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[2006] ZAWCHC 34
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Harrington NO and Another v Transnet Limited t/a Metrorail and Others (9578/04) [2006] ZAWCHC 34; 2007 (2) SA 228 (C); [2007] 2 All SA 386 (C) (22 August 2006)
IN THE HIGH COURT OF SOUTH AFRICA
CAPE OF GOOD HOPE PROVINCIAL
DIVISION
Case no 9578/04
In the matter between
MARK HARRINGTON N O
First
plaintiff
SIYAVUMA NGALEKA
Second
plaintiff
and
TRANSNET
LIMITED
trading as METRORAIL
First defendant
THE
SOUTH AFRICAN RAIL
COMMUTER CORPORATION LIMITED
Second defendant
JOHANNES CHRISTOFFEL HUMAN
Third
defendant
KUFFS SECURITY SERVICES CC
Third
party
JUDGMENT DELIVERED ON 22 AUGUST
2006
BLIGNAULT J
:
[1] On the night of 3 February 2002 Mr
Sijongile Ncaza (âfirst plaintiffâ) and Mr Siyavuma Ngaleka
(âsecond plaintiffâ) were
on duty as security guards. They were
patrolling the railway lines from Cape Town to Woodstock on foot.
Whilst walking along a
railway line they were struck by a train that
was moving from Cape Town to Woodstock. They sustained serious
bodily injuries in
the accident and as a result thereof they
instituted this action for the recovery of damages.
The parties
[2] First plaintiff is represented in
this action by Mr Mark Harrington, an advocate of this court, as
curator ad litem.
First and second plaintiffs
are
adult males residing in Khayelitsha and Delft, Cape, respectively.
At the time of the accident they were employed as security guards
by the third party
,
Kuffs Security Services CC (âKuffsâ).
[3] First defendant is Transnet
Limited, a public company established pursuant to the provisions of
section 2 of the Legal Succession
to the South African Transport
Services Act 9 of 1989 Act (âthe SATS Succession Actâ).
Metrorail is a business unit of Transnet
Limited that operates,
inter
alia,
the Cape Town suburban railway system. I shall refer to
first defendant herein as Metrorail. Second defendant is the South
African
Rail Commuter Corporation Limited, a corporation created in
terms of section 22 of the SATS Succession Act. It is the owner of
the
property where the accident took place and the owner of the train
in question. Third defendant is Mr Johannes Christoffel Human
(âHumanâ). He was the driver of the train, acting in the course
and scope of his employment with Metrorail.
[4] The third party, Kuffs, is a close
corporation which carries on business as a provider of security
services and has its principal
office at Grassy Park, Western Cape.
The pleadings
[5] First and second plaintiffs
particulars of claim contain,
inter alia,
the following
allegations of negligence on the part of defendants:
â
8. The said collision was
caused by the negligence of First and/or Second and/or Third
Defendant, in that:
8.1 they failed,
notwithstanding being aware that the railway
line was patrolled at night
after 22h00 by security guards such as First and Second Plaintiffs,
to warn Plaintiffs of the approach
of the train; and/or
8.2 they failed,
notwithstanding being aware of the facts and circumstances set out in
sub-paragraph 8.1 above, to warn and/or advise
Plaintiffs and/or
their employer, Kuffs Security Services (âKuffsâ) of the
unscheduled journey of the said train; and/or
8.3 the Third Defendant
failed to keep a proper lookout; and/or
8.4 the Third Defendant
failed to apply the brakes of the said train timeously, adequately,
or at all; and/or
8.5 the Third Defendant
failed to warn the Plaintiffs of the approach of the train by
flashing the lights of the train; and/or
8.6 the First and Second
Defendants failed to act with due care in that they:
8.6.1 failed to take any or
reasonable measures to ensure that security personnel working on
their premises received adequate safety
training;
8.6.2 failed to take any or
reasonable measures to ensure that the employees of Kuffs completed
the First Defendantâs in-house test
and induction training before
commencing their duties on the First and Second Defendantâs
premises;
8.6.3 failed to take any or
reasonable measures to ensure that Kuffs provided its employees with
adequate safety training for their
duties on the First and Second
Defendantâs premises;
8.6.4 failed to take any or
adequate measures to ensure that Kuffs undertook adequate Rail Safety
Awareness Programmes, appointed
Safety Representatives, and held
safety meetings of which proper minutes were kept;â
[6] In their plea defendants denied
the allegations of negligence levelled against them. They pleaded
that the collision was caused
by plaintiffsâ own negligence.
Metrorail issued a third party notice in terms of rule 13 against
Kuffs. Metrorail alleged that
plaintiffs were performing their
duties pursuant to a contract between Metrorail and Kuffs in terms of
which Kuffs agreed to provide
security services to Metrorail.
Metrorail claimed that in terms of an indemnity provided under the
contract between them, Kuffs
was obliged to indemnify it against the
claims in question. Kuffs admitted the indemnity but pleaded that
neither first nor third
defendant was negligent. Kuffs later amended
its plea in order to allege that second defendant was negligent in
that it failed to
take adequate steps and precautionary measures that
would have enabled Human to avoid the accident.
[7] The parties agreed that the issues
of negligence and causation would be determined separately from those
relating to the quantum
of plaintiffsâ damages. That agreement was
sanctioned by the court.
The evidence
[8] At the hearing various plans and
photographs were tendered in evidence. The court also attended an
inspection
in loco
. The material facts regarding the place of
the collision and the surrounding circumstances are not in dispute.
Railway lines leave
Cape Town station in an easterly direction from
about 24 platforms. Some of these are main lines and others are
suburban lines.
On the extreme southern side is the line known as
the Simonstown up line (leading from Simonstown to Cape Town) and
next to it the
line known as the Simonstown down line (leading from
Cape Town to Simonstown). These lines pass through Woodstock station
which
is about 2 kilometres from Cape Town station and Salt River
station which is about two kilometres further. At a point about 200
metres to the west of Woodstock station the Simonstown down line
crosses over another railway line by way of a single bridge. It
is
common cause that the accident occurred close to this bridge on the
Cape Town side thereof, on the Simonstown down line.
[9] Mr Julian Gounder was called as a
witness on behalf of plaintiffs. At the time of the accident he was
employed by Kuffs. There
was in existence a contract between Kuffs
and Metrorail in terms of which Kuffs rendered certain security
services to Metrorail.
The contract came into operation on 1
February 2001 for an initial period of 12 months. It was then
extended by agreement for an
additional period of 6 months. Gounder
said that he was the operations manager in respect of this contract.
with Metrorail. As
such he was responsible for supervising Kuffsâ
performance of its contractual duties. His normal working hours were
during day
time but he carried out night time visits from time to
time.
[10] In terms of the contract Kuffs
provided a number of security services to Metrorail. One of these
was the provision of two
security guards to patrol the railway line
from Cape Town to Woodstock in order to guard against the theft of
signal cables or overhead
cables. This provision of guards to
prevent cable theft did not from the outset form part of the
contract. It was introduced a
few months later. The individual
guards were required to pass Metrorail tests for the use of firearms
but no specific training
or tests were provided by Metrorail for
cable patrol. The arrangement was that the guards would perform
cable patrol from the time
when the last scheduled train had passed
in the evening (about 22:00) until the first scheduled train passed
through the next morning,
which was at about 04:00. Metrorail had an
operations room at Cape Town station. Kuffs had their own control
room at Cape Town
station which could make radio contact with the
guards on duty. Metrorail, he said, was supposed to inform Kuffs
when a train was
about to pass on the lines in question during that
period. This arrangement had been conveyed to him by Mr Apollis, an
official
of Metrorail in charge of security.
[11] On the night in question first
and second plaintiffs were responsible for cable patrol. According
to the check sheets completed
that evening they were both clothed in
Kuffsâ uniform. The ordinary uniform at that time included the
wearing of a reflective
orange vest over their clothes. He received
a call at home that night informing him that two persons had been
knocked over by a
train. When he arrived at the scene of the
accident both plaintiffs were lying on opposite sides of the railway
line. Both were
unconscious. Second plaintiff regained
consciousness whilst he was on the scene. A strong wind was blowing
that evening. The two
plaintiffs were removed by ambulance. He
(Gounder) completed a standard Metrorail incident form in respect of
the accident. According
to him he also completed a written report of
the accident which he submitted to Metrorail but he never saw that
report again. In
preparing that report he spoke to the driver of the
train who told him that he did not see anyone on the track until it
was too late
to stop without colliding with them.
[12] Mr Bayetha Bidli testified that
he worked as a security guard for Kuffs from February 2001 until he
resigned in 2004 in order
to join the SA Police Service. He joined
Kuffs as part of a large group of security guards that were employed
for purposes of the
contract that had been awarded to Kuffs by
Metrorail. The whole group received some basic training from Kuffs
and they were taken
for an orientation at the Cape Town station where
they were shown various points of interest. They did not, however,
receive any
specific training or tests on cable control by Kuffs or
Metrorail. Bidli was normally stationed at Cape Town station. He
performed
cable patrol duty between Cape Town and Salt River on about
ten occasions. It formed part of the night shift which usually
started
with a parade at 17:45 and extended from 18:00 until 06:00
the next morning. After about three to four months the wearing of
reflective
vests was introduced as a compulsory element of their
uniform. If a security guard on duty was found without a vest,
Metrorail could
impose a penalty on Kuffs. He understood that the
purpose of the cable patrol was to prevent the theft of the overhead
and signal
cables. The patrols covered the entire area from Cape
Town station to Woodstock station and beyond to Salt River station.
