Jacobs v Transnet Ltd t/a Metrorail

On 13 November 2006 at approximately 7am, a high-speed commuter train collided with a stationary truck at the Croydon level crossing near Somerset West. The truck was carrying 29 seasonal farm workers. The driver, Zeelie, who was driving the route for the first time, had stopped at the level crossing but the truck stalled on the railway line. The train, operated by Metrorail, was travelling at 96 km/h in a zone with a speed restriction of 90 km/h. The train driver fled to the rear of the locomotive, causing the 'dead man's brake' to engage rather than using the emergency brake. Nineteen people died in the collision and 12 were injured, including the two appellants. The level crossing was uncontrolled (no boom or flashing lights), had limited visibility due to overhanging foliage and a vibacrete wall, and was located in a residential area near farms where schoolchildren and workers regularly crossed. The Railway Safety Regulator investigated and immediately ordered a speed reduction to 40 km/h pending permanent remedial measures.

• Whether the respondents were negligent in imposing a speed restriction of 90 km/h on the railway line section where the collision occurred
• Whether the speed restriction was excessive given the nature and protection level of the level crossing
• Whether reasonable preventive measures were taken to avoid foreseeable harm
• The proper approach to assessing conflicting expert evidence on the issue of appropriate speed restrictions
• Whether the criteria used by the respondents for upgrading safety measures at level crossings were appropriate

1. The appeal was upheld. 2. The high court order was set aside and substituted with an order that: (a) the defendants are liable jointly and severally for such damages as the plaintiffs may prove to have sustained in the collision of 13 November 2006; and (b) the defendants are ordered jointly and severally to pay the plaintiffs' costs of suit. 3. The respondents were ordered jointly and severally to pay the costs of the appeal.

Where a railway operator imposes a speed restriction on a section of railway line that includes an uncontrolled level crossing, and the speed limit is excessive given the level of protection at the crossing and the foreseeable risk of harm, the railway operator will be liable in negligence for injuries resulting from a collision. A reasonable railway operator must take reasonable preventive measures to avoid foreseeable harm at level crossings, and cannot simply wait for accidents to occur before reviewing speed restrictions. Where expert evidence conflicts, a court must analyze the cogency of the underlying reasoning and may prefer expert evidence that is detailed, extensively researched, objective and impartial over evidence that is hastily prepared and partisan. The test for negligence requires both reasonable foreseeability of harm and the taking of reasonable steps to prevent such harm - a simple, costless measure (such as reducing speed) that would prevent a collision must be implemented where harm is highly foreseeable.

The court noted that trains have the right of way at level crossings, citing century-old authority from Worthington v Central South African Railways (1905). However, this right is qualified by the duty to give due warning and not to travel at excessive speeds, particularly where there are obstructions to visibility. The court observed that expert witnesses must understand they are there to assist the court, not the party calling them, and that objectivity is the central prerequisite for expert opinions. The court commented that in assessing expert credibility, appellate courts can test the underlying reasoning and are in as good a position as trial courts in that respect. The court noted with apparent disapproval Roodt's startling opinion that lower speed limits would be of no help since negligent drivers would simply adapt and take further risks - this reasoning was rejected as lacking proper motivation. The court also commented on the inadequacy of the high court's failure to undertake any analysis of the conflicting expert evidence or provide reasons for implicitly rejecting the appellants' experts' opinions.

This case is significant for establishing important principles regarding railway operators' duty of care at level crossings. It clarifies that railway operators cannot simply apply road signage upgrade criteria to determine appropriate speed restrictions, and that waiting for accidents to occur before implementing safety measures constitutes a breach of the duty to prevent reasonably foreseeable harm. The case reinforces that where harm is highly foreseeable and preventive measures involve minimal cost or inconvenience, railway operators must implement such measures. It also provides important guidance on the assessment of expert evidence, emphasizing that experts must be objective and neutral, and that courts can prefer one expert opinion over another based on the cogency of the underlying reasoning. The case demonstrates judicial recognition of the special authority and expertise of statutory safety regulators like the Railway Safety Regulator.