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[2014] ZASCA 113
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Jacobs v Transnet Ltd t/a Metrorail (803/13) [2014] ZASCA 113; 2015 (1) SA 139 (SCA) (17 September 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 803/13
Reportable
In
the matter between:
PRIMILDA
JACOBS
............................................................................................
FIRST
APPELLANT
CAROLINA
CHRISTINA
HENDRICKS
......................................................
SECOND
APPELLANT
and
TRANSNET
LTD t/a
METRORAIL
................................................................
FIRST
RESPONDENT
THE
SOUTH AFRICAN RAIL COMMUTER
CORPORATION
LTD
..................................................................................
SECOND
RESPONDENT
Neutral
citation:
Jacobs v Transnet Ltd t/a
Metrorail
(803/13)
[2014] ZASCA 113
(17
September 2014)
Coram
:
Navsa ADP, Majiedt, Saldulker, Swain and Zondi JJA
Heard:
21 AUGUST 2014
Delivered:
17 SEPTEMBER 2014
Summary:
Delict – negligence established where speed restriction imposed
by the railway operator excessive on section of railway
line where
passenger train collided with stationary truck at level crossing –
role of expert witness.
ORDER
On
appeal from:
Western Cape High Court,
Cape Town (Ndita J sitting as court of first instance):
1.
The appeal is upheld.
2.
The order of the high court is set aside
and substituted with the following:
‘
The
defendants are liable, jointly and severally, for such damages as the
plaintiffs may prove to have sustained in the collision
of 13
November 2006.
The
defendants are ordered, jointly and severally, to pay the plaintiffs’
costs of suit.’
3.
The respondents are ordered, jointly and
severally, to pay the costs of the appeal.
JUDGMENT
Majiedt
JA (Navsa ADP, Saldulker, Swain and Zondi JJA concurring):
[1]
Calamity struck during the morning of 13 November 2006 when a high
speed commuter train slammed into a stationary truck at the
Croydon
level crossing near Somerset West. Nineteen occupants of the truck,
18 of whom were seasonal farm workers, died in the
collision and 12
others were injured – the worst incident of its kind in this
country’s history.
[2]
The two appellants, Ms Primilda Jacobs and Ms Carolina Christina
Hendricks, were among the injured. They instituted action in
the
Western Cape High Court, Cape Town, against the respondents for
damages consequent upon the injuries sustained as a result
of the
collision. The respondents are companies in the Transnet
parastatal.
[1]
The first
respondent (Metrorail) runs the railway line operations for Transnet
while the second respondent (the Commuter Corporation)
runs its rail
commuter operations. In the high court Ndita J dismissed the actions
(brought separately but consolidated into one
trial, seemingly as a
‘test case’ for all the other pending damages claims
arising from this incident), but granted
leave to appeal to this
court.
[3]
The driver of the truck, Mr Gert Zeelie (Zeelie), perished in the
collision. Several witnesses, including the first appellant,
other
survivors of the collision, the train driver and a number of experts
testified in the high court. The common cause facts
are briefly as
follows:
(a)
During the morning of 13 November 2006 at around 7 o’clock, the
truck, driven by Zeelie and carrying 29 seasonal farm
labourers in
the rear and a Mr Morne Kershoff (Kershoff) in the front cab, was en
route to a grape farm. It was Zeelie’s
first day of employment
and the first time that he drove the truck, a 3 ton Mitsubishi
Canter. He had never before traversed that
particular route. For that
reason, the truck owner’s son, Kershoff, sat with Zeelie in the
cab of the truck to give him directions
to the farm. Kershoff
pertinently cautioned Zeelie about the Croydon level crossing on
their approach to it.
(b)
Zeelie heeded the stop sign at the level crossing. At that moment
Kershoff bent down to retrieve his pen which had fallen on
the floor
of the cab. He then became aware that the truck had edged forward and
had stalled on the railway line. When he looked
up, he observed
Zeelie struggling to engage the truck’s gears and, more
alarmingly, the train hurtling towards them from
the Somerset West
side, ie from the right. Kershoff managed to extricate himself from
the truck, as did some of the passengers
at the back, before the
train slammed into the truck.
