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REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 14465/2010

DATE:14/06/2012

In the matter between:

PHETOLE PETER MOKWENA …..................................................Plaintiff

and

SOUTH AFRICAN RAIL COMMUTER............................................First Defendant

CORPORATION LIMITED

METRORAIL …..................................................................................Second Defendant

Neutral citation: Phetole Peter Mokwena v SA Rail Commuter Corporation Ltd & 1 other 2012 SA (GSJ)

Coram: SATCHWELL J

Heard: 21 May 2012

Delivered: 14 June 2012

Summary: Dispute whether or not plaintiff was on train and ejected from moving train through open door sustaining injuries – great value in holding inspection in loco – facts recorded on inspection include total contradiction of evidence of senior protection official and showed open doors on moving trains – absence of any records or evidence on staffing, maintenance of doors and coaches, official duties of any personnel in respect of moving trains and open doors – defendants’ case based on difference between pre-amended particulars of claim and evidence, unlikelihood only one person ejected, witnesses expressed differing opinions on cause of fall from train, failing to wait for official assistance – Elandsfontein station surreal place in time warp – CEO of SARCC and Metrorail invited to inspect station with judge.

JUDGMENT

SATCHWELL J

INTRODUCTION

[1] The plaintiff (‘Mokwena’) sues first and second defendants (‘SARCC’ and ‘Metrorail’) for damages as a result of injuries he claims to have sustained when he fell out of a moving train at Elandsfontein Station on 5th February 2008. The defendants dispute that the incident occurred at all.

[2] The parties have agreed that I should determine only the merits of the claim and that the issue of quantum, if it arises, should be dealt with on another occasion. Accordingly, in terms of Rule 33(4) I have ruled that there be a separation of issues.

[3] The only evidence as to the merits of the claim is that of the plaintiff and an eyewitness. To the extent that medical records from Tembisa Hospital prepared on the date of the alleged incident – 5th February 2008 – are contained in the bundle of documents and may provide corroboration of the evidence of these witnesses I can have no regard thereto, since these records were not introduced into evidence.

[4] I must comment on the inadequacy of the pleadings prepared on behalf of the plaintiff. They appear to be based upon a precedent of another particulars of claim – in this matter there is reliance upon averments which do not feature in the evidence and never featured in the facts of this case – the claim is against one defendant only and the quantum claimed clearly bears no relation to this plaintiff. In due course and as and when costs become relevant, I would hope that in the end result the plaintiff’s attorneys are penalised with some costs de bonis propriis.

PLAINTIFF’S VERSION OF EVENTS OF 5TH FEBRUARY AT ELANDSFONTEIN

[5] Mokwena and other work colleagues were driven from work at the end of the working day by their employer and dropped at Elandsfontein station. Mokwena and a workmate, Vusi Tshabalala (‘Tshabalala’) waited with other commuters on platform 6 for the train travelling from Germiston to Tembisa.

[6] Mokwena boarded a carriage already containing a number of passengers. He stood in the middle of the coach and held on to one of the straps which hang from the roof. More passengers continued to enter the carriage and the press of their entry pushed Mokwena further forward across the width of the carriage. He had to stop holding onto the strap and now held on to a steel bar attached to the chairs next to the door on the opposite side of the carriage to that by which he had entered.

[7] Mokwena testified that the combination of the pushing of the passengers and the commencement of the train led to him falling – out of the open door of the carriage which had been open throughout and which had not closed as the train started moving.

[8] Tshabalala confirmed that they had arrived from work, entered the station and waited for the train to Tembisa, that there were passengers in the carriage when they entered and more followed behind them, and that he saw Mokwena fall from the train.

[9] Mokwena fell onto the railway line adjacent to the line which runs along platform 6. He was in great pain. He screamed. Three men, one wearing a reflector jacket, lifted him onto the platform. Thereafter he was surrounded by commuters. Tshabalala then arrived and Mokwena begged Tshabalala to take him to hospital. Tshabalala and another commuter carried him across to platform 4 where they waited for and then took a train going to Tembisa and then went to the hospital.

[10] Tshabalala confirmed that, having seen Mokwena fall from the train, he remained in the moving carriage until it reached Isando when he left the train, went to another platform and caught a train travelling to Elandsfontein where he found Mokwena.

EVIDENCE OF MABASA

[11] Mr Mabasa (‘Mabasa’) is a senior management employee of Metrorail based at the Kaalfontein Depot testified. In 2008 he was senior protection official in charge of the Kaalfontein to Germiston stations. As such he handled complaints at the depot and in that section of Kaalfontein to Germiston. All incidents, such as attacks on personnel and injuries to clients, are reported to him. On the day in question no such incident / accident was reported.

[12] Each station has a subcontracted service provider and at that time it was Afri-Guard providing security personnel. Elandsfontein had four guards, working in pairs of two each with a two way radio. Their task is to report any complaints. Such complaints are recorded in three registers – the station register kept by the service provider, the depot register at Kaalfontein and the register at the Joint Operation Centre (‘JOC’). Security guards would also be responsible for taking miscreants – such as staffriders – in an Afri-Guard bakkie to the South African Police Services at Bedfordview.

[13] The response to any accident involving injury would be to notify Mabasa. The JOC (when notified) would then call for an ambulance from Ekhuruleni emergency services.

[14] Doors to trains open only on the platform side and not on the side where there is no platform. The opening and closing of doors is manually controlled by train crews who press the necessary button to release pressure to open and close doors. Train doors cannot and do not remain open while the train is moving. It is the train crew who decides which doors on which side of the carriage to open depending on the side of the approach of the train.

[15] Under cross examination Mabasa stated that there were eight lines at Elandsfontein station but that only four were operational. The significance of this evidence was that Mokwena and Tshabalala must have been incorrect in saying that they had entered a carriage on platform 6 and that it was from this carriage that Mokwena had fallen onto the opposite track.

[16] Accordingly, I asked Mabasa to describe the station to me which he did. He was adamant that passengers entered the station through manned entry points – access doors with ticket verifiers. There were exactly two such entry points. One led directly to platforms 1 and 2, and the other led directly to platforms 3 and 4. He was certain that were no bridges over tracks which travellers had to cross. There were only four operational lines. Since the time the station was opened and since he commenced working and in 2008 at the time of the alleged incident and even today, lines/platforms 5, 6, 7 and 8 were nonoperational and only used for staging – ie parking of trains when off-peak. Only train crews could access these platforms and lines.

