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[2013] ZAWCHC 151
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Jacobs and Another v Transnet Ltd t/a Metrorail and Others (23671/09; 17189/09) [2013] ZAWCHC 151 (26 July 2013)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 23671/09
CASE
NO: 17189/09
In the matter between:
PRIMILDA JACOBS
.....................................................................
First
Plaintiff
CAROLINA CHRISTINA
HENDRICKS
....................................
Second
Plaintiff
and
TRANSNET LTD/METRORAIL
................................................
First
Defendant
THE SOUTH AFRICAN RAIL
COMMUTER
CORPORATION LTD
..........................................................
Second
Defendant
MARTIN KERSHOFF
..............................................................
Third
Defendant
____________________________________________________________
JUDGMENT delivered
this26
th
day of July 2013
NDITA; J
[1] On 16 November 2006,
at approximately 07h10, a Metrorail train 3208 type 5M2A, en route
from Strand to Cape Town collided with
a, Mitsubishi Canter truck at
the Croydon level crossing between Firgrove and Faure in the
Stellenbosch area. The truck was conveying
approximately 31
passengers, 19 of whom were killed and 12 injured to the Faure Wine
Farm. The two plaintiffs were among those
injured.They both are adult
female farm workers of Riverlands, Western Cape. The first defendant
is Metrorail, duly formed in terms
of section 32 of the Legal
Succession to the South African Transport Services Act No.9 of 1989,
as amended, as a business of Transnet
Limited, a public company
incorporated in terms of the Companies Act 61 of 1973, with its
principal place of business at 1 Adderly
Street, Cape Town. The
second defendant is the South African Rail Commuter Corporation
Limited, a statutory company established
in terms of Act No. 9 of
1989. The third defendant is an adult male labour broker and employer
of the driver of the truck. It is
common cause that the Road Accident
Fund has admitted liability on behalf of the insured driver of the
truck and has paid the limited
amount of R25 000,00 to the plaintiffs
in terms of section 18 of Act 56 of 1996.For this reason, neither the
driver of the truck,
nor the Road Accident Fund is cited as
defendants in the present action. Similarly, a claim for vicarious
liability based on the
negligence of the deceased truckagainst the
third defendant, has, pursuant to his Special Plea in terms of
section 35 of the Compensation
for Occupational Injuries and Diseases
Act 30 of 1993, been withdrawn and no order as to cost was made.
[2] The plaintiffs
pleaded thatthe collision occurred as a result of the negligence of
the train driver, Ms Harriet Mxhalisa, acting
in the course and scope
of her employment with the defendants. The grounds of negligence in
terms of the pleadings are that:
1. she failed to warn the
truck driver, Mr Gert Zeelie, of the approach of the train either
adequately or at all;
2. she drove the train at
a speed which was excessive in the prevailing circumstances;
3. she failed to maintain
a proper lookout;
4. she failed to act with
due care;
5. she failed to apply
the brakes of the train timeously, adequately or at all;
6. she failed to avoid
the collision when by the exercise of reasonable care she could have
done so.
The plaintiffs further
pleaded in the alternative that the collision was caused by the first
and second defendants on the grounds
that:
they failed to ensure
that a mechanical boom was installed at the level crossing.
they failed to ensure
that a mechanical boom was lowered when the train approached the
level crossing;
the prevailing speed
limit which they have prescribed is excessive in the prevailing
circumstances;
they failed to ensure
that the speed restriction signage was installed as prescribed;
they failed to ensure
that the speed restriction signage was consistent;
they failed to act with
due care; and
they failed to avoid a
collision when by the exercise of reasonable care they could have
done so.
According to the
plaintiff’s plea, the collision was caused by the joint
negligence of the defendants.
[3] The defendants denied
negligence on their part and pleaded that the collision was caused by
the sole negligence of the truck
driver in the following respects:
1 he failed to keep a
proper lookout;
2. he failed to keep
proper control of the truck;
3. He failed to heed
existing warning signs indicating the presence of the level crossing;
4. he entered the level
crossing without ascertaining whether it was safe to do so;
5. he entered the level
crossing at a time when it was dangerous and/or inopportune to do so.
6. he failed to avoid the
collision when by exercising the requisite care and skill he could
have and should have done so;
7. he failed to heed the
warning siren of the train in question.
[4] In addition to the
grounds set out above, the first and second defendants in their pleas
allege that on or about 15 May 2006,
the first defendant concluded an
agreement, in terms of which the first defendant sold to the second
defendant the business of
providing rail commuter services, including
all the assets and liabilities associated therewith. In terms of the
agreement, the
first defendant with effect from 26 December 2005, no
longer operated as a business unit of Transnet Limited. Consequently,
the
second defendant assumed the assets and liabilities of the
business previously operated by Transnet Limited, thus, the first
defendant
cannot be held liable for the plaintiffs’ claim. .
For ease of reference, the first and second defendants will simply be
referred to as the defendants.
THE INSPECTION IN LOCO
[5] At the commencement
of the trial on 8 October 2012, an inspection in loco was carried out
at the railway line to the Croydon
level crossing. The inspection
started at an underpass constructed under the railway line to
Kelderhoff Country Village, a new
residential development and
continued along the railway line to the Croydon level crossing which
is about 1 km away. The following
observations were recorded:
1. On the western side of
the railway line, in the vicinity of level crossing, is the urban
area of Croydon whilst on the eastern
side, approximately 200m from
the crossing is farmland and a row of houses. On the left hand side
of the railway track, about 8
m from the track are houses. Between
the houses and the railway track, is a service road. The boundary
wall of the residence on
the western side is about 8 metres from
railway track but on the eastern side there was no fence or boundary
between the railway
line and the houses.
2. The first whistle is
about 356m from the level crossing and 185m from a sign board
indicating a speed of 40km/hour. The second
whistle board is 140m
from the crossing.
3. At the crossing, there
is a stop sign on the tarmac on the Steyne Road. Along the same road,
there is a sign indicating a railway
crossing and another a stop
sign.On the western side of the road, there is a vibacrete wall along
the railway line. It is approximately
5.3m from the line of the stop
sign painted on the tarmac. On the northern side, the vibacrete wall
is about 7.7m from the front
of the white line of the stop sign. The
front white line of the stop sign on the tarmac is 4.8m from the edge
of the railway line.
4. When approaching the
level crossing, and walking towards the railway line, the vibacrete
wall and bamboo vegetation obscures
the visibility of the railway
line, depending on where one stopped to observe.
5. On the western side of
the crossing is a pole which is about 6.8 m from the railway line.
6. The gate to the Faure
Wine Farm is on the eastern side of the level crossing.
THE EVIDENCE
[6] The first witness to
be called by the plaintiff is Mr Arend Hendricks, the
secondplaintiff‘s husband. His evidence was
to the effect on
the day in question, he was a passenger in the truck driven by Mr
Gert Zeelie. He was amongst the farm workers
who were being
transported to Faure Farm.He and his wife, the second plaintiff, were
seated at the back of the truck next to the
flap. There were
approximately 28 to 30 people at the back of the truck, amongst whom,
were, Mr Jimmy Hendricks and Mr Denzil Cloete.Mr
Morne Kershof, the
son of the owner of the truck was seated with the driver in front. As
they were driving towards the Croydenlevel
cross, the truck stopped
at the railway line. The witness observed the driver driving forward
in attempt to cross the railway line.
As the truck was driving over
the railway line, Mr Hendricks testified that he saw the train
approaching for the first time. Prior
to seeing the train, he had not
heard a whistlewarning vehicles on the crossing of its impending
approach. Mr Hendricks testified
that he did not see the train
earlier because of branches hanging over the vibacrete wall next to
the track. According to Mr Hendricks
when he saw the train advancing,
he realised that death was imminent as the truck had stopped on the
railway track.He jumped out
of the truck. Shortly,the train collided
with the truck.
[7] Mr Morne Kershoff
testified that he was a passenger in the truck, seated on the cab
with the driver Mr Gert Zeelie, who was
a new appointee. It wasMr
Zeelie who was driving the truck for the first time on that day.
