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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

CASE NO.: 1735/11

In the matter between:

CONRADIE IRENE ELIZABETH                                                  1^ST PLAINTIFF

and

TRANSNET LIMITED                                                                1^ST DEFENDANT

(REG NO: 1990/00900/06)

KGETLENG RIVER LOCAL MUNICIPALITY                           2^ND DEFENDANT

JUDGMENT

Landman J:

[1] This judgment concerns the question whether Transnet, the first defendant, is liable for the injuries suffered by Mrs Irene Elizabeth Conradie, the plaintiff, when a Volkswagen Beetle in which she was a passenger was struck by a Transnet Freight train (locomotive no 3014) at about 09:00 on 22 October 2008 at a level crossing situated opposite Reagile, a few kilometres from Koster.

[2] The Kgetlengriver Local Municipality is cited as the second defendant. This defendant has not defended the action.

The evidence

[3] The single railway track between Koster and Swartruggens in the vicinity of the level crossing runs parallel with tarred road between these towns. To get to Reagile one turns off at the tarred road onto a gravel road for about 10 metres, when one arrives at the level crossing which one crosses, one continues on the gravel road for a short distance. The level crossing is marked with a stop sign and crosses on both sides of the crossing. Should one stand in the middle of the crossing one can see for about 1 kilometre up the track and the same down the straight track. To the naked eye the track appears to be flat but in fact it slopes downhill to Swartruggens; it has an annulating gradient.

[4] The plaintiff says that on 22 October 2008, a sunny day, Mr Conradie and his wife were traveling from their plot near Koster to Reagile along the tarred road. Mr Conradie turned right off the tarred road, onto the gravel road and stopped at the stop and level crossing sign. They use this level crossing regularly. She says they stopped for about two minutes. They could not see up or down the track on account of the grass growing there. She put it at 2 metres in height.

[5] She looked for her cigarette lighter that had fallen on the floor. While doing so her husband drove onto the track and, she says, the Volkswagen was half way across when it stalled. I accept that it was more than halfway across. It was just about to exit the crossing. Her husband tried at least twice to restart the engine but he was unsuccessful. She suggested that he get out and push so that she would steer. She was about to alight when he husband said ‘O God. Hier kom ‘n trein’. At that moment the train struck the Volkswagen.

[6] The plaintiff lost consciousness when she struck her head on the dash board.  He husband was apparently thrown out of the vehicle. He died hours later in the Koster Hospital.

[7] The plaintiff made a statement that was recorded at the scene. Later she gave a statement to the SAPS.

[8] The plaintiff suffered injuries and the shock damaged her vocal cords. It was often difficult to hear what she was saying. However, the interpreter was able to hear and understand her and to repeat her evidence for the record.

[9] The plaintiff says that she did not see the train when they were driving on the tarred road. She did not hear the sound of a train’s hooter.

[10] Her brother, Mr Matthesson, also testified. He took photographs of the scene on three occasions. The first set was taken 5 days after the incident on 27 October. These are photographs 33A, 34A, 34B, 40A and 40B of the bundle. He said that the grass at the scene was about 1 metre in height. It would have obstructed the view of the driver of the Volkswagen. At the end of 2011 beginning of 2012 he took a second set. These are photographs 33B, 35A, 35B, 36A, 36B, 37A, 37B, 38A, 38B, 39A, 39B, 41A, 41B, 42A and 42B. On 23 March 2016 he took photographs 43A, 43B, 44A, 44B, and 45B.

[11] Mr Matladi testified that he was a qualified train driver and he knew the route. He saw the Volkswagen as it travelled along the tarred road. When the locomotive was 125 metres from the level crossing, the Volkswagen turned right off the tarred road on to the short stretch of gravel road and continued over the level crossing without stopping. It was almost out of danger when the train struck it as described above. All this while the whistle was sounding continuously. Mr Matladi says he saw the occupants and formed the impression that the driver attempted to beat the train across the level crossing.