INSPECTION IN LOCO

[17] At the end of the hearing of evidence we went on an inspection in loco. This had initially been proposed by counsel for the plaintiff who then decided not to pursue the matter. He then went on his own inspection. After hearing the evidence of Mabasa and then further evidence from Mokwena to respond to the new evidence of Mabasa (that platform 6 had never been in use) it seemed to me an inspection in loco would be of great assistance.

[18] In City of Johannesburg Metropolitan Council v Ngobeni (314/11) [2012] ZASCA 55 (30 March 2012), the Supreme Court of Appeal stated that:¹

‘It is trite that an inspection in loco is ordinarily conducted upon the application of a party. If it is at the instance of the judge, he or she must explain why they deem it necessary that an inspection in loco should be held. In all cases it should be held at the earliest possible opportunity. After an inspection, the judge must place his or her observations on the record and allow the parties to comment thereon. The proper method of recording the observations of the court at an inspection in loco was set out in Kruger v Ludick 1947 (3) SA 23 (A)’²

[19] If I had declined an inspection in loco or if I had not exercised my own powers to call for such inspection I would have been left with the ridiculous situation that a simple issue such as the possibility of use of platform six would have had to be decided by myself on the basis of the credibility of the witnesses alone when there was an obvious solution to this contradiction. Justice must be done and the best possible evidence must always be obtained where it can be done so efficiently. To attend an inspection in loco does not mean that a judicial officer has entered the arena – it means that the best possible evidence is being obtained. In casu, there was a dispute between the plaintiff and defendant as to the number of platforms and railway lines in use in 2008. There was direct contradiction of the evidence of Mokwena that he had entered a Tembisa bound train from platform 6 – Mabasa said this platform had never been in use and was still not in use. This discrepancy could easily be resolved – hence the inspection in loco.

[20] Our findings at the inspection in loco were recorded into the trial record on our return to court. Both counsel had the opportunity to point out that which was observed and to amend or add to that which I read into the record.

[21] It turned out that Mabasa’s evidence was completely incorrect. There are two bridges over the railway tracks and no one can access any platform without ascending at least one flight of stairs, crossing a bridge and then descending another flight of stairs. At one point of entrance to the station area are two ticket controls which lead into a general area before ascending stairs; the other point of entry to the station is along an alley way off Kraft Road. Platform 6 is in use – we observed, not only two goods trains, but also a passenger train arrive, stop and depart from platform 6 with passengers.

[22] We observed passenger trains arrive, stop and depart. We saw trains depart the station where the doors had not closed on the platform side – a number of times where it seemed that passengers were holding the doors open and at least twice where there was no one in the vicinity of the doors. On one occasion the door was closing but very slowly as the train was moving off. On another occasion the door did not commence closing at all while the train was moving out the station. We also observed that doors on the opposite side of the carriage to the platform side were open – both while the train was stationery and moving off.

[23] The inspection in loco was of great assistance to the court. Much was observed and recorded. The court was provided with a reasonably full picture as to conditions at this station and the services provided or not provided. As a result I do not have to speculate on certain issues. I do not have to determine material facts on credibility findings about witnesses since the facts have been seen and speak for themselves.

DEFENDANTS’ CHALLENGE

[24] The defendants challenged the evidence of Mokwena and Tshabalala in two ways, firstly through cross examination directed to showing contradictions or anomalies in the evidence and secondly through the evidence of Mabasa directed to confirming that no such incident took place at Elandsfontein on the day in question.

Evidence differs from Particulars of Claim prior to amendment

[25] It is pointed out that the particulars of claim³ issued on behalf of Mokwena stated that the incident occurred on ‘06th March 2008 at Tembisa station’ but that the evidence of the plaintiff is different as to place, day and month – only the year remaining the same.

[26] Mokwena could not explain the discrepancy between his version and the pleadings but then of course he was not responsible for the drafting of those pleadings – either his attorney or advocate did so.

[27] There may, of course, be many reasons for such difference – error in instructions, confusion between different clients, typing errors etc. I do note the most unprofessional nature of the pleadings – for example the particulars of claim aver negligence on the part of defendant by reason of failure ‘to ensure that...the passengers boarding the train were searched for dangerous weapons before boarding the train’⁴ when there is no allegation of the involvement of any firearm. This suggests that these particulars of claim were not carefully drafted and were simply based upon another set of pleadings.

[28] These particulars were amended⁵ to aver that the incident occurred on ‘5th February 2008 at Elandsfontein’. The evidence is consistent with that amended particulars of claim. This court was not confronted with any confusion or discrepancy at the time of the trial.

[29] Mokwena produced two documents in support of his version as to the date and place of the incident. Neither document was challenged. One was an employer’s certificate from Automative Waste Management indicating that he worked until 5th February 2008 as a casual labourer. This is consistent with him ceasing to work after sustaining the injuries averred by him on that date. The other was a copy of a weekly train ticket purchased on 5th February valid until 10th February 2008 for the Limindlela to Elandsfontein route.

[30] In the unreported judgment of Motsai, M.A v Metrorail (case no 2007/24507), the court was confronted with a version at the trial which was not only totally different from the one initially pleaded but also differed from the versions contained in two earlier statements made by the plaintiff. The court found that it ‘cannot be said [these differences] can co-exist happily’⁶ and that the court could not ‘simply ignore different versions by the same litigant, made outside the courtroom’.⁷ I note the approach of the Supreme Court of Appeal in Transnet Ltd v Maela (39/07) [2008] ZASCA 26 (27 March 2008) that no great emphasis should be placed on the difference between the evidence of the eyewitness security officer and the reports made by him to his superior. This court was not confronted with the difficulty experienced in Motsai supra.

[31] In the present case the particulars of claim were amended a year before the trial indicating that the ‘blunder’⁸ had been discovered and corrected; the purpose of an amendment is to ensure that there is as ‘true account of what actually took place [so that the judge does not have] to give a decision upon what we know to be the wrong facts’;⁹ there is no evidence whether it was the plaintiff or the attorney’s office which was responsible for the initial averments; the amendment makes it clear that the first averments have been disavowed; there are no previous statements made by the plaintiff or his witness which are contradictory to each other or his evidence in court.

