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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: 32106/2013

In the matter between:

CHABALALA WILLIAM MANAKA Plaintiff

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA Defendant

JUDGMENT

BRANDAJ

[1] The Plaintiff, Mr Chabalala William Manaka, claims damages in the form of past and future medical expenses, loss of earning capacity and general damages for pain and suffering and loss of amenities of life from the Defendant, the Passenger Rail Agency of South Africa, for injuries he sustained in a fall on a passenger train operated by the Defendant.

[2] Before the trial commenced, I was informed in chambers by counsel that the parties had agreed to separate the issue of liability from the determination of quantum of damages in terms of rule 33(4) and that determination of damages be postponed sine die. I made an order to that effect, which appears also at the end of this judgment.

[3] This meant that tbe only issue before me was the liability or otherwise of the Defendant for whatever of the Plaintiffs damages will be proven.

[4] The Plaintiff called only himself as witness; the Defendant called a guard that was present at the station at which the injuries were sustained, Mr M Jakeni.

[5] At the conclusion of the Plaintiffs case, Mr Nageng for the Defendant made an application for absolution from the instance, which I dismissed. Accordingly, I start this judgment by describing the version of the Plaintiff; I then give my reasons for dismissing the application for absolution from the instance; I follow that with a description of the version of the Defendant as ascertained from the testimony of Mr Jakeni and Mr Manyase and conclude with an analysis in light of the law.

The Plaintiff's version [6] In sum the version of the Plaintiff as elicited during his testimony and under cross

examination is as follows:

[6.1] On 21 November 2012 he was on his way back home after a day of work. He boarded the train that would take him to his home station , Kwesine station, at Germiston.

[6.2] When he got on the train the seats were already full , so that he moved to the middle of the carriage in the passageway between the two rows of seats, about five meters from the door through which he would eventually alight, where he stood for the duration of his journey.

[6.3] Kwesine is the last station on that line. When the train stops there its engines are swopped and it makes the return journey to Germiston. On the way from Germiston, there are nine stations at which the train stops for people to embark and disembark before it reaches Kwesine.

[6.4] At all these stations some passenger will alight from the train, but invariably more would get on, so that the train would get progressively fuller as time passes.

[6.5] Soon after he had got on, the carriage was so full that not only all the seats were taken, but also all the space in the passage between the seats and elsewhere, with people standing cheek to jowl - the Plaintiff indicated under cross examination that he could move no more than 50 cm backward or forward and could not see either end of the carriage through the throng of people.

[6.6] After stops at the second to third stations, the train was so full that people sitting on the seats and people like the Plaintiff standing in the passage toward the middle of the carriage would be unable to force their way through the throng in time to alight when the train arrived at their station of choice. To deal with this problem, a practice developed that such people would remain seated or standing where they were and wait for the train to reach Kwesine, the last stop, where most other passengers would get off. They would then remain on the train for the return journey, and it would

then be much easier for them to alight at their chosen station in between Germiston and Kwesine, as the train would be much less crowded.

[6. 7] The nett effect of this practice for the Plaintiff, however, was that the train remained full and crowded until it reached Kwesine. When the train on the day in question approached Kwesine station it was similarly crowded, so that the Plaintiff was caught in the throng of people trying to squeeze themselves toward the door in between those who elected to remain.

[6.8] At this time, while the train was still moving, the doors to both sides were open. He was pushed toward the door to the approaching platform's side. He tried to grab and hold on to one of the overhead plastic straps for passengers to steady themselves, but it was torn from his grip by the strenght of the crowd. He fell forward from the still moving train, with his legs remaining inside the carriage but his upper body landing on the platform, so sustaining his injuries.

[6.9] Some time after the train had come to a standstill and the passengers had alighted, two guards at the station came upon him where he still sat on the platform. They alerted an ambulance, which took him to hospital after the guards had taken a statement from him.