According to Mr Kershoff, the truck
was in a roadworthy driving
condition as it had been serviced the previous day. As they were
driving from Klapmuts to Stellenbosch,
he observed that Mr Zeele’s
driving was normal. When they were next to the railway crossing, Mr
Kershoff testified that he
advised the driver to watch out for the
railway line. The truck stopped at a distance of about 8.5 metres
from the stop sign of
the railway crossing. As the truck had stopped
the witness lent down, searching for a clip board and pen out of his
bag. According
to Mr Kershoff, as they had stopped at the crossing,
to his right he was able to see part of the railway line as the
overhanging
bamboo vegetation obscured it. He looked at the driver to
see if he was looking on his right side but observed that the truck
had
stalled on the railway track. From the stop sign, the truck
proceeded to cross the level crossing but stalled on the track. When
the witness looked up, he observed that the driver was trying to
switch the ignition on and fiddling with the gears as the train
was
approaching. Mr Kershoff testified that he opened the door of the
truck so that he could jump out but the collision occurred
before he
was able to. He lost consciousness on impact and sustained serious
injuries as a result thereof.
[8] In
cross-examination,Mr Kershoffexplained that the cabin of the truck
was about 2 to 2 ½ metres long whereas its back
was 6 metres.
In addition, he explained that although Mr Zeelie was driving the
truck for the very first time on that day, he had
started driving at
5.30 am and the collision occurred about an hour and half later. Put
differently, he, presumablyhad about an
hour and half to familiarise
himself with the truck’s mode of driving. The witness testified
that he had not heard the sound
of the approaching train. Neither had
he heard any whistle or siren. With regard to warning signs on the
crossing, Mr Kershoff
confirmed that he observed through the
windscreen of the truck that there was a stop sign and a board with a
cross indicating a
railway crossing. Mr Kershoff was unable to
explain why the truck driver did not stop closer to the railway
crossing. In his own
words he said that “
Every driver knows
he must stopbefore the stop sign
”.
[9] Mr Jimmy Hendricks
was amongst the passengers seated on the back of the truck on the day
of the collision. He is familiar with
the crossing as he had
travelled it on numerous occasions prior to the accident. He
testified that in his opinion, the crossing
is very dangerous as one
cannot part of the track because of the wall and overhanging bamboo.
In addition, in his opinion, trains
travel very fast. Mr Hendricks
had even predicted to other people that the crossing would one day be
the cause of their deaths.
On the day in question, he also did not
hear a whistle or the sound of the train.
[10] As is customary,
members of the South African Police Services attended to the scene.
Warrant Officer Abraham Niemandt arrived
at the scene shortly after
the accident. He was in charge of the investigation of the collision.
In his evidence, he painted a
grim and gruesome picture of the manner
in which the passengers of the truck were injured, stating that in
his 32 years of service,
the Croyden level crossing accident was the
worst that he had ever witnessed. Because of the magnitude of the
accident, it is understandable
that it attracted the attention of the
media. Mr Niemandt testified that he personally interviewed a certain
Mr David Smith, a
local resident who was quoted in newspapers as
having stated that 10 people had been killed by trains in the Croydon
level crossing
and despite petitions from the community calling upon
Metrorail to fence the railway line, nothing had been done. Mr
Niemandt was
aware of other incidents of persons killed at the
crossing. However, this assertion is unconfirmed as no evidence was
tendered
to support it. Suffice to state thataccording to Niemand’s
evidence, nothing was done by Metrorail to upgrade safety at the
crossing but a new vibacrete wall had beenbuilt since the accident on
the western side of the railway line and the Croydon Township.After
completing his investigation, the witness forwarded the docket to the
National Director of Public Prosecutions for a determination
of
whether or not prosecution should be instituted but the NDPP declined
to prosecute.
[11] Mr Niemandt conceded
under cross-examination that he had no records showing other
accidents which had occurred at the crossing
besides those reflected
in the document entitled “
History of level crossing
accidents at the Faure Wine Farm level crossing”
. The
document shows that a collision occurred between a train and a
motor-vehicle on 28 September 2002, at 9:00 as a result of
which two
children were fatally injured and the driver of the motor vehicle was
also injured, albeit not fatally. The two or three
other incidents he
had referred to occurred past Kelderhof on other level crossings, not
on the Faure crossing which is the subject
matter of this judgment.
Mr Niemandt did not dispute the history so reflected and explained
that the incident involving a train
he earlier alluded to had
occurred further down the crossing and is not related to the Croydon
crossing. Mr Niemandt further revealed
that in the course of the
investigation, he obtained statements from various eye witnesses at
the scene. According to a statement
made by an eye witness, Mr
Africa, the driver of the train blew the horn. Mr Niemandt could not
in cross-examination confirm for
how long it was blown. The report he
had compiled formed part of the Road Accident Fund report.
[12] The first plaintiff,
in support of the allegations of negligence on the part of the
defendants, with regard to more particularly
the failure to install
mechanical booms and prescribing an excessive speed limit, as well an
excessive speed on the part of the
train driver, tendered the
evidence of a mechanical engineer, Mr Daniel Van Onselen. As is
standard procedure, Mr Van Onselen filed
a report dated 27 September
2012. Although in his evidence, he makes very little reference to his
report, it is in my view, reasonable
to summarise his accident
reconstruction findings. These findings were made on the basis of the
perusal ofthe summons, photographs,
Discovery affidavit, Signing for
Railway Crossing document. Mr van Onselen made the following remarks:
“
6.4 It would
take the train travelling at a speed of 60kph 15 seconds to reach the
crossing from the advanced whistle board and
7,5 seconds from the
second (closest) whistle board.
6.5 The stopping distance of the train
is very much in excess of that of a motor vehicle travelling at a
similar speed, due to the
lower coefficient of friction of the cast
iron brake blocks on the smooth steel wheel rolling surfaces, coupled
with the relatively
narrow contact area of the steel tyre on the
steel rail.”
[13] His evidence
constituted largely comments on the report compiled by the Railway
Safety Regulator as well as the defendants’
expert witness
report,compiled by an engineer, Mr Roodt. It remains to be said that
in these proceedings, the experts had not met,
prior to the hearing,
and in consequence,
no joint minute indicating
the areas of convergence or dissent was filed. I think in order to
fully comprehend the testimony of
Mr van Onselen, it is prudent to,
at this stage,
summarise the
findings of the Railway Safety Regulator.
[14] On the same day of
the occurrence of the accident, the Railway Safety Regulator
despatched inspectors to the scene to investigate
the probable cause
of the accident and made the following findings:
1. The primary cause of
the accident was human error on the part of the truck driver,
possibly aggravated by the vehicle condition
and overloading;
2. The train was
exceeding the allowed section speed by approximately 6km/h prior to
the application of the brakes.
3. The train driver
disobeyed standard operating procedures by not applying emergency
brakes when she realised that the train was
not going to clear the
line.
4. An analysis of the on-
board recorder reveals that the energy of the collision would have
been reduced by approximately 40% had
the train driver applied the
emergency brakes when she realised that the truck was not going to
clear the line.
The current practice is
that the responsibility for averting a potential level crossing
collision lies with the road user alone
and is not shared with the
train driver. For example, the road driver must stop, check for
oncoming trains, judge if it safe and
proceed.
5. Apart from having the
road knowledge and sounding the hooter, there are no special
procedures for train drivers when approaching
a level crossing. Only
in the event of obstruction is the driver required to apply emergency
brakes by which time is usually too
late to avoid a collision.
6. The road interface is
considered to be a high risk. It is therefore disconcerting to note
that the operator deems it appropriate
to allow trains to operate ata
section speed of 90km/h in an environment of unprotected level
crossings.
[15] The report reflects
that the section speed is 90km/hour and a whistle board is positioned
125 metres and 400 from the crossing.
With this background in mind, I
revert to the evidence of Mr van Onselen.
[16] Mr van Onselen
aligned his views with the findings of the Railway Safety Regulator.
During his testimony, he referred to chapter
7, of the Metrorail
Manual entitled ‘Signing for Railway Crossing’ which
states that:
“
Due to the
extremely high risk of fatal and serious injury casualties in a motor
vehicle – train collision it must the objective
of all
authorities concerned to achieve firstly the highest measure or
conformity with recommended standard signing practices at
railway
crossings, and secondly high standards of maintenance of signs,
markings and signals once installed.
It should be noted that trains in
South Africa are now capable of operating in what can be termed as
‘high’ speeds in
comparison to past practices. The speed
of a train is very difficult for the driver of the vehicle to judge.
