19 October 2011
Guard hit by unscheduled train claims R7m
High court to decide on damages as brain-damaged security man’s nine-year fight nears end A FORMER security guard, left brain-damaged after being hit by an unscheduled train while patrolling railway lines nine years ago, is suing Metrorail for R7.2 million in the Western Cape High Court.
Sibonjile Ncaza was employed by Kuffs Security Services, a company contracted to Metrorail. Kuffs has been cited as a third party. Ncaza and his colleague, Siyavuma Njaleka, were patrolling the railway lines between Cape Town and Woodstock at about 10.45 on February 3, 2002, when they were struck by a train.
There were no scheduled trains after 10pm and the suburban rail services did not operate until 4pm the following day. Metrorail sent an unscheduled train down the line from Cape Town to Salt River. As a result of the collision, Ncaza suffered severe brain injury, a lacerated spleen and orthopaedic injuries. Njakela was also badly injured. Ncaza was admitted to Christiaan Barnard Memorial Hospital, where he remained for more than a month. He is permanently mentally and physically disabled as a result of the accident. According to the court papers, most of Ncaza’s claim is for medical expenses, but a substantial portion is for loss of earnings and general damages, such as pain and suffering.
Ncaza is being represented by an appointed curator. In August 2006, the Western Cape High Court found that Metrorail was negligent for failing to issue specific warnings about approaching trains to the security guards’ employers on the night the incident took place. The judge also found that the driver was negligent. However, he found the security guards were also partly to blame for their injuries, because they did not watch for approaching trains while walking on the railway lines.
The judge ordered that Kuffs was obliged to indemnify the rail parastatal. But Metrorail, the driver and Kuffs appealed against the decision to a full Bench of the high court, and the men cross-appealed against the judge’s finding that they were partly to blame. In October 2008, the full Bench upheld the appeal and dismissed the cross-appeal.
The parties then took the matter to the Supreme Court of Appeal in Bloemfontein. In 2009, the Appeal Court ordered Metrorail to pay Ncaza damages and further ordered Kuffs to indemnify Metrorail. The case returned to the high court yesterday for the sum of damages to be decided.
In court papers, Ncaza alleges Metrorail and the SA Rail Commuters Corporation did not take any measures to ensure Kuffs provided employees with adequate safety training, nor to ensure that employees completed the in-house test. In addition, he said Kuffs did not provide him with adequate safety training, and that he did not receive any induction training.
Ncaza’s attorney, Tzvi Brivik, yesterday confirmed Njaleka’s case had been settled, and the court was tasked only with deciding Ncaza’s claim.