Harrington NO and Another v Transnet Limited t/a Metrorail and Others (32/2009) [2009] ZASCA 146; 2010 (2) SA 479 (SCA) ; [2010] 2 All SA 220 (SCA) (26 November 2009)

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[2009] ZASCA 146
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Harrington NO and Another v Transnet Limited t/a Metrorail and Others (32/2009) [2009] ZASCA 146; 2010 (2) SA 479 (SCA) ; [2010] 2 All SA 220 (SCA) (26 November 2009)

+
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
J
UDGMENT
Case No:
32/2009
MARK
HARRINGTON N.O.
First
Appellant
SIYAVUMA
NGALEKA
Second Appellant
and
TRANSNET
LIMITED trading as METRORAIL
First
Respondent
J
C HUMAN
Second Respondent
KUFFS
SECURITY SERVICES CC
Third Respondent
Neutral
citation
:
Harrington
N.O. v Transnet
(32/09)
[2009] ZASCA 146
(26
November 2009)
Coram: MPATI P, NAVSA,
HEHER, MHLANTLA JJA
and LEACH AJA
Heard: 9
November 2009
Delivered: 26
November 2009
Updated:
Summary: Negligence
– cable patrol near railway line – duty of railway
authorities to warn of despatch of unscheduled
train at night –
whether patrol contributorily negligent – relevance of belief
founded in experience but misplaced.
Railways –
unscheduled train at night – duties of service operator and
driver to workers near line.
____________________________________________________________________________________
ORDER
In
an appeal from the High Court, Cape Town (Van Zyl, Waglay and Ndita
JJ sitting as court of appeal from a single judge (Blignault
J).
The
following order is made:
1. The
appeal succeeds as against the first respondent.
2. The
appeal is dismissed as against the second respondent.
3. The
costs of the appeal including any costs incurred by the second
respondent are
to
be borne by the first respondent.
4. The
order of the court
a quo
is
set aside and replaced by the following order:
‘
(a) The
appeal of the first appellant, Metrorail, is dismissed with costs.
(b) The
appeal of the second appellant, Human, is upheld with costs.
(c) The
appeal of the third appellant, Kuffs, is dismissed with costs.
(d) The
costs of the second appellant are to be paid by the first appellant.
(e) The
order of the trial court is set aside and replaced by the following
order:
“
(i) The first
defendant is liable to pay damages to the plaintiffs.
(ii) The first defendant
is liable to pay the plaintiffs’ costs to date.
(iii) The third party is
obliged to indemnify the first defendant against the plaintiffs’
claims.
(iv) Costs as between the
first defendant and third party are to stand over for later
determination.
(v) The action against
the second defendant is dismissed with costs. Such costs
are
to be paid by the first defendant”.’
JUDGMENT
___________________________
__________________________________________
HEHER
JA (MPATI P, NAVSA, MHLANTLA JJA and LEACH AJA):
[1] The
appellants, with the special leave of this Court, appeal against a
judgment of the Full Bench of the Western Cape Division
of the High
Court.
[2] The
appellants
1
were security guards employed by Kuffs Security Services CC
(‘Kuffs’), the third respondent.
2
Kuffs provided such services to Transnet Ltd, trading as Metrorail,
the first respondent, on the Cape Town rail network and at
train
stations.
[3] At
about 22h45 on Sunday, 3 February 2002, the appellants were
patrolling the electric cables in the area between Cape Town
Station
and Woodstock station in the course of their duties.
[4] There
were no scheduled trains after 22h00 and the suburban rail services
did not operate until 04h00 the next morning. Metrorail
sent an
unscheduled train down the line from Cape Town to Salt River for
repairs.
3
No warning was given to the appellants. The train was driven by
Metrorail’s employee, Mr Human, the second respondent.
[5] Human
apparently saw two figures, (the appellants) walking on the line. He
sounded the train’s siren and looked for a
reaction. When it
did not come he applied the brakes. By that time it was too late for
the train to come to a halt before it reached
the appellants who were
struck from behind by the train.
[6] The
appellants suffered serious injuries. The first appellant’s
brain damage required the appointment of a curator
ad
litem
.
[7] The
appellants instituted action against Metrorail and Human in the Cape
High Court. Metrorail joined Kuffs as a third party,
contending that
if it was held liable to the appellants, then Kuffs was similarly
liable to it in terms of an indemnity contained
in the contract
between them.
[8] At
the commencement of the trial, at the request of the parties,
Blignault J ordered that the issues relating to liability and
quantum
be separated. The trial proceeded only in respect of the liability of
the respondents and the existence and extent of contributory
negligence
on the part of the appellants
.
[9] On
22 August 2006 Blignault J handed down a judgment in which he
analysed the evidence in detail.
4
He ordered that:
‘
(a) First
defendant (Metrorail) and third defendant (Human) are jointly and
severally liable to pay damages to plaintiffs.
(b) The
damages to be recovered by each of the plaintiffs are subject to a
reduction by one third in terms of section 1(1)(a) of
the Act.
5
(c) First
and third defendants are jointly and severally liable for the costs
incurred by plaintiffs to date.
(d) The
third party (Kuffs) is obliged to indemnify first defendant
(Metrorail) against plaintiffs’ claims.
(e) All
questions of costs as between first defendant and the third party
stand over for later determination.’
Blignault
J granted the present respondents leave to appeal to the Full Bench
and the present appellants leave to cross-appeal against
the
apportionment.