Absolution from the instance [7] The test for absolution from the instance is trite: whether or not at the end

of the Plaintiff's case there is enough evidence on which a court, through reasonable application of its mind, might find in favour of the plaintiff.1 In practical terms it boils down to whether or not the Plaintiff has put up a prima facie case.

[8] Mr Nageng's main submission, made in reliance on South African Rail Commuter Corporation Limited v Almmah Phi/iswe Thwa/a 2011 ZASCA 170 (SCA), was that the Plaintiff had not placed sufficient evidence before the court to establish that the carriage in which he was travelling was overcrowded, from which the inference of negligence was then drawn. In addition to placing evidence before the court that the carriage was full when he was pushed, fell and injured, Mr Nageng submitted that the Plaintiff should have placed at least some evidence before the court as to what duty was incumbent upon the Defendant to avoid overcrowding and which steps it could reasonably have taken to avoid that.

[9] Although Mr Nageng is correct in his description of the holding in Thwala , on the evidence presented by the Plaintiff, that case is distinguishable from the present, in two ways that assist the Plaintiff at least in crossing the threshold of making a prima facie case. First, the Plaintiff had under cross examination indicated that there were no guards on the train and

1 Kotze v Suidwestelike Transvaalse Landboukooperasie (2005) 2 All SA 232 (SCA); Myburgh v Kelly 1943 EDL 202 at 206.

that placing guards on the train would assist in ensuring that more passengers than what would be safe would not be permitted to board. He had in other words !'laced at least a semblance of evidence before the court on reasonable steps that the Defendant could have taken to ensure the safety of passengers, that it ommitted to take. Second, the Plaintiff's testimony as to how crowded the train was is far more specific and detailed than was the case in Thwala. He did not, as in that case, simply baldly state that the train was 'very full ' and that it was so full that people were standing. He indicated both the space that was available for him to move to all sides (+-50cm) and that the carriage was so full that he could see neither of its ends for the throng of people around him. This gives enough that a reasonable court might infer that a reasonable person in the shoes of the Defendant would have known that the tra in was overcrowded. He also offered a prima facie explanation of why the train was so full. This, to my mind, assists him at least in avoiding absolution from the instance.

The Defendant's version

[1 O] The relevant parts of the Defendant's version as el icited in the testimony of Mr Jakeni and under cross examination are as follows:

[10.1] He was stationed as a guard at Kwesine station and was on duty and present on the day and at the time of the Plaintiff's accident.

[10.2] He saw the train on which the Plaintiff was draw into the station and stop at the time.

[10.3] He saw that the doors were closed when the train pulled into the station.

[10.4] Although he could not see into the train, the particular train at that time is not usually very full when it reaches Kwesine, as it is the last stop and most passengers would have alighted at previous stations. In addition , he could see the passengers alighting and there were no more than normal and it was not a press or throng of people.

[10.5] He did not see the Plaintiff fall. Instead he came upon the Plaintiff sitting down on the platform, together with his colleague Mr Manyase, only some time later, after he had accompanied the train driver to the engine that had been coupled to the other side of the train to take it back to Germiston.

[10.6] The Plaintiff told him and his colleague that he had fell after being pushed by fellow passengers and that the carriage had been overcrowded. He noted this in his notebook (a copy of the relevant page was before the court) . He then arranged for an ambulance to

collect the Plaintiff, which happened some time later. He later reported the incident to his supervisor, who entered the details into the incident book and drafted an incident report.

