Sithuse v Passenger Rail Agency of South Africa (PRASA) and Another (46487/2010) [2018] ZAGPPHC 455 (4 April 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE

(2) OF INTEREST TO OTHER JUDGES

(3) REVISED

Case No: 46487/2010

4/4/2018

In the matter between

SITHUSE, JOHANNA DIPUO

Plaintiff

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA)

1st Defendant

MEC FOR TRANSPORT GAUTENG

2nd Defendant

JUDGMENT

A. INTRODUCTION

[1] This is a claim for damages for bodily injuries caused by the Defendant's train at Roslyn station on 22 August 2008.

[2] The Plaintiff has agreed not to proceed with the claim against the 2nd Defendant. At the pre-trial conference, the parties agreed to separate merits and quantum and that only the aspect of the merits

for liability would be proceeded with at trial and that the quantum will be postponed sine die. Accordingly, the matter will proceed with merits only and quantum would be postponed sine die.

[3] The first issue for determination is whether the plaintiff was injured on 22 August 2008 at Roslyn Station after being pushed in front of a moving train or whether she threw herself in front of the moving train. The second issue is whether the defendant had reasonable steps in place to enforce any safety measures to prevent accidents such as the one the plaintiff was involved in and the third issue is whether there was a breach of the duty of care that the defendant had towards rail commuters in general and more specifically plaintiff.

B. FACTS AND EVIDENCE

[4] The Plaintiff alleged in the particulars of claim that she was pushed from the platform into a moving train at Roslyn station on 22 August 2008 .

[5] It is common cause that the accident occurred at approximately 15h55 at the said station. It is also common cause that the plaintiff was struck by a train either having jumped/ thrown herself alternatively pushed/jostled by other commuters from one of the platform at Roslyn Station.

[6] There are two platforms at Roslyn station. Platforms one is used by the train travelling in the direction of Pretoria station. Platform two is routinely used by trains travelling in the direction of De Wildt station.

[7] The plaintiff sustained severe injuries after the accident, most notably:-

7.1 a complete amputation of the right hand;

7.2 injuries to the left leg;

7.3 dislocation of the hip and

7.4 abrasions and burns to the face.

[8] After the plaintiff was stuck by the train, she became wedged on the ground directly underneath the motor coach between the wheel and the rails. There were no security guards posted at the station. The safety signage at the Roslyn Station was ample detailing the dangers of stepping over the yellow line.

[9] The plaintiff was 21 years of age at the time of the accident. She was employed at the Quntro Autospares in Daskpoort, which is a suburb northwest of Pretoria City Centre and she travelled daily by train from her home in Mabopane. She knew her rail route quite well.

[10] On the day of the accident, she had what one can call a disagreement with one of her supervisors. The disagreement angered her so much that she quit her work station without permission to go home. She claims that she was upset that her supervisor wanted her to do work that she was not employed to do. She was a tea lady and did cleaning for her employer. She left her work before lunch and took a train using ticket number: 4267382997.6She went to Daskpoort station to catch a train to Mabopane, the same train she uses daily back home from work.

[11] On they way to Mabopane, the train would go past some stations such as Mountain View, Wonderbood, Pretoria North, Wolmartini, Venterment; Acardiaboom, Kopanong, Soshanguve and Mabopane

[12] She took a wrong train at Daspoort andwas not aware of this until she passed Venternet station. She noticed that the train was going to the wrong direction and decided that she would change train at the next station which happened to be Rosslyn.

[13] She disembarked at Roslyn Station but it is not clear what platform she used to disembark. I can only infer that it was platform one as this platform was used by trains which were heading to De Wildt and Ga-Rankuwa direction. She waited for along time to catch a train back to Pretoria where she would change to a train going to Mabopane.

[14] As she waited at the stations three trains went past without stopping and these are referred as express trains. She testified that she did not observe the safety signage and yellow lines. She stated that she was aware that she was not allowed to be on the white line for safety reason. She said that she was waited on platform two for her correct train that would take her back to stations where she would change to a train to Mabopane.

[15] The station did not have many people on the day. There many people on the platform one for trains to Ga-Rankuwaas it was Friday afternoon.

[16] When the correct train came, there were many passengers as the other passengers were also waiting for the same train.