Only one person pushed out of carriage

[32] There was much cross examination of the plaintiff and argument on whether or not it was likely or possible that Mokwena could have been the only person to be ejected from the carriage under the circumstances he describes. It was pointed out to him and in argument that his version requires that persons were already in the carriage when he entered and more persons entered the carriage behind him. He was therefore in between other persons in the sense that he was not at the outer edge of either the first or second lot of passengers. It was therefore queried that he could be the only person to be ejected from the train.

[33] I was referred to Seletela v South African Rail Commuter Corporation Ltd (46347/09) [2012] ZAGPJHC 33 (16 March 2012) where the explanation of the plaintiff was found to be improbable and was dismissed. The court commented ‘there were other people closer to the door, it was improbable that they (people) did not fall and were not injured but only her’¹⁰ and further stated ‘[i]t is unconscionable that being surrounded by many people who were busy pushing, shoving and jostling each other, in an effort to embark and disembark the train, the plaintiff would during that melee or commotion miraculously or inexplicably be ejected from the train notwithstanding that there were people closer to the door who were subjected to the same commotion as her. It is surprising why nothing happened to them. This clearly shows that the description of her alleged fall is not only improbable but irreconcilable with facts and illogical.’¹¹

[34] With all due respect to the learned judge in that matter, I have difficulty in being quite so categoric as to the probabilities or improbabilities when it comes to behaviour on trains, the results thereof and how and why some persons are the victims of accidents and others not. The newspapers are filled daily with stories of the few passengers who escape unharmed from a plane which crashes into the ground while everyone else is killed, of taxi passengers who suffer tetraplegic injuries while others in the vehicle walk away, the passerby who is fatally injured by a policeman’s bullet whilst the robbers’ many shots do not hit anyone let alone the policeman. The very reason accidents are so called is because they are fortuitous, select their victims without plan or logic, often cannot be explained and are put down to chance. It is the task of the court to, as best as possible, examine the evidence before the court and determine the probabilities based on the evidence.

[35] I was provided with Molefe v Metrorail (2005/28863) [2007] ZAGPHC 13 (22 March 2007) where the court found, on inspection, that the plaintiff could not have fallen from the train as claimed because, on his evidence, there was about one and a half metre between the place where he was standing and the open door which space was not occupied by any person.¹²

[36] I do not know and would hesitate to comment on the ability or inability of a body to fall from a moving train when pushed or jerked by reason of the distance which such body would have to be propelled or to fall. One and a half metres is about the height of most adults but I have no knowledge of (nor evidence before me) the quantum of force required to project a body of an unknown weight, the effect of gravity on such body, the physics applicable to movement of the train and countervailing pushing.

[37] In any event, there is no evidence before me of a one and half metre distance from Mokwena to the door – his evidence is that he was holding on the bar which is adjacent to the seats and which is at the door – as could be seen on the inspection in loco.

[38] Of course, the circumstances of accidents in one instance can never be exactly the same as those in another instance. On Mokwena’s evidence he was on the outer side of the crowd of passengers where he was able to hold on to the steel bar of the chairs although there were persons in the vicinity of the door as well. Maybe those other people were younger than him or stronger or more athletic or more alert or less tired after a hard day’s work or had a better grip on a strap or a bar? I have no idea and cannot set myself up as human anatomist, physicist, engineer, motion specialist or medical practitioner.

[39] In logic I can see no reason why a person cannot be pushed through other persons and out of a door. Higher courts have found it to be entirely possible. For instance, in Ngubane v South African Transport Services [1990] ZASCA 148; 1991 (1) SA 756 the appellant was standing in a crowded coach holding on to an overhead strap while persons were embarking and disembarking and he was the only person to fall off a train shortly after it had started moving to leave a station.

Contradiction between witnesses

[40] It was argued that Mokwena and Tshabalala contradicted each other as to the cause for Mokwena’s fall from the train.

[41] My own notes indicate that Mokwena said in chief that ‘a commotion, pressure resulted in me pushed outside the coach to fall on the other side’ and under cross examination he said ‘I was pushed as the train was starting and the door was opened’ and that ‘at the time I fell the train was moving’ and ‘I fell from coach as a result of being pushed’. My notes indicate that Tshabalala testified in chief ‘as the train was setting off commotion resulted and Mokwena fell off’. I do not claim that my notes are a complete or full and one hundred per cent accurate recordal of the evidence.

[42] However I do not think the detail of the evidence is of any moment. These are not differences between witnesses on established issues of fact – how many people, who was wearing what, the colour of the floor, the number of the platform. Each witness claims to have an opinion as to the proximate reason for the ejection of Mokwena from the carriage. If there is such a difference of opinion then this is understandably so. They were not standing right next each other and physically and psychologically their experiences were different. One would expect the victim and the witness to see the crucial moment from an entirely different perspective. As such, they each (and so might 20 other passengers) offer an opinion. At the end of the day it is only an opinion, a view, a judgment as to the proximate cause of the accident.

[43] What is important is the overall picture. Are Mokwena and Tshabalala concocting this entire story from beginning to end? Did any of this ever take place? If the incident did happen, then one would have to examine all circumstances to determine if and the extent to which there was any negligence on the part of the defendants.

Security would have made a report and provided assistance

[44] It is argued that the absence of other witnesses, the lack of any report from any security officials at the Elandsfontein station and the claimed lack of assistance by security officials or an ambulance are all so improbable that this indicates that the incident did not happen.

[45] The absence of other commuter witnesses does not worry me. This incident allegedly took place between 17h00 and 17h30 when commuters were hurrying home at the end of the working week. They would have been only too happy to let someone else sort out the problem so that they could continue on their journeys home. It would be unlikely that persons would be offering names and addresses to Mokwena while he lay in agony on the ground – that would hardly be of importance for him at that time.

[46] The lack of any report from security officials at Elandsfontein is of greater concern. Mabasa gave evidence that four security guards subcontracted from Afri-Guard wearing fluorescent jackets would be on duty every shift at Elandsfontein. Certainly, on our inspection in loco, security guards were on duty and visible (but that is a state of affairs some three years later.)