[10] The
appeal and cross-appeal were heard in January 2008. On 20 October
2008 Van Zyl J (Waglay and Ndita JJ concurring) made
the following
order:
‘
1. The
appeal is upheld with costs, including the costs of the application
for leave to appeal.
2. The
cross-appeal is dismissed with costs, including the costs of the
application for leave to cross-appeal.
3. The
orders of the court
a
quo
are set aside and
replaced by the following:
“
The
claims of the appellants are dismissed with costs”.
4. The
respondents are ordered, jointly and severally, to pay such costs,
the one paying the other to be absolved.’
[11] The
facts set out in the preceding paragraphs are common cause. I will,
in the course of this judgment, examine the evidence
more closely
where that is necessary to resolve disputes.
[12] The
case for the appellants, both as pleaded and subsequently maintained,
was that Metrorail acted negligently and unlawfully
in the following
respects:
(1) In
failing to take any or reasonable measures to ensure that the
appellants
(a) received
adequate safety training; and
(b) completed
Metrorail’s in-house test and induction training before
commencing their duties.
(2) In
failing to warn the appellants of either the unscheduled train
journey or the approach of the train, notwithstanding its
awareness
that the railway line was patrolled after 22h00 by security guards
such as the appellants.
(3) On
a vicarious basis, arising from the failure of its employee Human to
apply the brakes timeously.
[13] The
appellants contend that the court
a quo
should
have found that both Metrorail and Human acted negligently and
unlawfully and that their conduct individually and cumulatively
was
the cause of the accident.
[14] In
addition to the facts recited earlier in this judgment, certain other
matters were either common cause or not subject to
serious dispute.
Metrorail conducts suburban rail services in the Cape Peninsula. One
of its tracks is the down-line from Cape
Town to Simonstown. It was
on this line between Cape Town and Woodstock that the incident, the
subject of this appeal, occurred.
In that area the line was one of a
complex of tracks laid out across a yard or reserve several hundred
metres in breadth. The movement
of trains on suburban routes (as this
was) after 22h00, although unscheduled, was not entirely unusual and
was necessitated by
a variety of operating constraints including the
need to move trains to yards where they can be repaired, as in this
instance.
The train in question consisted of eight empty passenger
coaches. The driver was seated in an enclosed compartment at its head
with an unimpeded view of the line in front of him. On the front of
the train was a head lamp which cast a concentrated beam ahead
of the
train to a distance of about a hundred and sixty metres. On the night
of the incident the lamp was burning. The train was
equipped with a
warning siren activated by foot pressure, hand-operated brakes and a
‘deadman’s handle’ which
takes effect when the
driver no longer depresses a button on the accelerator.
[15] The
night was dark and the track unlit, save for the ambient light and
the beam of the headlamp. There was a strong south-easter
beating in
the faces of the appellants as they walked towards Woodstock station.
It is common cause that the force of the wind
would probably have
nullified the effectiveness of a siren blown from the train
approaching them from behind.
[16] The
train in question was driven by an electric engine. Such trains are
relatively silent. Standing with one’s back to
an oncoming
train, its approach is not apparent until a very late stage. Here too
the strength and direction of the wind must have
played a role in the
events.
[17] The
business of the appellants was to keep a lookout for suspicious
activity, which might involve theft of or interference
with the
electric cables next to and above the railway tracks. For this
purpose it was not generally necessary for them to walk
between the
lines or on the sleepers which protruded beyond the lines. (In either
event a person so proceeding was liable to be
struck by a moving
train.)
6
[18] There
were however occasions when the configuration of the lines and the
topography would have required the cable patrol to
encroach on the
tracks. One such instance was in the vicinity where the incident took
place; the down-line diverged from the up
line and proceeded over a
narrow bridge under which passes a branch line. In addition the
nature of the appellants’ duties
were such as might from time
to time require them to cross the tracks in order to pursue their
investigations.
[19] Human
saw two dark figures walking between the tracks. Expert evidence in
the trial, taking account of the degree of curve
in the track as the
train neared the plaintiffs and the impediment to a driver’s
vision caused by two palm trees planted
on either side of the lines,
fixed the earliest point at which Human could have made this
observation at some eighty-four metres
from the calculated point of
impact. The reliability of this calculation is a
matter which I shall
consider in due course.
[20] From
the moment Human saw the figures he sounded the siren of the train
continuously. When, after ‘’n paar sekondes’,
the
people concerned did not respond, he braked to the maximum extent and
released the deadman’s handle. At the last moment
both turned
their heads and jumped, one to the left, the other to the right.
Human heard the train strike them.
The
liability of Metrorail
[21] The
principles of delictual liability are not in dispute in this appeal
7
.
In addition, of course, because the conduct of Metrorail which is
impugned is an omission, the existence of a legal duty to act
depends
upon questions of policy and what should reasonably be expected of
it
8
.
[22] The
Full Bench found against the appellants fundamentally on three
grounds: first they were entirely responsible for their
own
predicament because, instead of keeping a proper lookout for obvious
dangers, they relied on their own subjective belief that
there would
be no train activity on the line at night; second, the attempt to
impose a duty on Metrorail to warn Kuffs regarding
the impending
movement relied on ‘hindsight and knowledge and insights
retrospectively acquired’; and third, that Kuffs
had access to
Metrorail’s control room and hence to the unscheduled movement
of trains after hours and impliedly assumed
the responsibility for
responding to such movements. In any event, so the court
a
quo
concluded, an omission
of the nature relied on by the plaintiffs had not been such as to
give rise to a legal duty to act. Finally,
the court held, even had a
wrongful and negligent omission been proved, there was no evidence
that appropriate action would have
avoided the accident.