[17] She alleged that as the train to the platform, it reduced the speed slowly in order to stop at the platform but it was then stopped by the train traffic light.

[18] As she was waiting and the train was slowly approaching and there were commuters on that platform two who stood beyond the yellow line. When the train was nearing the commuters, the commuters started pushing and jostling one another even before the train came to halt.

[19] She however, conceded that it was impossible for people to push one another beyond the yellow line which was a safety parameter beyond which no commuter was allowed to cross, as it was not safe to do. She said that as the train was entering the platform she found herself in front of the train as she was being pushed. She did not recall how the pushing happened.

[20] She stated that no warning hooter was sounded by the train and that she screamed as she was being pushed. She also testified that the other commuters started screaming. She was run over by the train and as she regained consciousness, the train had stopped. She could not remember how she came out of the train. It was put to her that the train driver Mr. Spies would testify that he was the train driver on 22 august 2018 of train number 9451.

[21] She also conceded that Mr. Spies(" Spies") would testify that he drove a train coming from Pretoria A to De Wildt on the said day. As the train approached platform one at Roslyn station, he was travelling at 60km/h. In order for the train to be able to stop at the platform, Spies had to reduce the speed 20 km/h or 30 km/h in order for the train would stop at the marked up area at the platform.

[22] The whole version of what Spies would say was put to plaintif.f This included the fact that he saw a small group of women screaming from the platform as his train was slowly pulling into platform one; that a female person emerged from a group of women by herself and approached the yellow line and beyond and he blew the train hooter. The female threw herself in front of the moving train and despite his efforts in engaging the emergency brake, he could not stop the train to avoid the accident.

[23] A whole version of a second witness, Ms. Manyama (" Manyama") for the defendant was also put to her. Manyama was based at the control cabin of Roslyn station on the date of accident. She would testify that the accident took place in platform one. Manyama's version was going that she had a hooter been blown for an unusually long time and

that the train had stopped in platform one, that a female person had been run over by the train.

[24] When the plaintiff was confronted in cross-examination about why she maintained that the accident took place on platform one and not platform two, she could not provide an explanation save to insist that it was platform two and not one.

[25] The plaintiff called Mr. Daniel Block to testify for her. He stated that he resides at Ga-Rankuwa and that he was not an eye witness of the accident. He came to testify about the state of the Roslyn station. He was presented with pictures of the Roslyn station were taken after the accident but could not add any weight on the accident itself. The plaintiff closed her case.

[26] Spies was called by the 1st defendant to testify. He stated that he was the train driver on the 22 August 2008 and had operated the train from Pretoria A station to the De Wildt.

[27] As part of his duties as a train driver, he reduces the speed of the train as he approaches the station to be able to stop the train at a designated marks on the platform. In case of emergency, he uses an emergency brake to stop the train and the train takes time before it comes to halt. A brake handle is kept in the cabin of the train driver to be applied in the emergency stop to make the train stop quickly.

[28] When there is an emergency, he stops the train and reports to PRASA Traffic Emergency Control ("TEC"). TEC would then arrange the ambulance to the scene of emergency.

[29] On the day in question, Spies was driving his train and approaching Roslyn station to stop as platform one. The train was doing the speed of between 20 to 30 km per hour. He had calculated the brake application to ensure that the train stopped at a designated marked-up spot.

[30] As he approached platform one, he noted that there were between 15-20 female passengers evenly spread thereon. He heard them screaming and saw this one female who was on the edge of the rail track. He blew the train hooter and applied the emergency brake as he realized the female was not retreating. As the emergency brake, had been applied and with the train still moving and the hooter been blown, the female passenger suddenly jumped in front of his train and she was run over as the train was coming to halt. He was shocked about what was happening. The speed of his train was between 20-30km/h as he was targeting to stop at a designated part of the platform.

[31] When he disembarked his cabin to assess the accident, he found that the woman was wedged between the train rail and the motor of the train. The train had moved for about seven paces before it came to a complete halt. He could see that the woman was badly hurt and her hand was severed. He called TEC who then arranged for ambulance to assist the injured lady.

[32] When Spies testified, he was already on retirement. He maintained that although the accident took place almost nine years earlier, he could vividly remember how the accident details and as the accident worried him. His train was on a scheduled trip to De Wilt and the accident took place at the platform. He maintained that the plaintiff was not pushed into a rail track but that she threw herself in front of his train.