During
the period from 22:00 to 04:00 there were no scheduled trains
moving along these lines. He did on occasion see a train moving
along
the railway lines during those hours but that was something
unusual.
[13] Mr Siyavuma Ngaleka (second
plaintiff) testified that he started working for Kuffs as a security
guard in February 2001. He
was part of the same intake as Bidli. He
received the same training as Bidli and the same orientation at the
Cape Town station.
He did not receive any specific training in
regard to cable patrol. On 3 February 2002 he was on cable patrol
from Cape Town to
Woodstock station. This was not the first occasion
that he did cable patrol. On his first patrol he had been
accompanied by a colleague,
Mr Mkhabe, who showed him what the work
entailed. Mkhabe did not tell him that he was not allowed to walk on
the railway tracks.
At times he and Mkhabe walked on the tracks and
at times they walked on the paths between the lines. Thereafter he
performed cable
patrol with various other guards. He never saw any
trains moving around in the patrol area between the hours of 22:00
and 06:00
except the Shozoloza Express which was a mainline train and
which did not follow the line to Woodstock. He said that he could
not
perform the work properly without crossing railway lines in the
course of the patrol.
[14] On Sunday 3 February 2002,
second plaintiff said, he reported for the parade at Woodstock
station but he was then told that
he was required to do cable patrol
that night as there was a shortage of guards at Cape Town. His
partner that night was first plaintiff.
He wore a vest that evening
over his jacket and so did first plaintiff. First plaintiff carried
the radio. They set out from platform
19 at the Cape Town station
that night. There was a strong wind blowing that evening and they
were walking against the wind. At
one stage they were walking on the
footpath on the immediate right hand side of the Simonstown down
line. As they were approaching
the bridge they started to walk on
the sleepers that were laid under the railway tracks. He walked on
the sections of the sleepers
to the right of the right track and
first plaintiff walked on the sections of the sleepers to the left of
the left track. They were
fairly close to the bridge when they were
struck by a train from behind. He could not recall hearing or seeing
the train before
the collision nor could he recall first plaintiff
giving any indication that he had heard or seen a train. He recalled
that he regained
consciousness whilst lying on the ground next to the
railway line. He said that he had no reason to think that there
would be a
train running on that line at that time of night. Second
plaintiff testified that the had done cable patrol on eight occasions
only
but under cross-examination he accepted that according to Kuffsâ
records he had done so on 22 occasions from 23 December 2002 to
3
February 2002.
[15] Mr Johannes Human (third
defendant) testified that he joined the South African Railways in
February 1975. He qualified as
a train driver in 1981. Since 1983
he was employed as a train driver on suburban lines in the Western
Cape. He recently resigned
from Metrorail. He was the driver of the
train that collided with first and second plaintiffs. That train
left at about 22:30 on
the evening in question. It was not unusual,
he said, for trains to move around after 22:00. Some of these trains
were moved to
other platforms or shunting sidings. Others were taken
for mechanical repairs or the repairs of equipment. The train in
question
comprised eight coaches of which the first and last coaches
were motor coaches. The length of each coach is about 20 metres.
There
is a driverâs cab at each end. There are two windows in
front of the cab. His own seat was behind the window on the left.
On
the left side in the front part of the cab is the brake handle and
in the middle is the accelerator handle. The siren button is
on the
ground and is activated by foot. If the accelerator handle is not
depressed the train will not move. If that handle is
released it
will revert to its original position. In that event the accelerator
will cut out and the brakes will apply immediately
and automatically.
[16] On the evening in question,
Human said, he left from platform 3 at Cape Town station on the
Simonstown down line. His supervisor
had instructed him to move the
train to the Salt River repair yard. Before his departure he
performed routine safety checks of
the headlights, the siren and the
brakes. He said that in his experience pedestrians did not often
walk between the railway tracks.
It is more comfortable to walk on
the flat areas between lines. His headlights were on bright that
evening. Just after his departure
he tested the brakes. They worked
normally. He then proceeded along the line. At a bend he saw two
black figures on the tracks
in front of him. They were walking
between the tracks. He activated the siren but the two figures did
not react to the siren.
He then pulled the brake handle and he
closed the accelerator handle, releasing it at the same time. The
train continued to move
towards the two figures whilst braking. He
saw them looking back at the train at the last moment and then
jumping away â the one
to the left and the other to the right. His
train collided with them as they were in the process of jumping away.
It was still
moving forward at that point. The train came to a halt
shortly thereafter.
[17] After the train had come to a
standstill Human climbed out of the cab on the right hand side. The
front of the train had stopped
before reaching the bridge. He walked
back to the person on the southern side of the tracks. It was second
plaintiff. He was in
a sitting position with his hands on both sides
of his head. He (Human) asked him whether he was all right and he
replied yes.
He realised that he was a security guard because he was
wearing a uniform. He did not see him wearing a reflective vest.
Second
plaintiffâs position on the ground, he said, was about 15 to
20 metres behind the front end of the train. He then went to look
for the other person. He found him on the other side of the train,
slightly further away as second plaintiff from the front of the
train. He was lying on his side. When he (Human) asked him whether
he was all right he just mumbled. He formed the impression
that he
was more severely injured than second plaintiff. He was also wearing
a uniform but no vest. He went back to the driverâs
cab in the
train and he contacted the control station at Windermere by radio and
reported the incident. He then proceeded on his
journey towards Salt
River. He explained that according to his standing instructions he
was obliged to proceed on the journey unless
a person could be
injured by the further movement of the train. Human said that his
speed when he saw plaintiffs was considerably
less than 60 kilometres
per hour. On the other side of the bridge he would have approached
Woodstock station. The prevailing wind,
he said, was a strong
southeaster. Human testified that there was nothing that he could
have done to avoid the accident.
[18] Defendants called Mr Brian
Carver, a mechanical engineer, to give evidence as an expert. He
obtained the degree of Bachelor
of Science in Mechanical Engineering
in 1969. During the period from 1969 to 1980 he was employed as a
mechanical engineer in various
positions by first and second
defendantsâ predecessor, the South African Railways. From 1980 to
1983 he was the technical manager
of Knorr Bremse, a company involved
in the marketing and development of rail and automotive braking
systems. From 1983 to 1988 he
was the sales manager of SCAW Metals,
a company which carried ion the business of the marketing and
development of railway products.
From 1991 to 1994 he was the
rolling stock manager of second defendant and from 1996 to 1999 the
executive manager (operations)
of Metrorail. Since 1999 he has been
practising as a private consultant. In this capacity he has been
employed on a number of projects
for first and second defendants.
[19] Carver investigated the
circumstances of the accident in which plaintiffs were injured. He
inspected the scene of the accident
and he prepared an accurate plan
of the scene. For this purpose he measured the distances between
various relevant points by pacing
them. For purposes of describing
the relevant distances in this judgment I propose to take the western
edge of the side-wall of
the bridge on the northern side of the
railway line, as starting point,
ie
as
Point zero,
and
then describe all points along the line with reference to their
distance from the starting point. The masspole 1/11D, for example,
is 23 metres from the western edge of the bridge. I shall describe
its position as
Point 23 m
. Using that system of reference
the positions of some of the main landmarks and the inferred points
where first plaintiff and second
plaintiff were struck by the train,
are as follows:
Head of train at standstill
Point
15 m
Mass pole 1/11D
Point 23 m
The second (eastern) palm tree
Point
33 m
Collision with second plaintiff
Point 34 m
Collision with first
plaintiff
Point 44 m
The first (western) palm tree
Point
136 m
Signal box WDC 98
Point 229 m
[20] Carver prepared a table of
stopping distances which shows the distance, at different speeds,
which the train would have travelled
after the brakes had been
applied, to the point of standstill. These calculations were
performed by him by means of a formula based
on the actual
characteristics of the train in question. The formula incorporates
the 1/50 gradient which the train would have ascended
in approaching
the point of collision. The formula also allows for the time taken
for the brakes to become fully operational after
the brake handle had
been applied, described as the train reaction time. Carver explained
that the distances in his table do not
allow for human reaction time.
Depending upon the assumption made in that regard an additional
distance must be allowed for human
reaction time by using the
applicable figure for speed in metres per second. The table of
stopping distances reads as follows:
Speed
km/h
Speed
m/s
Time to
stop
Dist to
stop
Reaction time (3 sec)
Stopping
Distance
Seconds
Metres
Distance
Distance
5
1.39
1.26
0.88
4.17
5.04
10
2.78
2.53
3.51
8.33
11.84
15
4.17
3.79
7.89
12.50
20.39
17
4.72
4.29
10.14
14.17
24.30
20
5.56
5.05
14.03
16.67
30.70
25
6.94
6.31
21.92
20.83
42.75
30
8.33
7.58
31.57
25.00
56.57
35
9.72
8.84
42.96
29.17
72.13
40
11.11
10.10
56.12
33.33
89.45
45
12.50
11.36
71.02
37.50
108.52
50
13.89
12.63
87.68
41.67
129.35
55
15.28
13.89
106.10
45.83
151.93
60
16.67
15.15
126.26
50.00
176.26
[21] Carver made certain informed
assumptions regarding the visibility of plaintiffs to the driver of
the train. All Metrorail
motor coaches are fitted with the same type
of headlight. Two sealed beam, narrow spot lamps are fitted in the
middle above the
cab in the front of the coach. The manufacturer
provided the following rating information in regard to this kind of
lamp:
Designation PAR56
Wattage 300W
Voltage 120V
Light output 3840 Lumens
Centre beam candle power 68 000
Candela
Beam spread 10
Ë
horizontal 8
Ë
vertical
Field Angle 20
Ë
horizontal 14
Ë
vertical
â
Beam spreadâ
, he
explained, is the angular dimension of the cone of light encompassing
the central part of the beam out to the angle where the
intensity is
50% of the maximum.