[23] I
am unable to subscribe to any of these findings. The evidence does
not bear them
out.
[24] The
two courts below held divergent views on the merits of the first
ground of negligence relied on by the appellants. For
the reasons
which follow it is unnecessary to resolve the differences.
[25]
The appellants’ second ground related to the failure to warn
them on the night in question, of the dispatch from Cape
Town of an
unscheduled train on the Simonstown down line. Once again, the facts
are beyond dispute. Each Kuffs cable patrol was
equipped with a
two-way radio for contact with Kuffs office on Cape Town station.
That office was in turn connected to Metrorail
control at the station
and a member of Kuffs security staff was stationed in the control
room.
9
Human explained the procedure which is followed when a train was to
be sent down the line: when the driver is ready to proceed,
he
informs Metrorail’s Windermere control room that he is ready to
leave; the signals are controlled by Windermere and the
driver may
not leave until Windermere has given him the green light; Windermere
is in communication with the control room at Cape
Town station. As Mr
Appolis, who testified on behalf of Metrorail confirmed, it would
have been a simple matter for Metrorail to
ensure that the guards
were alerted to the imminent dispatch of a train.
[26] Metrorail
possessed peculiar knowledge of the departure of unscheduled trains
and their routes. It was aware of the incidence
of collisions between
trains and persons on the line
10
.
It cannot but have been alive to the enormity of the consequences of
such collisions.
[27] Fatal
accidents on railway lines are a notorious consequence of the
operation of rolling stock. So there is no doubt that when
Metrorail
agreed with Kuffs that the security duties specified in their
December 2000 agreement would be extended to include cable
patrols in
close proximity to the railway tracks, its officials must have been
aware of the potential threat to Kuffs employees.
The fact that such
patrols were, to the knowledge of Metrorail, to be and were carried
out not simply after dark, but after the
scheduled train service
ended each night, is also evidence of a state of mind on the part of
the persons requiring the service.
Metrorail was moreover privy to
relevant information where Kuffs was not: it had access and insight
into the nature, frequency
and location of unscheduled train
movements; it also had knowledge of the lay-out of its tracks, and
obstructions to the vision
of drivers; it ought to have known that
cable patrol duties would sometimes bring the men on patrol into
dangerous proximity of
the tracks (on the occasions referred to
earlier in this judgment).
In
general, the evidence fairly leads to the conclusion that Metrorail
knew or should have known that throughout the course of such
cable
patrol between Cape Town and Woodstock, the guards, if not actually
moving in or across the path of a train, were likely
to be in close
proximity to its line of travel. A guard concentrating unduly on his
duties was, in colloquial parlance, ‘a
sitting duck’.
[28] The
existing contract between Metrorail and Kuffs stipulated that Kuffs
personnel would not be permitted to commence their
duties until they
had completed Metrorail’s in-house test and induction training.
If Metrorail was dissatisfied with the
results of the tests
and
training, it would notify Kuffs, which would then not deploy the
staff member concerned in the service area and would provide
a
competent substitute. But it was clear
from
the evidence of the second appellant and his colleague Mr Bidli, that
they were not trained in any aspect involving the dangers
facing them
in consequence of trespassing on or near the railway tracks during
the course of their duties. Metrorail had no reason
to believe that
the members of the cable patrols possessed any knowledge of such
matters beyond what they might acquire by their
own observation or
enquiries.
[29] In
summary therefore, seen from Metrorail’s standpoint, the
potential for serious harm to the cable patrol as a result
of a
collision with a train, even if unlikely, was easily predictable. It
possessed particular knowledge of the incidence of unscheduled
train
movements and could therefore reasonably be expected to take more
than ordinary precautions.
11
Neither the cost nor the difficulty involved in avoiding the
reasonable possibility of a collision represented a material
obstacle.
If the elementary precaution of notifying Kuffs control
room of the imminent departure of an unscheduled train were followed
there
was every likelihood that the message would be acted upon by
both Kuffs and their cable patrols.
[30] The
simple fact is that Metrorail was in a dominant position in relation
to both the performance of the cable patrol and the
operation of its
trains. Given the facts and inferences to which I have alluded in the
preceding paragraphs, right-thinking members
of the community would,
I have no doubt, regard Metrorail’s failure to inform and warn
Kuffs and hence, its cable patrol,
as a matter for censure.
[31] None
of this is the result of
ex
post facto
insight.
Metrorail was operating a service with enormous potential for damage
and harm, and had been doing so for many years, occasionally
with
disastrous consequences. Having required security personnel to
operate within the field of its hazardous activities it imposed
no
undue burden on Metrorail to exercise appropriate oversight in
relation to their safety, even if Metrorail could reasonably
expect
such persons to look to their own interest as far as was practicable.
[32] It
is convenient in the present context to consider and dispose of a
contention that Metrorail was entitled to assume that
the guards on a
Kuffs security patrol would look after themselves, as could
reasonably be expected of qualified security personnel.
