Lukhele v Metrorail

• Jurisdiction: South Africa
• Judge: Joffe J, Van Oosten J, Saldulker J
• Judgment Date: 24 October 2008
• Docket Number: A5041/2007
• Court: Witwatersrand Local Division
• Hearing Date: 09 September 2008
• Citation: 2008 JDR 1327 (W)

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 R260 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

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Van Oosten J

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

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Van Oosten J

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...