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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO A5041/2007

In the matter between

WINNIE SIPHINDILE LUKHELE APPELLANT

and

METRORAIL RESPONDENT

J U D G M E N T

____________________________________________________________________________________________________________________________________

VAN OOSTEN J

[1] On 27 August 2003 the appellant was severely injured when she unsuccessfully attempted to board a moving commuter train on its departure from the Northmead railway station. She subsequently sued the respondent (Metrorail) for payment of the sum of R 260 000, 00 as damages alleging that the negligence on the part of Metrorail caused the accident. The trial of the matter came up for hearing before Boruchowitz J and as agreed between the parties and ordered by the learned Judge the trial proceeded on the issue of liability only. The learned Judge dismissed the appellant’s claim with costs on the ground that her “own irresponsible actions” were the sole cause of the accident. The appeal is with leave of the Court a quo.

[2] Before dealing with the merits of the appeal, it is necessary to consider the ambit of the issues on appeal. The learned Judge a quo having dealt with the evidence led at the trial, held that the essential question the Court had to decide was:

Whether it can be said that the defendant was negligent when it permitted the train to pull off with an open door and whether it can be said that the omission to close the door was in the circumstances sufficiently linked to the plaintiff’s injuries.

The learned Judge having thus identified the two issues being negligence and causation, proceeded to deal with the causation element and as I have already alluded to, arrived at the conclusion that “it clearly could not have been foreseen by the defendant that the plaintiff would act in this manner”. No specific findings were however made on the issue of negligence. In granting leave to appeal the learned Judge again only dealt with causation, on which he held another court may take a different view. The order reads as follows:

The plaintiff is granted leave to appeal to the Full Court of the Witwatersrand Local Division against both the judgment and order, including the order as to costs. The costs of this application shall be costs in the appeal.

[3] Counsel for the appellant submitted that the judgment and order granting leave to appeal should be construed as having decided the issue of negligence which was a prerequisite for a finding on causation, in favour of the appellant and that leave to appeal was therefore granted in respect of causation only. I am unable to agree. As counsel for the respondent has rightly pointed out the appellant’s contention leads to the startling result of the issue of negligence ranking in the judgment in a similar position as a deeming provision in a legislative enactment. The learned Judge a quo in his judgment on the merits clearly in extenso dealt with causation but no finding was made on negligence. Be that as it may, I can see no basis for holding that any limitation was imposed on the issues which were referred to this Court on appeal. In this regard it is merely necessary to state the obvious: had the learned Judge intended to grant limited leave to appeal he should and I think would have included such limitation in the order that was granted. The order simply grants leave to appeal in the most general terms and it therefore embraces both the issues which were before the Court a quo. This Court therefore is at large and in fact obliged to consider the issue of negligence afresh. In view of the prominence the element of causation has received in the judgment of the learned Judge I propose to deal with it first.

[3] Causality and remoteness of damage and the foreseeability test in relation thereto were authoritatively dealt with in the oft quoted judgment of Jansen JA in Da Silva and Another v Coutinho 1971 (3) SA 123 (A) 147D-148B, where it was held that “foresight of the concatenation of events leading up to the damage is not required”. What is required Jansen JA held is that the general nature of the harm that ensued resulting from negligence should have been foreseen. Applied to the facts of the present matter and assuming that Metrorail was negligent, reasonable foresight of the possibility of a commuter getting injured when exposed to the harm, would suffice. It is therefore not a requirement that the manner in which the injuries were sustained should have been foreseen. The learned Judge a quo accordingly misdirected himself in making the finding I have quoted above and it follows that causation was properly proved.

[4] Next, I turn to the issue of negligence. The appellant’s version of the accident was rejected by the Court a quo as “probably false”. The learned Judge accepted the version of the witnesses called by Metrorail, who were firstly, Ms Malunga the security officer who was on patrol duty on the platform where the accident occurred, and secondly, albeit to a lesser extent, that of the train guard, Mr Mofokeng, who was responsible for the closure of the train doors on departure. On appeal these findings were rightly not attacked. On the proved facts the accident occurred in the following circumstances: during peak hour in the afternoon the appellant arrived on the platform having passed the ticket examiners at a pedestrian gate leading unto the platform from where the train she intended to board was to depart. The train had already commenced its departure and she ran towards the train. One of the coach doors of the train was blocked from closing by commuters who had already boarded the train. The appellant for a short distance ran parallel to the moving train towards the open door. She was loudly encouraged to board by commuters already on the train. Malunga testified that she had warned the appellant in Zulu not to board the train “because it is going to injure you”. The appellant however persisted and unsuccessfully attempted to grab hold of the grab bar on the coach in order to board. She fell in between two couches of the train and landed alongside the rail tracks.