(c)
The impact of the collision severed the truck cab from the body and
the latter was pushed about 510 metres along the railway
line by the
train until it came to a standstill. Aerial photographs depict
several bodies strewn along the way and 3 bodies on
the back of the
truck. The cab burst into flames and was completely destroyed.
(d)
The train driver, Ms Nomava Harriet Mxalisa (Mxalisa) caused the so
called ‘dead man’s brake’ to engage by
fleeing to
the rear of the locomotive for self-preservation when she saw the
stationary truck on the railway line ahead of her.
She did not
sustain any significant physical injuries. The ‘dead man’s
brake’ is intended to monitor the train
driver’s presence
at the controls. Whenever the driver releases his or her hands from
the steering control, this brake will
engage automatically after
about five seconds. The emergency brake, on the other hand, engages
immediately when activated by the
driver.
(e)
The collision occurred just after 7am. The police arrived on the
scene shortly thereafter. The Railway Safety Regulator’s
[2]
(the Regulator) investigators arrived from Johannesburg on that same
afternoon. Pursuant to its investigations the Regulator afforded
the
railway operator (Metrorail) the following three alternative remedial
measures – to eliminate the level crossing, to
provide
appropriate protection to the level crossing or to institute an
appropriate speed restriction to mitigate the consequences
of future
collisions of this kind. The Regulator required Metrorail to revert
with a plan of action based on the alternatives referred
to above.
Pending that decision it directed Metrorail to implement forthwith, a
speed restriction of 40 km/h at that level crossing
from the second
whistle board on the railway line, ie 125 metres from the level
crossing. As directed, Metrorail implemented the
new speed limit of
40 km/h with immediate effect. It also improved the signage at the
crossing.
(f)
The level crossing is not controlled by a boom and flashing red
lights. Prior to the collision the only signage on the road
was a
signboard some 120 metres from the crossing, warning of a railway
crossing ahead, and a stop sign. Overhanging foliage and
a vibacrete
wall partially obscured the visibility to the left for train drivers
approaching the crossing from the Somerset West
side and for motor
vehicle drivers approaching the intersection in an easterly direction
(ie from the left of trains travelling
from the Somerset West side),
as Zeelie did on that fateful morning.
(g)
The railway line is a major commuter line from Strand to Cape Town.
The speed restriction on that part of the railway line,
determined by
Metrorail, is 90 km/h. This is the speed normally designated for
Metrorail trains, unless there are speed restrictions
in place. The
train was travelling at 96km/h shortly before the collision.
[3]
Whistle boards are located 400 metres and 125 metres from the
crossing. Metrorail’s standard procedures require a train
driver to emit a cautionary siren once at the 400 metre board, and a
continuous warning siren at the 125 metre board. While there
was some
conflicting evidence on whether Mxalisa had followed the standard
procedures with regard to the cautionary sirens that
day, it does
appear that she in fact did so. The train driver would have a clear
view of the railway track for a distance of about
700 metres from the
crossing, but there is partial obstruction to the left as the train
approaches the crossing, as stated above.
[4]
The only issue before the high court was the alleged negligence on
the part of the respondents in causing the collision. The
appellants
endeavoured to establish negligence on one or more of the following
grounds:
(a)
that the speed limit of 90 km/h was inappropriate and excessive for
that particular crossing;
(b)
that the road signage was inadequate to warn motorists of the
crossing;
(c)
that the respondents failed to put up a boom or barrier to prevent
vehicles crossing the railway line simultaneously with the
train;
(d)
vicariously through Mxalisa’s failure to sound the warning
siren at the whistle boards and her failure to engage the emergency
brake which would have lessened the impact considerably.
