News24

Man who lost eye on train 'negligent'

2012-05-08 07:48

Cape Town - A Metrorail commuter who lost an eye when a stone flew into the carriage through a broken window was "negligent", according to a report on Tuesday.

The Passenger Rail Agency of SA (Prasa) argued in the Cape High Court on Monday that film technician Serge Loutala, 39, did not take adequate care to avoid being hurt, the Cape Times reported. It also denies that the stone was thrown in.

Loutala is suing Prasa for R1.12 million in damages.

According to Prasa's court papers Loutala had not taken adequate steps to ensure he did not remain "in close proximity to the open window", failed to exercise "reasonable skill and care" and did not take precautions to make sure he was not injured while sitting at a window without a glass pane.

Loutala was injured while on a train trip between Salt River and Nyanga, Cape Town, on October 29, 2006.

According to the report, he managed to get a seat at the broken window when a few passengers left. A stone struck him in the right eye.

Prasa was expected to call witnesses on Tuesday.

Comments
  • Peter - 2012-05-08 07:52

    Had he know he was going to lose an eye im pretty sure he would have not sat next to the window. Also Prasa wtf... seriously stones do not just levitate by themselves how did it land in his eye?

      Lyndatjie - 2012-05-08 08:05

      I don't blame the lawyer for trying - but I will BLAME the Judge if he is stupid enough to allow the argument! The fact of the matter is that they ALLOWED a train compartment to pick up passengers when it had NO window - THAT makes them both greedy and negligent!

      Frank - 2012-05-08 08:09

      They cannot be serious!! Maybe it's just me but lawyers these days are becoming bumbling fools with scant regard for the art of digging deep for cutting edge arguments to win cases. This stupidity just illustrates it beautifully! Dumb as mud!

      Jannie - 2012-05-08 08:13

      agree WTF??????

      Walter - 2012-05-08 08:27

      I sincerely hope that he wins his suite and is awarded double the amount he's claiming.

      Gareth - 2012-05-08 08:45

      Basically it is the same as sitting at a red robot, waiting for it to change, when a car hurtles in behind you and smashes into the rear of your car. The driver then gets out of his car and says "Why did you stop at a red light and let me hit you doing 80km/h???" How do you know a lawyer is lying? ... His lips are moving.

      benlloyd.roth - 2012-05-08 08:51

      Lyndatjie, you have obviously not seen the state of our trains. piss poor, falling apart with little or no security or control over what happens on and around the trains and tracks. everyday you ride on one of our local trains in and out of the various metros its a risk you have to take. PRASA need to sort the whole system out, and government need to step up to assist!

      Gordon - 2012-05-08 09:35

      Reply to Lyndatjie Would that negligence make them criminally liable? Should they be heading to jail for their negligence?

      Lyndatjie - 2012-05-08 10:36

      @Gordon: Been thinking the same thing - but the guy is suing them for the loss of his eye. Nowhere can I see that a criminal case was opened. So it boils down to accountability with regards to a monetary payout - but not criminal liability which would result in the CEO's accountability according to Health And Safety Law.

      Omrisho - 2012-05-08 10:48

      ffs... talk about passing the buck, or more to the point, denying any accountability whatsoever... and why was the broken window not repaired timeously, are you not supposed to be putting your customers/passengers safety high on the list of priorities... typical, useless and a poor reflection of morals and ethos by Prasa... blame the injured for your lack of foresight and maintenance... bunch of cheap-ass cowards, should be boycotted, unfortunately with the lack of public transport that could only be but a wish, this whole situation is pathetic really

      Shirley - 2012-05-08 11:44

      It is metrorails responsibility to ensure you are riding in a safe vehicle! After all that is why train fares are paid!!! African logic!

      Buzz - 2012-05-08 11:58

      Clearly with that compelling arguement, the PRASA attorney got his LLB from the university of Limpoopoo...

