Negligence - cable patrol near railway line - duty of railway authorities to warn of despatch of unscheduled train at night - whether patrol contributorily negligent - relevance of belief founded in experience but misplaced. Railways - unscheduled train at night - duties of service operator and driver to workers near line.
In an appeal from the High Court, Cape Town (Van Zyl, Waglay and Ndita JJ sitting as court of appeal from a single judge (Blignault J).
The following order is made:
1. The appeal succeeds as against the first respondent.
2. The appeal is dismissed as against the second respondent.
3. The costs of the appeal including any costs incurred by the second respondent
are to be borne by the first respondent.
4. The order of the court a quo is set aside and replaced by the following order:
‘(a) The appeal of the first appellant, Metrorail, is dismissed with costs.
(b) The appeal of the second appellant, Human, is upheld with costs.
(c) The appeal of the third appellant, Kuffs, is dismissed with costs.
(d) The costs of the second appellant are to be paid by the first appellant.
(e) The order of the trial court is set aside and replaced by the following order:
"(i) The first defendant is liable to pay damages to the plaintiffs.
(ii) The first defendant is liable to pay the plaintiffs' costs to date.
(iii) The third party is obliged to indemnify the first defendant against the plaintiffs' claims.
(iv) Costs as between the first defendant and third party are to stand over for
(v) The action against the second defendant is dismissed with costs. Such costs are to be paid by the first defendant".'
Harrington NO v Transnet0.18 MB