[5]
A number of witnesses, including experts, testified for the
appellants to establish these grounds of negligence, without any
success. The high court found that ‘the evidence presented [by]
the plaintiffs failed to establish negligence on the part
of the
train driver, Ms Mxalisa and on the part of the defendants’. In
this court both counsel for the appellants ultimately
confined
themselves in argument to ground 4(a) above, namely the question of
whether the speed restriction was appropriate for
that part of the
railway line. In respect of the other grounds of negligence, it was
accepted by the parties that the evidence
showed that, in the event
that there had been an absence thereof, it cannot be said that the
collision would have been avoided.
Put differently, even if the other
acts of negligence had not been present the collision would in any
event, because of the speed
of the train, have occurred.
[6]
The test for negligence has been authoritatively laid down as follows
in
Kruger
v Coetzee
:
[4]
‘
For
the purposes of liability
culpa
arises if –
(a)
a
diligens
paterfamilias
in the position of the
defendant –
(i)
would foresee the reasonable possibility of
his conduct injuring another in his person on property and causing
him patrimonial loss;
and
(ii)
would take reasonable steps to guard
against such occurrence; and
(b)
the defendant failed to take such
steps.’
This
test rests on two bases, namely reasonable foreseeability and the
reasonable preventability of damage.
[5]
I consider each of these next.
[7]
The foreseeability of harm at a place where rail and vehicular
traffic intersect is unquestionable. More than a century ago
the
dangers associated with level crossings were recognized in
Worthington
& others v Central South African Railways
[6]
as follows:
‘
The
level-crossing itself is common both to the railway and to the
public: Each has the right to pass over it, and to expect that
due
care will be exercised by the other to avoid mishaps; but it is quite
clear from the nature of the case that a train cannot
in the ordinary
course be expected to pull up at a crossing to allow passengers by
the public road to get over the crossing. The
train must necessarily
have the preference over passengers by road.
It
is the duty of the traveller to look out for and wait for the train.
At the same time a condition is attached to the preference
which the
railway has, and that is that the train ought to give due warning of
its approach when it is nearing a level-crossing
of this nature, so
that persons might stop and allow the train to pass.
The
train is bound, in my opinion, to give due and timely warning of its
approach, and also not to be travelling at such an excessive
rate of
speed that the warning it might give should be of no avail. What is
an excessive speed and what is due warning must entirely
depend on
the special circumstances of each case. Where there are obstructions
to prevent persons travelling along the road from
seeing an
approaching train, or where there are any other circumstances which
would make it difficult to ascertain that a train
is approaching,
then of course, better warning would have to be given, and the train
would have to travel at a slower speed.’
(My
emphasis).
[8]
A train has the right of way at a level crossing.
[7]
Reasonable measures have to be put in place to prevent the
foreseeable harm from occurring. In
Ngubane
v South African Transport Services
[8]
Kumleben JA, after restating the test for negligence as laid down in
Kruger
v Coetzee
,
adopted the following comments from Lawsa
[9]
and
Herschel
v Mrupe:
[10]
‘
˝Once
it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would
have taken
measures to prevent the occurrence of the foresseable harm. The
answer depends on the circumstances of the case. There
are, however,
four basic considerations in each case which influence the reaction
of the reasonable man in a situation posing a
foreseeable risk of
harm to others:
(a)
the
degree or extent of the risk created by the actor’s conduct;
(b)
the
gravity of the possible consequences if the risk of harm
materialises;
(c)
the
utility of the actor’s conduct; and
(d)
the burden of eliminating the risk of harm.”
The
first two considerations are recognised and discussed in the
well-known and oft-quoted passage in
Herschel v Mrupe
1954 (3)
SA 464
(A) at 477A-C, which is as follows:
“
No
doubt there are many cases where once harm is foreseen it must be
obvious to the reasonable man that he ought to take appropriate
avoiding action. But the circumstances may be such that a reasonable
man would foresee the possibility of harm but would nevertheless
consider that the slightness of the chance that the risk would turn
into actual harm, correlated with the probable lack of seriousness
if
it did, would require no precautionary action on his part. Apart from
the cost or difficulty of taking precautions, which may
be a factor
to be considered by the reasonable man, there are two variables, the
seriousness of the harm and the chances of its
happening. If the harm
would probably be serious if it happened the reasonable man would
guard against it unless the chances of
its happening were very
slight. If, on the other hand, the harm, if it happened, would
probably be trivial the reasonable man might
not guard against it
even if the chances of its happening were fair or substantial. An
extensive gradation from remote possibility
to near certainty and
from insignificant inconvenience to deadly harm can, by way of
illustration, be envisaged in relation to
uneven patches and
excavations in or near ways used by other persons.”’
