Harrington NO and Another v Transnet Ltd and Others

• Jurisdiction: South Africa
• Citation: 2007 (2) SA 228 (C)

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

2007 (2) SA p228

Citation	2007 (2) SA 228 (C)
Case No	9578/04
Court	Cape Provincial Division
Judge	Blignault J
Heard	April 10, 2006; April 11, 2006; April 12, 2006; April 13, 2006; April 18, 2006; April 19, 2006; April 20, 2006; April 24, 2006; June 19, 2006
Judgment	June 20, 2006
Counsel	G M Budlender for the plaintiffs.; A de V la Grange SC for the defendants.; J C Marais for the third party.

Flynote : Sleutelwoorde B

Damages — Apportionment of — Apportionment in terms of s 1(1)(a) of Apportionment of Damages Act 34 of 1956 — Concurrent wrongdoers — Court to weigh up negligence of plaintiff, on one hand, and totality of negligence of defendants, on other — Causative potency of conduct of parties not C playing immediate role in comparison — Entire process of comparison remaining subject to considerations of justice and equity.

Negligence — What constitutes — Collision at night between unscheduled train and security guards patrolling railway line — Train operator failing to warn security company of unscheduled journey — Negligence of train operator, train D driver and security guards assessed.

Headnote : Kopnota

Two security guards on 'cable patrol' along a suburban railway line were struck by an unscheduled train late at night. The Court assessed the evidence and made certain findings on the negligence of the train operator, the train driver, the security company that employed the injured guards, and the guards themselves. The Court then E proceeded to deal with the issue of apportionment of damages, and in particular with how s 1(1)(a) of the Apportionment of Damages Act 34 of 1956 is to be applied in a situation where there were two wrongdoers, and found as follows:

Subject to two qualifications, the method of apportionment of damages between a plaintiff and defendants who were concurrent wrongdoers is to contrast the plaintiff's conduct, on the one hand, with the F totality of the negligent conduct of the defendants, on the other. The first qualification is that the causative potency of the conduct of each of the defendants (as opposed to their negligence) does not play an immediate role in that comparison. The second qualification is that the entire process is subject to considerations of justice and equity. (Paragraphs [88] and [91] at 255C and 256B - D.) G

Cases Considered

Annotations

Reported cases

Southern African cases

Becker v Kellerman 1971 (2) SA 172 (T): dictum at 177 applied H

Coetzee v Shield Insurance Co Ltd 1980 (4) SA 621 (C): referred to

Geldenhuys v South African Railways and Harbours 1964 (2) SA 230 (C): referred to

General Accident Versekeringsmaatskappy SA Bpk v Uijs NO 1993 (4) SA 228 (A): dictum at 234J - 235E applied

Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) ([2004] 4 All SA 500): dictum at 498G - 499E applied I

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): dictum at 700E - 701 applied

Jones NO v Santam Bpk 1965 (2) SA 542 (A): referred to

Masureik and Another (t/a Lotus Corporation) v Welkom Municipality and Another 1995 (4) SA 745 (O): referred to J

2007 (2) SA p229

Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 2000 (4) SA 915 (SCA) ([2000] 4 All SA A 393): dictum at 922D - F applied

Ngubane v South African Transport Services 1991 (1) SA 756 (A): dictum at 776D/E - I/J applied

Pretoria City Council v South African Railways and Harbours 1957 (4) SA 333 (T): referred to

Rodrigues v SA Mutual and General Insurance Co Ltd 1981 (2) SA 274 (A): referred to B

South African Railways v Symington 1935 AD 37: referred to

South African Railways and Harbours v Orford 1963 (1) SA 672 (A): referred to

South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A): dictum at 834D/E - 835B applied C

Worthington and Others v Central South African Railways 1905 TH 149: referred to

Young v Workmen's Compensation Commissioner and Another 1998 (3) SA 1085 (T): referred to.

Foreign cases

Donaldson v Canberra Tyre Service Pty Ltd and Another [2004] ACTSC 26 (5 May 2004): applied D

Fitzgerald v Lane and Another [1988] 2 All ER 961 (HL): dictum at 970e - f applied

Ingles v Tutkaluk Construction Ltd 2000 SCC 12: dictum in para [55] applied.

Statutes Considered

Statutes E

The Apportionment of Damages Act 34 of 1956, s 1(1)(a): see Juta's Statutes of South Africa 2005/6 vol 1 at 1-669.

Case Information

Action for damages in delict. The facts appear from the reasons for judgment.

G M Budlender for the plaintiffs. F

A de V la Grange SC for the defendants.

J C Marais for the third party.

Cur adv vult.

Postea (August 22). G

Judgment

Blignault J:

[1] On the night of 3 February 2002 Mr Sijongile Ncaza (first plaintiff) and Mr Siyavuma Ngaleka (second plaintiff) 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 H 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 I

[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 (Kuffs). J

2007 (2) SA p230

Blignault J

[3] First defendant is Transnet Ltd, a public company established pursuant to the provisions of s 2 of the Legal Succession A to the South African Transport Services Act 9 of 1989 (the SATS Succession Act). Metrorail is a business unit of Transnet Ltd 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 Ltd, a B corporation created in terms of s 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 (Human). He was the driver of the train, acting in the course and scope of his employment with Metrorail. C

[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 D

[5] First and second plaintiffs' particulars of claim contain, inter alia, the following allegations of negligence on the part of defendants:

'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 22:00 by security guards such as first and second plaintiffs, to warn plaintiffs of the approach of the E train; and/or

8.2

they failed, notwithstanding being aware of the facts and circumstances set out in subpara 8.1 above, to warn and/or advise plaintiffs and/or their employer, Kuffs Security Services (Kuffs), of the unscheduled journey of the said train; and/or

8.3

the third defendant failed to keep a proper lookout; and/or F

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 G safety training;

8.6.2

failed to take any or reasonable measures to ensure that the employees of Kuffs completed the first defendant's in-house test and induction training before commencing their duties on the first and second defendants' premises; H

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 defendants' premises;

8.6.4

failed to take any or adequate measures to ensure that Kuffs undertook adequate Rail Safety Awareness Programmes, appointed I Safety Representatives, and held safety meetings of which proper minutes were kept; . . . .'

[6] In their plea defendants denied the allegations of negligence levelled against them. They pleaded that the collision was caused by plaintiffs' own negligence. Metrorail issued a third party notice in terms of Rule 13 against Kuffs. Metrorail alleged that plaintiffs were performing their J

2007 (2) SA p231

Blignault J

duties pursuant to a contract between Metrorail and Kuffs in terms of which Kuffs agreed to provide security A 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 B 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 plaintiffs' damages. That agreement was C 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 D ...