âField angleâ
is the angular
dimension of the cone of light encompassing the central part of the
beam out to the angle where the intensity is 10%
of the maximum.
[22] As two of these lamps are
fitted on each motor coach they would produce 132 000 Candela.
Carver compared this with a standard,
issued by the USA Federal
Railroad Administration, of 200 000 candela which is derived
from the requirement that the headlight
should be strong enough to
illuminate a dark object the size of a man at a distance of at least
800 feet (244 metres). On this basis
he estimated that a dark object
such a person would only have become reasonably visible at night to
the driver of a Metrorail train
at a distance of approximately 160
metres directly ahead of the train when the headlights are on bright.
The intensity of the light
will reduce to 50% at an offset of 5
degrees (14 metres) and to 10% at an offset of 10 degrees (28
metres).
[23] In his report and evidence
Carver expressed the view that plaintiffs were possibly unaware of
the approach of the train. The
train is an electric train and it is
silent when it runs. It was fitted with an electric siren and not an
air horn as air horns
were prohibited on the Simonstown line.
Electric sirens are not as loud as air horns. The windy conditions
could have drowned out
or masked the siren noise to a certain extent.
The headlight beam would not have been directly behind plaintiffs as
the curvature
of the track would have partly off-set it.
[24] In seeking to reconstruct the
manner in which the accident occurred, Carver presented two scenarios
which he described as the
40 kph scenario and the 55 kph scenario.
The following assumptions underlie both scenarios:
the front of the train came to a halt
(after colliding with plaintiffs) at
Point 15 m
;
second plaintiff came to rest at
Point 30 m
;
first plaintiff came to rest at
Point 40 m
;
each plaintiff was struck by the
train at a point 4 (four) metres to the west of the point where he
came to rest;
prior to the collision the plaintiffs
were walking between the two tracks in an easterly direction at a
speed of one metre per
second;
neither plaintiff was aware of the
approach of the train until very shortly before the accident; both
tried to get out of the way
at the very last moment but each was
struck a glancing blow which caused his body to be thrown forwards
and away from the tracks;
the reaction time of the train driver
from the moment in time when he observed plaintiffs, until the brake
handle was actually applied,
was three seconds.
[25] According to Carverâs 40 kph
scenario the driver saw the plaintiffs at
Point 136 m
, the
brakes were applied at
Point 103 m
and the first plaintiff was
struck at
Point 44 m
. The speed of the train at
Point 44 m
was 29 kph. At
Point 136 m
(which is at the first palm tree)
the plaintiffs would have been visible to the train driver. The 40
kph scenario could therefore
be described as a feasible scenario. In
his view 40 kph would have been a reasonable speed in the
circumstances.
[26] According to the 55 kph
scenario the driver should have seen the plaintiffs at
Point 210
m
. Brakes were applied at
Point 167 m
and the collision
with first plaintiff was again at
Point 44 m
. At a distance
of 210 m plaintiffs would, however, not yet have been reasonably
visible to the driver. The first palm tree would
also have obscured
them from the train driverâs view at that point. This means that
the accident probably did not occur in accordance
with the 55 kph
scenario.
[27] Under cross-examination of
Carver the effect of alternative assumptions regarding the driverâs
human reaction time were debated
with him. He pointed out that the
table of stopping distances shows what distance in metres per second
the train would have travelled
at any given speed. At a speed of 40
kph, for example, the train travels a distance of 11 m per second.
During each second of human
reaction time allowed for, the train
would therefore have travelled a distance of 11 m. It follows that
the saving of each second
of wasted reaction time would have caused
the train to have come to a halt at a distance of 11 m closer to Cape
Town station. On
that assumption, had the driver saved three seconds
of reaction time by sooner applying the brakes, the train would have
come to
a halt at a point 33 m closer to Cape Town station which is
four metres before the point where it struck first plaintiff.
[28] Carver explained that the speed
at which the train was travelling at any particular point whilst the
brakes were fully operative,
could be calculated by means of the same
formula. By referring to the information contained in the table of
stopping distances,
he said, the approximate speed of the train at
any distance from the presumed point of impact, could be estimated
with a reasonable
measure of accuracy. Thus, in terms of his 40 kph
scenario the train was moving at a speed of approximately 29 kph at
the point
where it struck first plaintiff.
[29] At the request of the court
Carver prepared a separate calculation in order to determine the
fastest speed at which the train
could have been travelling if the
brakes were applied at the same position and still have come to a
halt before the point where first
plaintiff was struck. He prepared
a graph to illustrate the method of calculation. The answer is 32,5
kph. It follows that at such
speed and any slower speed at the same
point of braking, the train would have come to a halt before striking
second plaintiff.
[30] Mr Hendry van Reenen is a
security officer in the employment of Metrorail. On 3 February 2002
he was called out to attend
to the accident in question. When he
arrived at the scene there were already other persons present. He
saw both plaintiffs and
he noted their positions. At the inspection
in loco
held by the court
he pointed these positions out. The two plaintiffs were clothed in
their blue
uniforms. He did not see anyone of them wearing a
reflective vest. It was not at that time, he said, a standard
requirement for
the security guards to wear vests.
[31] Mr Gareth Apollis testified
that he is a security officer employed by Metrorail. He became the
chief security officer for
the Ikapa area in June 2001. The contract
between Kuffs and Metrorail was already in operation. At some stage
after he had joined
the cable patrol was introduced in order to
prevent the recurring theft of signal cables in that area. He
pointed the cables out
to Gounder at that time. The cable running
along the southern boundary of the Metrorail yard was pointed out to
Gounder. He said
that the wearing of reflective vests was never a
requirement of Metrorail. He also attended the scene of the accident
on the evening
of 3 February 2002. He saw first and second
plaintiffs at the scene of the accident. Neither one of them wore a
reflective vest.
He testified that he did not convey to Gounder that
Metrorail would inform Kuffs every time a train was about to cross
the area
between Cape Town and Woodstock. He denied that there was
any such practice in existence. He said that Kuffs knew that
unscheduled
trains were moving around in that area at night after
22:00.
[32] Kuffs closed its case without
adducing any evidence.
[33] The parties agreed that the
evidence of Mr Johan Stander, a meteorologist and Head of the Cape
Town Weather Office, be admitted
in written form. The evidence
concerns the weather conditions in the Cape Peninsula on 3 February
2002 between 22:00 and 23:00.
The wind speed at the Cape Town
Harbour area averaged 45 kph with gusting up to 72 kph. This wind
could be regarded as reasonably
representative of the area between
the Cape Town and Woodstock stations. This kind of wind regime is
described as a
Deep South Easter.
Typical visibility under
such a regime in this area would be described as good.
The inspection
in
loco
[34] The court attended an inspection
in loco
in the course of the trial. Counsel and the attorneys
for all three parties were present, as well as various witnesses. In
the minutes
of the inspection the following observations were
recorded:
â
1 There
were overhead cables above all of the lines, and signal cables in
various places in the entire service area.
2 The
electric siren of a passing train was activated for the benefit of
the inspection.
3 In
order to walk across the bridge on the Simonâs Town down line, one
would have to move onto and walk on or along the tracks.
4 It
was not generally uncomfortable to walk on the sleepers between the
tracks.
5 If
one walks along the Simonâs Town down line in the direction of
Woodstock station, on the approach towards the bridge (and
particularly
from the palm tree closer to the bridge) there is a
sleep slope on either side of the rails. These slopes are not a
comfortable
area for walking.
6 A
footpath was visible on the southern side of the Simonâs Town down
line at a level below the level of the track.
7 There
is a signal cable alongside the Simonâs Town down line which
commences from just past the bridge when one is travelling
in the
direction of Woodstock station.
8 There
are various obstructive poles and other objects in the passage
between the vibracrete wall and the signal cable.
9 Mr
van Reenen pointed out where, he said, he found the First and Second
Plaintiffs. These were measured by Mr Carver as follows:
9.1 First
plaintiff was 7 metres before the second palm tree travelling from
Cape Town to Woodstock and on the left hand side.
9.2 Second
plaintiff was 6-7 metres before mast pole 1/11D and on the right hand
side travelling from Cape Town to Woodstock.
They
were approximately 10 metres from each other.
⦠⦠â¦
13 A
barbed wire fence runs the length of the service area and demarcates
the northern boundary of the service area. On the northern
side of
that boundary is the mainline.
14 There
is a signal cable running on the Metrorail side of the northern
boundary alongside the barbed wire fence.â
General principles of delictual
liability
[35] Wrongfulness, negligence and
causation are the three requirements for delictual liability that are
relevant at the present
stage of the proceedings. There is no
dispute as to the general principles of law that apply in this
regard.
[36] The principles of negligence
were restated as follows in
Ngubane v South African Transport
Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A) at 776D/E-I/J:
â
Liability
in delict based on negligence is proved 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 always depend upon
the particular circumstances of each case. No hard and fast basis can
be laid down. Hence the futility, in
general, of seeking guidance
from the facts and results of other cases.'
(Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E - G.)
As
regards the requirement in para (a) (ii) above in this judgment, it
is acknowledged that reasonable steps are not necessarily those
which
would ensure that foreseeable harm of any kind does not in any
circumstances eventuate. The contributor (Prof J C van der Walt)
in
Joubert (ed) The Law of South Africa vol 8 sv 'Delict' para 43 at 78
comments in this regard that:
'Once it is
established that a reasonable man would have foreseen the possibility
of harm, the question arises whether he would have
taken measures to
prevent the occurrence of the foreseeable harm. The answer depends on
the circumstances of the case. There are,
however, four basic
considerations in each case which influence the reaction of the
reasonable man in a situation posing a foreseeable
risk of harm to
others: (a) the degree or extent of the risk created by the actor's
conduct; (b) the gravity of the possible consequences
if the risk of
harm materialises; (c) the utility of the actor's conduct; and (d)
the burden of eliminating the risk of harm.'â
[37] The theoretical and practical
differences between the elements of wrongfulness and negligence are
well established. See
Gouda Boerdery BK v Transnet
2005 (5)
SA 490
(SCA) at 498G-499E (footnotes omitted):
â
[12]
It is now well established that wrongfulness is a requirement for
liability under the modern Aquilian action. Negligent conduct
giving
rise to loss, unless also wrongful, is therefore not actionable. But
the issue of wrongfulness is more often than not uncontentious
as the
plaintiff's action will be founded upon conduct which, if held to be
culpable, would be prima facie wrongful. Typically this
is so where
the negligent conduct takes the form of a positive act which causes
physical harm. Where the element of wrongfulness
gains importance is
in relation to liability for omissions and pure economic loss. The
inquiry as to wrongfulness will then involve
a determination of the
existence or otherwise of a legal duty owed by the defendant to the
plaintiff to act without negligence: in
other words to avoid
negligently causing the plaintiff harm. This will be a matter for
judicial judgment involving criteria of reasonableness,
policy and,
where appropriate, constitutional norms. If a legal duty is found to
have existed, the next inquiry will be whether the
defendant was
negligent. The test to be applied will be that formulated in Kruger v
Coetzee, involving as it does, first, a determination
of the issue of
foreseeability and, second, a comparison between what steps a
reasonable person would have taken and what steps,
if any, the
defendant actually took. While conceptually the inquiry as to
wrongfulness might be anterior to the enquiry as to negligence,
it is
equally so that without negligence the issue of wrongfulness does not
arise for conduct will not be wrongful if there is no
negligence.
Depending on the circumstances, therefore, it may be convenient to
assume the existence of a legal duty and consider
first the issue of
negligence. It may also be convenient for that matter, when the issue
of wrongfulness is considered first, to
assume for that purpose the
existence of negligence. The courts have in the past sometimes
determined the issue of foreseeability
as part of the inquiry into
wrongfulness and, after finding that there was a legal duty to act
reasonably, proceeded to determine
the second leg of the negligence
inquiry, the first (being foreseeability) having already been
decided. If this approach is adopted,
it is important not to overlook
the distinction between negligence and wrongfulness.â
[38] The test for factual causation
is also well established. See
International Shipping Co (Pty) Ltd
v Bentley
1990 (1) SA 680
(A) at 700E-701:
â
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.â
Main submissions on behalf of
plaintiffs
[39] Mr G M Budlender appeared on
behalf of first and second plaintiffs. He relied on three main
grounds of negligence, two on
the part of Metrorail and the third on
the part of Human for which Metrorail is vicariously liable. He did
not rely on any negligence
on the part of the second defendant â it
was, so it would appear, cited
ex abundante cautelae.
Mr
Budlender submitted that the court should make the following findings
in regard to four key underlying factual issues. The first
is that
first plaintiff and second plaintiff were in an area where they were
supposed to be working, when the collision occurred.
The second is
that neither first nor second plaintiff received any training from
Kuffs or Metrorail in cable patrol work. The third
finding, he
suggested, is that neither first nor second plaintiff knew that an
unscheduled train was about to move down the railway
line at the time
that they were performing cable patrol work. The fourth suggested
finding is that Metrorail did not give any specific
warning to Kuffs
or plaintiffs that the train was about to proceed down the line in
question.
[40] Mr Budlender accepted that it
was not necessary for the court to make any findings in regard to two
other issues that featured
in the evidence, namely (i) whether
plaintiffs wore reflective vests outside their clothes and (ii)
whether the curve in the railway
line or the dispersion of the
trainâs headlights had any effect on the visibility of plaintiffs
at the time when the train approached
them. These two issues fell
away as he was prepared to accept Humanâs version, as reconstructed
by Carver, as to the position
where the train was when he first saw
plaintiffs.
[41] The first ground of negligence
is that Metrorail was negligent in failing to warn Kuffs and
plaintiffs that an unscheduled
train was about to move down the line
in question. The security guards, he pointed out, were working in an
inherently dangerous
situation, particularly as it was night time.
It is not in dispute, he submitted, that Metrorail could have issued
such a warning.
The movement of trains was controlled from the
Windermere control room and one of Kuffsâ officials was present in
Metrorailâs
control room at the Cape Town station. It would not
have been difficult or costly to issue such a warning. Had such a
warning been
issued plaintiffs would in all likelihood have kept a
proper lookout for the train and they would then have been able to
avoid the
accident.
[42] Metrorail was also negligent,
Mr Budlender submitted, by failing to take reasonable measures to
ensure that security personnel
working on their premises received
proper safety training. Such training should have included a
specific warning to the security
guards to be on the lookout for
unscheduled trains travelling down that line at night. The need for
such training was increased
by the fact that it did not issue any
specific warnings before the departure of each train.
[43] The third ground of negligence
relied upon is that Human could and should have applied the brakes of
the train immediately after
he observed plaintiffs on the railway
line in front of him. Had he done so, it was submitted, the
collisions would probably not
have occurred.
Main submissions on behalf of
defendants
[44] Mr A de V le Grange SC appeared
on behalf of the three defendants. He did not dispute three of the
findings on the key factual
issues suggested by Mr Budlender, namely
that plaintiffs were in an area where they were supposed to be
working, that neither first
nor second plaintiff received any
specific training from Kuffs or Metrorail in cable patrol work and
that Metrorail did not give
any warning to Kuffs or plaintiffs that
the train was about to proceed down the line in question.
[45] In regard to the third factual
issue, however, Mr le Grange submitted that both first and second
plaintiffs knew that an unscheduled
train might move down the railway
line at the time that they were performing cable patrol work. He
submitted that second plaintiffâs
evidence that he did not know
that there would be trains moving through the area after 22:00,
should be rejected. He argued that
the uncontested evidence of
defendantsâ witnesses (Human, van Reenen and Apollis) established
that the moving of trains through
the area in question during that
period was a regular occurrence. The conduct of Bidli, he submitted,
embodied the standard of the
reasonable security guard. Bidli was
aware of the fact that trains moved through the area at night and he
testified that he never
crossed a railway line without first paying
attention to the possibility of a train passing through.
[46] In considering the
foreseeability of the harm in this case, he submitted, it is
necessary to bear in mind that both plaintiffs
were qualified
security guards who could have been expected to act responsibly with
regard to their own safety. It was not reasonably
foreseeable that
plaintiffs would close their eyes and ears with regard to what was
happening around them, nor that they would act
recklessly with regard
to the risk of passing trains.
[47] The headlight of a train, he
submitted, is an important signal of the trainâs approach. In this
regard he referred to the
following passage in
South African
Railways and Harbours v Orford
1963 (1) SA 672
(A) at 677F-H:
â
It
is a matter of common knowledge - and is, indeed, established by the
evidence in this case - that in practice locomotives travelling
at
night employ powerful headlights. The road-travelling public is
familiar with that practice, and anybody proposing to traverse
a
level-crossing at night will naturally expect to be able immediately
to discern the presence of an approaching train by the powerful
beam
of its headlight. I agree with the observation of NESER, J., in
Matcheke v S.A.R. and Public Utility Corporation, Ltd.,
1948 (1) SA
295
(T) at p. 307, that
'the railway service
have accustomed the public to expect the normal headlights on
trains'.
The
locomotive's headlight is thus, in effect, an established method of
giving warning of a train's approach at night time which travellers
by road have reasonably come to expect.â
[48] Mr le Grange referred to
various decisions in which allowance was made for perception and
reaction time on the part of a driver
of a motor vehicle. In
Coetzee v Shield Insurance Co Ltd
1980 (4) SA 621
(C) at 626F,
for example, allowance
was made
âfor a reaction time of
say 3/4 secondâ.
In
Rodrigues v SA Mutual and General
Insurance Co Ltd
1981 (2) SA 274
(A) at 279F reference was made
to the evidence of an expert
âthat perception and reaction time
combined are ordinarily accepted at 11/2 secondsâ.
In
Masureik
and Another (t/a Lotus Corporation) v Welkom Municipality and Another
1995 (4) SA 745
(O) at 767J
the court accepted expert evidence to the effect
âthat
a reasonable pilot has reaction time which is at least two secondsâ
.
