Transnet Ltd t/a Metro Rail v Lazarus Tshabalala

On 21 September 2001, the respondent (plaintiff) visited his sister in Soshanguve and was returning to Johannesburg. Not knowing where to catch a train to Johannesburg, he boarded a train from Mabopane to Bosman station in Pretoria. At Winternest station, he alighted and asked for directions. Another passenger, Mr Gavin Emmanuel, told him to return to the train and alight at Bosman station to catch a train to Johannesburg. As he was talking to Emmanuel, the train started moving. The plaintiff chased the train, running past three coaches from the rear. When he reached the fourth coach, he held onto a vertical hand rail inside the coach near the door. He lost his footing and fell onto the rail tracks. His right foot was completely severed. The doors of the train were open when it arrived at Soshanguve station and remained open until the accident occurred. Evidence showed the plaintiff was at least somewhat intoxicated and was staggering as he ran alongside the moving train for approximately three metres before losing his footing.

• Whether the defendant was liable for the consequences of injuries sustained by the plaintiff in the accident
• Whether the plaintiff had acted with dolus eventualis (intentionally) or negligently in attempting to board the moving train
• Whether the defendant's negligence in operating the train with open doors contributed causally to the plaintiff's injuries
• Whether the trial court correctly apportioned fault equally between the parties at 50/50

The appeal was upheld with costs. The order of the trial court was replaced with the following: (1) Whatever damages the plaintiff may prove to have suffered are to be reduced by two thirds in terms of section 1 of the Apportionment of Damages Act 34 of 1956; (2) The defendant is ordered to pay the costs incurred by the plaintiff excluding the costs of Tuesday 30 March 2004 and half of Wednesday 31 March for which a separate costs order has been made.

The binding legal principles established are: (1) A defendant who has intentionally injured a plaintiff is not entitled to apportionment of damages in terms of the Apportionment of Damages Act 34 of 1956, but a defendant whose negligence contributed to the plaintiff's injuries is entitled to such apportionment even where the plaintiff was also negligent; (2) An omission (such as failing to close train doors) can be sufficiently linked to a plaintiff's injury to establish legal liability where, but for that omission, the injury would not have occurred in the manner it did; (3) In the absence of an irregularity or misdirection, an appeal court will interfere with a trial court's apportionment of fault under section 1(1)(a) of the Apportionment of Damages Act only when its own assessment differs substantially from that of the trial court; (4) In assessing the degree of fault for purposes of apportionment, the court must consider the extent to which each party's conduct deviated from that of a reasonable person in the same circumstances, taking into account all relevant factors including intoxication, the nature and extent of the risk undertaken, and the foreseeability of harm.

The court observed that had the plaintiff been sober and had he attempted to board the train shortly after it started moving, the degree to which he was at fault may well have been the same as that of the defendant (i.e., 50/50 apportionment might have been appropriate). This comment was not necessary for the decision but provided guidance on how different factual circumstances might affect apportionment. The court also noted that a reasonable person in the position of the defendant would have foreseen that leaving the doors of 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 - emphasizing the normative standard expected of railway operators in ensuring passenger safety.

This case is significant for illustrating the principles governing apportionment of damages in cases of contributory negligence under the Apportionment of Damages Act 34 of 1956. It demonstrates the circumstances under which an appeal court will interfere with a trial court's apportionment of fault - namely, when the appeal court's own assessment differs substantially from that of the trial court, even in the absence of irregularity or misdirection. The judgment also clarifies the distinction between intentional conduct (dolus eventualis) and negligence in the context of contributory negligence, confirming that a defendant who has intentionally injured a plaintiff is not entitled to apportionment of damages. The case provides guidance on the causation test in delictual liability, confirming that an omission can be sufficiently linked to injury to establish legal liability. It also illustrates how factors such as intoxication and the degree of risk undertaken by a plaintiff affect the apportionment of fault.