An increase in operating
speed will not be obvious to drivers and
their perception of the speed differential between a high speed train
or a slower speed
train is likely to be poor. It is therefore
important that signing relevant to railway crossings be of a very
high standard and
that authorities have an ongoing commitment to
maintain awareness of drivers as to the risks involved.”
[17] Mr van Onselen
testified that when he visited the scene of the accident, he observed
that there were dwellings right up to
the edge of the track and there
was no protection for the people using the crossing to reach the
other side of the track. In his
opinion, the view of the track on the
part of both drivers was obscured by a wall and a wooden pole which
was in line with where
the truck driver would have been seated.
Similarly, the train driver would not have been able to see the
obstruction on the tracks.
Much of the witness’s evidence
centred around a 30km/h speed restriction board which he alleged was
mandatory. It is common
cause that subsequent to the collision a 40
km/h board was erected whilst the 30 km/h restriction remained in
place. In his view,
this is so because there was no subsequent
cancellation of the 30km/h speed limit, the train driver had not
observed the limitation,
and had she done so, she would have been
able to avoid the collision. Mr van Onselen was thus of the view that
the train was travelling
at three times the permissible speed limit.
According to his evidence, if the train had been travelling at 30km/h
the stopping
distance would be 43.8 metres and it would take 5.2
seconds.In addition, the major reason for the 30km/h speed
restriction may
well have been that crossing was dangerous to the
inhabitants living close to the railway line. However, the witness
acknowledged
that it is mandatory for a driver of a motor vehicle to
stop before crossing a railway intersection, equally the train driver
ought
to sound siren at both whistle boards, and that if there is no
obstruction, the train driver has a right of way. Stated differently,
both drivers share the responsibility to keep a proper lookout.Mr van
Onselen was referred to the a report compiled by Mr L C Vockerodt,
entitled
“
Analysis of Date CapturedBy
Motor Coach Monitoring System (The Black Box)”
and
he confirmed that brake application occurred when the train was
travelling at 96km/h and this brought to a standstill over a
distance
of 510 metres. On impact the train was travelling at 87.3 km/h.
According to the report, the accident occurred at 07.15
and the data
reveals that at 7.11:25 the train driver applied an emergency the
Deadman featurebrake (“DFM”) but before
this point the
train was moving at 96km/h in coasting mode, that means it neither
powering nor braking. It came to a standstill
at 07.11:58. Mr van
Onselen was also referred to the recommendations made by authors of a
report compiled by du Metier (Pty) Ltd,
a company commissioned by the
Road Accident Fund to investigate the accident. He specifically
agreed with the statement that the
speed section at the Croyden
crossing appeared to be too high for the uncontrolled level crossing
and its position in relation
to the property fences. He was referred
to the findings of Du Metier which are as following:
“
1.
The signals were in position and functioning.
2. The whistle boards
were at their prescribed positions.
3. There were no booms
and the level crossing was uncontrolled.
4. The section appears to
be too high for the uncontrolled level crossing and for the position
of the level crossing in relation
to the property fences.
5. Speed restriction
signage at the railway line is not consistent and not installed
according as prescribed.
6. This level crossing
can be protected by means of booms. Especially as the level crossing
is close to walls that reduce the sight
distances on approach to the
level crossing.
7. An alternative would
be introduce the section speed of the train in the area of this level
crossing. Such an alternative would
in this case have reduced the
magnitude of the impact, but the incident would have still occurred.
A speed restriction of 50km/h
or less would be acceptable for this
specific section, but such a low speed would be impractical in terms
of service delivery for
the transport of passengers.
[18] Central to the
allegation of negligence against the defendants is the failure of the
train driver to apply the emergency brakes
instead of the ‘DMF’.
Mrvan Onselen explained that an application of the DMF brake involves
the disengaging of the
accelerator and activating the “dead
man’s handle” causing thetrain to automatically stop at a
lower acceleration.
The activation of this kind of braking system
necessitates that the train driver leave the controls of the train of
in order for
it to stop. Mr van Onselen was of the opinion that the
activation of the emergency brakes would have been much more
effective in
preventing the collision. This was so because by
executing the DMF brake instead of the emergency brake, the train
driver lost
valuable braking time, thus failing to bring the train to
a stop before the collision. Stated differently, the application of
the
emergency brakes would have reduced and retarded the speed more
quickly than the DMF brake. This assertion is in line with the report
of the Railway Safety Regulator to the effect that the train driver
disobeyed standard operating procedures. According to Mr van
Onselen,
in an emergency, the train driver must apply the emergency brake.
[19] It was put to Mr van
Onselen under cross-examination that the 30km/h speed restriction he
referred to is in his evidence in
chief was operative for 1.5 km and
was as such not a permanent sign. The witness was adamant that the
Chapter 7 of the Signal Manual
supported his contention that a speed
30km/h was operative on the track. However, when it was pointed out
to him that the Signing
Manual made no such reference , he conceded.
He was also not aware of the reason for the erection of the 40km/h
board pursuant
to the accident, whilst the 30km/h remained in place.
It transpired during cross-examination that Mr van Onselen was not
relying
on any authority with regard to exactly when the a train
driver must apply the DMF, but he acknowledged that the feature is
the
fastest way of applying brakes. Mr van Onselen’s testimony
with regard to the two train braking mechanism must be understood
in
the context of the fact that he did not do any calculations to
determine whether an emergency brake application would be faster
than
a DMF application.
[20] The second plaintiff
in an attempt to demonstrate the negligence alleged in the pleadings
on the part of the defendants, led
the evidence of Mr Timothy
Spencer, a town planner. In line with standard procedure, Spencer
confirmed the contents of his report
wherein he explained that the
rural nature of the area to the north east of the level crossing and
the low key nature of the railway
line belie the speed of trains
travelling along the section up to 90km/h. According to his evidence,
the route to the Croydon crossing
involves a number of corners and
the stretch of The Steyne Road fromJohannesburg Street describes a
gentle right hand curve.The
Croydon level crossing is on the urban
edge. Mr Spencer testified that the south west boundary of the
railway reserve is bounded
by high precast concrete walls which
impede visibility of the railway line from the north and south. In
his opinion, given the
fact that the level crossing is classified as
“a high speed rail traffic” for high speed trains up to
120km/h,it would
be reasonable to employ additional warning signs. He
however, acknowledged that the mode of control for urban railway
crossings
will be dictated by a combination of factors, including the
frequency and speed of train movements. In his perspective as a town
planner, had the train been travelling at 40km/h, it would have
stopped in less than 100m upon the application of the DMF brake.
This
view is in line with the calculations and braking tables reflected in
the defendant’s expert witness, Mr Roodt.
[21] Mr Spencer accepted
during cross-examination that the Croydon level crossing was
classified as a 3A level crossing.The minimum
protection afforded to
such a classification is a stop sign and railway level crossing sign.
[22] The second plaintiff
led the evidence of Mr Eric Nkwinika, an engineer employed by the
Railway Safety Regulator as principal
railway inspector. Mr Nkwinika
is one of the persons who attended to the scene on the day of the
collision on 13 November 2006.
He testified that he observed a board
reflecting a 30km/h speed restriction for trains travelling on the
Faure railway line. According
to his evidence, the applicable speed
limit on the route was 90km/h and there was no speed restriction. He
was unable to explain
the why there was a 30km/h speed restriction.
He assessed the sight distance of the driver at 700m. In the course
of the investigation,
the witness interviewed the train driver, Ms
Harriet Mxhalisa, who stated that she observed the truck approaching
the level crossing
in a jerking manner when she was driving past the
first whistle board. According to Mr Nkwinika, the train driver
advised that
she started sounding the train siren but the train
stopped on the track. She applied the DMF brake, vacated the cabin
and ran into
the passage in anticipation of the collision. Mr
Nkwininka’s evidence confirmed the findings of the Railway
Safety Regulator
which have been already outlined in the evidence of
Mr van Onselen. One of the people interviewed at the scene was one Mr
Africa
who also stated that the truck approached the crossing in a
jerking fashion and eventually stopped over the railway crossing. Mr
Africa further indicated to the investigating team that the train
driver sounded the siren twice. The recommendations made by the
Railway Safety Regulator as testified to Mr Nkwininka are as follows:
That the level crossing
be eliminated and the road closed or that a bridge be built.
A combination of booms
and flashlights be installed.