      Coral - 2012-05-08 14:27

      @ Benlloyd - wait till someone doesnt have a ticket - then the station guards are everywhere - but when something serious happens they are no-where to be seen....but i agree with you - the condition of the trains is disgusting

      don.odendaal - 2012-06-01 11:25

      Why do sharks not bite lawyers (professional courtesy)

  • kritzinger - 2012-05-08 07:53

    That's a bit of a stretch, PRASA. Maybe you should have fixed the window, geniuses.

      NrGx - 2012-05-08 15:15

      Agreed! - I want to throw a brick at them, hopefully smack them between the eyes, and say they were "negligent" in a avoiding the brick!

      Alan - 2012-05-08 16:01

      I heard that they hired a trained eye to investigate.

  • Bloodstone - 2012-05-08 07:58

    There is not enough adjectives to describe Prasa's idiotic argument.

      Sharon - 2012-05-08 08:32

      I would have thought there would be an independent investigation. PRASA is not impartial, of course they would side with Metrorail. What happened was very bad, compounded with the fact that the hospital refused to treat him, and, if they had, they might have saved his eye. I sincerely hope he is suing the hospital as well!

  • Dylan Swanepoel - 2012-05-08 07:58

    Late April fools?

  • Herbert - 2012-05-08 07:59

    What stupid logic? Hopefully it wasn't an advocate, who passed the Bar exam, that came up with such a laughable, and quite honestly less than palatable reasoning.

      Alan - 2012-05-08 08:03

      yeah - sounds like he wrote his exm at the Bar!

      Coral - 2012-05-08 14:29

      HAHAHAHAHAHA Alan couldnt agree more

  • delish7564 - 2012-05-08 08:00

    Unbelievable! How about it is Metrorail's responsibility to ensure their carriages are safe? If the windows are broken, as reported, they should be boarded up to ensure this kind of thing doesn't happen :(

  • pjcbs - 2012-05-08 08:02

    This sounds like a Yankee court drama. Will the tactics of our legal representations become like that of cheap and nasty shows from the states? Oops too late I guess. It seems that there are more pricks in Prasa that we thought.

  • Thoka - 2012-05-08 08:06

    Did stone just flew from the ground into his eye !!!!Myway advert!!!! Why did Metrorail not repair broken window to avoid such accidents.

      shandukane.moshatana - 2012-05-08 09:03

      true

  • Tumisang - 2012-05-08 08:08

    The courts must increase the R1.2 million demand to R5 million as a punishment for having to listen to such a weak and idiotic argument from PRASA...this is such a waste of tax payer's money is not even funny,how does the CEO make a decision to pursue this case in a court of law if they can clearly see that this is indefensible,out of court settlement would have saved money for the poor man who had to hire lawyers and pay hospital costs from his own pocket.and PRASA would have saved on legal costs.

  • stereev - 2012-05-08 08:08

    I think you're all wrong. The windows on those trains open and close, so the risk for something flying in exists weather the window was broken or not. No, stones do not levitate, but I think its very unlikely a Prasa official waited halfway between salt river and langa to throw a stone at one of their passengers.

      rayno.grever - 2012-05-08 08:21

      In some cases the windows can't even open/handles are missing, putting passengers at risk of contracting TB. Lord knows some of our compatriots don't like opening the windows even if its 30 degrees outside. Metrorail should invest in ShatterGUARD windows as stone-throwing is an all too common occurrence. This gentleman should sue for much more

      darryl.maze1 - 2012-05-08 08:38

      Um stereev u idiot, read the article properly!!! The window was broken!!!

      Eric - 2012-05-08 08:56

      @Darry. He knew the window was broken! Read the comment! You're the idiot!

      stereev - 2012-05-09 14:05

      Darryl, I await your apology.

  • RayneMoses - 2012-05-08 08:08

    That is ridiculous! Its metrorails responsibility to ensure the safety of its passengers. Not repairing the window is metrorails fault. And metrorails responsibilty! The firm is so weak they cant even accept responsibility for their actions, or rather, inaction\r\n.

