There was a time when seasoned Metrorail passenger Serge Loutala never worried when he saw a damaged window on a train – it was a common occurrence.
Then on October 29, 2006, Loutala lost the sight in his right eye when a stone came hurtling through a train window with its glass pane completely missing.
Now, in what has been hailed as a victory for all commuters, the Western Cape High Court has found that the Passenger Rail Agency of South Africa (Prasa) was negligent in failing to replace broken windows on its trains.
Acting Judge Nape Dolamo handed down his judgment on Wednesday, ordering that Prasa was liable for Loutala’s damages.
Loutala, 39, a former film technician, was struck by a stone just after the train left Netreg Station.
He had been travelling from Salt River to Nyanga on a Sunday afternoon.
His lawsuit made headlines when Prasa denied Loutala was hit by a stone thrown at the carriage, but asked the court that if it was found that this had taken place, Loutala be found partly to blame for his “negligence” in sitting in front of an open window.
Its legal team also argued in court that windows on trains were a matter of commuter comfort, not safety.
But in his judgment, Acting Judge Dolamo rejected this argument.
He found that Prasa had a legal duty to provide commuters with safe coaches in all circumstances.
“A coach without windows, where there should be, cannot be classified as safe,” he said.
He also found there were reasonable measures Prasa was expected to have in place to ensure the safety of its commuters, including Loutala.
“This was a matter of keeping its coaches in a good state of repair. The replacement of missing windows would have averted harm to (Loutala). It would have served as a barrier to prevent objects, including objects thrown deliberately by criminal elements from outside, hitting and injuring commuters,” Acting Judge Dolamo wrote. “The failure to take these basic preventative measures amounted to negligence in breach of (Prasa’s) statutory duty …
“The windows are not merely for the comfort of commuters but also serve an important protective purpose.”
Dolamo found missing window panes exposed passengers to the risk of harm – something a reasonable man would have foreseen and taken steps to prevent.
In this case, the preventative measures would have been to replace the missing windows. Had this been done, harm to Loutala would have been averted.
Loutala won the case purely on its merits, with legal costs.
It has still to be decided how much he should get in damages.
He is claiming R1.12 million.
His lawyers told the Cape Times the judgment was a victory for all commuters who were “forced to use public transport every day of their lives”.
“This is an important judgment. It creates an obligation on Metrorail to ensure the windows in each carriage are functioning and to ensure the safety of their commuters,” said Loutala’s attorney, Howard Rubenstein.
A smiling Loutala, who is originally from Congo-Brazzaville, said he was happy with the outcome of the case.
“It’s not just for me; it’s for all people who take trains,” he said.
After the incident, Loutala stopped taking trains for four years, fearing he would be in danger.
He reluctantly began using Metrorail’s service again because he used the train to take his daughter to school as taxis had become too expensive.
Acting Judge Dolamo did not comment on the agency’s attempt to put part of the blame on Loutala.
But he acknowledged advocate Wayne Coughlan’s point that Prasa’s argument that Loutala was negligent was “clearly farfetched and untenable”.
Loutala himself has lambasted the agency’s attempt to show he had been negligent by sitting in front of a damaged window. “That’s bulls**t,” he said. “I don’t know what’s going to happen to me today or tomorrow. That was just my unlucky day.”
* The court documents cite the defendant in the matter as the South African Rail Commuter Corporation; however, the corporation’s operations, as well as that of Metrorail, now fall under parastatal Prasa.