[49] In this case, Mr le Grange
submitted, it would be reasonable to allow for a total human reaction
time of three seconds on the
part of the driver. That would include
the time taken by him for the observation of plaintiffs, the
application of the siren, the
observation of the fact that plaintiffs
were not reacting to the siren, the decision to apply the brakes and
the human reaction thereafter
in applying the brakes. Had the driver
decided to brake immediately, he submitted, his reaction time would
have been at least one
second.
[50] Mr le Grange argued that it was
not unreasonable for Human to have sounded the siren first as a
warning to plaintiffs. He
pointed out that in many decided cases the
courts have emphasised the sounding of a siren or hooter as the first
requirement for
a train driver that is approaching a crossing. In
Geldenhuys v South African Railways and Harbours
1964 (2) SA
230
(C), for example, the following was said, at 232D/E-H:
â
At
this stage it will be convenient to set out the duties of persons in
charge of trains, according to the principles that have been
accepted
in a number of decided cases. In Walker v Rhodesian Railways, Ltd.,
1937 S.R. 62 at p. 73, HUDSON, J., sets out the said
duties as
follows:
(1) It
is the duty of the Railway Administration, when intending to exercise
its preferent right at open level crossings at night,
to advertise
the approach of a train by an unmistakable appeal both to the sight
and hearing of travellers on the road.
(2) This
duty, in respect of the appeal to sight, can only be discharged at
night by displaying on the forefront of the train a light
or lights
sufficiently distinguishing or powerful to give adequate and
unmistakable warning of its approach.
(3) The
driver's first duty, whether by day or night, is to see that the line
ahead of him is clear.
(4) On
approaching a crossing he must keep his eye on the crossing and its
immediate neighbourhood.
(5) Having
satisfied himself that the crossing is clear or likely to be clear,
he must then look to the public road to his right and
left to see
whether there are any vehicles approaching the crossing.
(6) In
an emergency he must be in a position to give a special warning and
apply his brakes if necessary.
These
principles are quoted with approval by NESER, J., in Matcheke v South
African Railways & Harbours and Public Utility Corporation
Ltd.,
1948 (1) SA 295
(T) at p. 301, and I respectfully accept them.â
[51] Mr le Grange submitted that
plaintiffs were also negligent. If liability on the part of any of
the defendants is established,
he argued, plaintiffsâ claims would
be subject to apportionment by reason of their own negligence.
Submissions on behalf of the
third party
[52] Mr J C Marais
appeared
on behalf of Kuffs.
On the questions of negligence he adopted
the submissions advanced on behalf of defendants. He referred in
particular to the following
statement (in regard to level crossings)
by Solomon J in
Worthington and Others v C.S.A.R.
1905 TH 149
,
cited with approval by Ramsbottom J in
Pretoria City Council v
South African Railways and Harbours
1957 (4) SA 333
(T) at
336H-337A:
â
It
is the duty of the traveller to look out for and wait for the train.
At the same time a condition is attached to the preference
which the
railway has, and that is that the train ought to give due warning of
its approach when it is nearing a level-crossing of
this nature, so
that persons might stop and allow the train to pass. The train is
bound, in my opinion, to give due and timely warning
of its approach,
and also not to be travelling at such an excessive rate of speed that
the warning it might give should be of no
avail. What is an excessive
speed and what is due warning must entirely depend on the special
circumstances of each case. Where there
are obstructions to prevent
persons travelling along the road from seeing an approaching train,
or where there are any other circumstances
which would make it
difficult to ascertain that a train is approaching, then, of course,
better warning would have to be given, and
the train would have to
travel at a slower speed.â
[53] Mr Marais also emphasised the
fact that Human found himself in a situation of emergency. His
conduct should therefore not
be judged too finely. He referred to
the recapitulation, in
Young v Workmen's Compensation Commissioner
and Another
1998 (3) SA 1085
(T), at 1095F-1096C, of earlier
judicial statements on this topic. In
South African Railways v
Symington
1935 AD 37
at 45, for example, Wessels CJ said the
following:
â
Where
men have to make up their minds how to act in a second or in 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.â
[54] Following the amendment of the
third partyâs plea Mr Marais also argued that second defendant was
negligent in providing
a train to Metrorail that had inefficient
warning and braking systems.
Metrorailâs own negligence
[55] I proceed to consider the three
main grounds of negligence relied upon by Mr Budlender on behalf of
plaintiffs. I shall in
regard to each ground also consider the
related questions of wrongfulness and causation. The allegations of
negligence against Metrorail
are twofold. The first is that
Metrorail was negligent in failing to warn Kuffs and plaintiffs that
the unscheduled train in question
was about to move from Cape Town to
Woodstock. The second ground is that Metrorail should have ensured
that the security guards
receive proper training in cable patrol.
[56] I deal first with the alleged
failure to provide plaintiffs with proper training in cable patrol.
It is trite law that questions
of wrongfulness and negligence must be
determined with reference to all the particular facts of each case.
Two factors complicate
the factual enquiry in this regard. The first
concerns the role and position of Kuffs as an important intermediary
between metrorail
and plaintiffs. The second is the vagueness of
the evidence concerning the agreements or understandings between
Metrorail and Kuffs
in regard to the cable patrol. It seems clear
that the cable patrol did not form part of the original agreement
between them. It
started a few months later. One must assume that
the partiesâ agreement contained at least a tacit term in
connection with the
questions of the training of the security guards.
The witnesses that gave evidence in this regard (Gounder and
Apollis) rather described
the
de facto
situation that existed
at the time of the incident. Not one of them provided first hand
information of the terms agreed upon between
Metrorail and Kuffs.
[57] The stance taken by Metrorail,
through its witnesses and its counsel in argument, was that Kuffs was
at all times fully informed
of the factual situation and that it was
left to them to provide such training as was required. The training
in question, namely
an instruction to watch for trains when one
crosses a railway line, would after all have been a fairly elementary
element of training.
[58] In the circumstances I am not
persuaded that Metrorailâs stance can be described as unreasonable.
In short, in my view the
alleged duty of care on the part of
Metrorail to individual security guards to ensure that they were
properly trained for cable patrol,
was not established in these
proceedings.
[59] The next question is whether
Metrorail was negligent in failing to issue a specific warning to
Kuffs that an unscheduled train
was about to move through the area.
Metrorail would have been in possession of precise information in
regard to the movement of
each and every train. Kuffs was not.
Unlike the question of training, Metrorail could not have assumed
that Kuffs would issue the
suggested warnings to individual security
guards because Kuffs was dependant upon it for the relevant
information.
[60] Generally speaking it might be
said that the less frequent these unscheduled train journeys were,
the greater the need for
specific warnings. The evidence in regard
to the frequency of these trains is unfortunately vague. A number of
witnesses testified
on behalf of Metrorail to the fact that there
were such trains. Metrorail, one must assume, is in possession of
precise data relating
to this question as the movement of all the
trains were at all times controlled from a central control room. Yet
no such evidence
was placed before the court. In my view Metrorail
did not prove that the frequency of such trains was such that all
security guards
must have been aware of such movements.
[61] In my view Mr Budlender raised
valid arguments in support of a finding that Metrorailâs failure
was wrongful. The dangers
created by these trains were significant
and they were clearly foreseeable. The warnings could have been
issued with little difficulty
and at hardly any cost. It is a fair
inference, furthermore, that had such a warning been issued in the
present case, the accident
would probably have been avoided.
[62] I find therefore that Metrorail
was negligent in failing to issue a specific warning to Kuffs on the
night in question that
a train was about to pass through the area
where its guards were performing cable patrol. That failure was
causally related to the
accident that occurred.
Causal negligence on the part of
Human
[63] Plaintiffsâ third ground of
negligence is that the train driver was negligent in that he took the
wrong option by sounding
the siren first and observing plaintiffsâ
reaction before braking. This argument was explored in the
cross-examination of Carver.
Mr Budlenderâs contention was that it
had been shown on a balance of probabilities that the accident could
have been avoided if
Human had applied the brakes immediately after
he saw plaintiffs.
[64] The reasoning underlying Mr
Budlenderâs contention appears to me to be sound. If it is
accepted that the driver wasted valuable
time by first sounding his
siren and observing plaintiffsâ reaction then it follows that the
train continued travelling towards
plaintiffs during that period. Mr
Budlender submitted that a period of at least three seconds was
wasted in this manner. Assuming
that the train was travelling at 40
kph at that stage then it follows that the train could have been
brought to a halt some four
metres before the point of collision with
first plaintiff.
[65] The alternative leg of the
contention is somewhat more involved. It is based on the more
conservative assumption that the
driverâs total human reaction time
was only three seconds and not four seconds. Had the driver braked
immediately after observing
plaintiffs, his reaction time would have
been only one second. This means that he wasted two seconds. In
that period, at 40 kph,
the train would have travelled some 22
metres. It would therefore have come to a halt at
Point 37.
First plaintiff was struck at
Point 44.
This means that
the train would have come to a halt some 7 metres beyond the point
where first plaintiff was struck. The argument
on behalf of
plaintiffs, however, is that in such event the train would have been
travelling at a much slower speed at
Point 44
than it actually
did. Mr Carver estimated that the train, in terms of the 40 kph
scenario, was travelling at a speed of about 29
kph at
Point 44
.
