Transnet Limited t/a Metrorail and Others v Harrington NO and Another (A341/07) [2008] ZAWCHC 60 (20 October 2008)

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[2008] ZAWCHC 60
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Transnet Limited t/a Metrorail and Others v Harrington NO and Another (A341/07) [2008] ZAWCHC 60 (20 October 2008)

IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case
No:
A341/07
In the
matter between:
TRANSNET
LIMITED t/a METRORAIL
First Appellant
JOHANNES
CHRISTOFFEL HUMAN
Second Appellant
KUFF’S
SECUR
ITY SERVICES
Third
Appellant
and
MARK
HARRINGTON N O
First Respondent
SIYAVUMA NGLALEKA
Second Respondent
FULL BENCH
APPEAL : VAN ZYL, WAGLAY et NDITA JJ
JUDGMENT : JUDGE
D H VAN ZYL
ON BEHALF OF 1
st
& 2
nd
APPELLANTS: ADV. A. de v le GRANGE
(SC)
: ADV. J C
MARAIS
INSTRUCTED
BY : SMITH TABATA BUCHANAN
BOYES - Mr R
Lagardien
ON BEHALF OF
RESPONDENTS : ADV. G. BUDLENDER
INSTRUCTED
BY : MALCOLM LYONS & BRIVIK INC.
Mr Tzvi Brivik
DAY(S) IN
COURT : 25 JANUARY 2008
JUDGMENT
DELIVERED : 20 OCTOBER 2008
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No:
A341/07
In the matter between:
TRANSNET LIMITED t/a
METRORAIL
First Appellant
JOHANNES CHRISTOFFEL
HUMAN
Second Appellant
KUFF’S SECURITY
SERVICES
Third Appellant
and
MARK
HARRINGTON
N O
First Respondent
SIYAVUMA
NGALEKA
Second Respondent
JUDGMENT
VAN ZYL J:
INTRODUCTION
[1] This is an appeal against the judgment of Blignault J in an
action for damages arising from a collision, at approximately 22h45

on the night of 3 February 2002, between the respondents, employees
of the third appellant, and a train on the railway line between
Cape
Town and Woodstock. The train was operated by the first appellant but
driven by the second appellant. For purposes of convenience
I shall
refer to the appellants as “Metrorail”, “Human” and “Kuffs”
respectively, and to the respondents as the plaintiffs
or as first
and second plaintiffs respectively. The first plaintiff was
represented at the trial by a
curator ad litem
, namely Mr M
Harrington, an advocate of this court. The parties agreed that the
trial court would be called upon to adjudicate
only on the issue of
negligence and that the question of damages would stand over for
later adjudication.
[2] As a result of the collision the plaintiffs suffered serious
injuries which were attributed to the negligence of Metrorail
and
Human. In his judgment Blignault J held that Metrorail had been
negligent in failing to warn Kuffs that the train in question
was to
traverse a section of the railway line where the plaintiffs were on
security patrol at a time when no scheduled trains were
passing that
way. The learned judge likewise held that Human had been negligent in
that he had failed to take reasonable steps
to avoid the accident. On
the other hand he held that the plaintiffs had also been negligent in
that they had failed to avoid the
collision by keeping a proper
lookout. The damages to be recovered by them should therefore, in
view of the relative blameworthiness
of the parties, be reduced by
one third. Inasmuch as Kuffs had contractually indemnified Metrorail
against claims by the plaintiffs,
such indemnity should take effect.
[3] Blignault J subsequently granted leave to Metrorail, Human and
Kuffs to appeal against his findings of negligence on the part
of
Metrorail and Human. He likewise granted leave to the plaintiffs to
lodge a cross-appeal against his finding of contributory
negligence
on their part and against his order that their recoverable damages
should be reduced by one third.
[4] Mr A de V Le Grange SC appeared for Metrorail and Human and Mr J
C Marais for Kuffs. Mr G Budlender appeared on behalf of the

plaintiffs (respondents). The court expresses its appreciation to
them for their respective presentations.
THE PLEADINGS
[5] The claim of the plaintiffs was initially directed against
Metrorail and Human as first and third defendants, and against the