Metrorail
adduced no evidence to justify that conclusion. It was argued as a
given but the answer depends on the evidence. The
real question is
whether such personnel (and the appellants in particular) ought to
have been aware of the movement of trains on
that section of the line
after scheduled hours. If they should, then albeit that they regarded
the movement as irregular or unlikely,
the direness of the potential
harm demanded the exercise of reasonable care.
Sed
contra
, if the guards had
no reason to foresee (and therefore could not have foreseen) the
presence of a moving train, there was no hazard
against which a
reasonable man would have protected himself.
12
[33] One
is here intruding upon the territory of the contributory negligence
of the appellants. Because of the view taken by the
court
a
quo
(and adopted by
Metrorail’s counsel in argument) it is convenient to address
that issue in the context of Metrorail’s
own duty (or lack
thereof) towards the plaintiffs, bearing in mind that the onus on the
first-mentioned burdened Metrorail while
the onus of proving the
extent of Metrorail’s duty rested on the appellants.
[34] By
what evidence should the presence or absence of fault on the part of
the appellants be judged? Counsel for the respondents
submitted that
the subjective ‘knowledge’ (or rather misplaced
assurance) and belief of the second appellant relating
to the
non-movement of trains was irrelevant in judging the reasonableness
of his conduct. It is true that the law
‘
does
not attempt to see men as God sees them, for more than one sufficient
reason . . . If, for instance, a man is born hasty and
awkward, is
always having accidents and hurting himself or his neighbours, no
doubt his congenital defects will be allowed for
in the courts of
Heaven, but his slips are no less troublesome to his neighbours than
if they sprang from guilty neglect’
13
Thus
the reasonable man is not deemed to be possessed of the personal
idiosyncrasies, superstitions and intelligence of the actor.
14
But the state of mind of the person whose conduct is under scrutiny
is
‘
not
quite irrelevant. For the standard of care represents the degree of
care which should be used in the circumstances, and his
knowledge or
lack of knowledge, may be relevant in assessing what the
circumstances were. The question may then be whether a reasonable

man, knowing only what the defendant knew, would have acted as did
the defendant. But his state of mind is not conclusive. In certain

circumstances it may be held in law that a reasonable man would know
things that the defendant did not know, and the defendant
will be
blamed for not knowing and held liable because he ought to know: In
such cases the law relating to negligence requires
the defendant at
his peril to come up to an objective standard and declines “to
take his personal equation into account”.’
15
[35] There
is a general consensus in the authorities to which I have referred
that the knowledge possessed by the actor is a relevant
consideration
in the make-up of his counterpart, the hypothetical reasonable man.
The status of his subjective beliefs and the
knowledge (or supposed
knowledge) which gave rise to those beliefs does not appear to have
attracted attention. But belief imperceptibly
acquires the dignity of
knowledge when fortified by experience, whether one’s own or
acquired vicariously. The reasonable
man is presumed to inhabit the
real world. He may therefore be similarly influenced by experience
into possessing a particular
state of mind in certain circumstances.
Whether the beliefs which motivated the actor at the critical
juncture are those which
would be held by the reasonable man, and, if
so, whether he would have placed the reliance on them that the actor
did, are questions
which, it seems to me, are a proper subject for
objective determination. In so far as a subjective element of the
actor can properly
be attributed to the reasonable man as ‘a
concession to the underlying moral basis of negligence’
16
it is logical to take into account beliefs, although misplaced, which
have a foundation in experience.
[36] The
second appellant stated under oath that he did not know that there
were unscheduled trains running after 22h00. He had
been under the
impression that there were no trains running at those hours. He had
never seen an unscheduled train running on the
tracks after hours,
and no one had told him that they did so. He had previously walked on
the rails when he was undertaking cable
patrol, and no one had told
him that that was the wrong way to do it. He had patrolled in this
manner because he had been shown
to do so by the colleague who
accompanied him on his first cable duty. That person, Mr Mkhabe, had
said that there were no trains
running at night. It was not put to
the second appellant that any part of this evidence was untrue.
Metrorail and Kuffs did not
produce any evidence which contradicted
his evidence in this regard.
[37] The
evidence adduced by Metrorail established that the second appellant
had probably been on cable patrol more than twenty
times. If the
evidence of the second appellant is accepted at face value (and there
was no reason not to do so) it establishes
that the real possibility
of unscheduled train movements was not such as to come to the
attention of guards in the position of
the appellants unless first
drawn to their notice. It also established that Metrorail was not
entitled to rely on the cable guards
finding that out for themselves.
On the contrary the experience of the second appellant was such that
repeated patrols merely demonstrated
that walking on or near the
rails held no danger for him. Whatever may be said of the risk
inherent in his initial reliance on
what he had been told, once the
absence of train movements had been confirmed again and again in his
own experience it was not
unreasonable for him to place reliance on
both the report and the evidence of his own eyes.
[38] Mr
Gounder, the Kuffs operations manager at the time, said that cable
patrols would take place only after the last train at
night, and
would end before the first train of the morning. This was for the
safety of the guards. His understanding was that Metrorail
was
supposed to inform Kuffs if they were going to operate a train after
hours, so that the guards could be warned of this. While
the
correctness of this understanding was disputed, it was not disputed
that this was his state of mind. It is not unreasonable
to assume
that if the person in charge of the operation was of that state of
mind, his subordinates responsible for carrying out
the work were
likewise influenced.
[39] Mr
Bidli, a former Kuffs security guard who was called by the
appellants, stated that there were no scheduled trains running
at
night. He had seen unscheduled trains running after hours, but
“it
was not something usual”
.
