Transnet Limited t/a Metrorail v David Witter

On 7 February 2002, at approximately 06:40, the respondent (plaintiff) attempted to board a commuter train at the Witteboom railway station in the Western Cape. The train had started moving slowly when the plaintiff emerged onto the platform. Although other doors were closed, the doors of the carriage where the plaintiff attempted to board were open. The plaintiff took three quick steps, grasped the pillar in the middle of the open doors, lost his footing and fell between the platform and the train. The wheels severed his right foot above the ankle. Transnet Limited (trading as Metrorail) operated the train and the South African Rail Commuter Corporation Limited owned and controlled it. The plaintiff sued both defendants for damages in delict. The High Court (Veldhuizen J) found the defendants vicariously liable for the guard's negligence in failing to ensure doors were closed before departure, and alternatively liable for failing to implement proper procedures. The court found contributory negligence and reduced damages by 50%, and declared the plaintiff's two expert witnesses necessary witnesses, allowing their qualifying fees on taxation.

• Whether the defendants were negligent in allowing the train to depart with open doors
• Whether the defendants took all reasonable steps to prevent the occurrence of injuries as required by the test in Kruger v Coetzee
• Whether the apportionment of damages at 50% for contributory negligence was just and equitable under the Apportionment of Damages Act 34 of 1956
• Whether an appeal court can interfere with a trial court's apportionment of damages and the test to be applied
• Whether the plaintiff's expert witnesses should be declared necessary witnesses
• Whether preparation (qualifying) fees of expert witnesses should be allowed on taxation and the legal basis for such allowances

1. The order of the court a quo declaring Messrs Myatt and Taute necessary witnesses was deleted and amended to read: 'The preparation fees of Messrs Myatt and Taute shall be allowed on taxation'. 2. Save as set out in 1, the appeal was dismissed. 3. The appellants were ordered, jointly and severally, to pay the respondent's costs of appeal, including the costs of two counsel.

1. Railway operators owe a duty to ensure trains do not depart with doors open, as this creates a foreseeable risk of injury to passengers attempting to board. Reasonable preventative steps include having guards inspect doors before departure, even if this causes minor delays. 2. An appellate court will not interfere with a trial court's apportionment of damages under the Apportionment of Damages Act 34 of 1956 unless the trial court failed to exercise its discretion judicially, was influenced by wrong principles or misdirections, or reached a decision no reasonable court could have made. This is a narrow discretion akin to sentencing. 3. Under Uniform Rule 70 and the Supreme Court Act 59 of 1959, preparation fees of expert witnesses may be allowed on taxation if authorized by court order or consent, provided they were reasonably incurred at the time. A declaration that a witness was 'necessary' is not legally required. The test is whether the fees were reasonably incurred to address issues before the court, assessed at the time of incurring the expense, not with hindsight. 4. Expert witnesses may charge for preparation but cannot be paid special fees for testifying beyond the statutory allowances prescribed under s 42 of the Supreme Court Act, as agreements to remunerate witnesses for testimony are against public policy.

The Court made several non-binding observations: (1) It noted that a 40-second delay per station (totaling 15 minutes over 18 stations) for door inspection would not cause congestion or reduce the number of trains, as the interval between trains would remain the same if all guards followed the procedure. (2) The Court observed that the fact defendants were replacing old 5M coaches with new 10M coaches did not assist their case; if anything, greater precautions should have been taken with older equipment. (3) The Court indicated that taxing masters should not usurp the function of determining whether witness fees were reasonably incurred, though courts may provide guidance. (4) The Court noted that the practice in the Cape High Court of requiring declarations that witnesses are 'necessary' is incorrect and should not be followed. (5) The Court acknowledged confusion exists regarding the distinction between declaring a witness 'necessary' and authorizing preparation fees for experts. (6) The Court observed that even if an expert does not ultimately testify, preparation fees and allowances may still be taxable if they were reasonably incurred when the decision to retain the expert was made.

This case is significant in South African law for several reasons: (1) It clarifies the duties of railway operators to ensure passenger safety, specifically that trains must not depart with doors open and that reasonable inspection procedures must be implemented; (2) It reaffirms the restrictive approach courts of appeal must take when reviewing apportionment of damages under the Apportionment of Damages Act 34 of 1956, treating it as a narrow discretion similar to sentencing appeals; (3) It provides important guidance on the taxation of expert witness costs, clarifying that: (a) a declaration that a witness is 'necessary' is not legally required for preparation fees or statutory allowances to be taxable; (b) preparation fees of experts require court authorization or consent under Uniform Rule 70; (c) the test is whether fees were reasonably incurred at the time, not with hindsight; and (d) taxing masters should not require declarations of necessity. The judgment also distinguishes between preparation fees (which experts may charge) and fees for testifying (which are limited to statutory allowances and cannot be privately contracted).