Harrington NO and Another v Transnet Ltd t/a Metrorail and Others

• Jurisdiction: South Africa
• Citation: 2010 (2) SA 479 (SCA)

Harrington NO and Another v Transnet Ltd t/a Metrorail and Others
2010 (2) SA 479 (SCA)

2010 (2) SA p479

Citation	2010 (2) SA 479 (SCA)
Case No	32/09
Court	Supreme Court of Appeal
Judge	Mpati P, Navsa JA, Heher JA, Mhlantla JA and Leach AJA
Heard	November 9, 2009
Judgment	November 26, 2009
Counsel	GM Budlender SC for the appellants.; A de V la Grange SC (with JC Marais) for the first and second respondents.; No appearance for the third respondent.

Flynote : Sleutelwoorde D

Delict — Liability — Negligence — Culpa - Relevance of subjective state of mind E of defendant — Subjective beliefs of defendant relevant if founded in experience — If so, irrelevant that such belief misplaced.

Transport services — Railway — Safety and security of railway workers — Unscheduled train at night — Duty of service operator and driver to workers near line. F

Headnote : Kopnota

The appellants (both security guards) were employed by the third respondent (Kuffs) to conduct 'cable patrols' along a suburban railway line operated by the first respondent (Metrorail). One night they were struck by an unscheduled train driven by the second respondent (Human) and seriously injured. The appellants, though equipped with a two-way radio linked to G the Metrorail control room via the Kuffs office, were given no warning of the approach of the train. It appeared from the evidence that the appellants were never given any training on the dangers of walking around railroad tracks at night, and had no inkling from experience that this might sometimes happen. In issue before the trial court was the liability of the respondents and the extent of contributory negligence on the part of the H appellants. The court found that Metrorail and Human were jointly and severally liable to the appellants (Human's negligence having been attributed to Metrorail on a vicarious basis). The court's positive finding regarding the appellants' contributory negligence induced it to reduce the recoverable damages by one-third.

In a successful full bench appeal by Metrorail and Human the court found I against the appellants on three grounds: first, because they were entirely responsible for their own predicament, since they had failed to keep a proper lookout and instead relied on their subjective belief that there would be no train activity at that time; second, because the attempt to impose a duty on Metrorail to warn Kuffs about the impending movement of the train relied on hindsight; and third, because Kuffs had had access to J

2010 (2) SA p480

A Metrorail's control room and hence to the unscheduled movement of trains after hours, and had thus impliedly assumed a responsibility for responding to such movements. The court finally found that the omission relied on by the appellants had in any event not been such as to give rise to a legal duty to act.

In a further appeal to the SCA the court addressed (1) the liability of Metrorail; B (2) the contributory negligence of the appellants; (3) the liability of Human; and (4) the question of apportionment. Issue (2) was for the sake of convenience, and in the light of the view taken by the full bench, dealt with in the context of Metrorail's duty towards the appellants.

The question that arose under topic (2) was whether the appellants ought to have been aware of the movement of trains on the particular section of line after C scheduled hours, in which case the direness of the potential harm would have demanded the exercise of reasonable care. Counsel for the respondents submitted that the appellants' subjective belief that there would be no trains at night was irrelevant in judging the reasonableness of their conduct.

Held, as to (1) above, that, since the impugned conduct of Metrorail consisted in an omission, the existence of a duty to act depended on questions of public D policy and what was reasonably expected of it. (Paragraph [21] at 485F.)

Held, further, that it would have been easy enough for Metrorail to ensure that the appellants were alerted to the imminent dispatch of the train: Metrorail had specific knowledge of the departure of unscheduled trains and their routes, and must have been aware of the incidence of collisions between trains and persons, and of the gravity of the consequences. If the elementary E precaution of notifying the Kuffs control room of the imminent departure of the train had been taken, it would most probably have been acted upon and the consequences avoided. (Paragraphs [25] - [26] and [29] at 486F - G and 487G - H.)

Held, further, that right-thinking members of the community would have regarded Metrorail's failure to inform and warn Kuffs, and through it the F appellants, as a matter for censure. (Paragraph [30] at 487I.)

Held, further, as to Metrorail's contention that it had been entitled to assume that the appellants would look after themselves, that the real question was whether the appellants ought to have been aware of the movement of trains on that particular section of the line after scheduled hours. If they should have been, then the direness of the potential harm would have demanded G the exercise of reasonable care. Sed contra, if the guards had had no reason to foresee (and therefore could not have foreseen) the presence of a moving train, there would have been no hazard against which a reasonable man would protect himself. (Paragraph [32] at 488C - E.)

