A Metrorail passenger who lost an eye when he was struck by a stone thrown through a damaged train window was “negligent” to sit so close to the window.
This is one defence the Passenger Rail Agency of South Africa (Prasa) has raised in film technician Serge Loutala’s R1.12m lawsuit against it.
Prasa denied Loutala, 39, was hit by a stone thrown at the carriage. But they asked that if the court found this had happened, Loutala also be found to be partly at fault because of his “negligence”.
In papers submitted to the Western Cape High Court it argued he hadn’t taken adequate steps to ensure he does not remain “in close proximity to the open window”, failed to exercise “reasonable skill and care” and hadn’t taken proper precautions to ensure he did not get injured while sitting near the window.
Monday’s opening of the hearing came a week after Metrorail announced plans for an overhaul, with new rolling stock and dedicated staff.
Loutala was injured during a train trip on October 29, 2006. That Sunday afternoon he was between Salt River and Nyanga, his destination. Soon after leaving Netreg station, a stone came through a window– which did not have a glass pane – hitting Loutala in the eye.
On Monday, Loutala took the stand, testifying that the train had been full, with many passengers having to stand. He had managed to get a seat after Langa station because a number of passengers had exited.
He said he had only realised at the next station, Bonteheuwel, that he was sitting in front of a window with the glass pane missing. He paid no attention to it because it wasn’t “unusual” for trains to have missing windows.
“We don’t even check those things any more because it’s like normal, but it’s not,” Loutala said.
When the stone hit him, he held his hands to his bloody eye, started to shake and fell to the floor. He maintained that he’d seen the stone and that it was a “railway stone”.
Questioned by Prasa’s advocate Donald Jacobs SC, Loutala conceded he was not certain where the stone had come from.
“Nothing stopped you from not taking a seat when you saw the window was out,” Jacobs said.
Loutala said he had wanted to sit and didn’t think twice about the window.
“Nothing went through my mind that something is going to happen to me,” he said.
Loutala wants damages of R1 120 000 for medical expenses, loss of earnings, and pain and suffering.
The case comes to court after an incident a few weeks ago in which Dutch national Jorrit de Vries, 26, lost the vision in his right eye when a stone hit him while he was on a train between Woodstock and Salt River stations.
Loutala’s lawyers argued that the “vast majority” of commuters were compelled to take trains because they could not afford other transport.
Prasa, they argue, had a legal duty to ensure their client’s safety by making sure their trains and carriages were in a “reasonable and proper state of repair”, damages and defects were repaired immediately, and windows were fitted with shatterproof glass – the international standard.
Loutala has said “several” of the windows in the carriage were either “broken or completely removed”.
Loutala’s attorney Howard Rubenstein said the matter would continue today when Prasa was likely to start calling witnesses. - Cape Times