The speed be reduced to
40km/h.
According to his
evidence, had the above measures been implemented prior to the
accident in question, the collision could have been
avoided.
[23] Mr Nkwinika
testified that in terms of the Metrorail planning and operating
procedures, a train driver is expected to apply
emergency brakes to
bring a train to a stop in an emergency.According to Mr Nkwininka,
DMF brakeis a “vigilante” brakes
designed to keep the
driver “awake” or “active” or “vigilant”.
Activation of the DMFrequires
the driver to vacate the cabin, and
thus it provides greater safety to the train driver, whereas the
emergency brakes require has
a lever that can be pulled into brake
position. Under cross-examination, it transpired that there is no
rule that prevents a train
driver from applying the DMF in an
emergency situation.. When questioned about the statement in the
report stating that had the
driver applied emergency brakes, the
impact would have been reduced by 40%, the witness stated that he did
not do any calculations
based how long it would take for the brakes
to operate once the DMF is applied. He testified that the time
interval for brakes
to kick in depends from train to train.
[24] With regard to
signage on the classified route, Mr Nkwininka confirmed that the
signage at the level crossing constituted sufficient
warning for the
truck driver to stop. He further testified that the level of
protection on different classes of level crossings
dependedon the
requirements for that particular ordained class. In the case of the
3A classification of the train route in question,
the requirements of
the signing manual had been complied with.
[25] The second plaintiff
called its own expert, Mr Conrad Lotter, a mechanical engineer
employed by Du Metier (Pty) Ltd. Mr Lotter
was commissioned by the
Road Transport Management Corporation, a body administered by the
Transport Department to investigate the
cause of the collision on 13
November 2006. The witness confirmed the contents of the report. The
layout of the scene of the accident
as outlined by him is not in
variance with the observations made during the inspection loco. Mr
Lotter further explained that the
weather conditions at the time of
the collisions were clear and dry. Regarding the occurrence of the
accident, Lotter relied on
statements obtained from witnesses by
members of the South African Police Services and the Railway Safety
Regulator. One of such
statements was that of Mr Africa, who, as
earlier pointed out stated that he heard the train sounding the siren
twice before it
collided with the truck. According to Mr Lotter,
there was a north-westerly wind which would have rendered it unlikely
for the
driver of the truck to hear the first rain whistle. The
report states that the train was in probability already visible to
the
truck driver for a considerable distance train when he started to
cross the railway line.
[26] It is not in dispute
that the train was travelling at the speed of 96km/h before the
collision and decelerated at a rate of
0.8m/s to a speed of 87.3km/h
when the impact occurred. According to the evidence of Mr Lotter, the
train was 76m from the area
of impact when the decelaration started.
It came to rest approximately 405m from the area of impact. The time
taken from the position
before the brakes were applied to the area of
the collision can be calculated as approximately 3 seconds. It will
be recalled that
according Mr Roodt, the defendants’ expert
engineer, the braking of the train commenced at a distance of 105m
from the point
of impact. Whilst Mr Lotter readily accepted that Mr
Roodt’s estimate was reasonable, he (Mr Lotter) testified that
according
to his calculations, the distance was marginally shorter.
[27] In relation to the
braking mechanism of the train, Mr Lotter explained that a train is
fitted with three forms of braking system.
First, the service brake,
allows the train driver to have complete control and maintenance of
the speed, second, the emergency
brake, is the fastest full braking
force, and third, the DMF, which kicks in as soon as the train driver
is for some reason not
in control of the trains, for example, when
he/she is unconscious or has a heart attack. However, there is a 3 to
5 seconds delay
for the DMF to come into operation. The design of the
braking system varies from train to train. This aspect of Mr Lotter’s
evidence must be understood in the context of what was elicited in
cross-examination. Mr Lotter stated that he did not test the
5M2A
train model involved in this collision as the testing is undertaken
by Transnet on all Metrorail trains. For this reason,
he agreed that
he was not in a position to say whether there is a 4 second braking
delay in the 5M2A model. Neither was he certain
that the DMF brake
kicks in earlier or not.
According to Mr Lotter,
if the train had been travelling at 40km/h and had commenced braking
at a deceleration rate of 0.8m per
second, it would take 77m to come
to a stop, and a deceleration rate of 0.73m per second it would take
84.5m. Mr Lotter was of
the opinion that at 30km/h there would have
been no impact as the train would have stopped before reaching the
truck, and if the
emergency brake, instead of the DMF had been
applied at a speed of 40km/h, the train would have stopped 43m from
the crossing.
Furthermore, the application of the Deadman’s
brakes resulted in the train travelling for 4 seconds unaffected by
the brakes
and had the emergency brakes been activated, that 4
seconds would have been saved. Similarly, had the emergency brakes
been applied
when the train was travelling at 96km/h, this would have
reduced the force of the collision by 37% .
[28] One of the issues
raised in this trial is whether or not the driver of the train was,
in terms of the 30km speed restriction
board obligated to reduce the
speed to that level. Mr Lotter testified that at certain sections of
the railway track, for example,
curves, permanent restriction boards
lower than the prescribed section speed, are erected.In this
instance, in line with the evidence
of other witnesses and expert
reports, there was a 30km/h speed restriction board which seemed to
fit with the location of the
level crossing.. He described it as a
white board with a cross. According to Mr Lotter’s evidence,
there was up to the crossing,
no subsequent board erected to cancel
the 30km/h speed restriction. That in essence suggested that train
should have been up to
the level of crossing operated at a speed of
30km per hour. This so particularly in the light of the fact that a
train driver is
obliged to regulate the speed of the train so that it
never exceeds the maximum speed applicable to the portion of the line
concerned.
In similar vein, Mr Lotter conceded that a motor vehicle
driver approaching a railway crossing should move up to a position on
the road where he is able to observe the train track.
[29] With regard to the
30km/h speed restriction, Mr Lotter revealed under cross-examination
that he could not say with certainty
when that speed became
operative, neither did he make any enquiries about a cancellation
board. He was referred to the Metrorail
Information document,
depicting a30km/h temporary speed restriction board directing a train
driver to reduce speed and be prepared
to travel, 1.5 km ahead at the
speed indicated on the warning board. He was adamant that where there
is a speed restriction it
must be followed by a cancellation. He
however, revealed that train drivers get oral instructions every
morning where there are
temporary speed limits relating to
maintenance of the railway track and temporary speed limits
applicable. According to Mr Lotter,
the absence of a cancellation
meant that from Firgrove to Faure station the speed limit of 30km/h
was applicable regardless of
the fact that the speed applicable in
the entire railway track was 90/h. He further conceded that it is
only at the beginning of
the restriction board that the train driver
should drive at the reflected speed.
[29] It will be recalled
that the plaintiffs in the pleadings allege negligence on the part of
the defendants on the basis that
they failed to ensure that adequate
protection on the crossing by not installing a barrier or boom, or
designing it in such a way
that approaching vehicle had a clear view
of the crossing, or to impose and enforce an adequate speed
restriction or build a bridge
over it. The protection afforded on any
given crossing according to the Metrorail information depends on the
classification of
the crossing. The protection relates to the number
of signs that must be put up, placing and classing. According to Mr
Lotter’s
report, although there were no mechanical booms that
lowered when a train is approaching at a section speed of 90km/h, the
signage
appeared to be sufficient to warn of the railway crossing.
Under cross-examination, Mr Lotter was unable to say whether the
level
crossing was assessed individually. He also did not dispute the
classification and the protective measures that ought to be in place
at the crossing.
[30] After tendering the
evidence of Mr Lotter, the second plaintiff also closed her case.
[31] The defendants
called two witnesses, the driver of the train and its expert
engineer, Mr Roodt. Mr Roodt’s report and
reconstruction is
largely based on statements of eye witnesses and analysis of the
data. He referred to the Signing for Railway
Crossings and testified
that the purpose of the document is to give criteria of when to
upgrade the standard layout of a crossing.
According to his evidence,
farm accesses are low volume and the level of protection associated
with that is class B which was upgraded
to a 3A protection. The
protection afforded to such a crossing varies between a 3A and 4C and
the minimum level of protection is
that of a 3A. The requisite signs
are a railway crossing warning sign and a stop sign. He described the
track in question as a
single high speed line (section speed 90km/h)
with excellent sight distance. He further explained that in order to
cross a railway
track, a driver must have sight distance, and if
he/she can see in 350 metres, that is considered as excellent sight
distance.