That translates into 8 metres per second. Had the train come to a
standstill at
Point 37,
its speed at
Point 44
would
have been significantly slower. According to my estimate it would
have been about 14 kph. (At a speed of 15 kph, it may be
noted from
the table of stopping distances, the train would have come to a
standstill in about 8 metres.) A speed of 14 kph is equivalent
to
about 4 metres per second. Plaintiffs were probably alerted to the
approach of the train by the sound of the siren or the headlights
shining upon them. In the case of the hypothetical slower train this
would probably have happened when the train was at the same
distance
away from them. The effect of this line of reasoning is therefore
that plaintiffs would have had an additional one second
available in
which to evade the slower train. The evidence was that each was
probably struck a glancing blow. It is reasonable to
assume
therefore that each plaintiff would have been able to move an
additional distance of about one metre in that one second.
That
would have been sufficient for them to avoid the accident.
[66] Various answers to this line of
reasoning were suggested in argument by counsel for defendants and
Kuffs. Thus it was submitted
that Human was confronted with an
emergency situation and that he should not be criticised with the
benefit of hindsight.
[67] I agree that Human found himself
in a situation where an immediate response was called for. In
judging his conduct there are,
however, a number of considerations
that cannot be ignored. The first is that Human was a professional
train driver with vast experience.
On each and every suburban train
journey undertaken by him, he would have been constantly on the
lookout for the exact kind of emergency
that presented itself, namely
a pedestrian on the railway line. He had no reason to be less
attentive because this was an unscheduled
train. Another important
consideration, in my view, is that Human was not confronted by
various alternative courses of action that
required to be weighed up
against each other. The choices open to him were few and simple and
the immediate braking option carried
no additional risk.
[68] In response to Mr Budlenderâs
argument that the total reaction time was probably longer than three
seconds, Mr le Grange
pointed out that Carverâs calculation of his
40 kph scenario was based on the assumption that plaintiffs were
visible to the driver
from the position where the train was when his
reaction time commenced. It does not follow, he submitted, if a
longer total reaction
time is postulated, that plaintiffs would have
been visible to the driver from the position where the train would
have been at that
earlier stage. Although Carver agreed that
plaintiffs would have been visible from
Point 136
(the
position of the first palm tree) he did not concede that plaintiffs
would have been visible from any point before that.
[69] It seems to me, however, that
Mr le Grangeâs argument overlooks an important aspect of Carverâs
scenarios. The speed of
40 kph is not a fixed premiss. It is one of
the assumptions made in order to arrive at a feasible scenario. The
length of human
reaction time, also, is not a fixed premiss. Various
assumptions may be made in that regard. A particular scenario can
only be
regarded as feasible if it is consistent with the known and
assumed facts. One of these facts is that plaintiff was struck by
the
train at
Point 44 m
. Another obvious fact is that the
driver actually saw plaintiffs when his reaction time commenced. If
any assumption in regard
to the length of the human reaction time
entails that plaintiffs were seen from a position where they were not
visible, then the
scenario incorporating that assumption is simply
not a feasible scenario. It means that a slower speed than 40 kph
would have to
be postulated in order to convert such a scenario into
a feasible scenario.
[70] I have, for illustrative
purposes, considered the following scenario: The train travelled at
a speed of 37,5 kph; the driver
observed plaintiffs at
Point 136
(the first palm tree) and the human reaction time was four seconds of
which three seconds represented wasted reaction time. In estimating
the stopping distance at 37,5 kph I have taken the average of the
stopping distances at 35 kph and 40 kph respectively. At a speed
of
37,5 kph the train travels 10,42 metres per second. On this basis I
arrive at the following estimates:
Distance to stop 49,54 metres
Train reaction (3 sec) 31,26 metres
Human reaction (4 sec) 41,68 metres
Total stopping distance 122,48
metres
Deduct 3 sec wasted time 31,26
metres
Distance 91,22 metres
[71] In terms of this scenario the
train would therefore have come to a standstill at a point 91 metres
beyond
Point 136,
which is at
Point 45,
ie
one
metre short of the point where first plaintiff was struck. The
scenario postulated by me thus appears to be a feasible and
reasonable
scenario. Applying it to the alternative leg of
plaintiffsâ contention (see para [65] above), this scenario also
leads to a conclusion
that the accident could probably have been
avoided.
[72] Counsel for defendants and
Kuffs suggested in argument that Mr Budlenderâs contention is based
on ingenious calculations
which may not reflect the realities of the
situation. I do not agree. The calculations are based on the
evidence of Carver and
plaintiffs are not required to meet any higher
standard of proof than a preponderance of probabilities.
[73] Counsel for defendants and
Kuffs also submitted that the primary duty of a train driver,
according to the case law, is to sound
his siren or hooter. I have
considered the various cases referred to in this regard, but I cannot
agree with this interpretation.
In all these cases the courts were
applying general principles of negligence to the facts before them.
In some cases the sounding
of a siren may be the obvious thing to do.
In others it may be the only thing that can reasonably be done. In
the present case,
however, I am of the view that the situation called
for an immediate braking reaction.
[74] Reverting then to Humanâs
conduct, it follows that his initial reaction, namely to sound the
siren, unfortunately proved
to have been a time wasting and futile
exercise. Plaintiffs, one must assume, did not hear the siren at
that stage. It is significant,
moreover, that Carver accepted that
the prevailing circumstances were such that plaintiffs probably did
not hear the siren. In the
circumstances, given the distance from
the train to where plaintiffs were, the windy conditions and the fact
that the siren did not
make much noise, the initial sounding of the
siren was not even likely to act as a proper warning of the trainâs
approach. Human
was aware of these circumstances but he nevertheless
wasted a few seconds by sounding the siren first.
[75] I conclude therefore that Human
was negligent and that his negligent conduct was causally related to
the collision with both
plaintiffs.
Negligence on the part of
plaintiffs
[76] That brings me to the question
of contributory negligence on the part of plaintiffs. A relevant
factual issue is whether plaintiffs
actually knew that there was a
risk that an unscheduled train was about to move down the railway
line at the time that they were
performing cable patrol work. Mr
Budlender submitted that second plaintiffâs testified that he did
not know that an unsolicited
train might at any time be sent down the
line. First plaintiff did not testify but it was a reasonable
inference, he submitted,
that he also was not aware of that risk.
Defendants, he pointed out, led no evidence to contradict second
plaintiffâs statement.
Mr le Grange, on the other hand, submitted,
that there was ample evidence from defendantsâ witnesses that the
movement of unscheduled
trains after 10:00 was not an unusual
occurrence. Bidli had also on occasion observed a train during that
period.
[77] Insofar as the question of
plaintiffsâ actual knowledge is relevant to the question of
contributory negligence the onus of
proving such knowledge, rests on
defendants. In view of the evidence adduced by defendants I have no
difficulty in finding that
the movement of unscheduled trains did
occur after 10:00. An important factual issue however concerns the
frequency of such trains.
I have already commented on the fact that
Metrorail did not place any precise evidence in this regard before
the court. It is important
to note, furthermore, that the cable
patrol covered the area from Cape Town to Salt River. Some of the
unscheduled trains, according
to defendantsâ evidence, were only
moved to a shunting siding or to a different platform. The inference
can not be drawn that
plaintiffs must have observed such trains.
[78] The question of plaintiffsâ
actual knowledge is, however, not decisive of the question whether
they were negligent or not.
Second plaintiff did not claim that he
was told or assured by Metrorail or by any of his supervisors that
there would actually not
be any trains moving through the area whilst
they were carrying out cable patrol. Second plaintiff appears to
have assumed this
fact on the strength of what he was told by a
colleague. In my view he was not acting reasonably in acting on that
assumption.
Plaintiffs must have been aware of the risks involved if
a train should proceed down the line whilst they were walking on the
line.
It was not necessary for them to walk on the actual railway
line and there was nothing that precluded them from keeping a proper
lookout. In my view they were negligent in failing to keep a proper
lookout. It seems obvious that they would have seen and heard
the
train at an earlier stage, had they done so.
[79] I find therefore that
plaintiffs were also causally negligent by walking on the railway
line without keeping a proper lookout
for trains.
The apportionment of plaintiffsâ
damages
[80] As plaintiffs were also
negligent any damages that they may recover in this action are
subject to apportionment in terms of
the provisions of section
1(1)(a) of the Apportionment of Damages Act 34 of 1956 (âsection
1(1)(a) of the Actâ). This provision
reads as follows:
âWhere any person suffers damage which is caused partly by his own
fault and partly by the fault of any other person, a claim
in respect
of that damage shall not be defeated by reason of the fault of the
claimant but the damages recoverable in respect thereof
shall be
reduced by the court to such extent as the court may deem just and
equitable having regard to the degree in which the claimant
was at
fault in relation to the damage.â
[81] I have found that Metrorail and
Human are both liable to pay damages to plaintiffs. In what manner
are the provisions of section
1(1)(a) of the Act to be applied in a
situation where there are two wrongdoers? As far as I am aware, this
question has not yet
been considered in any reported South African
judgment. There are, however, English, Australian and Canadian cases
that may serve
as guidelines.
[82] Before considering the legal
question, I need to point to three elements of the factual context in
the present case that are
relevant to the enquiry:
(i) The first point is that there
does not appear to be any reason to distinguish between the
respective positions of the two plaintiffs
in regard to the measure
of apportionment to be applied. The same considerations would apply
to the claim of each of them.
(ii) The second point is that
Metrorail is also liable to plaintiffs by reason of its vicarious
liability as the employer of Human.
