often, and depending on the merits of the case, a plaintiff in a case involving mutually destructive versions, has a formidable onus to discharge.

[57] In National Employers' General Insurance v Jagers 1984 4 SA 437 (ECD) at 440D H the following is said:

"It seems to me, with respect, that in any civil case, and in any criminal case, the onus can only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false."

Conclusion

[58] For all the reasons mentioned, I find myself quite unable to conclude that the plaintiff ought to be believed and that I should be satisfied that his evidence is true and the defendant's version is false.

[59] In the result, and for the reasons emerging from the analysis of the evidence and other considerations, I have come to the conclusion that the plaintiff has failed to discharge the onus of proof so that the claim falls to be dismissed. There is no reason why the costs should not follow the result.

The order

[60] I make the following order:

1. The claim is dismissed.

2. The plaintiff is ordered to pay the costs.

W R C PRINSLOO

JUDGE OF THE GAUTENG DIVISION, PRETORIA

2727/2014

HEARD ON: 5 & 6 OCTOBER 2015

FOR THE PLAINTIFF: T J KOKELA

INSTRUCTED BY: SEPEDI LEDWABA ATTORNEYS

FOR THE DEFENDANT: J G CILLIERS SC

INSTRUCTED BY: STONE ATTORNEYS