South African Rail Commuter Corporation Limited as second defendant.
No relief was, however, sought against the second defendant.
Kuffs
was subsequently joined by Metrorail as a third party on the basis
that it was the employer of the plaintiffs who, at the
time of the
collision, were performing their duties pursuant to an agreement in
terms of which Kuffs would provide security services
to Metrorail.
[6] According to the amended particulars of claim, in so far as they
are relevant to the present proceedings, the collision was
caused by
the negligence of Metrorail and Human. In this regard it was alleged
that, although Metrorail was aware of the fact that
scheduled trains
ran only until 22h00, it failed to warn the plaintiffs or their
employer, Kuffs, of the approach of the train.
In addition it was
alleged that Human, acting within the course and scope of his duties
as an employee of Metrorail, failed, while
driving the train, to keep
a proper lookout, to apply the brakes of the train adequately or at
all and to warn the plaintiffs of
the approach of the train by
flashing its lights. Furthermore Metrorail had failed to take any, or
reasonable, measures to ensure
that security personnel, such as the
plaintiffs, receive adequate safety training or complete the
prescribed in-house test and
induction training prior to commencing
their duties on the premises.
[7] In their plea Metrorail and Human denied having been negligent as
alleged or at all and averred that the negligence of the
plaintiffs
themselves was in fact the sole cause of the collision. In their
third party notice, however, they averred that, in
the event that the
claim of the plaintiffs should be successful, they would be entitled
to indemnification by Kuffs in any amount
which a court might order
them to pay the plaintiffs.
[8] In its plea to the third party notice, Kuffs denied liability for
the damages suffered by the plaintiffs and in any event denied
that
the collision had been caused by negligence on the part of Metrorail
or Human. Alternatively it pleaded that, even should
they be held to
have been negligent, their negligence was not the sole cause of the
collision. It should in fact be partially attributed
to the
negligence of the plaintiffs, who had failed to keep a proper lookout
and failed to avoid a collision when, by the exercise
of reasonable
care, they could and should have done so. There should hence be an
apportionment of damages in terms of section 1(1)(a)
of the
Apportionment of Damages Act
34 of 1956.
THE EVIDENCE
[9] Three witnesses testified on behalf of the plaintiffs, namely Mr
J E Gounder, operations manager of Kuffs at the relevant time,
Mr B
Bidli, who had likewise been in the employ of Kuffs at such time, and
the second plaintiff. The main witnesses on behalf of
the defendants
were Mr J C Human, the third defendant and driver of the train
involved in the collision with the plaintiffs, and
Mr B A Carver, a
mechanical engineer who gave expert testimony on the safety and
braking systems of the said train. Supplementary
evidence was given
by Mr H van Reenen and Mr G M Apollis, security officers in the
employ of Metrorail.
[10] Mr Gounder testified that there was an agreement between
Metrorail and Kuffs in terms of which Kuffs would render certain

security services to Metrorail. He was responsible for overseeing
Kuff’s compliance with this agreement. More specifically he
was
required to supervise the security guards when they were on duty, be
it by day or night. Communication with the guards took
place by way
of two-way radios and their movements were monitored by means of a
closed circuit television camera installed in Metrorail’s

operations room, where a member of Kuffs would be present whenever
the guards were on duty. The guards were to patrol the railway
line
between Cape Town and Woodstock with a view to preventing the theft
of signal or overhead cables. No specific training was
required for
this patrol, which was to commence after the last scheduled train had
passed at approximately 22h00 and be completed
before the first
scheduled train passed at approximately 04h00 next morning.
[11] According to Mr Gounder his understanding was that Metrorail’s
area chief, Mr Appollis, was supposed to inform Kuffs of
any train
making use of the line outside of the scheduled times, so that Kuffs
could bring it to the intention of the guards by
means of their
two-way radios. The guards would carry out their patrol by walking on
or alongside the railway tracks, whichever
they found most
comfortable.
[12] On the night of the collision Mr Gounder received a telephone
call informing him that the plaintiffs, who had been on cable
patrol,
had been knocked over by a train and were seriously injured. When he
arrived on the scene they were unconscious and lying
on opposite
sides of the railway line. The second plaintiff regained
consciousness while he was on the scene. They were attired
in full
security uniform and were wearing reflective orange vests over their
clothes. There was a strong south-easterly wind blowing
that night
but the skies were clear. The plaintiffs had been walking into the
wind, which had apparently blocked out the sound
of the train when it
hit them from behind. Mr Gounder managed to speak to the train
driver, Mr Human, who told him that he had
been taking the train to
the Salt River yard for repairs and had not seen the plaintiffs on
the track. According to him there had
been nothing he could do to
avoid the collision.
[13] In cross-examination by Mr La Grange on behalf of Metrorail,
SARCC and Human, Mr Gounder suggested that the plaintiffs had
been
walking between the rail tracks because it was more comfortable than
walking on uneven terrain beside the tracks. He agreed,
however, as a
general proposition that it was dangerous to walk on a railway line,
be it by day or night. When cross-examined by
Mr Marais for Kuffs, Mr
Gounder conceded that there was an “understanding” that Metrorail
would apprise Kuffs of unscheduled
trains making use of the railway
line after 22h00. As for the security guards, they received no
training from Metrorail except
in the use of firearms.
[14] Mr B Bidli testified that he had worked for Kuffs as a security
guard and was posted to Metrorail where he underwent basic
training
in the form of an orientation course. He did not, however, receive
any specific cable patrol training before being assigned
to do such
patrol work. He was likewise never told that he should not walk on
the railway tracks. In any event he preferred to
walk on the pathway
alongside the tracks because it was more comfortable there. From time
to time he would cross the tracks, however,
when the pathway he was
on came to an end. In this regard he pointed out that it was unusual
for trains to move on the railway
lines after 22h00 at night. In
cross-examination, however, he conceded that it was inherently
dangerous to cross a railway line
or to walk between the tracks
without first establishing that it was safe to do so. He was
furthermore aware of the fact that unscheduled
trains could run after
22h00 and had in fact observed trains running late at night.
[15] The second plaintiff (Mr S Ngaleka) testified that he had
commenced working as a security guard for Kuffs during February
2001.
He had been in the same group as Mr Bidli and had received the same
basic training. This was in the form of orientation and
it excluded
any cable patrol training. His instructor did not tell him not to
walk on the tracks, but he and the other guards in
any event walked
on the pathways next to the tracks. What he was told was that there
were no trains running at night. The only
train he had seen at night
was the Shosholoza Rail, which made use of the main railway line.
[16] On the Sunday night in question he and the first plaintiff, who
was holding the two-way radio (“walkie-talkie”), had gone
out on
cable patrol in their uniforms and reflective vests which they were
required to wear over their clothing. They commenced
their patrol
from platform 19 at Cape Town station into the strong wind in the
direction of Woodstock station. They were walking
on the footpaths,
apparently constructed from cement sleepers, situated to the right
and left respectively of the railway track
and protruding slightly
above the gravel formation alongside the track. The second plaintiff
did not hear the train or its siren,
nor did he see its headlight
before the train struck each of them a glancing blow, causing them to
be propelled forwards on either
side of the track. He had believed
that there were no moving trains at that time. Had he known, or been
given warning, that this
was not so, he would not have walked where
he did.
[17] In cross-examination the second plaintiff was unable to recall
that he and the first plaintiff attempted to jump out of the
way of
the approaching train moments before it hit them. He likewise did not
remember speaking to Mr Gounder. He did, however,
remember that, when
he crossed the track from one side to the other, he did not look left
or right to see whether it was safe to
cross. In this regard he had
made no prior enquiries as to whether or not there were unscheduled
moving trains traversing the railway
line at that time. He hence did
not expect any trains and did not believe that it was dangerous.
[18] The second appellant (Human) testified that he was employed by
Metrorail as a train driver and was in control of the train
which
collided with the plaintiffs. At that stage he had more than twenty
years of experience. According to him it was not unusual
for
unscheduled trains to run after 22h00 for purposes of shunting them
from one platform to another or removing them to the Salt
River yard
for repairs. At the time of the collision he was taking the train
from platform 3 at Cape Town station to the Salt River
repair yard at
a speed of less than 60 kph. Before leaving he tested the siren,
which is operated by foot, and thereafter the headlight,
brakes and
accelerator lever, which were operated manually. As he came out of a
bend on the line to Woodstock with the headlight
of the train on
bright, he saw two black figures walking between the tracks. He
sounded the siren and, when that did not elicit
a reaction, he
applied the brake handle fully while continuing to sound the siren.
At the same time he released the accelerator
and disengaged the
so-called “dead man’s handle” (“dooiemanseienskap”) which
would cause the train to stop automatically.
[19] At this stage Human noticed that the men were looking up at the
train just before they attempted to jump out of the way, one
on
either side of the track. Only after he had alighted from the train
did he realise that they were security guards and that he
had
collided with them. They were both in uniform but did not have
reflective vests on. He was able to speak to the second plaintiff,