[12] As he approached the level crossing he was using dynamic braking which curbs the momentum of a train travelling downhill. When he saw the panic of the driver he applied full brakes but this process applied the brakes on each wagon sequentially. He did not apply the emergency brakes as to do those brakes would cut the dynamic braking and the momentum would carry the train forward. His evidence about the distance the train travelled after the collision varied between 65 metres and 85 metres. He did say that the train was traveling at 55 km per hour. At this speed, he said, a train consisting of 32 wagons and two locomotives, if it began braking at the crossing would stop after a distance of 1.5 kilometres.

[13] He believed that the safety of the public is a priority. He maintained, with reference to the height of the grass, that the driver of the Volkswagen would have been able to see the approaching train. The train was equipped with a black box but he was advised not to log on that day.

[14] Mr Mdunge, the section manager responsible for the Krugersdorp (Waterval) section and a former train driver, arrived on the scene shortly after the collision, about 09:30, while the plaintiff was still on the scene. He found the train about 1 km from the level crossing on the Swartruggens side of the crossing. The whistle signs were in place. The grass was about 1 metre high. He took photographs. See pages 81-83 of the bundle. He monitored the alcohol level of the train driver and assistant and he also interviewed the train driver and his assistant. The logbook does not seem to have been discovered. His notes were not discovered.

[15] The locomotive was equipped with an on board computer (known as a ‘black box’) but it was not working on the day of the incident. He explained that a train driver must comply with the obligation to sound the train’s whistle at the prescribed points. The train driver was obliged to sound the hooter for three seconds 400 metres before the level crossing. There was a whistle board at this mark. A second whistle warning was at the 125 metre board. At this mark the train driver was obliged to sound the whistle continuously until he cleared the level crossing.  A train driver could also sound the whistle at any time that he deemed it necessary. Trains do not slow down at level crossings. They have the right of way. They may not stop as this causes Transnet to lose money. He added words to the effect that Transnet kills people daily.

[16] Hours after the collision Mr Van den Heever, a Transnet diesel fitter, arrived at the scene. He checked the locomotive’s whistle and found it in working order. He also checked the brakes and found them to be functional.

The law

[17] As to the applicable law I can do no better than to cite the passages referred to by Blignaut J in Harrington NO and Another v Transnet Limited t/a Metrorail and Others (9578/04) [2006] ZAWCHC 34; 2007 (2) SA 228 (C); [2007] 2 All SA 386 (C) (22 August 2006) at paras 35, 37-38:

[35] Wrongfulness, negligence and causation are the three requirements for delictual liability that are relevant at the present stage of the proceedings...

[37] The theoretical and practical differences between the elements of wrongfulness and negligence are well established. See Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) at 498G-499E (footnotes omitted):

“[12] It is now well established that wrongfulness is a requirement for liability under the modern Aquilian action. Negligent conduct giving rise to loss, unless also wrongful, is therefore not actionable. But the issue of wrongfulness is more often than not uncontentious as the plaintiff's action will be founded upon conduct which, if held to be culpable, would be prima facie wrongful. Typically this is so where the negligent conduct takes the form of a positive act which causes physical harm. Where the element of wrongfulness gains importance is in relation to liability for omissions and pure economic loss. The inquiry as to wrongfulness will then involve a determination of the existence or otherwise of a legal duty owed by the defendant to the plaintiff to act without negligence: in other words to avoid negligently causing the plaintiff harm. This will be a matter for judicial judgment involving criteria of reasonableness, policy and, where appropriate, constitutional norms. If a legal duty is found to have existed, the next inquiry will be whether the defendant was negligent. The test to be applied will be that formulated in Kruger v Coetzee, involving as it does, first, a determination of the issue of foreseeability and, second, a comparison between what steps a reasonable person would have taken and what steps, if any, the defendant actually took. While conceptually the inquiry as to wrongfulness might be anterior to the enquiry as to negligence, it is equally so that without negligence the issue of wrongfulness does not arise for conduct will not be wrongful if there is no negligence. Depending on the circumstances, therefore, it may be convenient to assume the existence of a legal duty and consider first the issue of negligence. It may also be convenient for that matter, when the issue of wrongfulness is considered first, to assume for that purpose the existence of negligence. The courts have in the past sometimes determined the issue of foreseeability as part of the inquiry into wrongfulness and, after finding that there was a legal duty to act reasonably, proceeded to determine the second leg of the negligence inquiry, the first (being foreseeability) having already been decided. If this approach is adopted, it is important not to overlook the distinction between negligence and wrongfulness.”