[5] An appropriate point of departure is to have due regard to the onus of proof (Cf Pillay v Krishna 1946 AD 946 952). There can be no question that the onus to prove negligence in accordance with the basic rule, rested on the appellant (Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A) 573C). Until she had proved negligence there was no onus on the respondent (Matthews v Young 1922 AD 492 507). In the particulars of claim the grounds of negligence relied upon by the appellant, are pleaded as follows:

5. 1. On 27 August 2003, the Plaintiff boarded a commuter train which leaves Northmead Station at approximately 17H10 and which travels to Alliance Station. The Plaintiff lawfully boarded this train just prior to its departure.

   2. The coach in which the Plaintiff was travelling was overcrowded and at all relevant times the doors were open;

   3. After boarding the coach at Northmead Station the train pulled off without any prior warning, causing the Plaintiff to lose balance and fall onto the platform and/or the Plaintiff was pushed and/or became dislodged from the said train at a dangerous and inopportune moment by persons unknown to the Plaintiff.

   4. At the time of the incident, the Plaintiff was in possession of a valid train ticket.

6. The Defendant breached its obligations as set out in paragraph 4.2 above which breach amounted to negligent conduct on its part in one or more or all of the following respects:

   1. The Defendant failed to ensure the safety of members of the public in general and the Plaintiff in particular on the coach of the train in which the Plaintiff was about to travel;

   2. The Defendant failed to take any or adequate steps to avoid the incident in which the Plaintiff was injured when by the exercise of reasonable care they could and should have done so;

   3. The Defendant failed to take any of adequate precautions to prevent the Plaintiff from being injured by the moving train;

   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 Plaintiff in particular on the coach in which the Plaintiff was about to travel;

   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 she was;

   6. The Defendant allowed the train to be set in motion without ensuring that the doors of the train and coach in which the Plaintiff was to travel were closed before the train was set in motion;

   7. The Defendant allowed the train to pull off from Northmead Station without ensuring that the doors of the coach in which the Plaintiff travelled were closed before the train was set in motion;

   8. The Defendant allowed the train to move with open doors and failed to take any, alternative, adequate steps to prevent the train from moving with open doors;

   9. The Defendant neglected to employ security staff on the platform and/or the coach in which the Plaintiff was about to travel to ensure the safety of the public in general and the Plaintiff.

In response hereto Metrorail in its plea denied the factual allegations relating to the incident and pleaded that the sole cause of the incident was that the appellant “acting without lawful reason, attempted to board a moving train at a time when it was dangerous and inopportune to do so”. The grounds of negligence relied upon are similarly denied together with the usual alternatives denying causation and raising contributory negligence. That being the form of the pleadings the evidence I have already alluded to, was led.

[6] The appellants evidence having been rejected of course failed to prove the incident pleaded as well as the grounds of negligence relating thereto (National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) 440D-H). The issue of negligence was argued on appeal based on the evidence on behalf of Metrorail, to the extent it was accepted by the Court a quo. Of importance is that the learned Judge a quo accepted “on the basis of Malunga’s evidence that the door of the train was open when the plaintiff attempted to board”. The finding in my view is correct but needs qualification: Malunga in this regard said the following:

When the train departs the doors are being closed, but there are those people who block the doors of the train not to close and remain open.

Mofokeng, the train guard, testified that the door closing and opening mechanism of the train is routinely checked for correct operation each day on the train’s commencement on its journey at the Braamfontein station. On his and the other accepted evidence there can be no question of mal-functioning of the doors. The reason for one of the doors being open on this occasion was as I have alluded to, the obstructive conduct of the passengers on the train.

[7] Based on the finding in favour of the appellant that a door was prevented from closing negligence in my view must be found. Metrorail as the provider of a transportation service to the public bears an obligation to ensure that reasonable measures are taken to provide for the safety and security of rail commuters on the rail commuter service they provide (Rail Commuters Action Group v Transnet t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC). It has by now become well-established that a commuter train departing from a station with open coach doors amounts to negligence on the part of Metrorail. In Transnet Ltd t/a Metro Rail v Tshabalala [2006] 2 All SA 583 (SCA) para [9] the notion of an open door constituting an open invitation to commuters to board an already moving train was approved and it was held:

A reasonable man in the position of the defendant would not have allowed the train to operate with the doors of the coaches open as he would have foreseen that to leave the doors of the railway coaches open would constitute an invitation to prospective passengers to board the train while moving and that it would be dangerous for them to do so.