Held, further, as to (2) above, that, although this issue actually related to the contributory negligence of the appellants, it was nevertheless (because of H the view taken by the court a quo) convenient to discuss it in the context of Metrorail's duty to the appellants. (Paragraph [33] at 488F.)

Held, further, that the state of mind of the actor was not completely irrelevant: in some cases the question was whether a reasonable man, knowing only what the actor knew, would have acted in the same way; but in other circumstances the actor would be blamed in law for not knowing what the I reasonable man would know, and in such cases the actor had to conform to an objective standard. (Paragraph [34] at 489A - D.)

Held, further, that the actor's knowledge was a relevant consideration: the reasonable man inhabited the real world and was influenced by experience into possessing a particular state of mind in certain circumstances. It was thus logical to take into account the actor's beliefs, even though misplaced, insofar J as they had their foundation in experience. (Paragraph [35] at 489D - G.)

2010 (2) SA p481

Held, further, that the appellants' experience over more than 20 security patrols A had been that no trains ran at night, and that nobody had told them that they ever did so. They were under the impression that walking near or on the rails at night held no danger. The appellants foresaw no obstacle to encroaching onto the tracks if they found this to be a convenient way of proceeding. (Paragraphs [37] and [42] at 490C - E and 491C - D.) B

Held, accordingly, that Metrorail's failure to warn the appellants was both wrongful and negligent, and the appellants' failure to keep a lookout was, by contrast, not unreasonable in the light of their understanding and experience of Metrorail's operational policies. (Paragraph [44] at 491E - F.)

Held, further, that Metrorail could have avoided the tragedy by the adoption of a few simple measures, and that in the circumstances the appellants' cause of action against Metrorail was amply sustained by the evidence. C (Paragraphs [45] and [46] at 491G - H.)

Held, further, as to (3), that a finding that Human had been negligent could not be reached on the evidence. It was at least probable that he had had no time to avoid the accident. (Paragraph [62] at 495I - 496A.)

Held, further, as to (4), that it followed from the failure of Metrorail's reliance on D the appellants' protection of their own self-interest that Metrorail also had to fail in its attempt to attach even partial fault to the conduct of the appellants. (Paragraph [63] at 496C - D.) Appeal against Metrorail (the first respondent) accordingly upheld; and the appeal against Human (the second respondent) dismissed.

Cases Considered

Annotations: E

Reported cases

Southern Africa

AA Mutual Insurance Association Ltd v Manjani 1982 (1) SA 790 (A): referred to F

Harrington NO and Another v Transnet Ltd and Others 2007 (2) SA 228 (C): approved

Herschel v Mrupe 1954 (3) SA 464 (A): referred to

Kruger v Coetzee 1966 (2) SA 428 (A): referred to

Mutual and Federal Ins Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A): referred to G

Ngubane v South African Transport Services 1991 (1) SA 756 (A): referred to

Parity Insurance Co Ltd v Van den Bergh 1966 (4) SA 463 (A): dicta at 481G applied

Pretoria City Council v De Jager 1997 (2) SA 46 (A) ([1997] 1 All SA 635): referred to H

R v Mbombela 1933 AD 269: dictum at 273 - 274 applied

Road Accident Fund v Grobler 2007 (6) SA 230 (SCA): referred to

Samson v Winn 1977 (1) SA 761 (C): referred to

S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC) (2000 (1) SACR 414; 2000 (5) BCLR 491): referred to

S v Van As 1976 (2) SA 921 (A): referred to I

S v Zoko 1983 (1) SA 871 (N): referred to

South African Railways v Bardeleben 1934 AD 473: dictum at 480 applied

South African Railways v Symington 1935 AD 37: referred to

Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust as Amicus Curiae) 2003 (1) SA 389 (SCA) ([2002] 4 All SA 346): referred to. J

2010 (2) SA p482

England A

Stokes v Guest, Keen & Nettlefold (Bolts and Nuts) Ltd 1968 (1) WLR 1776: referred to.

Case Information

Appeal against a decision in the Cape Provincial Division (Blignault J). B The facts appear from the judgment of Heher JA.

GM Budlender SC for the appellants.

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