Private law claim: Based on public law duty

Mashongwa v PRASA (CCT03/15) [2015] ZACC 557 (26 November 2015) per Mogoeng CJ (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J concurring):

The Constitutional Court granted leave to appeal and allowed the appeal after regarding this case as raising important questions of law which could only be answered after proof of delictual liability based on wrongfulness, negligence and causation.

#1       Does a utility providing public transport become liable in delict for damages flowing from a breach of its public law duty to provide safety and security measures for its rail commuters?

#2       If there are no security guards on a train in which passengers are attacked and severely injured by criminals does this failure result in the utility being liable in delict for the ensuing damages?

#3       If the doors of the coach were not closed while the train was moving and a passenger is thrown out  and sustains injuries and damages does the law attribute delictual liability for that omission alone, or only when coupled with the absence of security guards?

Excerpts [footnotes omitted]

Leave to appeal

[15]      Leave to appeal must be granted.  As indicated above, this application raises a constitutional issue.  It also raises an arguable point of law of general public importance relating to PRASA’s legal obligations to protect its rail commuters from harm.  And Mr Mashongwa has reasonable prospects of success.  That this is so will become apparent in the ensuing discussion.  It is thus in the interests of justice that leave be granted.

Wrongfulness

. . . . .

[27]      When account is taken of these factors, including the absence of effective relief for individual commuters who are victims of violence on PRASA’s trains, one is driven to the conclusion that the breach of public duty by PRASA must be transposed into a private law breach in delict.  Consequently, the breach would amount to wrongfulness.

[28]      What needs to be stressed though is that in these circumstances wrongfulness does not flow directly from the breach of the public duty.  The fact that a public duty has been breached is but one of the factors underpinning the development of the private law of delict to recognise a new form of wrongfulness.  What we are concerned with here is the development of private law, taking into account public law.

[29]      It is in this context that the legal duty that falls on PRASA’s shoulders must be understood.  That PRASA is under a public law duty to protect its commuters cannot be disputed.  This much was declared by this Court in Metrorail.  But here this Court goes a step further to pronounce that the duty concerned, together with constitutional values, have mutated to a private law duty to prevent harm to commuters.

[30]      Now that the existence of a private law duty has been established, what remains for consideration is whether Mr Mashongwa has proved its breach.  This leads us to the question whether there was negligence on the part of PRASA.

Negligence

[31]      Would a reasonable person in PRASA’s position have reasonably foreseen harm befalling Mr Mashongwa as a result of the absence of security guards or the open doors?  If so, would she have taken reasonable steps to prevent harm to Mr Mashongwa?  If she would, did PRASA take reasonable steps to avert the foreseeable harm that ultimately occurred?

. . . . .

[52]     It must be emphasised that harm was reasonably foreseeable and PRASA had an actionable legal duty to keep the doors closed while the train was in motion.  Not only has it expressly imposed this duty on itself, its importance was also alluded to in Metrorail.  It is also commonsensical that keeping the doors of a moving train closed is an essential safety procedure.  Mr Mashongwa would probably not have sustained the injuries that culminated in the amputation of his leg had PRASA ensured that the doors of the coach in which he was, were closed while the train was in motion.  It was thus negligent of PRASA not to observe a basic safety-critical practice of keeping the coach doors closed while the train was in motion and therefore reasonable to impose liability for damages on it, if other elements were proved.

. . . . .

 [62]     Open doors evidently facilitated the ease with which Mr Mashongwa was thrown out of the train.  Landing out of a moving train as a result of an accidental fall at the risk of limb or life is not materially different from so landing as a result of some criminal activity.  Negligence has thus been established.

Factual causation

 [63]     That PRASA’s conduct was wrongful and negligent, does not quite resolve the question whether liability should be imputed to it.  Its concern in the Supreme Court of Appeal was that the element of causation was not established.  The question is whether there was a causal link between PRASA’s negligent conduct or omission and Mr Mashongwa’s injuries.  It must also be determined whether there is a close enough connection between PRASA’s negligence and Mr Mashongwa’s injuries.  Before these questions are answered, it must first be determined whether the Lee test or a different approach to causation applies.

[64]      Mr Mashongwa relied on this Court’s approach to causation in Lee.  His analysis of wrongfulness and how he sought to rely on Lee’s approach to causation, conflated wrongfulness and causation.  In Lee, this Court explained how the wrongfulness element – the normative consideration based on social and policy considerations – should not be used to contaminate the factual dimension of the causation enquiry.  If Mr Mashongwa’s approach were to be accepted notwithstanding its deleterious effect on factual causation, then the net of liability would be cast too wide.  That approach is wrong and cannot be followed.

[65]      Lee never sought to replace the pre-existing approach to factual causation.  It adopted an approach to causation premised on the flexibility that has always been recognised in the traditional approach.  It is particularly apt where the harm that has ensued is closely connected to an omission of a defendant that carries the duty to prevent the harm.  Regard being had to all the facts, the question is whether the harm would nevertheless have ensued, even if the omission had not occurred.  However, where the traditional but-for test is adequate to establish a causal link it may not be necessary, as in the present case, to resort to the Lee test.

[66]      It is on the basis of the traditional test that causation will be determined.  Had the doors of the coach in which Mr Mashongwa was travelling been closed, it is more probable than not that he would not have been thrown out of the train.  The distance to be traversed by the train between the station where he boarded and the station where he was thrown out of the train takes about six minutes to cover.  To beat him up and throw him out of a moving train is a mission that would probably have required more than six minutes to accomplish, if the doors were closed.

[67]      In all likelihood, he would not have been thrown out of the train had the strict safety regime of closing coach doors, when the train is in motion, been observed.  Contrary to what the Supreme Court of Appeal held, it strikes me as highly unlikely, based on the evidence tendered, that the three attackers would have found it easy to force the doors open and throw out Mr Mashongwa, who was resisting, as quickly as they did taking advantage of the already open doors.  On a preponderance of probabilities Mr Mashongwa would not have sustained the injuries that led to the amputation of his leg had PRASA kept the doors closed.

Legal causation

[68]      No legal system permits liability without bounds.  It is universally accepted that a way must be found to impose limitations on the wrongdoer’s liability.  The imputation of liability to the wrongdoer depends on whether the harmful conduct is too remotely connected to the harm caused or closely connected to it.  When proximity has been established, then liability ought to be imputed to the wrongdoer provided policy considerations based on the norms and values of our Constitution and justice also point to the reasonableness of imputing liability to the defendant.

[69]      That the incident happened inside PRASA’s moving train whose doors were left open reinforces the legal connection between PRASA’s failure to take preventative measures and the amputation of Mr Mashongwa’s leg.  PRASA’s failure to keep the doors closed while the train was in motion is the kind of conduct that ought to attract liability.  This is so not only because of the constitutional rights at stake but also because PRASA has imposed the duty to secure commuters on itself through its operating procedures.  More importantly, that preventative step could have been carried out at no extra cost.  It is inexcusable that its passenger had to lose his leg owing to its failure to do the ordinary.  This dereliction of duty certainly arouses the moral indignation of society.  And this negligent conduct is closely connected to the harm suffered by Mr Mashongwa.  It is thus reasonable, fair and just that liability be imputed to PRASA.

[70]      PRASA is thus liable for the damages suffered by Mr Mashongwa.