In the recent judgment of the Supreme Court of Appeal in Transnet Ltd v Witter (517/2007) [2008] ZASCA 95 (517/2007) (16 September 2008) it was again held that a train leaving with open doors constitutes negligence. In both these cases the open doors were as a result of the malfunctioning thereof. In casu as I have pointed out, malfunctioning does not arise. I however do not think that the difference is of any significance: it remains the duty of Metrorail to ensure that the train does not depart from the station with open doors. That brings to the fore the question whether Metrorail could and should have taken reasonable steps to guard against such possibility.

[8] In the Transnet v Witter-case the essential issue the Court dealt with was whether Metrorail had taken all reasonable steps to guard against the possibility that the train would depart with doors open (ie the third requirement in the test for negligence enunciated in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G). In confirming the finding of the Court a quo against Metrorail Cloete JA writing for the Court, held that the duties of the train guard were such that he should have ensured that the train doors were closed before he gave the signal to the driver of the train to proceed, which he had failed to do. The duties of train guards are set out in para 12001.2 of the General Operating Instructions of Metrorail and read as follows:

12001.2  Operation of sliding doors on arrival at and before starting from stations or other stopping places.

12001.2.1        Immediately after stopping at a station or halt where the train is required to stop for commuters, the metro guard must release the sliding doors on the platform side so that they can be opened manually.

12001.2.2        When the train is ready to depart and after the metro guard has announced it orally, he must blow his whistle as warning that the sliding doors are going to be closed. Thereafter he must press the "Door-CLOSING" button and give the right-away bell signal to the train driver.

12001.2.3        While performing their duties, metro guards must observe whether or not sliding doors are closing properly. If any sliding doors are not operating correctly the instructions in subclause 12001.4 must be complied with. They must also warn commuters against the undesirable practice of keeping sliding doors open when the train is about to depart or en route.

[9] Applying the principles outlined above to the facts of the present matter it is necessary to consider the evidence of Mofokeng concerning compliance with the duty imposed on him by the Operating Instructions I have referred to, which was to ensure that all doors were closed prior to the departure of the train. His evidence on this aspect was anything but satisfactory. Although he proffered weighty reasons for the impracticability of carrying out this duty on every departure of the train, which he said were the inordinate delays and resultant congestion it would have caused, it is abundantly clear from his evidence as a whole that he plainly failed to observe whether all doors were closed before he signalled to the driver of the train that it was safe to depart. It no doubt would have been a simple matter for him to have checked that all doors were closed before departure. The natural corollary to this is that had he kept proper observation he would have noticed that one of the doors was still open albeit kept open by commuters who had already boarded the train (Cf Transnet v Witter supra para [9]). Mofokeng accordingly failed to take all reasonable steps to guard against the harm that eventually resulted, and it follows that causative negligence on the part of Metrorail was established.

[10] Finally, it is necessary to consider the question of contributory negligence. It is not in dispute that the plaintiff was negligent and that an apportionment of the relative degrees of negligence ought to be made. Some assistance is to be derived from comparable assessments of contributory negligence in Tshabalala where the plaintiff’s damages were reduced by two thirds and Witter confirming the trial court’s reduction of the plaintiff’s damages by fifty per cent. In the unreported judgment of the full Court in this Division, in Mshukeni Myesa v Metrorail (Case no A5028, delivered on 17 July 2007) where the facts the court dealt with bear substantial similarity to those in this case, the plaintiff’s contributory negligence was assessed at seventy per cent. Each case of course must be decided on its own facts. In the present matter the degree of fault too be attributed to the plaintiff in my view is substantially greater than that of Metrorail. Ignoring Malunga’s express warning not to do so she recklessly attempted to board the train when it had already commenced its departure. As against this the negligence of Metrorail consists in effect of its failure to guard against the consequences of what can only be described as the deliberate unlawful and reprehensible conduct of passengers on the train. Having considered all the relevant facts I accordingly assess the plaintiff’s contribution to the damages she suffered at 80 per cent and that of Metrorail at 20 per cent.

[10] In the result the following order is made:

10.1 The appeal is upheld with costs.

10.2 The order of the court a quo is set aside and substituted with the following:

“1. The plaintiff is entitled to recover from the defendant 20 per cent of her proven damages.

2. The defendant is ordered to pay the plaintiff’s costs of the action.”

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FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

I agree.

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MM JOFFE

JUDGE OF THE HIGH COURT

I agree.

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H SALDULKER

JUDGE OF THE HIGH COURT

COUNSEL FOR THE APPLICANT ADV (MS) A COMBRINK

APPELLANT’S ATTORNEYS EDELING VAN NIEKERK

COUNSEL FOR THE RESPONDENT ADV M HADEBI

REPONDENT’S ATTORNEYS JERRY NKELI ATTORNEYS

DATE OF HEARING 9 SEPTEMBER 2008

DATE OF JUDGMENT 24 OCTOBER 2008

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