Jacobs and Another v Transnet Ltd t/a Metrorail and Another

• Jurisdiction: South Africa
• Judge: Navsa ADP, Majiedt JA, Saldulker JA, Swain JA and Zondi JA
• Judgment Date: 17 September 2014
• Citation: 2015 (1) SA 139 (SCA)
• Hearing Date: 21 August 2014
• Docket Number: 803/13 [2014] ZASCA 113
• Counsel: MJM Bridgman for the first appellant. PA Corbett for the second appellant. DJ Jacobs SC (with H Rademeyer) for the respondents.
• Court: Supreme Court of Appeal

Majiedt JA (Navsa ADP, Saldulker JA, Swain JA and Zondi JA concurring):

[1] Calamity struck during the morning of 13 November 2006 when a high-speed commuter train slammed into a stationary truck at the I Croydon level crossing near Somerset West. Nineteen occupants of the truck, 18 of whom were seasonal farmworkers, died in the collision and 12 others were injured — the worst incident of its kind in this country's history.

[2] The two appellants, Ms Primilda Jacobs and Ms Carolina Christina Hendricks, J were among the injured. They instituted action in the

Majiedt JA (Navsa ADP, Saldulker JA, Swain JA and Zondi JA concurring)

Western Cape High Court, Cape Town, against the respondents for A damages consequent upon the injuries sustained as a result of the collision. The respondents are companies in the Transnet parastatal. [1] The first respondent (Metrorail) runs the railway-line operations for Transnet while the second respondent (the Commuter Corporation) runs its rail-commuter operations. In the high court Ndita J dismissed B the actions (brought separately but consolidated into one trial, seemingly as a 'test case' for all the other pending damages claims arising from this incident), but granted leave to appeal to this court.

[3] The driver of the truck, Mr Gert Zeelie (Zeelie), perished in the collision. Several witnesses, including the first appellant, other survivors C of the collision, the train driver and a number of experts testified in the high court. The common-cause facts are briefly as follows:

(a)

During the morning of 13 November 2006 at around 7 o'clock, the truck, driven by Zeelie and carrying 29 seasonal farm labourers in the rear and a Mr Morne Kershoff (Kershoff) in the front cab, was en route to a grape farm. It was Zeelie's first day of employment and D the first time that he drove the truck, a three-ton Mitsubishi Canter. He had never before traversed that particular route. For that reason the truck owner's son, Kershoff, sat with Zeelie in the cab of the truck to give him directions to the farm. Kershoff pertinently cautioned Zeelie about the Croydon level crossing on their approach to it. E

(b)

Zeelie heeded the stop sign at the level crossing. At that moment Kershoff bent down to retrieve his pen which had fallen on the floor of the cab. He then became aware that the truck had edged forward and had stalled on the railway line. When he looked up, he observed F Zeelie struggling to engage the truck's gears and, more alarmingly, the train hurtling towards them from the Somerset West side, ie from the right. Kershoff managed to extricate himself from the truck, as did some of the passengers at the back, before the train slammed into the truck.

(c)

The impact of the collision severed the truck cab from the body and G the latter was pushed about 510 m along the railway line by the train until it came to a standstill. Aerial photographs depict several bodies strewn along the way and three bodies on the back of the truck. The cab burst into flames and was completely destroyed.

(d)

The train driver, Ms Nomava Harriet Mxalisa (Mxalisa) caused the H so-called 'dead man's brake' to engage by fleeing to the rear of the locomotive for self-preservation when she saw the stationary truck on the railway line ahead of her. She did not sustain any significant physical injuries. The 'dead man's brake' is intended to monitor the train driver's presence at the controls. Whenever the driver releases his or her hands from the steering control, this brake will engage I automatically after about five seconds. The emergency brake, on the other hand, engages immediately when activated by the driver.

Majiedt JA (Navsa ADP, Saldulker JA, Swain JA and Zondi JA concurring)

(e)

A The collision occurred just after 7 am. The police arrived on the scene shortly thereafter. The investigations of the Railway Safety Regulator [2] (the regulator) investigators arrived from Johannesburg on that same afternoon. Pursuant to its investigations the regulator afforded the railway operator (Metrorail) the following three alternative B remedial measures — to eliminate the level crossing, to provide appropriate protection to the level crossing or to institute an appropriate speed restriction to mitigate the consequences of future collisions of this kind. The regulator required Metrorail to revert with a plan of action based on the alternatives referred to above. C Pending that decision it directed Metrorail to implement forthwith a speed restriction of 40 km/h at that level crossing from the second whistle board on the railway line, ie 125 m from the level crossing. As directed, Metrorail implemented the new speed limit of 40 km/h with immediate effect. It also improved the signage at the crossing.

(f)

The level crossing is not controlled by a boom and flashing red D lights. Prior to the collision the only signage on the road was a signboard some 120 m from the crossing, warning of a railway crossing ahead, and a stop sign. Overhanging foliage and a Vibracrete wall partially obscured the visibility to the left for train drivers approaching the crossing from the Somerset West side and for motor vehicle drivers E approaching the intersection in an easterly direction (ie from the left of trains travelling from the Somerset West side), as Zeelie did on that fateful morning.

(g)

The railway line is a major commuter line from Strand to Cape Town. The speed restriction on that part of the railway line — F determined by Metrorail — is 90 km/h. This is the speed normally designated for Metrorail trains, unless there are speed restrictions in place. The train was travelling at 96 km/h shortly before the collision. [3] Whistle boards are located 400 m and 125 m from the crossing. Metrorail's standard procedures require a train driver to G emit a cautionary siren once at the 400 m board, and a continuous warning siren at the 125 m board. While there was some conflicting evidence on whether Mxalisa had followed the standard procedures with regard to the cautionary sirens that day, it does appear that she in fact did so. The train driver would have a clear view of the railway H track for a distance of about 700 m from the crossing, but there is partial obstruction to the left as the train approaches the crossing, as stated above.

[4] The only issue before the high court was the alleged negligence on the part of the respondents in causing the collision. The appellants I endeavoured to establish negligence on one or more of the following grounds:

Majiedt JA (Navsa ADP, Saldulker JA, Swain JA and Zondi JA concurring)

(a)

That the speed limit of 90 km/h was inappropriate and excessive for A that particular crossing;

(b)

that the road signage was inadequate to warn motorists of the crossing;

(c)

that the respondents failed to put up a boom or barrier to prevent vehicles crossing the railway line simultaneously with the train; B

(d)

vicariously through Mxalisa's failure to sound the warning siren at the whistle boards and her failure to engage the emergency brake which would have lessened the impact considerably.

[5] A number of witnesses, including experts, testified for the appellants C to establish these grounds of negligence, without any success. The high court found that 'the evidence presented [by] the plaintiffs failed to establish negligence on the part of the train driver, Ms Mxalisa and on the part of the defendants'. In this court both counsel for the appellants ultimately confined themselves in argument to ground [4](a) above, D namely the question of whether the speed restriction was appropriate for that part of the railway line. In respect of the other grounds of negligence, it was accepted by the parties that the evidence showed that, in the event that there had been an absence thereof, it cannot be said that the collision would have been avoided. Put differently, even if the other acts of negligence had not been present, the collision would in any event, E because of the speed of the train, have occurred.

[6] The test for negligence has been authoritatively laid down as follows in Kruger v Coetzee: [4]

'For the purposes of liability culpa arises if — F

(a)

a diligens paterfamilias in the position of the defendant —

(i)

would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii)

would take reasonable steps to guard against such occurrence; and G

(b)

the defendant failed to take such steps.'

This...