who was sitting on the ground with his head between his knees and was
apparently not too seriously injured. The first plaintiff
could only
mumble, however, and was clearly more seriously injured than his
companion. According to Human there was nothing more
he could have
done to avoid the collision.
[20] In cross-examination Human testified that the plaintiffs had
been walking next to each other between the tracks when he first
saw
them. With reference to the relatively limited space between the
tracks he conceded, however, that the one might have been
walking
behind the other. When asked how long after he had sounded the siren
he applied the brakes, his answer was that it was
a matter of
seconds. Immediately thereafter he released the accelerator and
disengaged the “dead man’s handle.”
[21] The next witness on behalf of the defendants was Mr B A Carver,
a mechanical engineer who had been in the railway industry
for some
36 years, during which time he had done a fair amount of work as an
accident investigator and had built up expertise in
train braking
systems. He testified that a train driver would normally act
instinctively in an emergency situation. When required
to stop
suddenly he would, within a fraction of a second, shut the
accelerator down and apply the brake handle fully. In doing
so he
would effectively cut off the electric power supply to the train’s
motors. The brakes would take about three seconds to
build up
sufficient pressure in the brake cylinders after which the train
would take a further three seconds to come to a stop.
Disengaging the
“dead man’s handle” would, when used alone, bring the train to
a stop, but not as effectively as applying
it in concert with the
brake handle.
[22] To assist the court Carver attended the inspection
in loco
,
after which he prepared a number of sketches and made certain
calculations on the basis of measurements taken and observations
made
by him in the proximity of the scene of the collision. In the main it
related to the stopping distance of a train with reference
to its
speed and the reaction time of the driver. It also concerned the
strength of the train headlight and the distance from which
persons
on the track ahead would become visible to the train driver and from
which it could be observed by such persons. In the
present case it
had to be taken into account that the train would have to negotiate a
curve or bend in the track before the light
beam would directly
illuminate the persons on the track. On the aspect of audibility of
the train Carver pointed out that an electric
train did not make a
noise and in fact ran relatively silently. Furthermore the train’s
electric siren was not as loud as the
air horns previously used on
trains but which were discontinued because of the noise factor.
[23] It goes without saying that the various possibilities depicted
in the sketches and calculations could not be established with

pin-point accuracy inasmuch as Carver was obliged to rely on a number
of assumptions and estimates relating to factors such as
visibility,
audibility and human reaction time. In this way he was able to create
a number of alternative scenarios, all of which
were, to a greater or
lesser extent, feasible. One thing, however, appears to have emerged
with relative clarity, namely that a
train cannot, like a motor
vehicle, be stopped within a very short distance, however pressing
the emergency and however competent
the driver. The higher the speed
of the train at the time the braking system is applied the longer the
stopping distance will inevitably
be. By the same token, the quicker
the driver’s reaction in an emergency situation the shorter the
stopping distance of the train
will be.
[24] Mr H van Reenen, a senior security officer in the employ of
Metrorail, testified that he had been on duty on the night in

