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

• Jurisdiction: South Africa
• Citation: 2015 (1) SA 139 (SCA)

Jacobs and Another v Transnet Ltd t/a Metrorail and Another
2015 (1) SA 139 (SCA)

2015 (1) SA p139

Citation	2015 (1) SA 139 (SCA)
Case No	803/13; [2014] ZASCA 113
Court	Supreme Court of Appeal
Judge	Navsa ADP, Majiedt JA, Saldulker JA, Swain JA and Zondi JA
Heard	August 21, 2014
Judgment	September 17, 2014
Counsel	MJM Bridgman for the first appellant.; PA Corbett for the second appellant.; DJ Jacobs SC (with H Rademeyer) for the respondents.

Flynote : Sleutelwoorde B

Delict — Elements — Negligence — What constitutes — Train operator's designation of 90 km/h train speed on section of track passing through crossing with no booms or warning lights. C

Evidence — Expert evidence — Evaluation — Conflicting expert opinions — Approach to.

Evidence — Expert evidence — Role of expert witness.

Headnote : Kopnota

Jacobs and Hendricks were passengers on the back of a truck that was hit by one D of Metrorail's trains at a level crossing. They were injured and sued Metrorail and the South African Rail Commuter Corporation Ltd for their damages. Their claim was that Metrorail had been negligent in designating 90 km/h as the speed for trains on that section of the line. Further context was that 120 m before the crossing there was a sign warning motorists of it; E and at the crossing there was a stop sign. There was no warning light or boom. Foliage and a wall also obscured motorists' and train drivers' views of one another on the approach; and a 'fair' number of pedestrians and vehicles crossed daily. (Paragraph [4] at 142H – 143C.)

The high court dismissed the claim and Jacobs and Hendricks appealed to the Supreme Court of Appeal. In issue was whether a reasonable person in Metrorail's position would have (1) foreseen the possibility of the harm; F and (2) taken steps to prevent it. (Paragraphs [5] – [6] at 143C – H.)

Held, as to (1), that the harm was foreseeable; and as to (2), that a reasonable person would have taken measures to prevent it. This because the likelihood of the harm eventuating was high; the level of its seriousness was grave; the utility of the 90 km/h designation was low (reducing it to 40 G km/h — at which the collision would not have taken place — would increase the train's journey time by eight seconds); and because the preventative measure — lowering the speed designation — would cost nothing. (Paragraphs [7], [9], [18] and [21] at 143H – 144E, 145D – G, 148H – 149A and 150C – E.)

Also in issue was (3) the approach to be adopted by a court presented with H conflicting expert evidence (the conflict in the high court had gone to the appropriateness of the 90 km/h designation, and the court had rejected the appellants' experts' evidence, and accepted the respondents' expert's evidence, without in any instance providing reasons); and (4) the role of an expert witness. (Paragraphs [14] – [15] at 147H – 148D.)

Held, as to (3), that a court had to examine the cogency of the reasons underlying I an expert's opinion and then reject or accept that opinion. (Here, the opinions of the appellants' experts were preferable to that of Metrorail's expert.) (Paragraphs [14] and [16] at 147H – 148B and 148D – F.)

Held, regarding (4), that the role of an expert witness was to assist the court, rather than the party who had called him. (Paragraph [15] at 148B – D.)

Appeal upheld. (Paragraph [22] at 150E.) J

2015 (1) SA p140

Cases Considered

Annotations A

Case law

Buthelezi v Ndaba 2013 (5) SA 437 (SCA): dictum in para [14] applied

Celliers v South African Railways and Harbours 1961 (2) SA 131 (T): referred to

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

Jackson v Jackson 2002 (2) SA 303 (SCA): referred to

Kruger v Coetzee 1966 (2) SA 428 (A): dictum at 430E applied

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565): referred to

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741; [2002] ZASCA 79): referred to C

Ngubane v South African Transport Services 1991 (1) SA 756 (A): dictum at 776E – 777C applied

P v P 2007 (5) SA 94 (SCA): referred to

Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA) ([2003] 2 All SA 465): referred to

Stock v Stock 1981 (3) SA 1280 (A): dictum at 1296E applied D

Transnet Ltd t/a Metrorail and Another v Witter 2008 (6) SA 549 (SCA) ([2009] 1 All SA 164): referred to

Worthington v Central South African Railways 1905 TH 149: dictum at 150 applied.

Case Information

MJM Bridgman for the first appellant. E

PA Corbett for the second appellant.

DJ Jacobs SC (with H Rademeyer) for the respondents.

An appeal from the Western Cape High Court, Cape Town (Ndita J). The order is in para [22].

Order F

1.

The appeal is upheld.

2.

The order of the high court is set aside and substituted with the following:

'The defendants are liable, jointly and severally, for such damages G as the plaintiffs may prove to have sustained in the collision of 13 November 2006.

The defendants are ordered, jointly and severally, to pay the plaintiffs' costs of suit.'

3.

The respondents are ordered, jointly and severally, to pay the costs H of the appeal.

Judgment

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

2015 (1) SA p141

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.

2015 (1) SA p142

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...