      Zola - 2012-05-08 08:22

      Pathetic man! Y is it that they take the risk of getting their passengers on such trains! The only responsibility of a passenger on a train is to make sure that they have a valid ticket for the journey! Nevertheless in the khayelitsha line most trains don't have windows so r they actually supposed to ignore that carriage? M/rail is turning a blind eye not to mention the lawyers that are attempting to battle this! Being the sole rail operator certainly got their head mixed up!

  • stefan.vanderspuy - 2012-05-08 08:09

    Loutala should have sued for a hell of a lot more, because there is NO chance that Prasa can get off this one, but the courts unfortunately always seem to pay out some percentage of what was claimed. Like sue for R5m, get maybe R1.5m.

  • Siphiwo - 2012-05-08 08:10

    All Prasa personnel, need to have their brains, scanned. They are a bunch of idiots who cannot think straight. Prasa, must pay up and close this chapter before any further embarasment.

      Fred - 2012-05-08 10:09

      To scan their brains you would need to ascertain that there ARE actually any brains in there to scan !!!!!

  • Mark - 2012-05-08 08:12

    Btw look at the coaches From JHB TO Eastrand Most of them have no windows so i suppose you must carry a helmit on the train .Metrorail is not doing maintance on there coaches or replacing any widows but you have to use public Transport as the government wants!

  • Gregory - 2012-05-08 08:12

    It's like saying if you concerned for your safety don't get on a train.

  • Simon - 2012-05-08 08:23

    We are subjected to this abuse everyday.Most of the trains going to ekasi have broken windows,doors do not lock up.Between some stations along Randfontein this does happen,stones are thrown onto the train,travelling with windows open it`s a risk because if you are putting on head wear thugs just snatch it from the out side while the train is in motion.Trains are not maitained

  • Jeffrey - 2012-05-08 08:28

    in essence, good safety must be ensured by the company, stop the non sense.whaat prasa said failed the reasonable man's test.

  • Henry - 2012-05-08 08:29

    Unfortunately, Loutala stands to loose in Prasa propeties (trains, stations etc) there's a disclaimer saying that commuters entering and embarking in Metrorail trains do so at their own risk, Prasa, Metrorail or their agencies cannot be held responsible for any loss or injuries sutained, That,s why they have some warnings printed inside the train doors, because they mean to exempt themselves for any lawsuit which might be made against them, as a company.

      Sharon - 2012-05-08 08:43

      @ Henry - an attorney once told me that the disclaimer only stands if it can be proved that the service provider took all necessary steps to prevent injury. Obviously they did not in this instance. The disclaimer is void.

      DuToitCoetzee - 2012-05-08 09:02

      True. It is written at the back of your buss ticket as well, but (and I do not want to quote you certain cases where this indemnity was overturned) being the service provider Metrorail should have provide the correct and safe transport to legalize the indemnity. The law does have a common acceptance than can over rule all indemnities. Being a film technician and not an engineer or safety officer the acceptance can be argue that the client is not equip to rule if the train was safe or not. Also being a general acceptance that the windows of trains are sometimes missing, but still being used, Metrorail indirectly declared this way of transport safe to to uninformed commuter. When such an incident occur the service provider will be guilty because of that insurance given. Specially in the light of that the train were designed with windows, but Metro, by using it without, indirectly declared it safe and fit to be used that way. If the argument still stand. from, Metrorail, they can leave them open for an application to stop all their service due to the fact that they, intentionally, not using the trains the way it was designed and declared safe on, because they indirectly declared those condition safe, but an incident occur. If Metrorail argued that they did not know it was broken they have to produce a checklist from before departure and than could argue that they were not aware and the commuter should have safeguarded himself of taking that seat. They did not.

      DuToitCoetzee - 2012-05-08 09:03

      Pay! Stop play!

      Zing - 2012-05-08 11:32

      Well said, duToit Too many people believe a disclaimer is a magic shield against liability.