question when he was called upon to visit the scene of the accident.
Also on the scene were the second plaintiff and Carver, to
whom he
pointed out certain locations which he (Carver) measured and
recorded. Thereafter Van Reenen completed and signed a form
relating
to the collision between the train and the plaintiffs. He remembered
that the plaintiffs were dressed in blue uniforms
but could not
recall whether they had reflective vests on. He testified further
that it was not exceptional for unscheduled trains
to be running
after 22h00. This was in fact a regular occurrence.
[25] The last witness for the defendants was Mr G M Apollis, chief
security officer of the Metrorail security services. According
to him
there was no contractual obligation, or any existing practice or
policy, requiring Metrorail to inform Kuffs of the movement
of
unscheduled trains after 22h00. In any event he denied emphatically
that Metrorail had informed Kuffs that there would be no
trains in
operation after 22h00 so that they could safely deploy their security
guards after that hour. There was likewise no contractual
requirement
that the security guards should wear reflective vests. He was hence
not concerned when he arrived at the scene of the
accident and
noticed that the plaintiffs were not wearing reflective vests.
[26] Kuffs closed its case without adducing any evidence, subject
thereto that the evidence of Mr J Stander, a meteorologist, in
regard
to the weather conditions at the time of the accident, would be
admitted in writing. From this it appears that, at such
time, the
so-called “Deep South-Easter” wind averaged 45 kph, with
occasional gusts of up to 72 kph. This would also have been

representative of the railway area between Cape Town and Woodstock.
The visibility under such conditions would have been good.
[27] In regard to the inspection
in loco
held during the
course of the trial, Blignault J set forth the recorded observations
in his judgment. This included that it was
not “generally
uncomfortable” to walk on the sleepers between the tracks as
opposed to the discomfort of walking on the slopes
adjacent to the
rails as one approached the scene of the accident. After the
collision the first plaintiff was lying on the left
hand side of the
track some ten metres from the second plaintiff, who was lying on the
right hand side.
THE RELEVANT LEGAL PRINCIPLES
[28] In order to found a delictual claim for damages, the defendant’s
conduct, in the form of a voluntary act or omission, must
be
negligent and wrongful and there must be a causative link between
such conduct and the harm, in the sense of damage, loss or
injury,
suffered by the plaintiff. This means that, for liability in delict
to be established, the defendant must reasonably foresee
that his
conduct would cause the plaintiff harm unless appropriate avoiding
action be taken to avoid such consequence. What would
be reasonably
foreseeable and what would constitute appropriate avoiding action
will, of course, depend entirely on the facts and
circumstances of
the case.
[29] For purposes of delictual liability the conduct must take the
form of a positive, voluntary act (
commissio
) or an omission
(
omissio
) in the sense of a failure to act or to take
precautionary measures with a view to avoiding or preventing harm to
another. An omission
is regarded somewhat more leniently or
benevolently than a commission inasmuch as liability for an omission
is generally more restricted
than liability arising from a
commission. See J C van der Walt and J R Midgley
Principles of
Delict
3
rd
ed (2005) 65-66 (also in
LAWSA
2
nd
ed (2005) 79), cited by J Neethling, J M Potgieter and P J Visser
Law
of Delict
5
th
ed (2006) 28. On conduct as a
requirement for delictual liability see also J Burchell
Principles
of Delict
(1993) 6-37.
[30] The classic formulation of negligence (
culpa
) in delict
is that of Holmes JA in the case of
Kruger v Coetzee
1966 (2)
SA 428
(A) at 430E-G:
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 or 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 has
been constantly stated by this Court for some 50 years. Requirement
(a)(ii) is sometimes overlooked. Whether a
diligens paterfamilias
in the position of the person concerned would take any guarding
steps at all and, if so, what steps would be reasonable, must depend

upon the particular circumstances of each case.
[31] In
Ngubane v South African Transport Services
[1990] ZASCA 148
;
1991 (1) SA
756
(A) at 776D-777J, Kumleben JA adopted and applied this
dictum
on the basis that the “reasonable steps” envisaged in paragraph
(a)(ii) were “not necessarily those which would ensure that

