Harrington N.O. v Transnet Limited trading as Metrorail

The two appellants were security guards employed by Kuffs Security Services CC, contracted to provide services to Transnet Limited trading as Metrorail. On 3 February 2002 at approximately 22h45, the appellants were patrolling electric cables between Cape Town Station and Woodstock station as part of their duties. There were no scheduled trains after 22h00 and suburban rail services did not operate until 04h00 the next morning. Metrorail sent an unscheduled train down the line from Cape Town to Salt River for repairs without warning the appellants. The train was driven by Metrorail's employee, Mr Human (the second respondent). Human saw two figures walking on the line, sounded the train's siren, and when he received no reaction, applied the brakes. It was too late and the train struck both appellants from behind, causing serious injuries including brain damage to the first appellant requiring the appointment of a curator ad litem. The night was dark with a strong south-easterly wind blowing in the appellants' faces as they walked toward Woodstock. The appellants had been led to believe, based on their training and experience, that no trains ran after 22h00.

• Whether Metrorail owed a legal duty to warn security guards of unscheduled train movements after scheduled hours
• Whether Metrorail was negligent in failing to warn the appellants of the unscheduled train
• Whether the train driver, Mr Human, was negligent in his operation of the train
• Whether the appellants were contributorily negligent in walking on railway tracks without keeping a proper lookout
• The relevance of subjective belief founded on experience in determining negligence
• The standard of care expected of railway operators toward persons working near railway lines

The appeal succeeded against the first respondent (Metrorail) but was dismissed against the second respondent (Human). The Supreme Court of Appeal set aside the Full Bench order and reinstated (with modifications) the trial court's judgment. The final order provided: (1) Metrorail is liable to pay damages to the plaintiffs; (2) Metrorail is liable to pay the plaintiffs' costs; (3) The third party (Kuffs) is obliged to indemnify Metrorail against the plaintiffs' claims; (4) The action against Human is dismissed with costs to be paid by Metrorail; (5) No reduction for contributory negligence was applied.

A railway operator who requires security personnel to work in close proximity to railway tracks after scheduled operating hours owes a legal duty to warn such personnel of unscheduled train movements. This duty arises because: (1) the railway operator possesses peculiar knowledge of train movements unavailable to the workers; (2) the potential for serious harm from collision with trains is easily predictable; (3) the cost and difficulty of providing warnings is minimal; and (4) warnings would likely be effective in preventing harm. An omission to warn in such circumstances is both wrongful and negligent. Regarding contributory negligence, a worker is not negligent for failing to guard against a risk when their belief in the absence of that risk is founded on training, instructions, and repeated personal experience over an extended period, even if that belief is ultimately mistaken. Subjective beliefs founded on experience, though not determinative, are relevant in assessing whether conduct meets the standard of the reasonable person.

The court made several non-binding observations: (1) On the nature of the reasonable person test, the court observed that while personal idiosyncrasies are irrelevant, beliefs fortified by experience may influence the hypothetical reasonable person, as such beliefs "imperceptibly acquire the dignity of knowledge when fortified by experience." (2) The court noted that expert evidence is only as sound as the factual evidence on which it is based, and the greater the variables and fewer hard facts, the greater the scope for alternative conclusions. (3) Regarding sudden emergency situations, the court indicated that a person caught totally unaware must be allowed reasonable time to react. (4) The court observed that the remarks of Wessels CJ in South African Railways and Harbours v Bardeleben (1934) regarding assessment of driver negligence still have force, particularly that courts must not expect superhuman powers or be wise with hindsight. (5) The court commented that fatal accidents on railway lines are "a notorious consequence of the operation of rolling stock."

This case is significant in South African delictual law for several reasons: (1) It clarifies the duty of care owed by railway operators to persons lawfully working near railway lines, particularly regarding warnings of unscheduled train movements; (2) It establishes that where an entity possesses peculiar knowledge of hazards and requires others to work in hazardous conditions, a legal duty to warn may arise; (3) It develops the law on the role of subjective belief in negligence determinations, holding that beliefs founded on repeated experience, though mistaken, may be considered when assessing the reasonableness of conduct; (4) It demonstrates the application of policy considerations in determining whether an omission gives rise to liability; (5) It illustrates the careful scrutiny required of expert evidence based on unreliable factual foundations; (6) It confirms that persons are not contributorily negligent for failing to guard against risks they had no reasonable basis to foresee.