  • Johan - 2012-05-08 08:32

    "ENTER AT OWN RISK, METRO RAIL DOES NOT TAKE RESPONSIBILITY FOR LOSS OR DAMAGES UPON ENTERING THIS TRAIN" This is the extreme of denial. Maybe that Dutchman who lost his eye in Cape Town this year on one of their trains gets the same treatment.

  • Candice Morris - 2012-05-08 08:39

    Disclaimer or not, the train co should take responsibility. They should be providing a basic service whoch they do not, and thousand suffer daily. They get away with too much!

  • Martin - 2012-05-08 08:41

    the stone would have had to be thrown in, if you look at the structure of a train it cannot kick up a frikkin stone and curve it around the overhanging compartment and into the window, a passing train may have kicked a stone up if vandals left random stones lying on the track itself.... negligent? metro rail, why did you not replace the glass on the working train car? dont you do any maintenance?

  • Rod - 2012-05-08 08:42

    Sirry about the accident, but was metrorail negligent in any way so as to cause the accident

  • darryl.maze1 - 2012-05-08 08:47

    Really PRASA???? You really think that made up crap is gonna get you out of trouble??? That is the most pathetic load of SH*T I have ever heard. Those train carriages should be checked every eveing or so, but you all skimp on the money to feed your fat stomachs. Those trains are in a bloody poor state. Seriously I hope he sues the crap outta PRASA now for that pathetic crap they made up.

  • Rob - 2012-05-08 08:48

    By extension....He was guilty of negligence when he boarded the train because it is well known that violence occurs on them. I see a whole lot of public liability issues atrising from this if the judge allows it.

  • Genesistt - 2012-05-08 08:50

    Seriously?!?!? They're saying it's his fault he lost an eye, because they can't maintain their own freaking trains?! I'm sorry, but this is mindblowingly ridiculous and just downright wrong that they're trying to say it's his fault. That poor man was just looking to use this country's public transport system to get him from point A to point B. He definitely did not go looking to have his eye put out by a flying rock that should have been stopped by a window that wasn't there.

  • Bless Boswell - 2012-05-08 09:04

    If there had been a pane in the window frame this would not have happened. They must pay and compensate him for the loss of his eye - case closed.

  • Sylvester.Mohloli - 2012-05-08 09:04

    whoever threw that stone must join SAPS, at leas he's got precision, as for PRASA......mxm

  • shandukane.moshatana - 2012-05-08 09:06

    If the the driver sleeps and the train hits the wall or fail to stop will they ask passengers y didn't they woke the driver up????????that's stupid

  • alfred.willie - 2012-05-08 09:14

    This is a wake up call to all of us who are using these window broken trains, how they deny the truth? At least they must let the court take a tour particularly in between khayelitsha and mitchell'splain including bellville.\r\nLast week, between nyanga and philippi, stones were entered inside the train and every body felt down while the train was in motion. We blamed metro because we are paying these services, in return we expect a safe journey.\r\nIn this case metro must take a full responsibility. They don't care as long they get the money. The securities there are only the to ensure that everybody has a valid ticket not to protect us.\r\nHow can in a full train be able to escape the stone from the moving train where both side windows are broken? Did these people used khayelitsha/mitchell'splain ever in their lives? I don't think so.\r\nBrother get to the media particularly the local news-papers live voice,sun and vukani you will find thousands of witnesses. \r\nThank you.

  • netshikulwe - 2012-05-08 09:16

    Prasa's argument is very stupid and senseless! This guys takes us a passenger for granted. And i think we are patient enough to allow them to take us for a ride. One day is one day.

  • glenda.greeff - 2012-05-08 09:17

    The window should have been fixed. How can he be responsible?

  • wilfred.paulse - 2012-05-08 09:21

    WTF!!!!!!!!!!!!! Please forgive me for not having studied law but any reasonably minded thinker would puke at the verbage brought up by PRASA.