foreseeable harm of any kind does not in any circumstances
eventuate”. The learned judge relied in this regard on a passage
from the first edition of
LAWSA
vol 8 par 43 at 78, where
Professor J C van der Walt stated that, once it was established that
a reasonable man would have foreseen
the possibility of harm, the
question arose whether he would have taken measures to prevent the
occurrence of the foreseeable harm.
This would depend on the
circumstances of the case, subject to four basic considerations which
might be relevant to the response
of a reasonable man to a situation
creating a foreseeable risk of harm to others. They are the degree or
extent of the risk created
by the conduct in question, the gravity of
the possible consequences if the risk of harm should materialise, the
utility of the
conduct and the burden of eliminating the risk of
harm.
[32] These considerations have been repeated, with some amendment and
elucidation, in Van der Walt and Midgley
Principles of Delict
(3
rd
ed)
179 (also in
LAWSA
(2
nd
ed) 213 under the heading “The preventability issue”). In
Pretoria City Council v De Jager
1997 (2) SA 46
(A) at 55H-56C
Scott JA referred to such considerations as constituting a “value
judgment”. See also
Barnard v Santam Bpk
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA) at 213H-214D, where Van Heerden ACJ opined that there was an
interaction between the elements of foreseeability and
preventability.
The decision of a reasonable man to take precautions
or not would of necessity be influenced by, amongst other
considerations,
the degree of probability that a particular
consequence would eventuate should precautionary measures not be
taken. This did not,
however, mean that an improbable risk of harm
would render it unforeseeable unless, of course, the risk was
far-fetched or fanciful.
The
locus classicus
in this regard is
Herschel v Mrupe
1954 (3) SA 464
(A) at 477 (
per
Schreiner JA):
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.
[33] The question inevitably arises, when the aspect of negligence is
considered, who exactly qualifies as a reasonable man. The
bonus
et diligens paterfamilias
(“good and diligent father of a
family”) was, in Roman times, a person who exhibited the utmost
care (
exactissima diligentia
) in performing his duties. See
Digesta
44.7.1.4. This was clearly a fictional person created
by law for purposes of establishing a pragmatic and objective norm
for acceptable
conduct within a community. Such person was not
superhuman or endowed with extraordinary talent and ability, nor was
he or she
an incompetent or undeveloped person lacking in insight. In
Herschel v Mrupe
(
supra
) at 490F Van den Heever JA put
it thus:
The
concept of the
bonus paterfamilias
is not that of a timorous
faintheart always in trepidation lest he or others suffer some
injury; on the contrary he ventures out
into the world, engages in
affairs and takes reasonable chances. He takes reasonable precautions
to protect his person and property
and expects others to do likewise.
[34] If the person whose conduct is being assessed is endowed with
special expertise, experience or skills, one must, of course,
make
the relevant assessment in terms thereof. Thus a medical specialist
or highly qualified engineer would be gauged in accordance
with
higher demands of reasonableness than an unqualified labourer with
limited education and skills. The reasonableness criterion
must hence
be applied to a person in the position of the defendant, as clearly
stipulated in
Kruger v Coetzee
(
supra
) at 430E. It
follows that, in the present case, Human’s conduct would have to be
assessed in the context of the skill and expertise
which may
reasonably be expected of a train driver in the circumstances in
which he found himself. This means that the driver should
be given a
reasonable reaction time from the moment he becomes aware of an
obstruction or danger in his path and commences taking
avoiding
action by sounding the train’s whistle or siren and applying its
brakes. See
Smart and Others v South African Railways and Harbours
1928 NPD 129
at 147-148;
Masureik and Another (t/a Lotus
Corporation) v Welkom Municipality and Another
1995 (4) SA 745
(O) at 764E-H.
[35] The train driver is, of course, entitled to assume that persons
moving on or in the close vicinity of railway lines will not

recklessly expose themselves to danger without reasonable regard for
their personal safety. Thus, in the present case, the plaintiffs
were
required to conduct themselves as reasonable security guards carrying
out a nocturnal security patrol on or near a railway
line. See
Worthington and Others v Central South African Railways
1905
TH 149
at 151;
Hammerstrand v Pretoria Municipality
1913 TPD
374
at 377;
Sand and Company Limited v SA Railways & Harbours
1948 (1) SA 230
(W) at 241;
South African Railways and
Harbours v Reed
1965 (3) SA 439
(A) at 442;
Haine v The South
African Railways and Harbours
PH 1966 (2) 107 (N) at 110.
[36] Conduct which is found to be negligent in accordance with the
criterion of reasonableness will not give rise to delictual
liability
unless it is also wrongful. This will be the case if it infringes a
legally recognised right of the plaintiff or breaches
a legal duty
owed by the defendant to the plaintiff. Such infringement or breach
is usually determined with reference to the criterion
of
reasonableness, which is indissolubly linked with the values of
justice, equity, good faith (
bona fides
) and good morals (
boni
mores
) (also referred to as “public policy” or “the legal
convictions of the community”). See
Compass Motors Industries
(Pty) Ltd v Callguard (Pty) Ltd
1990 (2) SA 520
(W) at 528-529;
Aucamp v University of Stellenbosch
2002 (4) SA 544
(C) par
[68]; Van der Walt and Midgley
Principles of Delict
68-74.
[37] The relationship between wrongfulness and negligence, as
prerequisites for delictual liability, was recently set forth in
Gouda Boerdery BK v Transnet
2005 (5) SA 490
(SCA) par [12] at
498G-499E. There Scott JA emphasised that negligent conduct causing
harm would not give rise to liability unless
it was also wrongful.
When the conduct complained of was an omission, the inquiry as to
wrongfulness would involve determining
the existence or otherwise of
a legal duty owed by the defendant to the plaintiff to avoid
negligently causing the plaintiff harm.
This would be done by
applying the criteria of reasonableness, public policy and, where
appropriate, constitutional norms. If the
issue of negligence should
be considered first, it might be convenient to assume the existence
of a legal duty. On the other hand
if wrongfulness should first be
considered, negligence could be assumed. Whatever approach was
followed it was important not to
overlook the distinction between
negligence and wrongfulness.
[38] It follows that negligent conduct in the form of an omission is
wrongful if the defendant is under a legal duty to act positively
in
order to prevent harm being caused to the plaintiff. The measures he
adopts to do so must be reasonable and consistent with
public policy
and the legal convictions of the community. See
Minister of Law
and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at 320;
Minister of
Safety and Security v Duivenboden
2002 (6) SA 421
(SCA) par [12];
Van Eeden v Minister of Safety and Security
2003 (1) SA 389
SCA par [9]-[10] at 395I-396E; Van der Walt and Midgley
Principles
of Delict
84-85.
[39] Once it is established that the defendant’s conduct was
wrongful and negligent, the question is whether or not such conduct