[38] The test for factual causation is also well established. See International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700E-701:

“The first [enquiry] is a factual one and relates to the question as to whether the defendant's wrongful act was a cause of the plaintiff's loss. This has been referred to as 'factual causation'. The enquiry as to factual causation is generally conducted by applying the so-called 'but-for' test, which is designed to determine whether a postulated cause can be identified as a causa sine qua non of the loss in question. In order to apply this test one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant. This enquiry may involve the mental elimination of the wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether upon such an hypothesis plaintiff's loss would have ensued or not. If it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff's loss; aliter, if it would not so have ensued. If the wrongful act is shown in this way not to be a causa sine qua non of the loss suffered, then no legal liability can arise. On the other hand, demonstration that the wrongful act was a causa sine qua non of the loss does not necessarily result in legal liability.”

[18] The duties of a train driver approaching a level crossing have been considered to be the following:

(1) It is the duty of the Railway Administration, when intending to exercise its preferent right at open level crossings at night, to advertise the approach of a train by an unmistakable appeal both to the sight and hearing of travellers on the road.

(2) This duty, in respect of the appeal to sight, can only be discharged at night by displaying on the forefront of the train a light or lights sufficiently distinguishing or powerful to give adequate and unmistakable warning of its approach.

(3) The driver's first duty, whether by day or night, is to see that the line ahead of him is clear.

(4) On approaching a crossing he must keep his eye on the crossing and its immediate neighbourhood.

(5) Having satisfied himself that the crossing is clear or likely to be clear, he must then look to the public road to his right and left to see whether there are any vehicles approaching the crossing.

(6) In an emergency he must be in a position to give a special warning and apply his brakes if necessary.

See Walker v Rhodesian Railways Ltd 1937 SR 62 at 73, followed with approval in in Matcheke v South African Railways & Harbours and Public Utility Corporation Ltd 1948 (1) SA 295 (T) at 301 and Geldenhuys v South African Railways and Harbours 1964 (2) SA 230 (C).

Evaluation

[19] The level crossing was known to the plaintiff and her husband. The train had the right of way. A train is not obliged to slow down at such a crossing. See Dyer v South African Railways 1933 AD 10 and Pretoria City Council v South African Railways and Harbours 1957 (4) SA 333 (T) at 337C-G. A level crossing is dangerous and particularly the driver of a vehicle must be cautious and is under an obligation to give way to an approaching train. See R v Herbst 1948 (2) SA 201 (N).

[20] The obligation to keep a proper look-out is primarily to ensure that the train is not damaged by an obstruction on the line. Where the obstruction is a vehicle, there arises an obligation to avoid causing damage or to minimize damage and an injury to the occupants by giving a warning and attempting to stop or reduce the speed of the train. As Ramsbottom J (as he then was) put it in Pretoria City Council v South African Railways and Harbours (supra) at 337H:

‘The necessity for a good look-out is obvious. If the driver sees any danger, he must if possible give a clearer warning and do his best, by applying his brakes, to stop, if he can, and to give the road-user more time to avoid the train.’

[21] It follows that I do not accept the evidence of Mr Mdunge on this point. His robust approach may accord with his views of commercial necessity but they do not accord with the law.

[22] The train must be travelling at an appropriate speed and the warning must be sufficient, in relation to the speed, to afford motorists and pedestrians of the approach of the train to avoid damage and injury. But this is not a case such as in Cilliers v South African Railways and Harbours 1961 (2) SA 131 (T)  where the adequacy of the whistle as a warning must be evaluated with reference to a driver that is unaware that he or she is approaching a level crossing.