[33] The second witness to testify for the Plaintiff was Ms. Dora Manyama ("Manyama") . She is employed by PRASA and oversaw the control room at Roslyn station on the day of the accident. The control room is separated from the station by fence but the room itself is next to the rail tracks. She could see the train from the control room. On the day of the accident, she noted that a train coming from Pretoria heading to De Wildt had blown its hooter for a significant time and stopped at platform one for an unusual long amount of time.

[34] She went to investigate at platform one which was where the train had stopped. Her job entailed attending to the problems at the station. Upon her arrival at platform one she noted that there was a female person under the train who had been run over. She was advised that the female threw herself in front of the moving train as it was coming to halt in platform one. She was able to see that the injuries were of serious nature.

[35] She went back to her control room and reported the accident to her principals at Pretoria A station and an ambulance was called by the staff at that station to attend to the injured lady. She noted that the arm of the injured female had been severed.

[36] When the ambulance arrived, she spoke to the ambulance personnel. She took down the details of the plaintiff and the plaintiff was taken to George Mukhari Hospital in Ga-Rankuwa.

C THE LEGAL PRINCIPLES

[37] The law is settled on the legal duty of the defendant towards its passengers[1]. This requires of the defendant to put in place such measures at its facilities and trains to ensure that its passengers' safety receives the highest priority.[2]

[38] It is also trite law that the conduct is in general considered to be negligent if it does not display or observe that degree of care which the law requires. The standards of case that the law requires is that which a reasonable person in the position of the defendant would exercise in the same situation.

[39] The test holds that liability arises if the reasonable person in the position of the defendant would foresee the likelihood of his conduct injuring another in his person or property, and would take reasonable steps to avoid such injury but the defendant failed to take such steps.[3]

[40] In executing the duty of care towards its commuter,sthe defendant is judged in accordance with the reasonable organ of stated.[4]

[41] As regards instance of negligence arising out of an omission, the general rule of delict is that no one is held liable for doing nothing.[5] A person becomes liable for an omission only if his failure to act positively was wrongful in that he was, in the circumstances under a legal duty to act positively to prevent harm from occurring, and he failed to comply with that duty.[6]

[42] The defendant is only required to take reasonable steps to prevent harm and is not required to take all conceivable harm.[7]

[43] The underlying principle is that negligence must not only be alleged, but must also be proven.[8] The plaintiff is required to set out the particular and specific grounds of negligence.[9]

[44] There must be a direct casual connection between the negligence act complained of and the injury sustained by the plaintiff.[10]

[45] In International Shipping Company (Pty) Ltd v Bentley[11] in applying the casual connection, Corbett CJ said the following:-

" The enquiry as to factual causation is generally conducted by applying the so-called 'but for' test , which is designed to determine whether a postulated cause can be identified as a causa sine qua non of the loss in question. In order_ to apply this test one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant. This enquiry may involve the mental elimination of wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing of the question as whether upon such a hypothesis plaintiff is loss would have ensued or not. If it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff's loss; aliter, if 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. On the other hand, demonstration that the wrongful act was a causa sine qua non of the loss does not necessarily result in legal liability. The second enquiring then arises, viz whether the wrongful acting is linked sufficiently closely or directly to the loss for legal liability to ensure or whether, as it is said, the loss is too remote. This is basically a juridical consideration of policy may play part. This is sometimes called 'legal causation'."

[46] A clear jurisprudence has been established when it comes to the second problem which involves the question whether, or to what extent, the defendant should have to answer for the consequences which his conduct has helped to produce.[12]

[47] Our courts have held that as a matter of practice, some limitation must be placed upon legal responsibility, because the consequences of an act theoretically stretch into infinity. There must be a reasonable connection between the harm threatened and the harm done.[13]

[48] The version of the evidence addused by the plaintiff is completely opposed to the evidence adduced for the defendant by Spies who was the train driver at the time. The principles to be applied in such a mutually destructive versions were set out in Stellenbosch Farmers Wineries Group & Another v. Mastell & Others[14] ; where Nienaber JA held as follows:

"The technique generally employed by court in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make finding on (a) the credibility of the various factual witnesses; (b) thus reliability; and (c) the probabilities. As is (a) the court's finding on the credibility of a witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness's condor and demeanor in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf or with established fact or with his own actuarial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compare to that of other witnesses testifying about the same incident or events. As to (b), a witness's reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's versions on each of the disputed issues. In the light of its assessment of (a) (b) and (c)the court will then, as a final step, determine whether the party burdened with the ones proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility finding compel it in one discretion and its evaluation of the general probabilities in another. The more convincing the farmer, the less convincing will be the later. But when all factors are equipoised probabilities prevail."