[11] The main and relevant difference between the versions of the Plaintiff and the Defendant is on the issue of whether the train was overcrowded. Although the Plaintiff alleged in addition to overcrowding that the carriage doors were open while the train was still moving, this is the nub of the Plaintiffs case: his fall in which he sustained the injuries was caused by the overcrowding of the carriage, which the Defendant had allowed and had taken no steps to correct. Should he fail to establish this, his case falls. Importantly, following Thwa/a, the Plaintiff needs establish not only that the carriage was full or even very full. On a balance of probabilities he has to show overcrowding, that is that it was so crowded that some legal threshold was crossed, either regulations or policies with respect to the carrying capacity of carriages, or that it was so crowded that a reasonable Defendant would have known that danger will result. Given that the Plaintiff neither pleaded nor established through evidence any extraneous legal standard, he is constrained to establishing that any reasonable Defendant would from the extent of overcrowding have foreseen danger to passengers; consequently was under a legal duty to take steps to address the overcrowding ; and failed to do so.

[12] Both the Plaintiff and Mr Jakeni were reliable and credible witnesses. The Plaintiff was under cross examination pushed by Mr Nageng on discrepancies between his version of where he fell in the original particulars of claim, amended particulars and his testimony before court, but he maintained his version that he fell with his legs inside the carriage and his upper body on the platform, his reliability and credibility emerging unscathed. Likewise, Mr Jakeni was pushed by Mr Moeti for the Plaintiff under cross examination about his entry into his note book, where on one interpretation he had written not that the Plaintiff had told him that the train was overcrowded, but that he had himself observed that it was such. He provided a credible and consistent explanation of the entry to the contrary.

[13] I must therefore decide this issue on the inherent probability of the conflicting versions. Plaintiff's version, as set out above, is that the carriage was packed, so much so that he could not press through the crowd to reach the door and instead was dragged along in the throng to his fall at the door. To explain away the fact that Kwesine is the last station on the line, so that one would expect the train at that time to be relatively empty, he said that, because at earlier stations the carriage was so packed that people not close to the door could not reach the door through the throng at their designated stop, many passengers chose to remain on the train until Kwesine, and then would alight at their station only on the return journey.

[14] This version is inherently improbable. Why would people who knew they were to get off at one of the earlier stations not ensure that they sit or stand close enough to the doors to do so? Why would they not, where they for whatever reason in the middle of the carriage, not start moving toward the door well in time? Even were

there some people doing as the Plaintiff describes, would there not be many others who manage to alight at their chosen stations? Would this not mean that, inevitably, once Kwesine is reached, there are far fewer people on board that two or three stations earlier? These and other questions were put to the Plaintiff under cross examination, and he failed to provide satisfactory explanations.

[15] As against this, Mr Jakeni's version is much to be preferred. He has been stationed at Kwesine for a considerable time and can justifiably claim to have experience of the general conditions on the train when it arrives there. He saw the train in question pull into the station and saw the passengers alight - they were not more than normal. His explanation as to why this is so also is far more probable than the Plaintiff's: quite simply, Kwesine is the last stop and by the time the train with after work commuters reaches Kwesine, it is really only those who want to alight at Kwesine that remain.

[16] In this light I find that the Plaintiff, in the absence of having placed any evidence before the court of an extraneous legal standard such as a regulation, guideline or policy that sets a legal standard of carriage capacity, has failed to establish that the carriage was so crowded that any reasonable person in the shoes of the Defendant would have realised the danger this causes and would therefore have been under a legal duty to act to prevent that danger. The Plaintiff has failed with respect to the alleged overcrowding to show fault on the side of the Defendant.

[17] The Plaintiff also sought to establish fault by alleging that the carriage doors were open before the train came to a standstill - indeed, he alleges that the doors were open throughout the journey. Mr Jakeni, the guard, denied this: he stated under examination that the doors of the carriage were closed and opened only once the carriage had come to a standstill . The Plaintiff provides no evidence apart from his bald statement in evidence that the doors were open. There is no reason to doubt Mr Jakeni's testimony to the contrary. This possible example of fault on the side of the Defendant is therefore also not established.

[18] The Plaintiff has, in this light, failed to get out of the starting blocks. He has not managed to establish fault on the side of the Defendant, so that his claim must fail .

[17] For these reasons I make the following order:

The Plaintiff's claim is dismissed with costs.