has caused harm to the plaintiff. This is clearly a factual matter
which requires a full investigation of all the relevant facts
in
order to determine the causative link between the conduct and the
harm in question. See Van der Walt and Midgley
Principles of
Delict
196-211. It may indeed involve hypothetical
considerations, as appears from the following
dictum
of
Corbett CJ in
International Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) at 700E-701A:
The first
[enquiry] is a factual one and relates to the question as to whether
the defendant’s wrongful act was a cause of the
plaintiff’s loss.
This has been referred to as ‘factual causation’. The enquiry as
to factual causation is generally conducted
by applying the so-called
‘but-for’ test, which is designed to determine whether a
postulated cause can be identified as a
causa sine qua non
of
the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff’s
loss would have
ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the plaintiff’s
loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa sine qua non
of the loss suffered, then
no legal liability can arise. On the other hand, demonstration that
the wrongful act was a
causa sine qua non
of the loss does not
necessarily result in legal liability.
[40] In evaluating the facts on which the alleged wrongful and
negligent conduct is based, one must avoid adopting an
ex post
facto
“armchair” approach. A reasonable man is not expected
to have the knowledge and insight that a subsequent adjudicator of
the
facts may have. This is particularly so when he is confronted
with an emergency situation and has to make a decision or exercise
an
option almost immediately. In retrospect a different decision or
option might have been justified, but the ordinary man is not
endowed
with powers of hindsight. It is the reasonableness of his conduct
that must be assessed. See
South African Railways v Symington
1935
AD 37
at 45 (
per
Wessels CJ):
Where men
have to make up their minds how to act in a second or a fraction of a
second, one may think this course the better, whilst
another may
prefer that. It is undoubtedly the duty of every person to avoid an
accident, but if he acts reasonably, even if by
a justifiable error
of judgment he does not choose the very best course to avoid the
accident as events afterwards show, then he
is not on that account to
be held liable for
culpa
.
This
dictum
was cited with approval in
Road Accident Fund v
Grobler
2007 (6) SA 230
(SCA) par [11] at 234C. See also
Sierborger v South African Railways and Harbours
1961 (1) SA
498
(A) at 506D-G;
Samson v Winn
1977 (1) SA 761
(C) at
766D-F;
Rodrigues v SA Mutual and General Insurance Co Ltd
1981
(2) SA 274
(A) at 280H-281A;
Ntsala and Others v Mutual &
Federal Insurance Co Ltd
1996 (2) SA 184
(T) at 192G-H; Van der
Walt and Midgley
Principles of Delict
188-190.
APPLICATION OF THE LAW TO THE FACTS
[41] The first ground of negligence raised by the plaintiffs in
respect of Metrorail was flimsy, to say the least. The suggestion

that Metrorail was negligent in not taking reasonable measures to
ensure that the plaintiffs receive proper safety training for
cable
patrol work, or to ensure that they, as employees of Kuffs, completed
Metrorail’s in-house test and induction training
before commencing
their duties, confuses the contractual relationship between Metrorail
and Kuffs with the negligence issue. In
any event, as Blignault J
quite correctly found, the original agreement between them did not
provide for cable patrol duties and
the evidence relating thereto was
extremely vague. If there was a tacit or implied term requiring
training of security personnel
this would have been to the effect
that Kuffs was obliged to ensure that its security guards were
properly trained to carry out
security guard duties. Unless the
agreement specifically required Metrorail to provide the training for
cable patrol duties or
to oversee training provided by Kuffs, there
could, in my view, have been no duty on Metrorail in this regard.
[42] In view of these considerations I am in respectful agreement
with the finding of Blignault J that Metrorail had no obligation
to
ensure that the plaintiffs receive training for cable patrol work or
complete Metrorail’s in-house training and induction
training.
There was simply no evidence to this effect. And even if the evidence
did demonstrate that Metrorail was obliged to ensure
that the
plaintiffs receive and complete such training, there was not the
slightest indication of the nature and content of such
training or to
what extent the failure to receive or complete it caused or
contributed to the accident. Metrorail might have been
aware of the
importance of training for an inherently dangerous function, as quite
correctly submitted by Mr Budlender for the
plaintiffs, and might
justifiably have expected Kuffs to do the necessary in this regard.
At no stage, however, did it have a duty
of care to the plaintiffs in
respect of training for cable patrols and no negligence or delictual
liability was established in
this regard.
[43] The second ground of negligence relied on by the plaintiffs,
namely that Metrorail had failed to apprise the plaintiffs or
Kuffs
that an unscheduled train would be moving on the railway line between
Cape Town and Woodstock after 22h00 on the day of the
collision, was
not much more persuasive than the first. Blignault J accepted it on
the basis that Metrorail would have been in
possession of precise
information relating to the movement of unscheduled trains, whereas
Kuffs would have been dependent on Metrorail
to convey to it such
information so that it could warn security guards of an approaching
train. The evidence relating to the frequency
of such trains was,
however, so vague that it could not be held that all security guards
must have been aware thereof. Yet the
dangers created by these
trains, the learned judge held, were significant and clearly
foreseeable. Warnings could have been issued
with little difficulty
and at hardly any cost. From this it could be fairly inferred that,
had such a warning been issued in the
present case, the accident
would probably have been avoided. Metrorail was hence negligent in
failing to issue a specific warning
to Kuffs that a train would be
passing through the area where the plaintiffs were performing cable
patrol. This negligence, it
was held, was causally connected to the
accident in which the plaintiffs were injured.
[44] In his argument on behalf of Metrorail and Human, Mr La Grange
submitted that this finding was erroneous inasmuch as the plaintiffs

were both adults (25 and 26 years old respectively) who had passed
matric and were qualified as grade C security officers. It could