C REASONS FOR THE JUDGEMENT

[49] I have assessed the evidence of all witnesses and the circumstances of this matter. Of interest to note in view, is the version of the plaintiff. On the day of the accident, the she left her work without permission admittedly angry about the incident that took place earlier. She was presumably not willing to do work which was outside her scope of duty.

[50] During that moment of being angry, she boards a wrong train going to De Wildt instead of her train to Mabopane. She disembarks in Roslyn Station to catch another appropriate station to Mabopane to her home. However, the accident takes place at platform one and this is confirmed by two eye witnesses who were at the scene of the accident. No explanation is proffered by the plaintiff. I find it improbable that the accident took place at platform two as claimed by the plaintiff.

[51] Spies in his testimony clearly remembered, in detail, how the accident took place and took this Court in his confidence on how he tried to avoid running over the plaintiff by applying emergency brake and blowing the train hooter. I find it highly likely that the plaintiff intentionally jumped in front of the train as it came to platform one of Roslyn station. It is improbable that the passengers about 30 in number who were waiting on platform one to take the De Wildt bound train, would start jostling and pushing one another to get into the coaches before the train came to a complete halt. It highly unlikely

that the jostling and pushing happened as the train probably had enough coaches to accommodate all waiting passengers.

[52] In my judgment, the accident was unavoidable and even if the defendant had deployed security personnel at the station, it is unlikely that they would have been able to stop the plaintiff from jumping in front of the moving train. I therefore find that the omission of deployment of security personnel was a direct cause of the injuries sustained by the plaintiff. The defendant could not have reasonably foreseen that the plaintiff would deliberately throw herself in front of the oncoming train. Consequently, no legal liability can be imposed on the defendant.

[53] It has been submitted on behalf of the plaintiff that failure to have the proper warning signs was a direct cause of the injuries to the plaintiff. This argument is not sustainable because the plaintiff was a regular user of the rail transport services and likely aware of the basic safety precautions on platforms. She was fully aware of the designated yellow line beyond which as a passenger she was not supposed to stand whilst waiting for the train. In my judgment, the platform was adequately marked for safety precautions of the passengers.

[54] After having considered the evidence adduced by the plaintiff, I am of the view that the plaintiff has failed to discharge the burden of proving that the defendant was negligent and directly responsible for the injuries suffered.

D ORDER

[73] The following order is made:

(a) The claim is dismissed with costs.

SENYATSI AJ

For the Plaintiff:

Mr. G Jacobs

Instructed by V. Rea & Associates Pretoria.

For the Defendant:

Mr. S.M Tisani

Instructed by Lessing Malatji Inc, Pretoria.

[1] See Mashongwa v PRASA 2016(3) SA 528 (CC) at 531;

[2] See Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC);

[3] See Kruger v Coetzee 1966(2) sa 428 (A);

[4] See Mashongwa v PRASA (supra);

[5] See Saaiman v Minister of Safety & Security 2003(3) SA 496 (0) at 503;

[6] See Administrateur , Transvaal v Van Der Merwe 1994(4) SA 347 (A) at 364G;

[7] See Shabalala V Metrorail 2008 (3) SA 142 (SCA);

[8] See Eversmey (Pty) Ltd v Walker 1963(3) SA 384(T);

[9] See S.A. Fish Oil Producers Association (Pty) Ltd v Shipwrights & Engineers Holdings Ltd 1958 (1) SA 687 (C);

[10] See Minister of Police v Skosana 1977(1) SA 31(A);

[11] 1990 (1) SA 680 (A);

[12] See International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680

[13] See Mokgethi en Andere v Die Staat 1990 (1) SA 32 (A)

[14] 2003 (1) SA 11 (A) at para 14