[23] To ensure that proper warning is given, Transnet requires a train driver to sound the whistle for three seconds at a whistle board situated 400 metres before the level crossing. And to sound the whistle again at the whistle board situated 125 metre before the crossing and to sound the whistle continuously until the train clears the level crossing. A failure to do so would prima facie constitute negligence. 

[24] I accept that Mr Conradie did not look properly to his right before entering the level crossing. The grass was a metre high and sparse. Mr Conradie would either have been in a position to took to his right and have seen the oncoming train or he would have been obliged to move forward slowly until he could look up and down the track to satisfy himself that it was safe to cross over. Had he done so he would have seen the 4 metre high blue locomotive.  If he had indeed looked, when the Volkswagen stalled, he would immediately have told the plaintiff that there was a train in progress. He did not. I conclude this is because he had not looked as he was required to do. His final utterance shows that he saw the train at the last instance; too late to exit the vehicle.

[25] The fact is that the Volkswagen stalled on the tracks and did so in the face of the oncoming train that was travelling at 55 km per hour. It created, on this version, an immediate emergency for which no blame can be attributed to Transnet or its driver. When the Volkswagen stalled, the train was seconds away from colliding with it. Even if the train had applied brakes immediately there was no possibility of the train stopping in time. As Wessels CJ said in South African Railways v Symington 1935 AD 37 at 45:

“Where men have to make up their minds how to act in a second or in a fraction of a second, one may think this course the better whilst another may prefer that. It is undoubtedly the duty of every person to avoid an accident, but if he acts reasonably, even if by a justifiable error of judgment he does not choose the very best course to avoid the accident as events afterwards show, then he is not on that account to be held liable for culpa.”

[26] I accept that the right corner of the cowcatcher mounted on the locomotive hit the right rear of the Volkswagen and it spun with the force of the impact.

[27] I turn to consider the question whether the train driver complied with his obligations to sound the whistle and if he did not what is its effect for this case. Mr Matladi said that he performed these measures to the letter. If he did the plaintiff and her husband should have heard the hooter as it is very loud. Moreover the diesel locomotive is itself very noisy. I accept that this is so.

[28] The plaintiff says that she did not hear the whistle. There is virtually no way to establish objectively whether the whistle was sounded when the train driver says it was sounded. The plaintiff was distracted while looking for her lighter. She ought to have heard the whistle but her husband’s observation of the train and the impact of the collision would have been so close in time that it might not have registered with her. But in this case, even if I accept that the whistle was sounded, as this is the evidence, it would have unfortunately have made no difference as the Volkswagen had stalled on the track. There was simply no time for the plaintiff to alight.

[29] In making my findings regarding the sounding of the whistle, I do so having excluded Mr Matladi’s statement to the police. Mr Matladi attached his signature to a statement taken by Warrant Officer Smit. He says that he gave his statement in English. It was recorded in Afrikaans and read back to him in English. But when the statement was translated in court he denied that he had said this to the Warrant Officer. The statement was crucial to the plaintiff’s case. In its absence there is no cause to disbelieve him.

[30] In the result the plaintiff has not established that the first defendant is liable for any damages that she has sustained arising out of the collision.

[31] No attempt was made in the course of the trial to fix the second defendant with liability for the harm suffered by the plaintiff.

Costs

[32] I regret that the costs should follow the result. The plaintiff is, however, not responsible for the costs incurred on 20 April 2016. These costs are payable by the first defendant.

Order

[33] I make the following order:

1.     The action is dismissed with costs.

2.     The first defendant is to pay the plaintiff’s costs incurred as regards the postponement of 20 April 2016.

AA Landman

Judge of the High Court

 

Appearances

 

Date of hearing:                         24 May 2016

Date of Judgment:                     17 June 2016

For the Plaintiff:                            Adv  Cliff instructed by D C Kruger Attorneys

For the Defendant:                       Adv  L.A Mmusi instructed by Tlou Attorneys

 

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