In that capacity it is also
subject to the provisions of section 1(1)(a) of the Act. See
Becker
v Kellerman
1971 (2) SA 172
(T) at 177. Metrorailâs vicarious
liability is, however, not relevant to the question under
consideration. Its liability in
that regard is entirely
co-incidental.
(iii) The third point to be noted is
that Metrorail and Human are to be regarded as
concurrent
wrongdoers
, ie
persons whose independent or 'several'
delictual acts (or omissions) combined to produce the same damage.
They are not
joint wrongdoers
, ie
persons who, acting
in concert or in furtherance of a common design, jointly commited a
delict. For this distinction, see
Nedcor Bank Ltd t/a Nedbank v
Lloyd-Gray Lithographers (Pty) Ltd
2000 (4) SA 915
(SCA) at
922D-F.
[83] The starting point of the
enquiry must be the South African case law on the application of
section 1(1)(a) of the Act to the
ordinary situation where there is a
single wrongdoer. There are three important judgments of the
erstwhile Appellate Division on
this topic. The first is that of
Ogilvie Thompson JA in
South British Insurance Co. Ltd., v Smit
1962 (3) SA 826
(AD). In the second judgment,
Jones NO v Santam
Bpk
1965 (2) SA 542
(A), the Appellate Division followed, and, in
one respect clarified, what was said in
South British Insurance
Co. Ltd., v Smit.
See the following passages, at 554G-555D:
â
The
provisions of sec. 1 (1) (a) of the Apportionment of Damages Act were
particularly considered by this Court in South British Insurance
Co.
Ltd., v Smit,
1962 (3) SA 826
(AD). At p. 836 C OGILVIE THOMPSON,
J.A., in summing up his conclusions after a consideration of the
terms of the statute and the
possible meanings to be attached
thereto, finalised the views of the majority of the Court in these
words:
'What the Court is
required to do is to determine, having regard to the circumstances of
the particular case, the respective degrees
of negligence of the
parties. In assessing 'the degree' in which the claimant was at fault
in relation to the damage' the Court must
determine in how far the
claimant's acts or omissions, causally linked with the damage in
issue, deviated from the norm of the bonus
paterfamilias. In thus
assessing the position, the Court will, as explained above, determine
the respective degrees of negligence,
as reflected by the acts and
omissions of the parties, which have together combined to bring about
the damage in issue.'
It
is important to note the statement that it is 'the respective degrees
of negligence' of the parties which has to be determined,
not only
the degree of any negligence on the part of the claimant. This was
emphasised in a previous passage of the same judgment
where, at p.
835 H, OGILVIE THOMPSON, J.A., said that, although the sub-section
only refers to the claimant,
'it is, I think, plain
from a consideration of the section as a whole that what the Court
has to measure is the conduct of all parties
whose fault caused the
damage. Postulating a single defendant, the determination of the
'degree in which the claimant was at fault
in relation to the damage'
will also automatically determine the degree in which the defendant
was at fault in relation to the damage'.
I
concurred in this judgment of OGILVIE THOMPSON, J.A., in Smit's case,
but on further consideration I have come to the conclusion
that the
last sentence of this quotation does not make clear my view as to how
the respective degrees of fault of the different parties
must be
assessed. A determination of the degree of fault on the part of the
claimant does not by itself
'automatically
determine the degree in which the defendant was at fault in relation
to the damage';
the
Court must first also determine in how far the defendant's
'acts or omissions,
causally linked with the damage in issue, deviated from the norm of
the bonus paterfamilias'.
It
is on the basis of comparison between the respective degrees of
negligence of the two parties (or several parties if there be more
than one claimant or defendant) that the Court can determine in how
far the fault or negligence of each combined with the other to
bring
about the damage in issue.â
[84] For present purposes it is
instructive to consider the judgment of Ogilvie Thompson JA in
South
British Insurance Co. Ltd v
S
mit, supra,
more fully. A
central question in that case was whether the relative degrees of
blameworthiness of the parties is the sole criterion
of apportionment
or whether the causal significance of the acts of the parties must
also be taken account. See the following passage,
at 833F/G-833
in
fine
:
â
Considerable
divergence of view has manifested itself in the writings of learned
authors concerning the correct interpretation of
the concluding
portion of para. 1 (a) of this section. According to one view, the
causal significance of the acts of the parties
is irrelevant, since
'the relative degrees of blameworthiness of the parties must be the
sole criterion of apportionment' (McKerron,
Law of Delict, 5th ed.,
p. 261). The opposing view - of which Mr. Boberg of Witwatersrand
University would appear to be a staunch
protagonist: see
76 S.A.L.J.
259
and Annual Survey of South African Law (1960) p. 160 - emphasises
the words 'fault in relation to the damage' and maintains that
the
criterion is not the degree of blameworthiness alone, but the degree
of blameworthiness in relation to its causal effect in producing
the
damage. Prof. Swanepoel, Tydskrif vir Hedendaagse Romeins-Hollandse
Reg (1959) at p. 271, has expressed the opinion that, since
the Court
is dealing with two unlawful acts, all that is required is that the
two unlawful acts be weighed against each other, and
that 'die
grondslag van verdeling van skade is dus die twee onregmatige dade.'â
In the course of his discussion of
this question, Ogilvie Thompson JA referred to and distinguished the
position in English law.
See the following passages, at 834D/E-835B:
â
Sec.
1 of Act 34 of 1956 is couched in very similar terms to those of sec.
1 of the Law Reform (Contributory Negligence) Act, 1945,
of England.
Indeed, para. 1 (a) of our Act is in virtually identical terms with
that of sub-sec. 1 (1) of the English Act save for
the concluding
words of the latter, which provide that the damages recoverable shall
be reduced to such extent as the Court thinks
just and equitable
'having regard to the claimant's share in the responsibility for the
damage'. These last cited words have apparently
also given rise to
some controversy, similar to that outlined above in relation to our
own Act, regarding the criterion thus prescribed
by the Legislature.
Thus Pollock, Torts, 15th ed., p. 352, is of the view that
'responsibility' means 'causal responsibility'; while
Glanville
Williams, Joint Torts and Contributory Negligence, sec. 98, although
alluding to such a view as having been judicially
expressed in
relation to identical words in the Tortfeasors Act of 1935, says
that, in all cases under the 1945 Contributory Negligence
Act, it has
been assumed that 'apportionment is on the basis of fault or blame'.
The learned author, however, goes on to cite a passage
from the
judgment of DENNING, L.J., in Davies v Swan Motor Co. (Swansea) Ltd.,
1949 (1) A.E.R. 620
at p. 632, which, with the greatest respect,
would not appear entirely to exclude the causation factor. The
passage in question reads:
'While causation is
the decisive factor in determining whether there should be a reduced
amount payable to the plaintiff, nevertheless
the amount of the
reduction does not depend solely on the degree of causation. The
amount of the reduction is such an amount as may
be found by the
court to be 'just and equitable', having regard to the claimant's
'share in the responsibility' for the damage. This
involves a
consideration, not only of the causative potency of a particular
factor, but also of its blameworthiness. The fact of
standing on the
steps of the dustcart is just as potent a factor in causing damage,
whether the person standing there be a servant
acting negligently in
the course of his employment or a boy in play or a youth doing it for
a 'lark', but the degree of blameworthiness
may be very different.'
The
word 'responsibility', appearing in the English Act, may perhaps be
said expressly to connote incorporation into the enquiry of
the
element of causation. As already indicated, our Act deliberately
departed from the wording of the English Act reading 'having
regard
to the claimant's share in the responsibility for the damage'. Under
our Statute the Court is enjoined to have 'regard to
the degree in
which the claimant was at fault in relation to the damage'. The
critical question, accordingly, is: what does 'fault'
('skuld') here
mean?â
In his discussion of this
âcritical
questionâ
Ogilvie Thompson JA then made the statements that
were considered in the passages in
Jones NO v Santam Bpk, supra,
which I have quoted above.
[85] In the light of
Jones NO v
Santam Bpk, supra,
read with
South British Insurance Co. Ltd.,
v Smit, supra,
the interpretation of section 1(1)(a) of the Act
thus appeared, at that stage, to be fairly clear: The court had to
compare the respective
degrees of blameworthiness of the two parties.
Unlike the position in England, the relative degrees of the causal
significance of
the partiesâ acts would not play a direct role.
Although it was made clear in
Jones NO v Santam Bpk, supra,
that the conduct of all parties had to be considered, the method of
comparison to be followed in the case of two or more wrongdoers,
was
not dealt with.
[86] Then came the third important
judgment,
General Accident Versekeringsmaatskappy SA Bpk v Uijs NO
[1993] ZASCA 58
;
1993 (4) SA 228
(A). The plaintiff (he was represented by a
curator ad litem
) had been a passenger in a motor vehicle when
it was involved in a collision in which he sustained serious head
injuries. It was
common cause between the parties that the driver of
the vehicle had caused the accident in a grossly negligent fashion.
The trial
court found that the plaintiff had been causally negligent
in that he had failed to wear his seatbelt and accordingly reduced
his
damages by one third. Van Heerden JA dismissed the appeal. He
held that justice and equity demanded that allowance be made for
the
fact that the plaintiff had in no way contributed to the accident and
that his fault was of a different kind to that of the driver.