[9]
The low level of protection at the crossing under consideration
presented a substantial risk of very serious harm being caused
in the
event of a collision. Factors which played a significant role in this
regard are:
(a) it was
uncontrolled with no booms or other barriers;
(b)
the overhanging foliage and vibacrete wall at the crossing partially
obstructed the views of both an oncoming train driver and
an
approaching motor vehicle driver;
(c)
the speed restriction of 90 km/h was at the highest end for trains on
a railway line; and
(d)
there was generally a fair amount of vehicular and pedestrian traffic
at that level crossing, due to the farm labourers’
houses and
the farms being located nearby. On the uncontested evidence of the
investigating officer, Warrant Officer Niemand, schoolchildren
cross
there on a daily basis and families live in the vicinity. On the day
of the incident a number of schoolchildren who had witnessed
the
collision and its aftermath had to be removed from the scene and were
given trauma counselling.
[10]
All the experts called by the appellants opined that the 90 km/h
speed restriction was excessive. These experts were –
(a)
Mr Daniel Leonardus van Onselen, (Van Onselen) a mechanical engineer
who had worked for, inter alia, the South African Railways
for 20
years, who stated that the speed limit was too high, given the fact
that there are people living in the built up area close
by, without
any protective fencing. A further factor in this regard was the
limited vision from both sides due to the vegetation
and the
vibacrete wall.
(b)
Mr Timothy Spencer, a town planner who made an assessment of the
collision scene. He testified that the speed limit should have
been
reduced due to the fact that the crossing is poorly controlled, there
is low visibility and the crossing is on an urban residential
edge.
(c)
Mr Konrad Walter Lötter (Lötter), a mechanical engineer and
managing director of Du Métier (Pty) Ltd (Du Métier)
who had been tasked by the Road Traffic Management Corporation (RTMC)
to investigate the collision.
[11]
Mr Lötter concluded that the level crossing warranted either
booms as a preventive measure or the lowering of the speed
restriction
on that section of the railway line. In the latter regard
he recommended the reduction of the speed limit from 90km/h to
50km/h.
(d)
Lastly, and most importantly, the three inspectors from the
Regulator, Mr Eric Nkwinika (Nkwinika), Mr Dick Arnold and Dr Chris
Dutton, produced a unanimous report dated 19 December 2006 after
their investigation in which they concluded, inter alia, that:
‘This
road/rail interface is considered to be a high risk. it is therefore
disconcerting to note that the operator deems
it appropriate to allow
trains to operate at a section speed of 90 km/h in an environment of
unprotected level crossings’.
It afforded the three alternative
remedial measures mentioned in para 3(e) above and directed Metrorail
to implement forthwith
a reduced speed limit of 40 km/h for that
level crossing from the second whistle board.
[11] It is necessary
to elaborate on the functions and powers of the Regulator generally
and on its report and the testimony of
Nkwinika on behalf of the
Regulators’ investigating team in particular. As the name
depicts, the Regulator was established
to enhance rail safety
operations. Its objects, set out in s 5 of the National Railway
Safety Regulator Act 16 of 2002 (the Act)
are to:
‘
(
a
)
oversee safety of railway transport while operators remain
responsible for such safety within their areas of responsibility;
(
b
)
promote improved safety performance in the railway transport industry
in order to promote the use of rail as a mode of transportation;
(
c
) develop
any regulations that are required in terms of this Act;
(
d
) monitor
and ensure compliance with this Act; and
(
e
) give
effect to the objects of this Act.’
It
has the power to conduct, inter alia, investigations in respect of
railway safety.
