The Palsgraf legacy
The facts in Palsgraf v Long Island Railroad Co, a decision by the New York Court of Appeals in 1928 are described as follows in the majority judgment:
“[Palsgraf] was standing on a platform of defendant’s railroad after buying a ticket … A train stopped at the station, … Two men ran forward to catch it. One of the men [boarded the train] without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the [train], but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, [approximately nine metres] away. The scales struck [Palsgraf], causing injuries for which she sues.”
The package carrier boarded the train safely, and was not party to the Court proceedings.
In the Court of first instance, the jury found for Palsgraf. Long Island Railroad appealed, and lost; and then appealed to the Court of Appeals. This Court, four Judges against three, upheld the appeal.
It was common cause that Palsgraf was innocent of any wrong-doing and had been injured, and that Long Island Railroad was vicariously liable for the conduct of its employees (the guards). The question was whether, or not, the conduct of the guards constituted a cause of action for Palsgraf.
The majority judgment avoided deciding whether (or not) the guards acted negligently, eg by assisting the package carrier to board the moving train, rather than stopping him from doing so, or by not being careful enough in helping him: ‘The conduct of the defendant’s guard[s], if a wrong in its relation to the holder of the package, was not a wrong in its relation to [Palsgraf], standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do”.‘
In essence, the majority held that the guards could not reasonably have perceived that their conduct could cause harm to Palsgraf: “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” One could regard this as a pragmatic approach.
The minority assumed (on no proven basis!) that the guards had negligently knocked the package from the package carrier’s hands: “Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. … Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone.” One could regard this as an idealistic approach.
The minority summed up the difficulty of deciding each case as follows: “We draw an uncertain and wavering line, but draw it we must as best we can. Once again, it is all a question of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”
Part of the problem in Palsgraf is that the respective parties’ cases were not that well presented in the Court of first instance. The facts were not as clear-cut as summarised in the first paragraph above, and there was insufficient evidence about and analysis of the exact conduct (and reasoning) of the guards.
Had Palsgraf to be decided today in South Africa, Palsgraf may well win. Unless it could be proven that the guards were not negligent, and had made the best of a difficult situation, for instance by saving the train ‘jumper’ from grave danger (not caused by the guards). But even then, there is no guarantee of a successful defence.