hence be assumed that they had basic life skills and knowledge, could
make informed decisions and would not act recklessly in carrying
out
their responsibilities as security guards. They could indeed be
reasonably expected to discharge their duties with the necessary
care
and skill. This involved keeping their eyes and ears open in the
process of looking out for trespassers and miscreants, while
at the
same time keeping a proper lookout for any other danger which might
befall them. The mere fact that they subjectively believed
that there
would be no train activity on the line they were patrolling that
night did not, Mr La Grange argued, release them from
their duty to
conduct themselves as might be expected of reasonable security guards
under the circumstances.
[45] I must respectfully associate myself with this argument. The
subjective belief of the plaintiffs bears no more weight than
the
“understanding” which Gounder suggested might exist between
Metrorail and Kuffs regarding prior warning of unscheduled
train
movements after 22h00. Significantly, as pointed out by Mr La Grange,
Gounder made no mention of any implementation of this
“understanding”
nor did he communicate it to any representative of Metrorail. In any
event Bidli, Human, Van Reenen and Apollis
all testified that the
movement of trains after hours and at night was a general occurrence
in that the trains had to be serviced
or repaired from time to time.
This was not placed in dispute by the plaintiffs, who apparently
relied on their being unaware of
the possibility that trains might
run after hours as a justification for their failure to keep any kind
of lookout for such trains
while they were engaged in an inherently
dangerous exercise.
[46] The second plaintiff relied also on the hearsay of a colleague,
one Mkhaba (who did not testify), that trains did not run
at night.
For this reason he regarded it as unnecessary to look around and take
stock of his surroundings before crossing or walking
along a railway
track during his cable patrol. In the process he could conceivably
have failed to observe the headlight of the
train or to hear its
siren as it approached. It was probably Human’s application of the
braking system, when he realised that
the plaintiffs were not
reacting to the siren, which caused the plaintiffs to look up
momentarily and to attempt jumping out of
the way at the last moment.
The question must inevitably arise whether this was the conduct of
reasonable security guards under
the circumstances.
[47] In view of these considerations I am respectfully inclined to
the view submitted by Mr La Grange that the trial court adopted
an
armchair approach in finding that Metrorail had negligently failed to
issue a warning to Kuffs regarding the impending movement
of the
train which subsequently collided with the plaintiffs. This approach
appears to rely strongly on hindsight and on knowledge
and insights
retrospectively acquired. It also appears to ignore the fact that
Kuffs indeed had access to Metrorail’s control
room and hence to
the unscheduled movement of trains after hours.
[48] It must hence be concluded, with great respect, that the court
a
quo
erred in holding that Metrorail had a legal duty to warn
Kuffs of the unscheduled movement of the train in question and
negligently
failed or omitted to issue such warning. But even if
there had been such a legal duty and Metrorail’s failure to act
constituted
a negligent omission, the plaintiffs failed, in my
respectful view, to prove that such omission was wrongful in the
sense set forth
above. Furthermore, even should the plaintiffs have
succeeded in proving a wrongful and negligent omission, there was no
evidence
that it would in fact have caused the accident. That being
the case, no delictual liability for the injuries suffered by the
plaintiffs
could adhere to Metrorail.
[49] I turn now to the finding that Human, the driver of the train,
was negligent in that he should have applied the train’s
brakes
immediately without first sounding the siren. Blignault J held that
Human had wasted valuable time – at least three seconds
– by
doing so. On the assumption that he was travelling at 40 kph at that
stage, he could have brought the train to a stop some
four metres
before the point of collision. If a reaction time of one second were
brought into the equation, however, the train
would have stopped some
seven metres beyond the point of collision. Should the speed of the
train have been reduced to 14 kph directly
before the collision, the
plaintiffs would have had an additional second within which they
could have moved about a metre, thus
enabling them to avoid the
accident.
[50] Blignault J accepted that Human had found himself in a situation
which called for an immediate response and that, as an experienced

train driver, he would have been constantly on the lookout for an
emergency such as the present, namely a pedestrian on the railway

line. He had no reason to be less attentive because the train was
unscheduled. Furthermore he was not confronted by various alternative

courses of action that required to be weighed up against one another.
The immediate braking option did not create any additional
risk.
[51] In this regard the learned judge considered a further scenario,
which he regarded as feasible and reasonable and in accordance
with a
preponderance of probabilities. It was based on the evidence of the
plaintiffs and Carver and involved a train speed of
37,5 kph
(translated into 10,42 metres per second) coupled with a “human
reaction time” of four seconds, of which three seconds
represented
“wasted reaction time”. This would give a stopping distance of
91,22 metres, being one metre short of where the
train collided with
the first plaintiff. On the assumption that the plaintiffs had not
heard the siren which, as Human knew, did
not make “much noise”
and was unlikely to have given a proper warning of the train’s
approach, Human’s sounding of the
siren was “a time wasting and
futile exercise”. The situation called for “an immediate braking
action”. By failing to do
so Human acted negligently and his
negligence was causally related to the collision with both
plaintiffs.
[52] In his argument on behalf of Human Mr La Grange submitted that
the curve in the railway track just prior to where the collision
took
place made it impossible for Human to see the plaintiffs before he
was approximately 84 metres away. His first reaction, namely
to sound
the siren as a warning, was what one would expect of a reasonable
train driver under the circumstances. This is in fact
a primary duty
of a train driver when approaching a railway crossing, and failure to
do so would constitute negligence. See
Smart and Others v South
African Railways & Harbours
1928 NPD 129
at 133 and 149;
Mancho v South African Railways & Harbours
1928 AD 89
at
109;
Dyer v South African Railways
1933 AD 10
at 19;
Walker
v Rhodesia Railways Ltd
1937 SR 62 at 73.
[53] Even if the sound of the siren had been drowned out, wholly or
partially, by the strong wind, it was inexplicable, Mr La Grange