[12]
The
Regulator is granted extensive powers to conduct its investigations
into railway occurrences. This includes the power to conduct
hearings
with sworn oral evidence, to summon any person to appear before it or
to produce a document of object in his or her custody
or under his or
her control and to enter any premises for the purposes of such
investigation.
[13]
The
Regulator’s report on this incident runs into 17 pages,
including the annexures. As stated, its investigating team arrived
from Johannesburg on the scene that same afternoon. Its final report
is dated 19 December 2006. The report is detailed and bears
testimony
to an extensive investigation.
[12]
The only expert witness whose opinion does not accord with these
strong views of an excessive speed restriction on that railway
section, is Mr Louis de Villiers Roodt (Roodt), a civil engineer who
specializes in transportation engineering. He testified in
support of
the respondents’ case. In his opinion the level crossing was
appropriately classified as a protection level 3A
crossing, ie one
where there was low usage by vehicular traffic. This classification
emanates from Volume 2 Chapter 7 entitled
‘Signage for Railway
Crossings’ of the South African Road Traffic Signs Manual (the
Manual). He regarded the speed
restriction of 90 km/h as appropriate,
given the low usage of the road and the excellent visibility in
excess of 400 metres, which
is more than the required sight distance
for trains travelling at speeds of up to 100 km/h. With regard to a
reduction of the speed
limit as a preventive measure he opined in his
report that ‘[o]perating trains at lower speed will not
necessarily result
in safer conditions, as negligent drivers will
adapt to the lower speed and still cross the lines with high risk’.
It is
of some significance that Roodt’s report is dated 27
September 2012, less than 3 weeks before the trial commenced on 8
October
2012.
[13]
Roodt was a poor witness. He was evasive and argumentative during
cross-examination and loathe to make concessions where it
was plainly
required. He reluctantly conceded that his view on the speed limit
was based on the information he had at the time.
When asked whether
he still held that view he was only prepared to concede that the
speed limit ‘can be lower’. The
following extract from
his cross-examination is revealing:
‘
[Mr
Corbett, for the second plaintiff/appellant]: . . . Do you still hold
the view you set out in your report, that 90 was a reasonable
speed
at this crossing?
Your Ladyship,
yes,
provided that the accident did not happen
.
[Court:] Sorry? –
Sorry, no, I take that back
.
[Court:]
I did not hear the last bit? –
Yes,
just give it a yes’
.
(My
emphasis).
When
pressed further under cross-examination, he disagreed with Lotter,
Van Onselen and the Regulator’s conclusions on this
aspect.
Roodt evidently compiled his report under great pressure of time and
with unseemly haste – within two days. This
is in stark
contrast to the detailed, meticulous report prepared by the
Regulator. His testimony smacks of stark bias in favour
of his
client, Transnet.
[14]
The high court was faced with conflicting expert opinions on this
issue of an excessive speed limit. It is for the court to
decide
which, if any, to accept.
[14]
Regrettably it failed to undertake this exercise. No finding was made
on the reliability of the various expert opinions. There
were no
reasons advanced for the implied rejection of the appellants’
experts and, in particular, the Regulator’s opinion
that the
speed restriction was excessive for that section of the railway line.
[15]
It is well established that an expert is required to assist the
court, not the party for whom he or she testifies.
[15]
Objectivity is the central prerequisite for his or her opinions. In
assessing an expert’s credibility an appellate court
can test
his or her underlying reasoning and is in no worse a position than a
trial court in that respect. Diemont JA put it thus
in
Stock
v Stock
:
[16]
‘
An
expert . . . must be made to understand that he is there to
assist the Court. If he is to be helpful he must be neutral.
The
evidence of such a witness is of little value where he, or she, is
partisan and consistently asserts the cause of the party
who calls
him. I may add that when it comes to assessing the credibility of
such a witness, this Court can test his reasoning and
is accordingly
to that extent in as good a position as the trial court was.’
[16]
This court is at large to assess the expert evidence on the record
before it and to decide which one, if any, of the two conflicting
opinions is to be preferred. On the objective facts the appellants’
experts’ opinions are preferable over that of Roodt.