[47] However, Mabasa merely testified as to what the state of affairs should be. He did not testify as to what the situation was on the ground at Elandsfontein on that date. He did not (and apparently could not) produce the registers or record books disclosing the names of the security guards on duty, what time they had signed in, when they had been briefed at Kaalfontein, when they had arrived at Elandsfontein station or which platforms they had patrolled or monitored, whether or not any of them had gone to the Bedfordivew SAPS or to which other incidents (if any) they had attended. All he could say was that they must have been there because there was no strike on at that time.

[48] Furthermore, Mabasa’s evidence was that there were and are a number of registers in which reports of any incidents are written up – at the station, at Kaalfontein and at the JOC. Yet he produced none of these records which would have shown what incidents were written up and when and by whom and the inference could be made that Mokwena’s alleged incident was not written up because it did not take place.

[49] Mokwena’s evidence was that there were no ticket inspectors on duty at the entrance to Elandsfontein station or at the entrance to the platforms, nor was there anyone to check tickets as commuters boarded the trains, nor were there any staff of any description inside the carriage he entered. This was not disputed.

[50] Although four years later, this was also what we observed on our inspection in loco – all the ticket inspection booths were totally unmanned and there was no control of commuters waiting to enter the carriage. The security guards were some distance off from where we and other commuters were standing at platform 6. It should also be remembered that on our inspection in loco we also observed a number of flights of stairs to and from the two bridges as well as the platforms – all of which would occupy the attention of the security guards. There was a person in the last carriage at the very rear of the train looking at us through the rearmost window – apparently a guard’s window – but this person did not leave the train. I did not fully appreciate the import of this evidence at the time of the trial but now realise that the defendants have not contended for the presence of anyone to assist other than the security guards – which Mabasa’s evidence only suggests but does not prove.

[51] The paucity of evidence in this trial is quite striking compared to that in other trials. Mokwena and his witness testified that there was no staff on the day in question. The defendant led no evidence to contradict this version – other than the expectation of Mabasa that there should be security guards on duty but without any knowledge of or details of the day in question.

[52] When one has regard to earlier judgments concerning persons injured at railway stations – whether on or off trains or platforms – one is struck by the presentation of evidence as to staffing levels and duties of such staff which is in contrast to the lack of evidence in this case and the absence of observation of any such staff during the inspection in loco. For instance in Khupa v South African Transport Services 1990 (2) SA 619 there was the evidence of the conductor of the train and one controller to the effect that the conductor and two controllers alight from the train at every station:

‘the function of the two controllers is to see that all of the passengers who wish to alight at the station in question have done so and all of those who wish to board the train at the station have also done so. When these two officials are satisfied of the aforegoing, they indicate, by way of a hand signal to the conductor, that this is the position. … . The three officials then board the train. At this point in time the doors of the train are open. The conductor, who travels in the last coach at the back of the train, then presses a button which controls the closing of the doors in each of the coaches. Having so pressed the button he then gives a signal to the driver of the train and the train then proceeds.’¹³

In Ngubane supra there was evidence that:

‘...when a train stopped at a station, it was the duty of the ticket examiner, inter alia, to remain on the platform until he was satisfied that it was safe and in order for the train to depart...The guard had to satisfy himself that the ticket examiner had boarded the train and, after the guard has entered the guard’s van, it was his duty to check again, by looking out the window, that passengers were not entering or leaving a coach before he operated the switch to close the doors of the coaches and giving the driver the signal to proceed. These procedures conformed to those laid down in the respondent’s “Interdepartmental Working Instructions”’.¹⁴

In Transnet Ltd v Witter (517/2007) [2008] ZASCA 95 (16 September 2008) evidence was led of an electrical engineer and specialist in train door control systems, a mechanical engineer and a retired general manager of SARCC, a mechanical engineer of SARCC and on guard duties, policy and regulations; in South African Rail Commuter Corporation Ltd and Another v Mojapelo (A891/2008) [2011] ZAGPPHC 169 (16 September 2011) there was the evidence of a technical superintendent employed by Metrorail and the guard on the train; in Lukhele v Metrorail (A5041/2007) [2008] ZAGPHC 332 (24 October 2008) evidence was led of the security officer on duty and the train guard; in Mthembu v Transnet t/a Metrorail (157/08) [2009] ZASCA 67 (29 May 2009) there was the evidence of two security guards with their pocket books and occurrence books; in South African Rail Commuter Corporation Ltd v Thwala (661/2010) [2011] ZASCA 170 (29 September 2011) the court heard from the driver of the train; in Shongwe v South African Rail Commuter Corporation (41334/2007) [2009] ZAGPHC 45 (20 February 2009) there were two security guards and the artisan who had inspected the doors of the carriage; in Molefe supra a security guard gave evidence and the working rules were put into evidence.

[53] In the present case, not only was there no such evidence but at the time of the inspection in loco we made no notation of the presence of any official person(s) alighting from the train, supervising events on the platform and then returning to the train.

Did not wait for official assistance

[54] The version of Mokwena and Tshabalala that they did not wait for an ambulance or other assistance to be called or procured and elected to continue on their train journey is challenged as being unlikely and incredible.

[55] On Mokwena’s version there was no assistance offered. No one told him an ambulance had been called or was coming and that he should lie on the platform waiting for this assistance. Tshabalala implicitly confirms same. His evidence is that Mokwena begged Tshabalala to get him to a hospital and Tshabalala did so.

[56] The evidence of Mabasa is that the four security guards on duty at the station would patrol in pairs – (thereby covering two platforms at a time)¹⁵ and each pair would have one radio to contact Kaalfontein. Since these were subcontracted security guards who were not trained by the defendants he could not comment on their medical training if any. If medical assistance was needed, he said an ambulance would be called by Kaalfontein office from the regular municipal emergency services – in this case Ekhuruleni.

[57] The evidence of Mokwena is that he sustained a fracture of the right knee and of his hip and required 2 bouts of surgery and three weeks hospitalisation.