Sight distance and accident history are one of the factors
that are considered to trigger an upgrade. Mr Roodt testified that
the
Croyden crossing had a sight distance of more than 400 metres and
the last accident occurred in 2002. In his opinion, these two
factors
do not trigger an upgrade. The witness testified that an upgrade
becomes necessary when there has been three accidents
in one year or
five accidents within a three year.According to Mr Roodt, the level
of protection afforded to the crossing was appropriate.
[32] Mr Roodt confirmed
that according to witness statements, the train driver sounded the
whistle. Mr Roodt testified that the
train travelled at 96km/h on a
1.25% downgrade and the Deadman Brake Application was activated. The
speed reduced to a standstill
at 510 metres, and the
resultantconstant deceleration was 0.7 metres per second. The witness
accepted that the actual positioning
of the whistle boards at the
time of the collision, as stated out in the Du Metier report was 360m
and 140m. In his opinion, the
whistle boards conformed to
specification as on the railway line, they are typically located at
125 m minimum and 375 to 400m from
the level crossing. Given that the
line from Forgrove Station from which the train had departed runs
from 5 to 4,25 km downhill
and the train picked up speed of up to
96km/h in 26.6m/s, the truck would have had to clear the railway
crossing by approximately
1 second. According to the witness, even if
the train had been operated at a speed of 90km/h, the outcome of the
accident would
have been the same. This is so because the difference
in time at a speed of 96km/h versus 90km/h over a distance of 140
metres
is 0.35 seconds. Thus, according to the witness, the accident
would not have occurred but for the stalling of the truck on the
railway crossing as the train driver had acted reasonably when the
emergency became apparent.
[33] It will be recalled
that after the collision, a speed restriction of 40km/h was put up.
Mr Roodt was cross-examined on the
fact that his report failed to
mention the 40km/h restriction. He explained that when he
reconstructed the accident scene, he had
to have regard to the
conditions of the railway track as they were at the time of the
collision. Besides, so he testified, the
commuter line had been in
operation for approximately 40 years without triggering any of the
criteria for the section speed or
level crossing to be reviewed. The
witness admitted that he did not do a cost benefit of analysis but
said that it had been done
on a network level not individually and at
that stage, there had been only once incident where two people had
been killed. In addition,
Mr Roodt admitted that had the train driver
seen the truck at the first whistle board, the collision would have
occurred albeit
at a much lower impact because the slower the speed
of the train, the bigger is the margin of safety for vehicles
crossing the
railway line. Similarly, had the train been operated at
the current speed restriction of 40km/h for up to 200m to the
crossing,
no substantial delay would be suffered by commuters because
it would have taken 18 seconds to reach the crossing instead of 8
seconds
at 90km/h. At the speed of 40km/h, the application of the DMF
would have brought the train to a stop before reaching the crossing.
Mr Roodt readily acknowledged what has become a well-known fact,
namely, that it is difficult for a motorist to judge the speed
of an
approaching train.
[34] With regard to the
train braking function, Mr Roodt in cross-examination stated that the
difference between the emergency brake
and the DMF assumed a delay of
4 seconds,therefore had the emergency brake been applied, the force
and the severity of the impact
of the collision would have been
reduced.
[35] The train driver, Ms
Nomava Harriet Mxhalisa outlined the theoretical and practical
training she received from 2002 to 2004
before starting to drive the
train alone in 2004. Ms Mxhalisa explained that when she reports for
duty, she checks the journal
to see the route allocated to her. Once
the route has been determined, she checks the notices for any
restrictions. According to
her evidence, there are two whistle boards
per level crossing, the first one is in 400 metres whilst the second
is in 125 metres.
The second whistle warns the driver that in 125 m,
there will be a level crossing. The witness confirmed that the
section speed
at the track to Croydon level crossing is 90km/h,
however, there are speed restriction boards which indicate that at
certain parts
of the track, the permissible speed is 30km/h for
a1.5km. The third board that appears after the second whistle board
cancels the
30km/h speed restriction and allows a train driver to
revert to the section speed of 90km/h.Ms Mxhalisa testified that the
second
speed restriction board is located on the entrance of the
platform to Faure station. Both the second and third boards are
beyond
the railway crossing where the accident occurred.
[36] Ms Mxhalisa
testified that on the day of the collision, she was driving the train
from Firgrove to Faure station. According
to her evidence, she drove
past the first whistle board and sounded the siren. At that stage,
there was no truck on the railway
track. She proceeded to the second
board and when she drove past it, there still was no truck on the
crossing. The witness testified
that when she approached the level
crossing, the truck got onto the railway track. Ms Mxhalisa said that
she was shocked when she
saw the truck on the track and immediately
applied emergency brakes, left the cabin and ran to the back of the
train for her safety.
She stated that when she saw the train for the
first time, it was moving. She further explained that the emergency
brakes she applied
were known as the Deadman’s feature. The
train collision with the truck occurred after she had vacated the
cabin. The witness
explained that before the collision, the train was
in a ‘coasting mode’ at 96km/per hour. Ms Mxhalisa
explained that
‘coasting’ means that the train driver
closes the master controller and does not give power to the train.
That in essence
means that the train is not motored and it cruises.
According to the witness, because the gradient on the track
towardsFaure station
is down, the speed of the train rises when it is
moving even when it is in a coasting mode. On the day in question,
she stated
that she blew the whistle for three seconds warning the
people that the train was approaching on the first whistle board. At
the
second whistle board, she blew a continuous whistle. The siren in
that particular train, according to the witness, is located on
the
floor.
[37] Regarding the manner
in which the accident occurred, Ms Mxhalisa was adamant that there
was nothing else she could do to avert
the accident besides applying
the DMF as the truck appeared at a very close range. She further
stated that the application of the
DMF causes the train to cut the
current and reduce the speed to zero. As far as she is concerned, the
DMF works immediately when
a train driver releases the steering
wheel.
[38] Ms Mxhalisa under
cross-examination stated that the model train is fitted with normal
brakes, also known as ‘vaccum’
brakes and emergency
brakes. Her evidence was that the emergency brake is coupled to the
steering wheel and to activate the function,
one must not pull the
handle as was suggested, but must push it down. It was put to her
that the impact of the collision would
have been reduced by 40% if
she had applied emergency brakes but she was unrelenting in her
stance that there is only the DMF to
apply in emergency. The witness
was confronted with the contents of a statement she made to the
police wherein she stated that
she saw the truck on the track when
she was driving past the first whistle board, contrary to her
evidence in chief to the effect
that she was driving past the second
whistle board when she saw the train for the first time. Ms Mxhalisa
stated that,that portion
of her statement was incorrect because she
told the police officer who wrote down her statement about two
whistle boards,
but the statement reflected only
one whistle board. The relevant part of her statement reads as
follows:
“
Arriving at
the 1
st
whistle
board, I sounded the siren. While doing so I saw a truck approaching
the crossing. My siren was still is sounding. The truck
was moving
very slowly and I drew all the brakes.”
It was further suggested
to the witness that she should have reduced her speed earlier in
anticipation of the 30km/h restriction
but she explained that there
was more than enough time for her to slow down in order to comply
with the applicable speed limit
as the restriction board of 30km/h
begins at the Faure platform, which is a long way beyond the level
crossing.
[39] Ms Mxhalisa was
cross-examined on personal records of performance as a train driver
showing that during 2003 to 2004,
she was
subjected to disciplinary hearings for misconduct as a train driver
leading to a poor rating in 2004. This aspect of cross-examination
was strenuously opposed by counsel for the defendants on the basis
that it constituted character evidence, a factor not relevant
to the
proceedings at hand. It was allowed provisionally,depending on its
bearing on the facts of the case. As it returned out,
the incidents
referred to in cross-examination are not of evidential value.
[40] After presentation
of Ms Mxhalisa, the defendants closed their case.
APPLICABLE PRINCIPLES
[41] With the evidential
background in mind, it must be determined whether the plaintiffs
showed that the defendants were negligent.
