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Train victim victorious over Metrorail Accident

/Train victim victorious over Metrorail Accident

Train victim victorious over Metrorail Accident

People’s Post – Mitchell’s Plain

15 February 2011

Train victim victorious over Metrorail Accident

Seven years ago Ismail van der Merwe left his New Lentegeur home to buy medication for a toothache, not knowing that his life would change radically and forever. Tall, lean and healthy, the 31-year-old had his whole life ahead of him. He was chatting animatedly to a friend and decided to take a short-cut over the railway tracks. This decision brought his life to a crashing halt. As Ismail crossed the tracks, a train appeared and hit him, sending his body flying through the air. He landed unconscious on the tracks. Miraculously, Ismail survived the accident, but he would never again enjoy the quality of life he once knew.

That was on 13 July 2004. What followed was a nightmare that began with Ismail (now 38) spending months in hospital to emerged confined to a wheelchair who last the power of speech. He also suffers from epilepsy, high blood pressure and diabetes and is fully dependant on hid pensioner mother. Now, after a five-and-a-half year legal battle, Ismail has won a R2.5 million settlement against Metrorail and the South Africa Rail Agency which accepted responsibility and who agreed to pay Ismail’s damages.

The settlement was a order of Western Cape High Court. The man behind Ismail’s court victory is his attorney Tzvi Brivik, of Malcolm Lyons & Brivik Inc in Cape Town. Since the inception in 1965, this law firm, which specializes in personal injury and labour law, has a secured a success rate of over 98{dcbd125d7e4001924a4d570ec927b32311b1a9a7ffee167db7c5dd7f2fba3134} for their clients. “I am pleased with the outcome as Ismail has suffered a devastating loss,” said Brivik of the case, which called on experts such as a neurosurgeon, neuropsychiatrist, mobility expert, occupational therapist, architect, quantity surveyor and advocate.

When people’s post visited the van der Merwe’s modest home, it was neat but could not provide a quality of life and was not suitable for a wheelchair bound individual. Ismail’s mother, Juleigah van der Merwe (70), showed the strains of taking care of her adult son since the accident. She said she was grateful for the outcome as the past few years have been a battle for survival. “ The accident left Ismail a wheelchair bound and this affected the whole family, emotionally and financially, as he can no longer do anything for himself.

He needs constant care 24 hours a day.” Juleigah adds that the settlement money is desperately needed for Ismail’s care. “I only receive a state pension and I am battling as Ismail requires many things, but as a family we can’t afford his needs.” Brivik explained hoe the settlement works. This money will be protected either in a trust fund or by Master of the High Court will pay Ismail a monthly fixed amount, while the capital is preserve for big expenses. A curatrix ad litem- an advocate or professional experience for the benefit of the patients who are unable to understand legal proceedings-was appointed by the court for Ismail.

Advocate Suzanne van Zyl, the curatrix ad litem will make recommendations to the court after meeting with Juleigah and Ismail to assess their capacity to manage the substantial funds received and to discuss the family’s medical and care needs. Van Zyl will send her recommendations to the Master of the Court, who will comment on it. This could take up to three months. The Masters comments and the report of Van Zyl are than placed before a judge for final consideration and determination. “There are various difficult aspects in this case,” said Brivik, “foremost that Ismail had no recollection of the event and suffered from severe retrograde amnesia (loss of some of his memory of events prior to the accident).”

“The accident had to be reconstructed. It was alleged that Metrorail was negligent on one of two grounds, namely: failing to properly secure railway tracks by erecting fences along the tracks in an urban area, and that the train driver had seen Ismail and could reasonably.

2018-11-04T11:10:46+02:00May 21st, 2015|

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