Die Burger
Man disabled by train accident to be damages
Metrorail and South Africa’s rail agency are to pay a Lentegeur man 30 percent of a damages claim he instituted against them after he was left wheelchair-bound when he was knocked over by a train while trying to cross a railway line in his neighborhood six years ago. The decision follows the out-of-court settlement of the claim he had instituted against Metrorail and the SARCC(now known as the passenger Rail Agency of South Africa) in the Cape High Court.
Ismail van der Merwe, 37, was left a quadriplegic as a result of July 2004 incident. His initial claim totaled R2.3 million. But , according to his attorney, Tzvi Brivik, the amount is to be amended. Brivik said the defendants settled the case without admitting any liability and that the case would return to court on November 8 for the amount of the damages to be determined. Van Der Merwe would receive 30 percent of that amount, he said.
Brivik added that his client was happy at the outcome. In Van Der Merwe’s papers, he alleged that Metrorail and the SARCC were negligent because they had failed to ensure that the railway line was fenced off, despite the fact that it was In an urban area. But they responded that Van der Merwe was partly to blame because he had failed to ensure that he was not in a close proximately to the railway line. In addition, they claimed that Van der Merwe had ventured on to the railway tracks at an unauthorized crossing.
In his paper’s,Van der Merwe claimed that the rail authorities failed to provide pedestrians with a safe means of crossing the railway line, or a mechanism to warn pedestrians of oncoming trains. In addition, he alleged that the train driver failed to keep a proper lookout or to apply the brakes in time. As a result of the incident, Can der Merwe sustained a severe brain injury, fractures to his skull, scalp laceration, soft tissue injuries and a swollen face.
He was immediately taken to Groote Schuur Hospital, where he remained for a month, before being transferred to Conradie Hospital for eight months. He is now permanently disabled and suffers from epilepsy, it said in court papers. In additions, his cognitive function has been diminished. Van der Merwe, who had previously worked as a general labourer, had been rendered unemployable.
His claim comprises loss of income as a result of his inability to work, as well as medical expenses and general damages such as shock and discomfort. The court papers also indicated that Van der Merwe would need modification to his home and an assistant to accommodate his disability.