[58] On this evidence, I would weigh up the options relevant to the patient’s needs as follows. The one option was to wait for the ambulance to be summoned, to wait for it to become available, to wait for it to travel through peak traffic at the end of the working day and week, to wait for it to cross over at least one bridge and down two sets of stairs, to load the patient onto a stretcher, to be lifted up and round and over the ticket collection barriers, to be carried up one flight of stairs, along the bridge over the railway tracks, down another flight of stairs to the ground, along alleys/through entry points to the ambulance and then to be driven through peak hour traffic to hospital. The other option was to be carried by two people across the platforms, from 6 round 5 to 4, to wait for the train, to enter and lay on the floor, then arrive at Tembisa and catch a taxi to hospital. I cannot fault anyone for electing the latter option if, of course, there had ever been the first option offered to Mokwena.

CONCLUSION

[59] Neither Mokwena nor Tshabalala could be faulted in their evidence. It was clear, consistent and logical. There were little aspects that suggest truthfulness – for example when Tshabalala was asked what happened after the train started moving – he moved his head and body forward in the witness box and turned demonstrating how he had seen Mokwena lying on the tracks through the window as the train moved past.

[60] There is nothing to dispute that they both went to work, left work and were catching a train home. The employment certificate indicates employment until the date of the accident. It gives a reason for this journey. The ticket indicates that Mokwena was travelling. It was suggested in argument that a ticket is easily obtained from a third party or as a discard – but there is nothing before me to suggest that this happened – particularly since the ticket was valid for travel beyond 5th February and would not have been discarded or passed on until it expired which was the 10th February.

[61] I have, for reasons I have already given, no difficulty in accepting the absence of other passenger witnesses.

[62] Mokwena’s evidence was challenged on the basis of the evidence of Mabasa. Firstly, there was reliance upon Mabasa’s evidence that security guards must have been on duty on the day in question and that no incident was recorded. Yet he failed to produce the very documentation which would have established these assertions as facts and which documentation he claims is under his care and control. Secondly, Mabasa testified that there would be two security guards patrolling the platform/quay which has a platform on each side. However, it turned out that he was wrong about the layout of the station – that there were also stairs and bridges to patrol and a greater number of platforms to patrol. Thirdly, Mabasa’s evidence is that the accident could not have happened as described – train doors are always closed before the train starts moving and platform 6 was and is not in use. But Mabasa’s evidence was contradicted by what was seen with our own eyes. Doors were open – whether held open by passengers or which simply did not close. Platform 6 was in use on the day we attended at the station.

[63] Mokwena’s evidence was also challenged on the basis of logic. This was the logic that it was improbable that he, in the middle of groups of other passengers – those in the carriage before he entered and those entering after him – would have been the only person to be evicted or ejected from the carriage through the open door. For this argument reliance was obviously placed on the absence of any other victims and findings in other cases to which I have already made reference.

[64] Accordingly, I am satisfied that the plaintiff has established that he was a lawful passenger on a train leaving Elandsfontein station on 5th February 2008 who was ejected from a moving train by a combination of the pushing of other standing passengers and the movement of the train as well as the aperture on the other side of the carriage which was not closed when the train was stationary or moving.

NEGLIGENCE

[65] The time honoured test in Kruger v Coetzee 1966 (2) SA 428 A was formulated as follows:

‘For the purposes of liability culpa arises if –

1. 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

2. The defendant failed to take such steps.’

[66] The plaintiff has set out the basis of his claim against the defendants in his particulars of claim at paragraph 7 and in the alternative in at paragraph 8:

‘7. The sole cause of the incident was the negligence of the First Defendant and/or Second Defendant and/or the employees of the First Defendant and/or Second Defendant, acting within the scope of their employment with the First Defendant and/or Second Defendant, he, she and/or they having negligently:

7.1 caused and/or allowed the condition and/or state of the train and/or the coach and/or the infrastructure, stations, land and property supporting the operation of the train and/or the coach to pose danger to commuters at large and in particular, the Plaintiff; and or

7.2 failed to take any adequate steps to prevent the train and/or the coach and/or the infrastructure, stations, land and property supporting the operation of the train and/or the coach from consulting such danger; and or

7.3 failed to maintain the train and/or the coach and/or the infrastructure, stations, land and property supporting the operation of the train and/or the coach in a safe and proper condition; and or

7.4 failed to take any reasonable precautions to ensure the safety of commuters in general and the Plaintiff in particular, more particularly on failing to:

7.4.1 maintain adequate crowd control in and around the station, train and coach;

7.4.2 ensure that the station, train and coach did not become overcrowded;

7.4.3 ensure that the doors of the coach remained closed while the train was in motion;

7.4.4 ensure that commuters in general and the Plaintiff in particular did not fall from the moving train;

7.5 failed to prevent the incident from occurring when, by the exercise of reasonable care, he, she and they could have done so.’¹⁶

‘Alternative to paragraph 7.

8. By reason of the facts alleged in paragraph 5.1 and 5.2 above, First Defendant and/or Second Defendant owed a duty of care to Plaintiff to endure that:

8.1 The condition and/or state of the train and/or he coach and/or the infrastructure, stations, land and property supporting the operation of the train and/or the coach did not pose danger to the plaintiff; and or

8.2 Adequate steps were taken to prevent the train and/or he coach and/or the infrastructure, stations, land and property supporting the operation of the train and/or the coach from constituting such a danger and or;

8.3 The train and/or he coach and/or the infrastructure, stations, land and property supporting the operation of the train and/or the coach were maintained in a safe and proper condition; and or

8.4 Reasonable precautions were taken to ensure the safety of the Plaintiff and; more particularly, to sure that;

8.5 Adequate crowd controls was maintained in and around the station, train and coach;

8.6 The passengers boarding the train were searched for dangerous weapons before boarding the train;

8.7 The doors of the coach remained closed while the train was in motion;

8.8 The incident did not occur;’¹⁷

[67] The defendants conceded neither the possibility of harm nor that they would or should have taken reasonable steps to guard against such harm. Their defence was based on a denial that this incident occurred at all.

[68] The defendants’ plea also denies any negligence on their part and avers that the sole cause of the accident was the plaintiff’s exclusive negligence in that he attempted to alight from a train already in motion, when it was neither safe nor opportune to do so, he interfered with the train doors when they were already released to close and that he voluntarily exposed himself to a danger of which he was aware. Alternative pleas are that any negligence of the defendants did not contribute to the plaintiff being pushed out of the train and further alternatively that the plaintiff was also contributorily negligent. The defendants do admit that they owe the plaintiff and all commuters who use the trains operated by Metrorail a duty of care but deny that this was breached as alleged.