  • siyadyosiba - 2012-05-08 09:23

    So whose negligence it is that the window had no glass pane? Prasa is mad. Sue the bastards R5Mil for not showing remorse. As a passenger you do not expect stones to be thrown to the windows. If throwing of stones is a prevalent occurrence in trains, PRASA should have taken extra care for its passengers and ensure that all windows are having glass panes.

  • dewald.galjaard - 2012-05-08 09:30

    BROKEN WINDOW. Enough said. Pay up bastards

  • ludlowdj - 2012-05-08 09:36

    The things government cronies try to get out of complicity is beyond belief, no way would this argument be accepted by a competent judge, to accept this would mean that windows on trains would have to be kept closed at all time as an open window would make the passenger automatically responsible. Metro rail must pay up and start ensuring its service is safe and well maintained.

  • Lyzelle - 2012-05-08 09:57

    If the window had been intact - as it should have been - and he got a shard of glass in the eye, as a result of the stone - would he still be negligent?

  • James - 2012-05-08 10:04

    Did he not know he was required to wear safety glasses, helmet and full body armour!

  • Arthur - 2012-05-08 10:06

    Most useless argument I've ever heard in my life. Cough up the dough Prasa I'm sure you can afford it.

  • jurgen.eksteen - 2012-05-08 10:18

    Why is the glass pane not replaced AS IT SHOULD BE once it is damaged or missing? And now you want to come along with this Micky Mouse argument ... no no, there is no slithering out of this one. Pay up!!

  • JohnSA02 - 2012-05-08 10:20

    Metrorail is a disgrace. Their service is shocking, their equipment even more so. The organisation does not appear to be even trying to address the rot and incompetence that is rife within it's ranks. I do not expect first world, but what is presented to us, the paying customer, is beyond a disgrace.

  • frikkie.botes - 2012-05-08 10:20

    It would have been his own fault but for a broken window that should have bee repaired it is metro rails fault.

  • flaktant - 2012-05-08 10:56

    Prasa are you guys riding the trains ,came u see how it will feel to stone against u or somebody ur knows head .

  • flaktant - 2012-05-08 10:56

    Prasa are you guys riding the trains ,came u see how it will feel to stone against u or somebody ur knows head .

  • Cpo - 2012-05-08 11:43

    I feel sorry for the guy that lost his eye,I feel bad because once lost an eye is never replaceable.I have one issue for PRASA if you guys are cautious about passenger safety maybe you should board a train from JHB to PTA in the morning and ask yourselves if people are hanging out in windows,doors and right in front of the drivers cabin, why do drivers still continue with the journey???

  • Unathi - 2012-05-08 12:40

    Eish people just want to cash in on every opportunity they get. Surely we all know a "risky" situation before we enter it. Sitting next to a broken window on a train to Nyanga one has to expect such things to happen. It is unfortunate his "negligence" cost him his eye but just like riding a Harley at 250km/h; it is fun until ......

  • Coral - 2012-05-08 14:24

    What the hell - since when are we meant to check where we sit on the damn train - what a load of bollocks!!!!!!!!!!

  • mmokale1 - 2012-05-08 15:25

    Metrorail (Prasa) all crap i travel from Johannesburg to Naledi (Soweto) on a daily basis almost all their trains have broken windows and are way to full to swing anyway , how do they expect us to protect our selves maybe they should provide helmets and protective suits when we buy that R128 monthly ticket.

      Nikki Bodenstein - 2012-05-09 18:43

      It's shameful! I feel sorry for every person who has to pay to ride on those death traps!

  • tabassum.walely - 2012-05-08 15:41

    and why isnt there windows on the train?

  • John - 2012-05-08 17:59

    So if a man get thrown out of moving car do you charge him for Jaywalking. Pay the guy his due's.

  • Kholofelo Irene Maboho - 2012-05-08 18:08

    PRASA, I'm disappointed. Negligent?? Really, a human being has lost an eye and they call him negligent. Whatever happened to putting the safety of human beings first? Fix the damn broken windows and pay the man his dues!