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Setting a precedent for commuters affected by broken windows on trains may be a reason to celebrate.
But for Serge Loutala, it doesn’t change the fact that he will never again see out of the eye injured when he was struck by a stone thrown through a damaged train window nearly six years ago.
In the Western Cape High Court on Wednesday, Acting Judge Nape Dolamo found that the Passenger Rail Agency of SA (Prasa) was negligent for failing to replace broken windows on its trains.
The finding could prove costly for the parastatal, not only because it effectively means that all broken windows should be fixed, but also because it could lead to additional claims from other affected commuters.
Speaking after the court ruled that Prasa was liable for the injuries he sustained, Loutala said he still fears travelling by train.
“Nothing’s changed. It’s even worse,” he said of the broken windows.
Initially, after he was injured, he switched to travelling by taxi, but it cost him R60 a day. When he could no longer afford it – having lost his job as a technician in the film industry because of his injury - Loutala switched back to using trains.
Loutala said he was passionate about his job, but realised that it was too much of a risk for his employer because he could break expensive equipment because of his blind eye.
He tried doing other work but the salary was too low. He said his wife and parents had been supporting him since 2008.
Of his injury, Loutala said experts had told him that no one in SA could help.
He wears an eye patch but says people still stare at him. Some mornings he feels happy and “normal”, and even forgets his circumstances.
But then he goes outside and sees people’s reactions and his mood changes.
For about a year after the incident, his daughter (then aged three) was scared of him, he said.
In the court action, Loutala said the incident occurred as a result of Prasa’s negligence. It had an obligation to ensure that all carriages were in a proper state of repair, fitted with shatterproof windows of adequate strength.
In addition, he said any damage or defects should be repaired immediately or as soon as reasonably possible.
Prasa denied negligence, but said that should the court find against it, the court should also find that Loutala was partly to blame because he sat near to a broken window.
But Judge Dolamo disagreed.
“(Prasa) can ensure the safety of commuters by simply ensuring that all its trains are fitted with the appropriate windows.
“Anything short of that is negligence, and moral convictions dictate that (Prasa) should be held liable even for the actions of criminal elements who fortuitously took advantage of the lack of protective windows to harm commuters,” he said.
Judge Dolamo added that he was satisfied that Loutala had succeeded in proving there were reasonable measures which Prasa was expected to put in place to protect him and other commuters.
“The train windows are not merely for the comfort of the commuters, but also serve an important protective purpose. Their absence exposes commuters to risk of harm,” the judge added.
The amount of damages still have to be determined.
Mthuthuzeli Swartz, Metrorail Western Cape’s regional manager, confirmed that Prasa’s legal team was studying the judgment before a decision was made on whether to appeal.
Loutala’s attorney, Howard Rubenstein, told Weekend Argus that the precedent would be stronger if Prasa took the case to the Supreme Court of Appeal, and did not succeed. - Sunday Argus