Their
reports are detailed and extensive and contain compelling motivations
for their conclusions that 90 km/h was an excessive
speed restriction
for that crossing. This is particularly true in respect of the
Regulator’s report. They treated this tragic
incident with the
urgency it deserved, had their investigators on the scene on the same
day and conducted extensive investigations
which culminated in a
detailed, well motivated report.
[17]
The urgency for Roodt apparently only concerned the finalisation of
his report within two days. He brushed over this aspect
in his report
and his opinion, set out in para 12 above, is startling. It is
difficult to comprehend his conclusion that a lower
speed limit will
be of no help, since it will merely encourage negligent drivers to
take further risks to cross in front of oncoming
trains. As stated,
his testimony was of a poor quality and it lacked impartiality and
objectivity. His opinion lacks proper motivation
and can be
discarded.
[18]
On the accepted evidence the speed restriction of 90 km/h was
excessive for that railway section. The possibility of harm was
reasonably foreseeable for the reasons already stated. The preventive
measure of reducing the speed limit to 40 km/h was eminently
reasonable. On the common cause facts (on which even Roodt agreed),
this reduced speed limit would have delayed the train’s
journey
by a mere eight seconds, without any expense to the respondents. And
on the common cause facts if the train had been travelling
at 40 km/h
from the second whistle board, the collision would have been avoided
since the train would have been able to stop in
time.
[19]
The respondents’ primary contention in respect of this issue
was that the speed limit was justified. In this regard they
relied
heavily on the provisions contained in the Manual and on Roodt’s
testimony. As already stated, the level crossing
was categorized as a
protection level 3A crossing, ie one of low risk due to low vehicular
traffic usage on that road.
[17]
Roodt explained in his report that the road which intersects the
railway line at that crossing is not a public road, but a servitude
for access to the Faure Winery Farms. The railway crossing class
designation for a single high speed railway line, with excellent
sight distance such as the present one, has a minimum protection
level of 3A, as was the case here. He stated further that additional
safety measures, for instance flashing red lights or booms, were not
warranted at the crossing, given the low traffic volumes and
speed,
the lack of through traffic, local knowledge of the hazard and lack
of an accident history.
[20]
In respect of the classification of the level crossing, it was the
respondents’ case, as advanced by Roodt’s report
and his
testimony, that an upgrade to a higher level of protection could only
have occurred within the prescripts of the Manual.
Those prescripts
contain the following criteria for upgrades to flashing red lights
and a boom – three accidents in one year
or five accidents over
a three year period.
[18]
The
prescripts apply in respect of the road signage and the safety
measures at a level crossing. When questioned about the speed
restrictions, the respondents’ counsel informed us that this
particular speed restriction was imposed by Metrorail, as is
the case
with all speed restrictions. According to counsel Metrorail uses the
same aforementioned criteria for road signage and
level crossing
protection upgrades in respect of the speed restriction designation.
But different considerations come into play
as far as the speed limit
is concerned. This is a troubling approach. It is tantamount to
measuring risk and the prevention of
foreseeable harm in terms of
accidents occurring as far as the speed limit is concerned –
unless and until a certain number
of accidents occur over a given
period, no additional precautionary measures will be instituted. This
is an unreasonable approach
to preventing foreseeable harm from
occurring. The factors enumerated in para 9 above should have alerted
the respondents to the
need for a review of the speed limit. To
literally wait for an accident to happen is to neglect the legal duty
imposed upon the
respondents to implement reasonable preventive
measures to avert the eminently foreseeable harm at that hazardous
uncontrolled
level crossing. Moreover, and in any event, the
prescripts applicable to road signage and level crossing protection
were simply
transposed as criteria to review the appropriateness of
the speed limit for that railway section. Different factors may
conceivably
inform a decision to reduce speed as opposed to a review
of road signage or level crossing protection. One that comes to mind
is
for instance a curve on the railway line close to the level
crossing. The respondents have failed to implement reasonable
preventive
measures.