If they have failed to
discharge the onus they bear, the action must fail. In order to
succeed in this action, the plaintiffs must
prove on a balance of
probabilities an act or omission, wrongfulness, fault, causality and
patrimonial loss on the part of the
defendants. With regard to the
latter, at the commencement of the trial an order was made, by
agreement between the parties and
in terms of Rule 33 (4) of the
Uniform Rules of Court, that the issue of quantum be separated from
the merits and that the trial
proceed on the merits only. The
principles of delictual liability applicable in the present matter
although trite, must be restated
as revisited in
Ngubane
v The South African Transport Services
1991(1)
SA 756 (A) as follows:
“
Liability in
deflect based on negligence is proved if:
a diligens paterfamilias in the
position of the defendant –
(i) would forsee 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
the defendant failed to take such
steps.”
[42] I propose to first
deal with the alleged vicarious liability against the defendants
arising from the conduct of the driver
of the train. Counsels for the
plaintiffs argued that despite the train driver’s evidence to
the effect that she first saw
the truck on the tracks when she was
driving past the second whistle board, the statement she made to the
police shortly after
the incident wherein she stated that she saw the
truck when she was at the first whistle board at a distance of about
400m is more
plausible. This contention suggests that she therefore
had sufficient time to react to the impending disaster; and was thus
negligent
in applying the brakes when she was a mere 100m from the
level crossing. It was further contended that the train driver was
negligent
in simply leaving the controls of the train thereby
allowing the DMF to bring the train to a stop instead of activating
the emergency
brake. The third leg of negligence imputed on the train
driver is based on the submission that she failed to activate the
siren,
because had she done so, the occupants of the truck would have
heard it and observed the train approaching from a distance.
At this point,
it
is useful to recapture the principles applicable particularly to
level crossings. In
Worthington v Central
South African Railway
s
1905 T.H. 149
at 150,
cited with approval in a number of cases including
Williams
v Transnet Limited
200 JDR 0811 (SCA) p 10
para 11,
it was stated that:
“
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 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 from 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. But even if a train in approaching a
level-crossing,
does not give due and timely warning of its approach,
that in itself does not relieve a person who is travelling along the
road
from the necessity of taking every care in crossing the line. A
level crossing must always have a certain element of danger, and
any
person, before crossing the railway, should exercise due and proper
care in order to see that a train is not approaching; and
neglect on
the part of railway officials in not giving warning of its approach
is in my opinion no excuse whatsoever for neglect
on the part of
anyone travelling along the road. Anyone so travellingis bound to use
his eyes and ears, and if he does not use
his senses, and so fails to
observe that a train is approaching, then he himself is primarily
responsible for any injury he may
sustain, and which would have been
avoided if he had exercised ordinary care.”
[43] In order to
determine whether the train driver’s statement to the police
stating that she saw the train for the first
time when she was
driving past the first whistle board, which is about 400 m, from the
crossing, and the basis for this contention,
it is necessary to
examine the evidence surrounding the contentious issue. The general
principles applied in assessing a contradiction
between a witness’s
evidence and a prior statement are succinctly laid in The South
African Law of Evidence, Zeffert p 900
as follows:
“
The correct
approach to any contradictions betweenthe prior statement and the
witness’ testimony was, with respect, most usefully
summarised
by Olivier JA in S v Mafaladiso and Another
2003 (1) SACR 583
(SCA).The headnote in that case, it is submitted, accurately reflects
what he said, and was cited by Nepgen J in S v Govender and
Another
2006 (1) SACR 322
E. It reads: “The juridical approach to
contradictions between two witnesses and contradictions between the
versions of the
same witness (such as, inter alia, between her or his
viva voce evidence and a previous statement) is, in principle (even
if not
in degree), identical. Indeed, in neither case is the aim to
prove which of the versions is correct, but satisfy oneself that the
witness could err, either because of a defective recollection or
because of dishonesty. The mere fact that it is evident that there
are self-contradictions must be approached with caution by a court.
Firstly, it must be carefully determined what the witness actually
meant to say on each occasion, in order to determine whether there is
an actual contradiction and what is the precise nature thereof.
In
this regard, the adjudicator of fact must keep in mind that a
previous statement is not taken down by means of cross-examination,
that there may be language and cultural differences between the
witness and the person taking down the statement which can stand
in
the way of what precisely was meant, and that the person giving the
statement is seldom, if ever, asked by the police officer
to explain
their statement in detail. Secondly, it must be kept in mind that not
every error by a witness and not every contradiction
or deviation
affects the credibility of a witness. Non-material deviations are not
necessarily relevant. Thirdly, the contradictory
versions must be
considered and evaluated on a holistic basis. The circumstances under
which the versions were made, the proven
reasons for the
contradiction, the actual effect of the contradictions with regard to
the reliability and credibility of witnesses
[are to be considered].
The question is whether the witness was given a sufficient
opportunity to explain the contradictions –
and the quality of
the explanations – and the connection between the
contradictions and the rest of the witness’ evidence,
[are]
other factors to be taken into consideration and weighed up. Lastly,
there is the final task of the trial Judge, namely to
weigh up the
previous statement against the viva voce evidence, to consider all
the evidence and to decide whether the truth has
been told, despite
shortcomings.”
[44] The train driver, Ms
Mxhalisa, was adamant throughout her evidence that she saw the train
when she was driving past the second
whistle board. She stated that
she informed the police officer who took her statement about two
whistle boards and could not explain
why only one whistle board was
featured in her statement. According to her evidence, when she saw
the truck, it was already very
close and she had very little time to
react to the impending danger, thus, she applied the DMF. Central to
the plaintiffs’
contention is whether or not the evidence
tendered by the train driver is credible. It is noteworthy that
Counsel for the plaintiffs’argument
did not cast any serious
aspersions on the evidence of Ms Mxhalisa. Although Ms Mxhalisa had
approximately two years’ experience
as a solo train driver, she
seemed to be a reliable witness to me. On the whole, I am satisfied
that her evidence was truthful,
she endured arduous cross –
examination and steadfast and clear in her version of how the
accident occurred. I am not aware
of any other facts as argued by
Counsel for the second defendant, elicited during this trial pointing
to the fact that Ms Mxhalisa
first observed the truck entering the
crossing at a distance of 400m besides the statement she made to a
police officer. What has
been established though is that she did not
apply brakes until 100m from the crossing. Another basis for the
contention that Ms
Mxhalisa’s statement is plausible than her
evidence is premised on the fact that she did not mention in her
statement that
when she drove past second whistle board she sounded
the siren whereas in her evidence she stated that she did. On the
score, the
plaintiff’s version is to some extent corroborated
by the statement of Mr Africa in the Railway Safety Regulator
report.There
also is no sound basis for the contention that had the
train driver activated the whistle at the first whistle board, one
would
have expected theoccupants of the truck to have heard it and to
have observed the train approaching from some distance away. That
the
occupants of the truck did not hear the train cannot constitute an
unequivocal fact that it was not sounded. It follows from
the above
reasoning that I accept that the train driver saw the truck at the
second whistle board after sounding the siren twice.
In my judgment,
the train driver did give adequate warning of her approach to the
crossing. Similarly, I consider it reasonable
for her to have applied
the brakes 100m from the crossing as the second whistle aboard is
placed at about 125m from the crossing
according to her evidence,
that is when she first saw the truck. Whether or not she was
justified in activating the DMS is another
question, to which I now
turn.
[45] The common cause
facts relating to the application of the DMF can be summarised as
follows:
1. The train was driven
at 96km/h in a coasting mode.
2. The track speed was
90km/h.
3. The train driver
activated the DMF between approximately 100m from the level crossing.
4. The impact speed was
87.3km/h.
5. After the impact the
train came to stop at 510 m further down the track.
6. The difference between
the 96km/h and 90km/h.
7. Based on the
information from the black box the train decelerated and the impact
speed was 87.3km/h.
