Transnet Ltd t/a Metrorail and Another v Witter

• Jurisdiction: South Africa
• Judge: Harms ADP, Brand JA, Cloete JA, Ponnan JA and Leach AJA
• Judgment Date: 16 September 2008
• Citation: 2008 (6) SA 549 (SCA)
• Docket Number: 517/2007
• Hearing Date: 15 August 2008
• Counsel: N Arendse SC (with K Pillay) for the appellants.RD McClarty SC (with JH Roux) for the respondent.
• Court: Supreme Court of Appeal

Cloete JA:

E [1] At approximately 06:40 on 7 February 2002 the plaintiff attempted to board a commuter train at the Wittebome railway station in the Western Cape. The train had just started to move slowly when the plaintiff emerged onto the platform. Although the other doors were closed, the doors of the carriage where the plaintiff attempted to board were open. The plaintiff took three quick steps across the platform and F grasped the pillar in the middle of the open doors, lost his footing and fell between the platform and the train. The wheels of the train severed his right foot above the ankle.

[2] Transnet Limited (trading as Metrorail) operated the train, the G railway station and the platform on behalf of the South African Rail Commuter Corporation Limited. The latter owned, controlled and regulated the train. The plaintiff sued them both as, respectively, the first and second defendants, for damages in delict. The court a quo (Veldhuizen J) was asked to determine the question of liability first. The learned H judge found that the guard on the train was negligent in failing to ensure that the doors of the carriage where the plaintiff attempted to board were closed before signalling to the driver that the train could depart from the station, for which negligence the defendants were vicariously liable; and in the alternative, that the defendants were themselves negligent in I failing to put the necessary procedures in place to prevent this happening. The trial court also found that the plaintiff had been negligent - indeed, contributory negligence had (correctly) been conceded - and ordered that his damages be reduced by 50%. Finally, the trial court declared the two experts that had been called on behalf of the plaintiff necessary witnesses and ordered that their qualifying fees should be J allowed on taxation.

Cloete JA

[3] This court granted the defendants leave to appeal. It would be A convenient to continue to refer to the parties as they were in the court a quo.

[4] There are three issues on appeal. The defendants contend:

(a)

That neither they nor the guard were negligent as all reasonable B steps had been taken to prevent the occurrence of injuries to persons in the position of the plaintiff;

(b)

that the apportionment of damages made by the court a quo was not just and equitable; and

(c)

that the costs order in respect of the plaintiff's expert witnesses C should not have been made.

I shall deal with each issue in turn.

Negligence D

[5] The test for negligence was formulated in Kruger v Coetzee as follows: [1]

For the purposes of liability culpa arises if -

(a)

a diligens paterfamilias in the position of the defendant -

(i)

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

(ii)

would take reasonable steps to guard against such occurrence; and

(b)

the defendant failed to take such steps. F

The first two requirements contained in para (a) were - correctly - not placed in issue by the defendants. All of the experts were agreed. Mr Myatt, an electrical engineer and specialist in train door-control systems, who testified on behalf of the plaintiff, expressed the view that it was a G basic fundamental requirement for the safe operation of a passenger train in any country that a train should not depart with a door open. Mr Taute, a mechanical engineer and retired General Manager (Operations and Technical) of the second defendant, who had gained experience over many years on inter alia the safe running of trains and commuter safety and who was also called as an expert on behalf of the plaintiff, said: H

As an operator you must have clear guidelines and proper staff to make sure that you safely convey your passengers. One of the prime issues, prime things to do, is to make sure that the doors are closed. In other words you must lay down proper procedures, have staff to do it. . . . I'll I never accept the fact that you can accept running a train with doors open. I can't accept that that is an acceptable situation to operate a suburban service on.

Cloete JA

A The evidence of the defendants' expert, Mr Carver, a mechanical engineer previously employed by the second defendant, was that a responsible train operator should do 'everything in his power' to prevent trains departing with doors open.

B [6] So far as the requirement contained in para (b) of Kruger v Coetzee is concerned, it was the defendants' case that they had indeed taken all reasonable steps to guard against the possibility that commuter trains, and in particular, the train which the plaintiff attempted to board, would depart with doors open. The submissions made by the defendants' counsel on appeal in this regard are conveniently tabulated in the heads C of argument as follows:

We submit that the Appellants did exercise reasonable care in carrying out their duties by reason of the following:

1.

The regular maintenance that was undertaken on the train set.

2.

The checking of the doors at the commencement of shift and the unlikelihood of a defect occurring in the day subsequent thereto.

3.

D The employment of the guard.

4.

The guard ensuring that the platform was clear prior to the door close button having been pressed.

5.

The guard generally observing (in the course of his duties) whether the doors were closing properly.

6.

The present and ongoing replacement of the 5M coaches with 10M E coaches.

7.

The impossibility of having the guard ensure that all the doors are closed prior to departure of the train in that it would add at least a further 15 minutes to the train schedules, thereby resulting in fewer trains and greater overcrowding, posing an even greater risk to passengers.

8.

F The impossibility of employing further personnel given that all trains do not have a second compartment within which such a person may be located. He/she would accordingly have to sit in the driver's compartment and the time-consuming process described above would have to be followed at every station, thereby also resulting in further delays and fewer trains running.

G [7] Regular maintenance and checking of doors at the commencement of each shift would lessen, but not obviate, the possibility of a malfunction. As Mr Taute said (and his view accords with common sense):

You see with mechanical equipment you can never expect or accept that things are going to work, something could happen, something could H happen between Retreat [where the guard and driver had checked the operation of the doors at the beginning of the shift] and [the Wittebome] station which causes the door not to work, with very fatal results to passengers, so that is why you can't assume, you can never assume that if a thing is working now it will still be working within 24 hours or whatever, or ten hours or two hours, whatever.

I [8] The duties of the guard, set out in para 12001.2 of the General Operating Instructions of the first defendant, were the subject-matter of much debate. The paragraph reads:

12001.2

Operation of sliding doors on arrival at and before J starting from stations or other stopping places.

Cloete JA

12001.2.1

Immediately after stopping at a station or halt A where the train is required to stop for commuters, the metro guard must release the sliding doors on the platform side so that they can be opened manually.

12001.2.2

When the train is ready to depart and after the metro guard has announced it orally, he must blow B his whistle as warning that the sliding doors are going to be closed. Thereafter he must press the 'Door-Closing' button and give the right-away bell signal to the train...