[69] It is noted that the grounds of negligence relied upon by the plaintiff are all of a general nature and relate to a systemic failure on the part of the defendants to put in place measures to ensure the safety of commuters travelling on the defendants’ trains. There is no averment that an individual employee failed to act in a particular way. An action brought in this manner on the basis of a negligent omission, ie the failure to take reasonable steps to prevent foreseeable harm to another will result in liability only if the failure is wrongful. In Shabalala v Metrorail 2008 (3) SA, the court stated that: ‘[i]t is the reasonableness or otherwise of imposing liability for such a negligent failure that will determine whether it is to be regarded as wrongful’.¹⁸

[70] Notwithstanding that there has been no agreement by the parties or a concession by the defendants – save in their plea that they owe all commuters who use the trains operated by Metrorail a duty of care – I cannot see that the position of the defendants can be anything other than that the defendants were and are obliged to act without negligence.

[71] Whether any such negligence has been established is yet to be decided.

Possibility of harm when train in motion with open door

[72] Many of the cases to which I have been referred involve passengers or potential passengers attempting to exit from or enter into moving trains.¹⁹ This behaviour has been described by our courts as ‘highly irresponsible, but regretfully such conduct, ie boarding or alighting from a train after it has commenced moving, is anything but uncommon’²⁰ and the railway authorities have not been altogether relieved from liability even in such situations. For instance, in Tshabalala supra, the Supreme Court of Appeal held that:

‘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. Similarly, a reasonable man in the position of a prospective passenger would have foreseen the danger of boarding a train after it had started to move and would have refrained from doing so. Both the defendant and the plaintiff were therefore negligent.’²¹

[73] More closely aligned to the facts in this case, in Khupa supra the court found that the plaintiff had boarded the train in question and shortly before the train arrived at his destination had proceeded to the nearest doors of the coach. Whilst he was in the process of alighting the train started moving with the doors still open. He tried to pull back into the coach but there were other passengers behind him who wished to get out and who pushed him out onto the platform from where he fell between the platform and train. The trial court found (confirmed on appeal) that:

‘the risk of injury was a real and definite one and the defendant must reasonably have foreseen that on crowded trains at peak hours passengers would be likely to jostle and push other passengers and if the trains were moving and the doors remained open this would create a serious source of danger which the defendant was reasonable obliged to guard against.’²²

[74] Very similar facts to the present case confronted the Supreme Court of Appeal in Ngubane supra. Accepting the truthfulness of the plaintiff’s version, the court found that ‘...the coach which he boarded was crowded, particularly in the vicinity of the doorway through which he and others entered: so crowded in fact that he was obliged to be close to that doorway’,²³ the ‘[opposite doorway] was open although it was not on the platform side. He held on to the overhead strap nearest that doorway... As he secured himself in this position, people, as he put it, “were pushing their way to get out” and “others were pushing in”. At this point the train started with a jerk and continued moving forwards’²⁴ and ‘[t]he passengers pushing as they alighted caused him to loose his overhead hold. He fell backwards out of the open doorway of the coach and rolled onto his side.’²⁵ The court found:

‘the risk – in fact the near certainty – of serious, if not fatal, injury resulting from starting a train when persons are in the act of leaving or boarding a coach is as obvious as can be’.²⁶

[75] The Supreme Court of Appeal in Witter supra accepted the evidence that:

‘it was a basic fundamental requirement for the safe operation of a passenger train in any country that a train should not depart with a door open... “One of the prime issues... is to make sure that the doors are closed. In other words you must lay down proper procedures, have staff to do it ...I can't accept that that is an acceptable situation to operate a suburban service on.”’²⁷

[76] Our courts have commented time and again that when trains are in motion no doors of carriages or coaches ought to be allowed to be opened and when trains stop at stations only those doors on the platform side ought to be opened. Further, our courts have found that while there may be overcrowding in carriages or pushing of fellow passengers and even open doors, the crucial question is whether or not a train was in motion.

[77] In the present circumstances, I find that Mokwena was exposed to the possibility of harm which was eminently foreseeable. Mokwena had completed the boarding exercise and was in the carriage but was exposed to risk by reason of the continuing entry of potential passengers into the carriage, the pushing by entering passengers of standing passengers further across the width of the carriage, the unclosed door on the opposite side of the carriage which was open whilst the train was stationary, the commencement of departure of the train whilst such door remained unclosed and the continuing movement of the train while this carriage was not sealed in that a door remained open.

[78] His exposure to risk of harm was (to quote the Supreme Court of Appeal in Ngubane supra) was ‘as obvious as can be’²⁸. So obvious that the reasonable man, including the defendants, would have foreseen such harm.

Precautions against train in motion with open doors

[79] Of course, once the foreseeability of the possibility of harm has been established, whether or not measures should have been taken to prevent the occurrence of such harm depends on the circumstances of each case. The considerations to be taken into account include the chances of the risk, the seriousness of the risk, the burden of eliminating the risk of harm and the usefulness of the conduct complained of (see Herschel v Mrupe 1954 (3) SA 464 A.) ²⁹

[80] On almost the same facts as in the present case, the Supreme Court of Appeal found in Ngubane supra that the where persons were in the act of leaving or boarding a coach, the risk was a near certainty³⁰ and that considerations of risk and the gravity thereof alone would have prompted ‘a reasonable man to take steps to prevent the occurrence’.³¹ In Khupa supra, the court held that, where doors were open and the train was in motion and passengers were preparing to disembark, there was a risk of death or injury which was ‘a real and definite one’ which ‘amounts “almost to a certainty”’³² which required precautions to be taken.

[81] Railway authorities (these same defendants) have frequently raised questions of inordinate cost, substantial difficulties and disruption to running of services as a reason or justification that the they could not reasonably be expected to take expected or further precautions for not having ensured that this particular harm (ie open doors when train in motion) would not occur. Our courts have found that costs were insufficiently onerous nor over and above what was already extant, that the steps required were insubstantial, and there would be little or no disruption to services in implementing the precautions which could and should reasonably have been taken.