He did not walk on the lines – plainly because he knew that
there might be some trains moving. To some extent this corroborates

the evidence of the second appellant: it shows that it was only if a
security guard had been fortunate enough to have seen an unscheduled

train operating after hours would he know that that was a real
threat.
[40] Metrorail
kept records of all of the trains sent on unscheduled trips after
hours. Kuffs held records of when each of the appellants
had been on
cable patrol. Nevertheless neither adduced any evidence to show how
frequently unscheduled trains were sent down the
line after hours, or
that this had ever happened when the appellants were on cable patrol.
Nor was it put to the second appellant
that unscheduled trains were
in fact moving in his vicinity at any of the times when he was on
duty.
[41] Blignault
J found that the onus of proving knowledge rested on the defendants,
as it was an element of their defence of contributory
negligence. He
found further that in the absence of any precise evidence as to the
frequency of the movement of unscheduled trains
in the area where the
cable patrollers were operating, the inference could not be drawn
that the appellants probably observed such
trains. I respectfully
agree.
[42] For
all these reasons it follows that there was no foreseeable obstacle
to the appellants encroaching on the tracks if they
found that this
was a convenient way of proceeding.
[43] One
further aspect: as far as Metrorail knew or was concerned, on any
given patrol, at least one of the Kuffs guards might
be carrying out
the duty for the first time and had neither seen nor had the
opportunity to see the movement of unscheduled trains
after hours.
The fact that one witness may have been aware of the possibility
because of his own observation means very little
in relation to the
putative awareness of any other employee, including both of the
appellants.
[44] I
conclude, therefore, that the omission to inform and warn the
appellants was both wrongful and negligent. By contrast, the
failure
of the appellants to keep a look-out for such trains cannot be
regarded as unreasonable in the light of their understanding
and
experience of Metrorail’s operational policies.
[45]
The evidence of the second appellant was unequivocal (and
unchallenged) that if he had been told not to walk on the lines

because trains used them after hours or had been warned that a train
was being sent down the line, he would have kept out of the
danger
zone. There was, therefore, a strong probability that the tragedy
would have been avoided by the adoption of simple measures
which
would barely have inconvenienced Metrorail.
[46] I
conclude, in all the circumstances, that the appellants’ cause
of action against Metrorail was amply sustained by the
evidence.
The liability of the
train driver
[47] The
liability of Human depends on an assessment of his acts and omissions
according to the standard of the reasonable train
driver in the
circumstances prevailing at the time of the incident.
[48] The
observations of Wessels CJ
17
uttered seventy-five years ago still have force:
‘
In
judging whether there is
culpa
,
the Court must, as nearly as it can, place itself in the position of
the engine driver at the time when the accident occurred
and judge
whether he showed that ordinary care which can reasonably be expected
from a reasonable man under all the circumstances.
The Court must not
in any way be affected by the tragic consequences of the accident,
nor, on the other hand, must it excuse any
carelessness on the part
of engine drivers. It must not expect superhuman powers of
observation or an impeccable discretion on
the part of engine
drivers, nor must it say to him after the event - “if you had
done this or that more quickly or more accurately,”
or “if
you had perceived this or that more readily, you might possibly have
avoided the accident.” It is so easy to
be wise after the
event.’
[49] Counsel
for the appellants disavowed reliance on any failure by Human to keep
a proper lookout. He confined his case to the
driver’s decision
to sound the siren and await a reaction before applying the brakes of
the train. By making this choice,
so counsel submitted, Human
disabled himself from using the only other option available to him:
by the time he applied the brakes
it was too late because he could no
longer stop the train before it reached the appellants; that conduct
fell short of the standard
expected of a skilled train driver and was
accordingly negligent.
[50]
The
night of the collision was dark with a high wind blowing. In moving
the train the driver was carrying out what was, for him,
a routine
task. He had no reason to expect any happening out of the ordinary.
The railway tracks curved towards the point of collision
and the
headlight of the train probably did not illuminate the appellants
until after the driver had picked up the dark figures
ahead of him.
The transcript of his evidence
reads as follows:
‘
.
. . Ek het die twee swart figure gesien, volgens my, wat beweeg het
na Soutrivier, het tussen die twee spore geloop op die draai
van die
pad.
U
is nou in aantog en daar is ‘n draai? - - - Dit is korrek, ja,
hulle
het tussen die twee spore geloop. Ek het my sirene aanhoudend
geblaas.
Ja?
- - - Ek het geen reaksie gekry nie. Ek het my remhandvatsel bedien,
my remhandvatsel vol aangeslaan en my voete op my sirene
gehou.
En
die ander hand met die accelerator, wat het u met hom gedoen? - - -
My accelerator het ek afgesluit.
Afgesluit?
- - - Het ek afgesluit en terwyl ek nader beweeg aan hulle, het ek my
dooiemanseienskap gelos met my remhandvatsel nog
vol aan en ek het
hulle gestamp.
’
[51] In
cross-examination on behalf of the appellants and Kuffs, Mr Human
consistently said that there were a few seconds (‘’n
paar
sekondes’or ‘’n kwessie van sekondes’)
between the time when he first saw the appellants and sounded
the
siren and the time when he applied the brakes and took other measures
to bring the train to a halt. Metrorail’s expert
witness, Mr
Carver, made his calculations and measurements on the assumption that
‘’n paar sekondes’ was three
seconds. This was
accepted by all parties as a reasonable premise.