He
said,
inter alia,
the following, at 234J-235E:
â
Soos
welbekend, bepaal art 1(1)(a) dat waar iemand skade ly wat deels aan
sy eie skuld en deels aan die skuld van 'n ander persoon
te wyte is,
'n vordering ten opsigte van die skade nie ten gevolge van die skuld
van die eiser verydel word nie, maar dat die verhaalbare
skade in so
'n mate verminder word as wat die hof, met inagneming van die mate
van die eiser se skuld met betrekking tot die skade,
regverdig en
billik ag. Wat betref skade gely as gevolg van 'n botsing tussen twee
voertuie, vind art 1(1)(a) normaalweg toepassing
indien die botsing
aan die nalatigheid van altwee bestuurders te wyte was en albei as
gevolg daarvan skade gely het. In so 'n geval
sou 'n bepaling van die
graad van kousale nalatigheid van bestuurder A in baie gevalle - maar
nie altyd nie (Jones NO v Santam Bpk
1965 (2) SA 542
(A) op 555) -
ook uitsluitsel gee oor die skuldgraad van bestuurder B, en sou dit
normaalweg billik wees om die skade van bestuurder
A met die graad
van sy nalatigheid te verminder. Moeiliker is die toepassing van die
subartikel in 'n geval soos die onderhawige,
waar slegs Stander skuld
met betrekking tot die veroorsaking van die botsing dra. Dit het Van
Huyssteen se skade tot gevolg gehad
en Stander se afwyking van die
norm van die bonus paterfamilias kan op naby 100% gestel word. Maar
wat nou as Van Huyssteen se afwyking
van die norm ook op bykans 100%
gestel word? Moontlik sou dan gesê kan word dat hy en Stander gelyke
skuld met betrekking tot die
veroorsaking van sy skade het. Artikel
1(1)(a) bepaal egter nie dat 'n eiser se skade verminder moet word in
verhouding tot sy skuld
nie, maar wel tot die mate wat, met
inagneming van die omvang van die eiser se skuld, regverdig en billik
is. En in 'n geval soos
die onderhawige verg regverdigheid en
billikheid inagneming van die feit dat Van Huyssteen geensins tot die
plaasvind van die botsing
bygedra het nie, en dat sy skuld
andersoortig as dié van Stander was.â
[87] It is interesting to note that
Van Heerden JA did not in
General Accident Versekeringsmaatskappy
SA Bpk v Uijs NO, supra,
refer to the earlier judgment in
South
British Insurance Co. Ltd., v Smit,
supra,
nor to English
cases on the topic of the non-wearing of a seatbelt. He nevertheless
had regard to considerations relative to the
causative potency of the
partiesâ conduct but he did so in the course of applying the
criteria of justice and fairness.
[88] I revert then to the question
of the method of apportionment of damages between a plaintiff and two
wrongdoers. This question
has been considered in English, Australian
and Canadian cases. An authoritative judgment in England is that of
the House of Lords
in
Fitzgerald v Lane and another
[1988] UKHL 5
;
[1988] 2
All ER 961
[HL]. The plaintiff was a pedestrian who had been injured
in a road traffic accident involving two negligent motorists. The
statute
in question was still section 1 of the Law Reform
(Contributory Negligence) Act, 1945, of England. (This provision, it
was pointed
out in
South British Insurance Co. Ltd v
S
mit,
supra,
at 834D/E-835B, is in virtually identical terms with that
of section 1(1)(a) of the South African Act, save for the concluding
words
which read
âhaving regard to the claimant's share in the
responsibility for the damageâ
.) The House of Lords held that
the plaintiffâs conduct had to be contrasted with the totality of
the defendantsâ tortious conduct.
As the plaintiff had been
substantially the author of his own misfortune and as his share in
the responsibility for his injuries
was at least as great as that of
the defendants jointly, the plaintiff was only entitled to judgment
for 50% of his claim. In the
course of his judgment Lord Ackner
said, at 970e-f:
â
While
the plaintiffâs conduct has to be contrasted with that of the
defendants in order to decide to what extent it is just and
equitable
to reduce the damages which would be awarded to him if the defendants
were solely liable, it does not involve an assessment
of the extent
to which the fault of each of the defendants contributed to that
damage. What is being contrasted is the plaintiffâs
conduct on the
one hand with the totality of the tortious conduct of the defendants
on the other.â
[89] The same approach is followed
in Australia with respect to statutory provisions that are identical
to the English statute.
Thus, in
Donaldson v Canberra Tyre
Service Pty Ltd & Anor
[2004] ACTSC 26
(5 May 2004) Crispin J
said the following:
â
15.
In a case involving joint tortfeasors there may be some debate as to
the manner in which any reduction in damages on that ground
should be
determined. As the New South Wales Court of Appeal observed in
Barisic v Devenport
[1978] 2 NSWLR 111
, there has been an almost
universal practice both in the United Kingdom and Australia of
regarding the plaintiff as one unit and
the defendants, if they are
concurrent tortfeasors, as another. The plaintiff's negligence is
then compared with the aggregate degree
of negligence or
blameworthiness of the defendants. The extent to which the
plaintiff's damages should be reduced is determined as
a result of
this single balancing exercise and judgment, for the sum so reduced
is then entered against both defendants. The extent
to which each
should contribute to the amount of such judgment sum is determined in
proceedings for contribution or indemnity between
them.â
[90] The Supreme Court of Canada
applied a similar approach in
Ingles
v. Tutkaluk Construction Ltd
2000 SCC 12
with respect to a statutory provision (described as section 3 of
the
Negligence
Act
,
R.S.O. 1990, c. N.1.
)
that read as follows:
3.
In any action for damages that is founded upon the fault or
negligence of the defendant if fault or negligence is found on
the
part of the plaintiff that contributed to the damages, the court
shall apportion the damages in proportion to the degree of fault
or
negligence found against the parties respectively.â
In para [55] of the judgment the
court said the following:
â
When
there are two or more tortfeasors, and a plaintiff has also been
found negligent, the proper approach to apportionment is to
first
reduce the extent of the recoverable damages in proportion with the
plaintiffâs negligence, and then to apportion the remaining
damages
between the defendants, in accordance with their fault; see, for
example, Fitzgerald v. Lane,
[1988] UKHL 5
;
[1988] 2 All E.R. 961
(H.L.); Bow Valley
v. Saint John Shipbuilding, supra; Colonial Coach Lines Ltd. v.
Bennett,
[1968] 1 O.R. 333.â
On the facts of that case (it
concerned the carrying out of building work without a building
permit) the plaintiff, an owner builder,
was found to have been 6%
liable, the one defendant (the City of Toronto) 14% and the other
defendant (a building contractor) 80%.
The plaintiffâs damages
were reduced by 6%.
[91] That brings me back to the
question of the application of section 1(1)(a) of the South African
Act to two concurrent wrongdoers.
Subject to two qualifications it
seems to me that the approach in the jurisdictions referred to above,
namely to assess the responsibility
of the
claimant
against the totality of the tortious conduct of the wrongdoers, may
also be followed here. The first qualification, in the
light of
South British Insurance Co. Ltd., v Smit, supra,
is that the
causative potency of the conduct of each of the parties (as opposed
to their fault) would not play an immediate role
in the comparison.
The second qualification, in the light of
General Accident
Versekeringsmaatskappy SA Bpk v Uijs NO, supra,
is to recognise
that the entire process remains subject to considerations of justice
and equity. Such considerations, I may point
out, may become
particularly relevant when the number of the wrongdoers involved or
the nature of the conduct in question, would,
on a mechanistic
application of the formula, give rise to inequitable results.
[92] The application of this
approach to the facts of the present case leads me to the following
three conclusions which can be
stated shortly:
(i) The blameworthiness of each of the
plaintiffs is substantially outweighed by the aggregate of the
blameworthiness on the part
of Metrorail and Human, the two of them
being regarded as one unit for purposes of the comparison.
(ii) In the circumstances of this case
there are in my view no specific considerations of equity or justice,
other than the comparison
in respect of blameworthiness itself, that
need to be taken into account.
(iii) In all the circumstances a
reduction by one third falls to be applied in determining the damages
that would be recoverable from
Metrorail and Human by each plaintiff.
Metrorailâs claim against
Kuffs
[93] That brings me to Metrorailâs
claim against Kuffs. Apart from the denial that defendants were
negligent, Kuffs did not raise
any defence to Metrorailâs claim in
terms of the indemnity. Following the amendment of its plea, Mr
Marais did argue that second
defendant was negligent in failing to
provide Metrorail with trains having more efficient warning and
braking systems. It is not
necessary for me, however, to consider
the force of this argument. Plaintiffs did not seek to advance a
claim against defendants
on that basis. A finding that second
defendant provided Metrorail with such trains would in any event not
have assisted Metrorail
in defending plaintiffsâ claims as it would
have been equally negligent in using such trains. It would therefore
not have afforded
Kuffs with a defence to Metrorailâs claim against
Kuffs in terms of the indemnity.
Costs
[94] Plaintiffs have been
substantially successful against Metrorail and Human. They are
entitled to their costs. I have not heard
argument on the question
of costs as between Metrorail and Kuffs. This must stand over for
later determination.
Conclusion
[95] In the result, I make the
following declaratory orders:
First defendant (Metrorail) and third
defendant (Human) are jointly and severally liable to pay damages to
plaintiffs.
The damages to be recovered by each
of the plaintiffs are subject to a reduction by one third in terms
of the provisions of section
1(1)(a) of the Act.
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 plaintiffsâ
claims.
(e) All questions of costs as between
first defendant and the third party stand over for later
determination.
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A P BLIGNAULT