Injured Guards triumphant at last
The Supreme Court of Appeal has paved the way for millions of rand’s in damages to be awarded to two security guards contracted by Metrorail. Sijongile Ncaza, 33, of Khayelitsha and Siyavuma Ngaleka, 34, of Delft, were severely injured when they were struck by an unscheduled train while patrolling the tracks.
On Thursday, the court overturned an earlier judgment made by a full bench of the Cape High Court last year which found that the men were responsible for what had happened because they should have kept a lookout for danger. It was the beginning of the end of a mammoth seven-year battle for Ncaza and Ngaleka whose lives were shattered by their debilitating injuries.
The accident happened in 2004 while the men, employed by Kuff Security, were patrolling a section of railway line between Woodstock and Cape Town to make that the cables alongside the track were secure. They had been assured that there would be no trains running after 10pm but Metrorail sent an unscheduled train down the line for repairs with no warning, it was driven by Johannes Human, a Metrorail driver who has had 18 incidents in his 25 year career, some of which were fatal. Metrorail testified that it would have been a simple matter to ensure the guards were alerted to the train but this wasn’t done.
Human did sound the siren and when the men did not react ha applied the brakes, but by the time Ncaza and Ngaleka realized there was a train behind them and jumped sideways, it was to late.
The attorney Tzvi Brivik said that the train was driven by a very quiet electrical engine and this, coupled with the fact that there was a strong south eastern blowing, had made it hard for the men to hear the danger. Ngaleka suffered severe orthopedic injuries while Ncasa suffered a severe Brain injury which has resulted in neuropsychological difficulties leading the poor memory and concentration, and vertigo.
He also had a ruptured spleen. in 2006, when the case first went to court, Judge Andre Blignaut ruled that Ncaza and Ngaleka were partly to blame for the collision and, as a result, the amount of damages they recovered would be reduced by the third. Brivik said that Metrorail appealed against having to be liable for 70 percent of the damages and they cross-appealed the 30 percent reduction.
It went to the High Court last year and three judges upheld the appeal, saying the men should have been more cautious. Brivik said that they then had to apply for special leave to appeal against the full bench decision by the Western Cape High Court. They argued the matter before the Supreme Court of Appeal on November 9 and on Thursday the judgment found Metrorail liable. Brivik said the next step would be working out how much would be awarded to the men. The figure would have to include general damages, loss of earnings, as well as past and future medical expenses. Ncaza, who hasn’t been able to work since the accident, has trouble following even simple instructions.
Although in constant pain, he is delighted with the judgment. His wife Nonceba Ncaza, now the breadwinner of the family, said their life had changed dramatically. “Every morning when he gets up I must stand in front of him because he gets dizzy. He also losses his memory when he talks to people.” The difficulty now is to get a trail date to determine the damages.
Brivik said it could take as long as 18 months but he is considering requesting
an interim payment.