[52] At
the
in loco
inspection,
the witness Van Reenen pointed out the approximate places at which he
had found the first and second appellants lying
after the collision.
The necessary measurements were taken. On the basis of the evidence
given at the trial, the pointing out at
the
inspection, and his own
measurements, Carver determined fixed points, which were adopted by
all of the parties,
viz
the
point at which the train probably came to a halt after striking the
appellants, and the probable point of impact with the appellants.

From these points, Carver concluded that the train had travelled for
29 metres from the first point of impact to the point where
it came
to a halt. Using this information, Carver was able to calculate the
point at which the brakes would have been applied,
depending upon the
speed at which the train was travelling at the time. He could do this
because the rate of deceleration is constant
from any given speed.
This evidence too was undisputed. Carver then applied this
information together with his analysis of the
visibility of the
appellants, to reach a conclusion as to the speed at which the train
was travelling at the time when the driver
first saw the appellants.
He estimated that it was in the region of 40 km per hour. At any
speed below 32.5 km per hour there would
not have been an accident,
because the train would have stopped before it reached the
appellants.
[53] This
was Metrorail’s case: it was the evidence adduced by Metrorail
in Carver’s evidence-in-chief. None of it was
contested by
appellants’ counsel.
[54] Under
cross-examination, Carver was asked to calculate what would have
happened if the driver had applied the brakes immediately
on seeing
the appellants on the tracks, instead of first sounding the siren
and waiting for some seconds before doing so. His
conclusions were:
(a) If
the train was travelling at 35 km per hour when Human saw the
appellants on the track, and he had immediately applied the
brakes,
the train would have come to a standstill 29 to 30 metres before the
point where in fact it did stop, in other words, almost
exactly at
the point of impact. Because the train would have been travelling
more slowly (the brakes having been applied earlier),
the appellants
would have moved on a metre or two beyond the point of impact. He
therefore concluded that if the train was travelling
at 35 km per
hour, and if the driver had immediately applied the brakes on seeing
the appellants on the tracks, the accident would
not have happened.
(b) If
the train was travelling at 40 km per hour when Human saw the
appellants on the tracks, and he had immediately applied the
brakes,
the train would have come to a halt 33.3 metres short of the point at
which it did in fact come to a halt, some four metres
before the
probable point of impact - the accident would not have happened.
(c) If
the train had been travelling at a speed higher than 40 km per hour
when Mr Human first saw the appellants on the tracks,
and he had
immediately applied the brakes, then the train would have come to a
halt well before the probable point of impact, and
the accident would
not have happened. However, the higher the speed, the closer the
train would have had to have been to Cape Town
in order for the train
driver to bring it to a halt at the probable point identified by
Carver. It was not likely that the visibility
would have been good
enough for the driver to see the appellants from that distance. A
speed much higher than 40 km per hour was
therefore improbable.
[55] Counsel
for the appellants submitted that the conclusion of Metrorail’s
expert witness was unambiguous: if the train
driver had immediately
applied the brakes when he first saw the appellants on the tracks,
instead of first sounding the siren and
waiting to see whether the
appellants responded, the accident would not have happened.
[56] Although
this was, on the face of it, a persuasive argument in favour of the
driver’s negligence, I think that it pays
insufficient regard
to the context of events and the reliability of the evidence. As such
it is a counsel of perfection.
[57] Expert
evidence is only as sound as the factual evidence on which it is
based. The less fixed (or more variable) the assumptions
and the
fewer hard facts available to the expert the greater the scope for
alternative conclusions.
18
[58] In
this instance the variables were many: the speed of the train, the
moment of first visibility of the appellants to the driver,
the
effect on such visibility of a palm tree close to the track, the
curve of the track, the driver’s reaction time, the
braking
force of the train, the brightness of its light, the point of impact,
the relative positions of the appellants to the front
of the train
when they were struck, the respective points at which the appellants
came to rest after being struck and the final
stopping point of the
train. Of all these only the penultimate aspect was established in
evidence with some degree of certainty
(‘min of meer’
19
).
Most important in influencing Mr Carver’s calculations was the
point at which the train came to a standstill. He adopted
the
evidence of Human to the effect that this occurred some 29 metres
after the point of impact. This allowed him to factor in
various
speeds and braking distances all of which assumed the given stopping
point.
[59] But
the evidence of Human stood uncorroborated. It should, I consider,
have been approached by the trial court with a substantial
degree of
caution. He testified more than four years after the incident. His
original written report (made on 17 February 2002)
had been extremely
brief and contained no important detail. There was accordingly no
means open to him to refresh his memory. After
the shock of the
collision, according to his
evidence,
he
brought his train to a halt before reaching the bridge, climbed out
on the right-hand side, walked back between 15 and 20 metres
to where
the second plaintiff was sitting next to the train and asked if he
was alright. He received an affirmative reply. He then
moved around
the front of the train to the other side and found the first
plaintiff lying on his side, a little further to the
rear of the
train than his colleague. When Human spoke to him he received a
mumbled answer. Human then re-entered his cabin and
removed his
train. He did not return on that night. By the time that the first
witnesses came to the scene the train was long gone.
[60] Human’s
evidence as to speed was equivocal: before entering the bend he would
have ensured that it was substantially
below 60 km per hour because,
at the end of the curve the maximum permissible speed was 30 km per
hour.