argued, that the plaintiffs could not have been aware of the train’s
headlight, which was set on bright and was bearing down
upon them in
a relatively unlit area. This constituted a clear warning in its own
right. See
Smart and Others v South African Railways &
Harbours
1928 NPD 129
at 133;
Matcheke v South African
Railways and Public Utility Corporation Ltd
1948 (1) SA 295
(T)
at 307;
South African Railways and Harbours v Orford
1963 (1)
SA 672
(A) at 677;
Haffejee v South African Railways and Harbours
1981 (3) SA 1062
(W) at 1069.
[54] Assuming that the plaintiffs were unable to hear the siren
because of the wind factor and were unaware of the train’s
headlight
until it was almost upon them, and assuming that they
justifiably believed that no trains moved on the railway tracks at
night,
it may well be that they did not act negligently by failing to
keep a proper lookout. In assessing whether or not Human acted
negligently,
however, the presence or absence of possible
contributory negligence on the part of the plaintiffs bears little
relevance. His
conduct must be gauged with reference to the facts and
circumstances relating specifically to him directly prior to and at
the
time of the collision. It is his driving skill, or lack thereof,
which requires assessment in the context of the conduct of a
reasonable
train driver in his position.
[55] When it is borne in mind that Human saw the plaintiffs for the
first time at a distance of some 84 metres as the train rounded
the
curve in the track, it is clear that he had very little time – in
fact only a few moments – to assess the situation. Because
it was
dark and the area was not well lit, he was probably unable to see
whether the plaintiffs were stationary or moving and,
if the latter,
whether they were moving in his direction or away from him. His
instinctive reaction was to sound the siren. At
that stage he had no
reason to believe that they would not hear the siren or see the
strong light emanating from the train’s
headlight. He could not
have been aware of the effect that the wind might have on the
audibility of the siren or the visibility
of the light. Within
moments, however, he realised that they were not responding to this
warning. His experience, training and
instincts then led him to
release the accelerator immediately and to apply the brake system
with full force in a desperate attempt
to avoid a collision. At that
time he might have realised that a collision was inevitable, but it
was still his fixed intention
to bring the train to a stop within the
shortest possible time.
[56] When these facts and circumstances are considered with reference
to the legal principles set forth above, it must, in my view,
be
concluded that Human’s conduct was eminently reasonable. At no
stage did such conduct deviate from what might have been expected
of
a reasonable train driver confronted by what was clearly an emergency
situation. It may be, with the benefit of hindsight, that
he might
have brought the train to a stop earlier and within a shorter
distance had he applied the brakes immediately on seeing
the “black
figures” on the track ahead of him. I agree with Mr La Grange,
however, that the failure to sound the siren as a
warning under these
circumstances would more readily lead to an inference of negligence
than otherwise.
[57] Even if Human had sounded the siren and commenced braking
simultaneously, there was no guarantee that he would have been able

to bring the train to a stop before the first point of collision. The
various scenarios sketched by Carver and considered by the
trial
court were, in my respectful view, unhelpful, being based, as they
were, on any number of assumptions. Human’s unchallenged
evidence
was that he was travelling at a speed lower than 60 kph. It may well
be that his speed was reduced as he rounded the bend
in the track and
it certainly was rapidly reduced once he commenced applying the
brakes. There was no evidence, however, that the
train was moving at
any particular speed below 60 kph before the brakes were applied. It
was hence not possible to determine, with
any degree of accuracy,
whether or not the train could have been brought to a stop before the
first point of impact.
[58] It was never suggested, in the pleadings or at any stage in the
proceedings, that Human had been driving the train at an unreasonably

high speed directly before the collision. The only grounds of
negligence specifically alleged against him in the amended
particulars
of claim were that he had failed to keep a proper
lookout, had failed to apply the brakes of the train “timeously,
adequately
or at all” and had failed to warn the plaintiffs of the
approach of the train “by flashing the lights of the train”. The
failure to flash the train’s lights was never raised during the
course of Human’s evidence while the failure to keep a proper

lookout appears to have fallen by the wayside. Eventually the
plaintiffs had to stand and fall by their allegation that Human had

failed to apply the brakes of the train in time or adequately. As
pointed out above, they were quite unable to substantiate such

allegation. The plaintiffs have, therefore, failed to prove any
negligence on the part of Human.
[59] Even if some degree of negligence on the part of Human had been
proved, the plaintiffs failed to prove that he had acted wrongfully

in accordance with the legal principles set forth above. They
likewise failed to prove any causal link between Human’s conduct

and the harm caused to the plaintiffs. No delictual liability could
hence be attributed to Human.
[60] In view of these findings it is unnecessary to consider the
issue of contributory negligence or the cross-appeal.
CONCLUSION
[61] It follows that the appeal must succeed and the cross-appeal
must be dismissed. In the event I would make 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 plaintiffs are dismissed with costs”.
4. The respondents are ordered, jointly and severally, to pay such
costs, the one paying the other to be absolved
D H VAN ZYL
Judge of the High Court
I agree.
B WAGLAY
Judge of the High Court
I agree.
T NDITA
Judge of the High Court