[82] It is important to note that in all the cases to which I have referred, evidence was led by the SARCC and Metrorail as to the measures which they have introduced and which they implement to reduce the reasonably foreseen risk of harm when trains are in motion without all doors being closed.

[83] Thus evidence has been led that train doors are checked on a weekly and sometimes on a daily basis to determine whether they are in good mechanical order and opened and closed as required; that there are signs displayed in several languages warning of the dangers of leaning against doors or keeping doors open; that staff exit trains to ensure that all passengers are in the train before signals are given for doors to close; the General Operating Instructions applicable to staff and their duties; the role of guards, controllers, conductors, ticket examiners; it is only once the button has been pressed to close the doors in each coach that a signal is given to the driver of the train to proceed; that there is no control panel by which train staff can establish whether the doors in a particular coach are indeed closed; that it was possible to devise a system, already in use in other railway systems in other countries, to ensure that doors could not be open while the train was in motion, or that the train could not proceed whilst any coach doors were open; that it was possible to have a control panel indicating to the train staff that a particular door or doors were not in fact closed; the number of staff on duty both within the train and the carriages on the platforms; volume of rail traffic; and the difficulties of crowd control; difficulties in preventing overcrowding of coaches.

[84] None of this evidence was led. I heard nothing from the plaintiff save what he observed and experienced. I heard nothing from the defendants – other than that contracted security guards are meant to patrol the station – but nothing to suggest that they offer any form of crowd control, keep a watch on carriage doors or notify the train team to set the train in motion once all doors are closed.

[85] The plaintiff has established that he was at risk; the plaintiff has established that there was a more than reasonable possibility of harm. Our courts have made it clear that precautions are required to be taken in respect of those very foreseeable risks to which the plaintiff was exposed – open doors while trains are in motion or trains in motion whilst doors are still open.

[86] At the end of the day in this case there was a crowded carriage, an open door and the train set off on its journey. In Ngubane supra it was found that the real cause of the accident was ‘the conduct of the railway officials in ordering or allowing the train at any stage to proceed.’³³ The court held that the:

‘The “effective precautions” which would have prevented this occurrence are really unrelated to difficulties of costs and requirements of public utility. The overcrowded coach in the vicinity of that doorway may have played some part in the appellant being thrust from it, but the real cause was the conduct of the railway officials in ordering or allowing the train at that stage to proceed. Similarly, if these doors were at that time incapable of being closed (and there is no evidence to that effect), this was not the cause of the accident in this case. If they had remained open and the train had taken off smoothly after all the passengers had alighted, there is no reason to believe that the appellant would not have remained on the train and travelled in safety.’³⁴

[87] I need make no findings on precautions concerning the number of passengers permitted to enter onto platforms and into trains, the number of passengers permitted to enter into carriages or the control of entry and exit from carriages by railway staff. The plaintiff need lead no evidence on these topics.

[88] The evidence before me is that the doors on both sides of the carriage were open when it was stationary and that the train started moving when, at least, the one door was open alternately that one door remained open when the train started moving. I need hear no evidence as to the precautions which would be reasonable in the circumstances or which could or should have been taken. The plaintiff need lead no evidence on this topic.

[89] It is, as has been said by the Supreme Court of Appeal, ‘as obvious as can be’.³⁵ Trains should not be allowed to proceed when doors remain open and doors should be closed before trains proceed. The defendants failed to take the necessary steps or precautions to ensure that the train doors were closed before the train began to and did leave the platform. The defendants failed to take the necessary steps or precautions to ensure that the train could not begin to leave the station and continue in motion until all the doors were closed.

[90] Whether this involves pushing a button, slamming a lever, notifying staff at the front, middle and end of the train or inside or outside the train is of no moment. The defendants did not plead nor attempt to argue that they are entitled to or desire to or regularly operate trains where the doors are open while the trains are in motion or the train is in motion while the doors have not been closed. The manner in which these dangers are to be resolved are so obvious and so uncontentious that I do not need to hear evidence in this regard.

Onus

[91] I am satisfied that the plaintiff has discharged the onus of proving that the defendants were negligent in that they failed to take precautions which a reasonable man would have taken in these particular circumstances. The first circumstance being that of operating a commuter train where the harm arises from open doors and a train in motion and the second circumstances being that all that is required to be done is to ensure that the doors are closed before the train is set in motion alternately to ensure that the train does not commence to move while the doors remain open/before all doors are closed.

[92] In a number of cases, the claim of the plaintiff has failed because he or she failed to produce any evidence of further reasonable steps which could or should have been taken and therefore negligence had not been established.³⁶

[93] That is not of moment in the present matter. There is the uncontradicted evidence of the plaintiff as to the circumstances in which the accident happened – crowded carriage, open door and train in motion. It has become trite that the defendants owe a duty to their passengers to transport them safely and with concern for such safety.³⁷ It has become trite that trains should not move when the doors are still open alternately should not move until the doors are closed.³⁸ These are positive obligations which give rise to delictual liability where passengers fall out of open doors of moving trains.³⁹

[94] The plaintiff does not have to prove that this is contrary to any policy, rules or regulations of the defendants or contrary to the prescribed duties of any particular member of staff. There is no dispute about the reasonable foreseeability of harm in such a situation or the need to take reasonable steps to prevent such harm. The uncontradicted evidence of the plaintiff and the happening of the event is evidence that the reasonable steps were not taken. No-one needs prove what those steps are – the authorities are replete with comments that unclosed doors and moving trains are anathema. All that need be said is that ‘the train should not move’ in such circumstances.

[95] Accordingly, the considerations discussed in Thwala supra are not of application.⁴⁰

Condition of the station generally

[96] Judges cannot pretend they live in ivory towers. We are required to assess the reasonableness or otherwise of actions of plaintiffs and defendants. Accordingly we must have some knowledge of what is reasonable or unreasonable in particular circumstances and of particular individuals and entities. That includes railway travel. Judges are entitled to rely upon some of their own experience and knowledge as to railway travel. Mine relates both within and without the Republic of South Africa. I have travelled on the Gautrain, the London underground, the New York and Paris metro and other underground trains. I have travelled as a commuter and overnight passenger on SAR & H, in many of the different companies providing such service in the United Kingdom, in France and in Germany.