[61] Not
only was Human a single witness, interested in the outcome of the
action, but his evidence was not entirely satisfactory.
In his report
of 17 February he wrote:
‘
Ek
het vertrek uit platform 3 uit in die Kaapstasie. Net na die SSS
oorstaansylyn, het ek om die draai gekom met my koplig op helder

gestel en ek het twee swart figure tussen die twee spore gewaar, maar
ek het te vinnig op hulle afgekom, en ek het my sirene geblaas,
maar
in die proses wat hulle weggespring het, het ek hulle gestamp. Ek het
die trein onmiddellik tot stilstand gebring en gaan
ondersoek
instel. Ek het toe Bedryf en die GVB amptenaar en die GVB kantoor in
kennis gestel en die trein verder bedien na Soutrivier
werf.’
According
to that version it would appear that he first applied brakes after
the collision. As he readily conceded, the train would
have come to a
stop further beyond the place where the plaintiffs lay if that had
been the case. Human testified that before or
while pulling away
after the collision, he reported by radio to Windermere on what had
happened. Metrorail discovered its relevant
occurrence book which
contained the following entry:
’
22.45 Train
Casualty: M E Conradie CTC Windermere report that driver J C Human
report that he had knocked down two guys at Maspole
1/17 signal box
WDC 46 between Cape Town and Woodstock.’
The
specific pole and box were located some 200 metres beyond the point
of impact identified by Human (and relied on by Carver).
Human denied
in evidence that the report correctly reflected the scene of the
accident. Neither Mr Conradie nor the recipient of
his communication
to Windermere was called to testify. On these facts the trial court
could not (and did not) find that Human did
make a report in the
terms quoted. Nevertheless the very existence of so specific an
identification of the scene of the accident,
without any attempt to
explain it, raises doubts about the accuracy of the tale told in the
witness box.
[62] To
put the matter no higher, the detail derived from the evidence of
Human concerning the material events was inherently unreliable
and
could not be said to reach a level of probability and, in so far as
Carver relied on his evidence without any independent support
for it,
his calculations had to be regarded as suspect. That being so the
substratum of counsel’s submission was unsafe in
itself. The
fact that Human and Carver were, in a sense, adverse to the
plaintiffs’ cause and, therefore unlikely to have
gilded the
lily, does not assist them because theirs was the only evidence upon
which the plaintiffs could found a case for the
negligence of the
driver. On the evidence of Human, ignoring measurements and
calculations, it was at least a probable inference
that he, coming
unexpectedly upon an obstruction on the line, had no time to
calculate the advantages and disadvantages of his
actions and, while
he may have committed an error of judgment in applying brakes after
sounding the siren, the reliable evidence
was insufficient to
determine that he was negligent in the action which he took.
20
It is true that his evidence of a conscious delay of ‘’n
paar sekondes’ might suggest dilatoriness if all the
facts were
known, but even that turn of phrase (which does not specifically or
by equivalent find a place in his original report)
smacks greatly of
reconstruction when uttered at so great a remove from the events of
February 2002. Its value as an admission
was therefore dubious. For
these reasons I conclude that a finding that he was negligent could
not properly be reached as a probability
on the available evidence.
The
apportionment issue
[63] From
what I have said earlier concerning the lack of merit of Metrorail’s
reliance on the appellants’ protection
of their own
self-interest (and that in the context of the onus borne by the
plaintiffs) it follows that, with the burden of proof
reversed,
Metrorail had to fail in its attempt to attach even partial fault to
the conduct of the appellants in walking on
the railway line with
their backs to the approaching train.
[64] Counsel
for Metrorail submitted that a reasonable man in the position of the
appellants would have avoided the accident by
reacting timeously to
the sudden illumination caused by the headlight of the train as it
approached him. I am not persuaded that
the evidence establishes
negligence in this regard. As I have discussed earlier, determination
of the speed of the train is problematic.
Because of the curve in the
line the direct beam did not fall on the appellants at the maximum
reach of the light. Their backs
were to it and there is no means of
knowing where their attention was directed before the change became a
meaningful phenomenon
for them. Being caught totally unaware, the
appellants, like the driver, must be allowed a reasonable time to
react.
21
In all the circumstances the court
a
quo
was wrong in reaching a
conclusion unfavourable to the appellants on a balance of
probability. The consequence is that it should
have found that
Metrorail had failed to discharge the onus to establish contributory
negligence on the part of the appellants.
22
[65] Mr
Budlender sought an order that Metrorail be ordered to pay Human’s
costs in the event of the appeal against the order
in favour of the
latter being unsuccessful. Such a
procedure
is authorised by Uniform rule 10(4)(b)(ii) and may be applied when
joinder of the successful defendant by the plaintiff
was a reasonable
step and if the court in its discretion deems it reasonable in all
the circumstances of the case that the unsuccessful
defendant should
bear the burden of the whole or any part of the successful
defendant’s costs.
23
As to the first aspect there can be no dispute. As to the second, the
interests of Metrorail and Human were largely identical and
covered
in substantial measure the same questions of fact. The effect of the
finding in this appeal was, in substance, that Metrorail,
by its
failure to take reasonable precautions exposed both the plaintiffs
and its own driver to a situation of emergency which
inevitably led
to the joinder of the latter. There is consequently no inequity in
imposing on Metrorail liability for payment of
his costs in so far as
any were incurred.
[66] In
the result the following order is made:
1. The
appeal succeeds as against the first respondent.