[21]
In summary: on the facts and in the circumstances of this particular
case, the harm of the train colliding with a vehicle at
the
uncontrolled, minimally protected level crossing was reasonably
foreseeable. The respondents failed to take adequate reasonable
steps
to prevent the materialisation of the harm, namely by reducing the
speed restriction to 40 km/h on that part of the railway
line from
the second whistle board. Such a reduction would have entailed no
cost at all to the respondents. On the uncontested
evidence this
simple precautionary measure would have averted the collision
altogether. In the circumstances the respondents are
jointly and
severally liable for the damages caused by the collision. The appeal
must therefore succeed.
[22]
I make the following order:
1.
The appeal is upheld.
2.
The order of the high court is set aside
and substituted with the following:
‘
The
defendants are liable, jointly and severally, for such damages as the
plaintiffs may prove to have sustained in the collision
of 13
November 2006.
The
defendants are ordered, jointly and severally, to pay the plaintiffs’
costs of suit.’
3.
The respondents are ordered, jointly and
severally, to pay the costs of the appeal.
______________________
S
A MAJIEDT
JUDGE
OF APPEAL
APPEARANCES
For First Appellant:
M J M Bridgman
Instructed
by: Ighsaan Sadien Attorneys, Cape Town
For
Second Appellant: P A Corbett
Instructed
by: Malcolm Lyons & Brivik Inc, Cape Town
Matsepes
Attorneys, Bloemfontein
For Respondents: D J
Jacobs (SC) with H Rademeyer
Instructed
by: Werksmans Inc. Jan de Villiers, Cape Town
Lovius
Block, Bloemfontein
[1]
Established
in terms of the Legal Succession to the South African Transport
Services Act 9 of 1989.
[2]
Established
in terms of the
National Railway Safety Regulator Act 16 of 2002
.
[3]
This
information was gleaned from the train’s on board data
recorder, the so called trip logger system of the microprocessor
traction controller.
[4]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E. See further:
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) paras 12 and 23;
Minister
of Safety and Security v Carmichele
2004 (3) SA 305
(SCA) para 45;
Transnet
Ltd t/a Metrorail & another v Witter
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA) para 5.
[5]
Premier,
Western Cape v Faircape Property Developers (Pty) Ltd
2003
(6) SA 13
(SCA) paras 41-42.
[6]
Worthington
& others v Central South African Railways
1905
TH 149
at 150-151. See further:
Celliers
v South African Railways and Harbours
1961 (2) SA 131
(T) at 135-136.
[7]
Ibid.
[8]
Ngubane
v South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
(A) at 776E-777C.
[9]
JC
van der Walt ‘Delict’ in Joubert LAWSA vol 8 para 43 at
78.
[10]
Herschel
v Mrupe
1954
(3) SA 464
(A) at 477A-C.
[11]
Du Métier had a contract with the RTMC at that time to
investigate all motor vehicle related incidents where there were
more than five fatalities.
[12]
Section 7(2)(
o
)
of the Act, read with section 38 thereof.
[13]
Section 38 of the Act.
[14]
Buthelezi
v Ndaba
2013
(5) SA 437
(SCA) para 14: ‘Yet that determination [of
negligence] is bound to be informed by the opinions of experts in
the field
which are often in conflict, as has happened in this case.
In that event the court’s determination must depend on an
analysis
of the cogency of the underlying reasoning which led the
experts to their conflicting opinions’.
[15]
Stock
v Stock
1981
(3) SA 1280
(A) at 1296E-F;
P
v P
2007 (5) SA 94
(SCA) paras 18 and 21.
[16]
Stock
v Stock
at
1296F; and see
Jackson
v Jackson
2002
(2) SA 303
(SCA) at 324B-C (para 16 of the judgment of Scott JA).
[17]
See
para 12 above.
[18]
Paragraph
7.2.4.2(a) of the Manual reads as follows: ‘The use of
flashing red disc signals should, in conjunction with adequate
advance warning signs, be used to control vehicles at a railway
crossing when warranted by one or more of the following conditions:
(a) when a crossing has an accident history involving at least three
vehicle/train accidents in one year, or alternatively five
vehicle/train accidents in three years and/or…’