[97] What I saw at Elandsfontein station on the inspection in loco was a disgrace. Perhaps it presents the way it is because the passengers are in the main black and too poor to own their own transport. I remarked on this at the time of the inspection in loco and noted this for the record:

1. One enters any area of the station from Kraft Street where there is no paved pavement, there is rubbish on the gravel side of the road and it was dangerous to walk on the side of the traffic in the road, especially for the many schoolchildren catching trains.

2. The southern entry to the platforms has no signage at all. There was no indication that this was an entrance to a railway station. There is a small sandy alley – one side with wire fence and the other with a concrete wall and hawkers. From this alleyway, one climbs up a metal flight of stairs. Clearly the old, infirm, those carrying baggage or disabled are not wanted. One continues along a filthy metal bridge and down another flight of metal stairs. Supposedly there is ticket control but the two booths were not manned. And then onto the platforms. The entry from the northern side was the same – no paving, just sand and gravel, dangerous roads, unmanned ticket booths, an empty area and onto the stairs.

3. On platform 6 and indeed on platform 5 and 4 there were no seats and no covering from rain or sun, lightning or hail. No signs were operating – there were some electronic signs in place but they were not working. No timetables were displayed. Presumably the defendants consider the time spent and comfort in waiting of the poor and black at Elandsfontein station to be of no account.

4. The platform was unadorned by any safety features other than a yellow line painted thereon. Guards could be seen at some distance – they were standing singly. No one came to control or assist passengers entering the train. No official exited the trains to control or assist passengers or to signal the driver when it was safe for the train to move. The guard seen on two trains was peering out of the glass of a window at the rear of the train and would not have been able to observe the exit or entry of passengers or the opening or closing of doors.

5. Where passengers were seen to hold the doors open there was no one to stop this from happening. There was no one with any authority in sight.

[98] In short the users of the station and trains which I observed were on their own – this was an almost surreal, rather derelict, facility in somewhat of a time warp. This bears no relation to any of the trains on which I have travelled anywhere else in the world. Nor, interestingly, does it bear any relation to any of the stations or trains on which I travelled as a child which were run by SAR & R – but then I was white and not poor.

[99] The upshot of this exegesis on Elandsfontein station is to say that I place the issue of negligence in context – the necessity for travel by workers, the lack of choice on the part of commuters as regards trains, the total monopoly which the defendants enjoy and the lack of staff and service assistance and provision of safety.

CONCLUSION

[100] Mokwena was a lawful passenger who entered a stationery train coach which was crowded and he was unable to obtain a seat. The exact number of passengers permitted in the carriage or who were actually sitting or standing is irrelevant. In any event such information would be impossible to obtain. Suffice it to say that the carriage was sufficiently utilised so that Mokwena was unable to remain standing in the centre of the standing area holding on to the strap. That is a perfectly normal occurrence as any passenger anywhere in the world knows. Accordingly, he was pushed towards the other side of the carriage. I do not find that the train was ‘overcrowded’ – whatever that may mean. I find that the train was in use, probably approaching full capacity, passengers were standing up against each other and were congested against both sides of the carriage.

[101] Mokwena and Tshabalala were adamant that the door through which Mokwena fell was open and the train had started moving. Mabasa’s evidence was that the train crew manually opened and closed the doors and only on the side where there was a platform. Firstly, manual controls can always be subject to error. That is human nature. Secondly, on the inspection in loco we observed open doors when the train was moving – and on both sides of the carriage. Thirdly, at this point it matters not the reason for the doors being open – train crew’s error, a passenger holding the door open, door controls not properly working etc. The value of this point is that the doors can be open and trains can move and there appears to be nothing to prevent this happening. We heard no evidence on any precautionary steps taken against this danger.

[102] At the end of the day – there would have been no injury if the carriage door was closed and could not be open while the train was moving. There could have been a full carriage, more passengers could have pressed in from platform 6, everyone could have been very squashed and it would have been most uncomfortable. But there would have been no danger if firstly, no door could remain open when the train started moving or stated differently the train could not move until each and every door was closed and secondly, the door on the opposite side of the carriage facing the railway line was not open which is even more dangerous than an open door facing a platform.

[103] Of course it was a concatenation of factors which led to this accident. One cannot break it down into each and every constituent part and identify only one factor as the only cause of the accident. However, I am in respectful agreement with the approach of the court in Ngubane supra – at the end of the day it all comes down to a train being set in motion when it was unsafe so to do.

[104] I make no finding in respect of paragraphs 7.1, 7.2 and 7.3 or 8.1, 8.2, 8.3 of the plaintiff’s particulars of claim which pertain to the condition and maintenance of the train, coach, infrastructure, stations and so on. I make no finding in respect of the paragraphs 7.4.1 and 7.4.2 or 8.5 of the plaintiff’s particulars of claim which pertain to overcrowding on the station, train and coach. I certainly make no finding in respect of paragraph 8.6 of the plaintiff’s particulars of claim which pertain to the searching of passengers for dangerous weapons.

[105] I do find that the defendants failed to ‘ensure that the doors of the coach remained closed while the train was in motion’ as claimed in paragraph 7.4.3 and 8.7 of the plaintiff’s particulars of claim. I do find that the defendants failed to ‘ensure that commuters in general and the plaintiff in particular did not fall from the moving train’ as claimed in paragraph 7.4.4 of the plaintiff’s particulars of claim.

[106] I find that the defendants were negligent and that such negligence was the sole cause of the plaintiff’s injuries.

ORDER

[107] The defendants are jointly and severally liable, the one paying the other to be absolved:

1. For all damages proved by the plaintiff to have been suffered as a result of the accident on 5th February 2008 at Elandsfontein station; and

2. For costs in respect of the dispute on merits incurred to date.

DATED AT JOHANNESBURG ON THIS ­­­­14th DAY OF JUNE 2012

______________

SATCHWELL J

APPEARANCES

PLAINTIFF: R Liphosa

Instructed by Denga Incorporated, Johannesburg

DEFENDANTS: P Ngutshane

Instructed by Jerry Nkeli & Associates Incorporated, Johannesburg

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