2. The
appeal is dismissed as against the second respondent.
3. The
costs of the appeal including any costs incurred by the second
respondent are
to
be borne by the first respondent.
4. The
order of the court
a quo
is
set aside and replaced by the following order:
‘
(a) The
appeal of the first appellant, Metrorail, is dismissed with costs.
(b) The
appeal of the second appellant, Human, is upheld with costs.
(c) The
appeal of the third appellant, Kuffs, is dismissed with costs.
(d) The
costs of the second appellant are to be paid by the first appellant.
(e) The
order of the trial court is set aside and replaced by the following
order:
“
(i) The first
defendant is liable to pay damages to the plaintiffs.
(ii) The first defendant
is liable to pay the plaintiffs’ costs to date.
(iii) The third party is
obliged to indemnify the first defendant against the plaintiffs’
claims.
(iv) Costs as between the
first defendant and third party are to stand over for later
determination.
(v) The action against
the second defendant is dismissed with costs. Such costs
are to be paid by the
first defendant”.’
____________________
J
A HEHER
JUDGE
OF APPEAL
A
ppearances:
F
or
appellants: G M Budlender SC
I
nstructed
by: Malcolm Lyons & Brivik Inc, Cape Town
Matsepes
Inc, Bloemfontein
F
or
1
st
and 2
nd
respondents: A de V La Grange SC and J C Marais
I
nstructed
by: Werksmans Inc, Cape Town
Lovius-Block
Attorneys, Bloemfontein
For
3
rd
respondent: -
Instructed
by: Smith Tabata Buchanan Boyes, Cape Town
BDS
Milton & Earl, Bloemfontein
1
The first appellant is represented by a curator
ad litem
.
2
The third respondent did not participate in the present appeal.
3
The nature of the repairs was unspecified. There was no suggestion
that any of the critical mechanisms were faulty.
4
Harrington NO and Another v Transnet Ltd
2007 (2) SA 228
(C).
5
ie the Appointment of Damages Act 34 of 1956.
6
The evidence of the second appellant was that he and the first
appellant were walking on the sleepers on either side of the track.

Human claimed to have observed them between the lines, springing
aside only when it was too late. There was no particular reason
to
prefer one version above another, but appellants’ counsel was
content to argue on the assumption that Human’s
evidence was
correct in this regard.
7
See particularly
Herschel v Mrupe
1954 (3) SA 464
(A) at 477;
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-G;
Ngubane v
South African Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A) at 776D-J;
Pretoria City Council v De Jager
1997 (2) SA 46
(A) at
55H-56C.
8
Van Eeden v Minister of Safety and Security
2003 (1) SA 389
(SCA) at 395I-396E.
9
Precisely what his function there was, was not explained in
evidence. Factually there was no basis for reasoning, as counsel
for
Metrorail did, that his presence represented an assumption of
responsibility for informing the Kuffs office of the impending

departure of trains.
10
Human, for example, had been involved in eighteen
such occurrences in his twenty-five year career as a Metrorail
driver, several
resulting in fatalities.
There was no
suggestion that he contributed culpably to these calamities. Equally
there is no reason to think that his experience
was materially
different from those of his colleagues.
11
Cf
Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd
[1968] 1 WLR 1776
at 1783E.
12
In support of the submission that reasonable guards would have kept
a proper lookout and not entered on the immediate area of
the tracks
without first ensuring that it was safe to do so, reference was made
to the duty of persons at level crossings. The
circumstances of this
case are however entirely distinguishable.
13
Holmes,
The Common
Law
, as quoted in
Salmond
and Heuston on the Law of Torts
, 19ed
250. The authors add ‘The foolish and forgetful are judged by
the same external standard as other defendants’.
14
R v Mbombela
1933 AD 269
at 273-4.
15
Salmond on
Jurisprudence
,
12ed 99 quoting Holmes,
loc cit
.
The passage is largely in accord with the not always consistent
statements by our own authorities: cf PQR Boberg,
The
Law of Delict
, Vol 1, 269, 271;
S
v Manamela (Director-General of Justice Intervening)
2000
(3) SA 1
(CC) at paras 74-76;
S v Van
As
1976 (2) SA 921
(A) at 928;
AA
Mutual Insurance Association Ltd v Manjani
1982
(1) SA 790
(A) at 796H;
S v Zoko
1983
(1) SA 871
(N) at 887G;
Mutual and
Federal Ins Co Ltd v Oudtshoorn Municipality
1985
(1) SA 419
(A) at 444F. See also Fleming,
The
Law of Torts
9ed 119.
16
Boberg,
op cit
, 270,272.
17
In
South African
Railways and Harbours v Bardeleben
1934
AD 473
at 480.
18
Cf the remarks of Wessels CJ in
South African Railways v
Symington
1935 AD 34
at 44-5.
19
According to Van Reenen who pointed the positions
out at an inspection
in loco
.
20
See the approach of this Court to a situation of sudden emergency in
Road Accident Fund v Grobler
2007 (6) SA 230
(SCA) 234D-E.
21
Cf
Samson v Winn
1977 (1) SA 761
(C) at 769.
22
Counsel did not attempt to distinguish between the culpability of
the two appellants, rightly, I think, since what can be said
for and
against the second appellant, who did testify, holds equally well
for the first appellant, who could not.
23
Parity Insurance Co Ltd v Van den Bergh
1966 (4) SA 463
(A)
at 481G.