[46] Accepting for a
moment that the emergency brakes would, according to Mr Lotter and Mr
Roodt, had they been activated earlier,
be more effective than the
DMF, it must be equally stated that Mr van Onselen did not do any
calculations to determine whether
the emergency brakes are infact
faster than the DMF. Mr Nkwininka on the other hand acknowledged that
there is nothing prohibiting
a train driver from activating the DMF
in an emergency despite a finding by the Railway Safety Regulator
that Ms Mxhalisa did not
obey operating procedures when she failed to
apply the emergency brakes. He also did not know after how long after
the application
of the DMF would the brakes operate. According to the
train driver, the brakes operated immediately.Different scenarios of
what
could have happened had the emergency brakes been applied,
different speed levels were supplied. I think that the correct
approach
to this consideration should start with examining whether a
reasonable train driver in the position of Ms Mxhalisa and in the
prevailing
circumstanceswould have applied emergency brakes instead
of the DMF. In making this assessment, one must have regard to what
the
court said in
South African Railways v Bardeleben
1934 AD
473
at 480:
“
In judging
whether there is culpa, the Court must, as nearly as it can place
itself in the position of the engine driver at the
time when the
accident occurred and judge whether he showed that ordinary care
which can be reasonably expected from a reasonable
man under all the
circumstances. The Court must not in any way be affected by the
tragic consequences of the accident, nor, on
the other hand, must it
excuse any carelessness on the part of engine drivers. It must not
expect superhuman powers of observation
and impeccable discretion on
the part of engine drivers, nor must it say to him after the event –
“if you had done
this more quickly or more accurately”,
or “if you had perceived this or that more readily, you might
possibly have
avoided the accident”. It is so easy to be wise
after the event.”
[47] In the instant
matter, the train driver testified that when she saw the truck on the
tracks,
she was shocked, and could do no more
than apply the DMF which she believed kicked in immediately. On the
evidence tendered,
there was very little time to
perceive and react in accordance with that perception. If it is
accepted that Ms Mxhalisa encountered
an unexpected obstruction on
the track, it is difficult to envisage a situation where she would
have time to weightthe disadvantages
of the DMF, and the advantages
of the emergency brake. The evidence does not establish that
afterrealising the obstruction, Ms
Mxhalisa delayed applying the
brakes in anticipation of the truckclearing the railway track in
time. It may well be that the emergency
brakes would have been more
effective in minimising the impact, but it is difficult to come to
the conclusion that her conduct
in applying the DMF brakes was
negligent.
[48]
The
plaintiffs in the pleadings allege that the driver of the train was
negligent in driving at an excessive speed in the prevailing
circumstances. I do not think that the speed at which the train was
travelling should be considered in isolation of all the other
variables. Those variables are inter alia, the condition of the
railway track, sight distance, the driver’s perception reaction
time, the braking as well asthe point of impact. According to the
Railway Safety Regulator report findings, the fact that the train
driver exceeded the allowed speed limit by 6km/h before the collision
is indicative of lack of awareness of the risks associated
with a
level crossing. Without repeating the evidence of the engineers, Mr
van Onselen, Mr Lotter, Mr Roodt and Mr Nkwinika, it
can be generally
accepted that the higher the speed, the greater the impact. The
question that must be posed is what impact the
difference of 6km/h
had on the occurrence of the collision. Stated differently, would the
accident have occurred in any event even
if the train had been
operated at the allowed speed of 90km/h.
The Du Metier report
states that:
“
The train
was travelling at a speed of 96km/h before the accident occurred.
This higher than the allowed section speed of 90km/h.
Due to the slow
rate of deceleration of the train, this would have made no difference
in the outcome of the event. Even if the
section speed was as low as
70km/h, the incident would probably still have occurred. However, the
effect of the incident/impact
would have been reduced.”
[49] According to the
evidence of Mr Lotter, at an impact speed of 60 to 90km/h,
the
probability of death on impact is very high. Mr van Onselen was of
the view that if the train had been travelling at 40km/h
when Ms
Mxhalisa saw the truck driver on the track and had applied the DMF,
the train would have been brought to a standstill before
the crossing
and the accident would not have occurred. The variables are that Ms
Mxhalisa’s evidence that she sounded the
siren at the first and
second whistle, is supported by the report of the Railway Safety
Regulator and Messrs du Meiter report.
In any event, she was entitled
to assume that truck driver would respect her right of precedence
although she also was expected
to keep the truck under observation
and anticipate that the driver did not intend to stop at the
crossing. Again, this largely
depends on when she first observed it.
The facts that have been established are that the truck entered the
level crossing, jerked
and stalled on the track as the train was
approaching and at impact the speed was 87km/h. There is no
explanation of why the truck
stalled on the tracks, but it can be
assumed from the evidence of Mr Kershof that,
that
was due to inexperience of the truck driver as this was his first day
to drive the truck and he seemed to struggle with engaging
the gears.
In addition, the evidence sufficiently establishes that there was no
mechanical fault that could have caused the truck
to stall. The truck
driver was under an obligation to look out for approaching trains and
if circumstances existed that hindered
his views, he ought to have
driven upwards the track to ensure that before crossing,
he
had full view of the track. The principle set out in
Dyer
v SAR
1933 AD page 10, that a train driver
has a right of way and its speed cannot be decreased at every
crossing so as to make sure that
no collision will occur has long
been accepted as part of our law. Similarly,
in
Pretoria City Council v SAR & and Harbours
1957 (4) SA 333
(T) at 338,it was reaffirmed
that a train driver is under no duty to travel at such a speed that,
in the event of the crossing
being obstructed, he can stop between
the train and the point where the crossing comes into view and the
obstruction. Taking into
account all of the evidence and the
variables, I cannot find it proved that the speed at which the train
was travelling is the
cause of the accident. The evidence clearly
shows that the train driver could not have been able to avoid the
accident even at
a lesser speed. There,
therefore,
is no basis for holding that the train driver was
negligent solely on the basis of operating the train at 96km/h before
the collision.
On the contrary, the driver of the truck had been
negligent in crossing without satisfying himself that no train was
approaching.
If the vegetation and vibacrete wall had obscured his
view, he should at least have heard the train whistle. This I say
because
it is clear from the Railway Regulator report that Mr Africa,
who was driving on the service road which is slightly further from
the track than the truck was, heard the whistle on two occasions. The
truck driver was entitled to cross the track only after he
had
satisfied himself that no train was approaching.
[50] It remains to be
said that during the trial, the plaintiffs’ stance seemed to be
that the train driver ought to have
reduced the speed to 30km/h, in
line with the 30km/h reflected on the restriction board. In argument,
the second plaintiff did
not pursue this point understandably so,
given that it is clear from the evidence of the train driver, Ms
Mxhalisa that the 30km/h
restriction was applicable for 1.5 km, a
distance which did not stretch to the level crossing point.In fact,
according to Ms Mxhalisa,
this was not a permanent speed restriction
board. The Metrorail Information document also refers to a temporary
speed warning restriction
board indicating that the train driver must
be prepared to travel at the restricted speed for 1.5km. It is
equally clear from the
evidence of Mr Lotter that the 30km/h
restriction did not apply to the section prior to the level crossing.
The plaintiffs’
allegation of negligence against the defendants
is based on their failure to restrict the section speed of 90km/h at
the level
crossing and the pleadings make no reference to the 30km/h
restriction. Put differently, the plaintiffs in their own pleadings
acknowledge that the section speed is 90km/h and is unrestricted up
to the point close to the level crossing.
[51] I now turn to the
negligence imputed on the defendants for failure to put a barrier or
mechanical boom at the crossing, or
ensure that it was lowered.
[52] The plaintiffs in
their plea alleged that the defendants were negligent in that they
failed to keep sight lines clear and also
prescribed a speed for
trains which was excessive. In addition, the defendants failed to
ensure that the speed restriction was
installed as prescribed and
consistent. In short, the defendants failed to take positive steps to
prevent the occurrence of the
accident whereas the
boni
mores
of the community created a legal duty
to act positively.
[53] With regard to level
crossings, Cooper,
Delictual Liability inMotor
Law
at page 216, states that:
“
There is no
statutory provision which imposes a legal duty upon the body in
control of a level crossing to employ an attendant or
to erect either
gates or booms or display warning devices at level crossings. But the
absence of statutory obligation does not
relieve the defendant of the
duty to do so if reasonableness and society’s legal convictions
or feelings (boni mores) require
it. Where a level crossing passes
through a populous suburb the defendant is under a duty to erect
adequate warning devices, booms
or gates and/or employ an attendant.”
It is trite that in the
absence of an established legal norm or a recognised ground of
justification, wrongfulness is determined
according to the criterion
of reasonableness with reference to the legal convictions of the
community as established by the courts.
The test is objective and
based on all the facts of the particular case. (See
Minister
of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A).In
Pretoria City Council v De Jager
1997 (2) SA 46
(A) at 55H-56C the court stated thus:
“
The Council
was obliged to take no more than reasonable steps to guard against
foreseeable harm to the public. Whether in any particular
case the
steps actually taken are to be regarded as reasonable or not depend
upon a consideration of all the facts and circumstances
of the case.
It follows that merely because the harm which was foreseeable did
eventuate does not mean that the steps taken were
necessarily
unreasonable. Ultimately the inquiry involves a value judgment.”
The approach to be
adopted in making this value judgment is summarised in
Ngubane
at 776 F-J to 777 A-C as follows:
“
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 on the 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 430 E-G)
As regards the
requirements in para (a) (ii) above in this judgment, it 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 JC van der
Walt) in Joubert (ed) The
Law of South Africa vol 8 sv “Delict” para 48 comments in
this regard that:
‘
Once it is
established that a reasonable man would have foreseen the occurrence
of foreseeable harm, the question arises whether
he would have taken
measures to prevent the occurrence of foreseeable harm. The answer to
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
forceable risk of harm to
others: (a) the degree and extent of the risk created by the actor’s
conduct; (b) the gravity of
the possible consequences if the risk of
harm materialises; (c) the utility of the actor’s conduct; and
(d) the burden of
eliminating the risk of harm.’
The first two
considerations are recognised and discussed in the well-known and
oft-quoted passage in Herchel v Mrupe
1954 (3) SA 464
(A) at 477 A-C,
which is as follows:
‘
No doubt
there are many cases where once harm is foreseen it must be obvious
to the reasonable man that he ought to take appropriate
avoiding
action. But the circumstances may be such that a reasonable man would
foresee the possibility of harmbut 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 fair or
substantial. An extensive gradation from remote possibility to near
certainity and from insignificant
convenience to deadly harm, can by
way of illustration, be envisaged in relation to uneven patches and
excavation in or near ways
used by other persons.’
[54] It is common cause
that the road drivers are warned of the level crossing by a stop sign
and a level crossing warning sign.
According to the Railway Safety
Regulator report, this complies with the requirements of Chapter 7 of
the South African Road Traffic
Signs manual. However, the report
reached a finding that the signage does not adequately address the
risks. It can be accepted
that the risk of fatal injury resulting
from a collision with a train is obvious. To mitigate this risk,
the evidence is that the Road Traffic Signs Manual was
commissioned in 1999, in terms of which the level of protection to be
afforded
to this crossing was assessed and classified to 3A to 4C.
The classification is informed by amongst other things, development
of
the area of the crossing and the number of accidents. According to
the evidence of Mr Roodt, the commuter line has been running
for 40
years and during that period,
nothing triggered
the review of the level crossing or the section speed. The one
incident where two people were killed was in 2002.
This much is
obvious from the accident report the contents of which have not been
seriously put in contention. In fact,
Mr
Niemandt, the Warrant Officer who was at the scene of the accident
shortly after its occurrence confirmed that the other incidents
involving a train had occurred beyond the Faure station. It was
contended on behalf of the second plaintiff that there had been
a
history of previous accidents on the crossing which had resulted in a
petition drawn up by local residents in an effort to persuade
the
defendants to introduce additional safety measures. Thus, the
bonimores
can be
discerned from the petitions by the members of community calling for
an upgrade of the crossing. Newspaper articles depicting
the attitude
of the community towards the crossing referred to previous complaints
about the crossing but no solid or factual evidence
supporting the
contention that the community had long been complaining about the
crossing was presented. The complaints referred
are in fact comments
made by members of the community in newspaper entitled “In die
nus “ on 15 November 2006, two
days after the collision that is
the subject matter of this trial. The plaintiffs placed much emphasis
on the fact that the speed
limit towards the crossing was ultimately
reduced to 40 km/h after the collision and alleged that it ought to
have been clear to
the defendants before the accident that the speed
restriction of 90km/h was excessive. I am constrained to find
negligence on the
part of the defendants based on measures taken
after the occurrence of the collision. Foresight to know what seems
obvious in hindsight
does very little to bolster the plaintiff’s
case. I am thus unable to find on a balance of probabilities that the
plaintiffs
have discharged the onus of proving negligence on the part
of the defendants.
[55] Counsel for the
first plaintiff attempted to find support for liability of the
defendants on the decision in
Harrington v Transnet
2010 (2)
SA 479
(SCA). In my view, the reliance on this dictum is misplaced
for two reasons. First, the facts are entirely different and no
parity
of reasoning could elevate and equate them to the facts of the
present matter. In the
Harrington
matter, two security guards
who were employed by Kuffs Security to guard the rail network and
train stations were patrolling the
electric cables in the area
between Woodstock and Cape Town stations. There were no trains
scheduled after 22:00 and the rail service
did not operate until
04:00 the next morning. However, Metrorail sent an unscheduled train
down the line for repairs without giving
any warning to the guards.
The train struck them from behind as a result of which they sustained
serious injuries. In finding for
them, the Court concluded that
Metrorail’s failure to warn the two guards of the unscheduled
train was a matter of censure.
The distinction is drawn on the basis
that in the instant matter, there was a stop sign and railway
crossing signing alerting the
driver of the truck that he was
approaching a railway crossing. Second, in the
Harrington
matter, although the basis for the finding of negligence on the part
of Metrorail was not related to theconduct of the driver of
the
train, the Court considered his failure to apply the brakes when he
saw the appellants for the first time and his sounding
of the siren
and waiting for them to react to it only did so after the collision
as persuasive argument in favour of the driver’s
negligence.
[56] Again, counsel for
the first plaintiff in persuading the court to find negligence on the
part of the defendants sought support
in the judgment of
Constitutional Court judgment in
Dudley Lee v Minister of
CorrectionalServices
[2012] ZACC 30.
In the
Dudley
matter,
the applicant was imprisoned in Pollsmor for a considerable period
and contracted tuberculosis during such incarceration.
In determining
factual causation, the Court examined what the responsible
authorities ought to have done to prevent potential TB
infection and
whether that conducts had a better chance preventing infection than
the conditions which actually existed during
Mr Lee’s
incarceration and came to the conclusion that probable causation has
been proved. I have held that the defendants
took reasonable steps to
guard against foreseeable harm to the public by installing a stop
sign and a level crossing sign in line
with the applicable
prescripts. I do not consider the steps taken by the respondents as
unreasonable. Neither can it be said that
the failure to install
booms is sufficiently linked to the accident that ensued. The fact
is, the driver of the truck ought to
have stopped and proceeded to
cross only when he was satisfied that it was safe to do so.
CONCLUSION
[57] It is my judgment
that on the evidence presented, the plaintiffs failed to establish
negligence on the part of the train driver,
Ms Mxhalisa and on the
part of the defendants. The obvious result that ought to ensue is
that the first and second plaintiff’s
claims be dismissed.
Counsel for the defendant asked that should this be the result, the
plaintiffs should be ordered to pay costs
as is the norm, such costs
to include the costs of two counsel and the qualifying expenses of
the defendant’s expert , Mr
Roodt. Although I am mindful of the
general rule that costs follow the result, I am disinclined to make
an order of costs against
the plaintiffs. This is so because it is
common cause in these proceedings that the plaintiffs are farm
workers who were vindicating
their rights. The litigation was in my
view, neither frivolous nor vexatious. In line with the principle
enunciated in
Biowatch Watch Trust v Registrar, Genetic Resources
& others
2009 (6) SA 232
(CC) at 245 C-249E the appropriate
approach is to order each party to pay its own costs.
[11] In the result, the
following order will issue:
1. The first and second
plaintiffs’ claim is dismissed.
2. Each party will pay
its own costs including the qualifying expenses of each party’s
experts.
T.C NDITA
_______________________
JUDGE OF THE HIGH
COURT
FOR THE 1
ST
APPLICANT -
Adv. MJM Bridgman
INSTRUCTED
BY
- Attorneys
Mr I Sadien
FOR THE 2
nd
APPLICANT -
Adv. P Corbett
INSTRUCTED
BY
- Attorneys Ms
WFelmore
FOR THE 1
st
RESPONDENT -
Adv.DJ Jacobs
FOR THE 2
nd
RESPONDENT -
Adv. H Rademeyer
INSTRUCTED
BY
- Attorney Mr F
Hufkie
DATE
OF HEARING
-
08 October 2012
DATE
OF JUDGMENT -
26 July
2013
59
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