Legal experts are urging those affected by the recent train derailment at Dal Josafat Station, which injured 25 passengers, to explore their rights, Cape {town} Etc reports.
Also read: Train derails at Dal Josafat station, multiple trapped and injured
Kirstie Haslam, a partner at DSC Attorneys, points out that if someone was injured due to negligence, they may have a legitimate claim against the Passenger Rail Agency of South Africa (PRASA), as the agency has a legal responsibility to keep passengers safe.
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With a history of actionable failures, potential claimants need to seek legal advice quickly to help them through the complicated process of making a compensation claim.
‘DSC has handled numerous Metrorail and Prasa claims which are long and complex, therefore it is important to know how to claim compensation,’ says Haslam.
Claims for injuries involving Metrorail services are directed at PRASA as Metrorail is a division of the rail agency and an organ of the state.
Due to this, both Metrorail and PRASA have a ‘duty of care’ to their passengers, which means the entities are legally obligated to take actionable steps to ensure passenger safety.
Haslam says PRASA and Metrorail can be held liable if passengers are injured through no fault of their own, in instances including:
- Being injured during a train collision, derailment or fire
- Being pushed or falling from a train
- Falling or being pushed on Metrorail property
- Falling while boarding or disembarking a train
- Being injured at a level crossing
She adds that personal injury claims against PRASA are complex and can last between three to five years.
‘To stand the best chance of making a successful claim and getting the compensation you deserve, your first step should be to contact a personal injury law firm. Experienced attorneys can assess the merits of your case and help you navigate the tricky legal terrain.’
Haslam says notice of the intention to sue should be submitted within six months of the incident as required by legislation. However, there are exceptions to the rule, such as if a victim is not aware of what the process entails.
‘Dependants of a person who dies as the result of a rail accident may also be able to claim compensation for loss of support,’ she adds.
Steps involved in making a claim
If you’re injured in a train-related accident, Haslam advises the following:
1. Get immediate medical help.
- Get any injuries attended to immediately. A medical professional will also evaluate any injuries that may not be immediately apparent.
- Don’t delay seeking medical advice. It’s important to prioritise your health. Also, you need to be able to link your injuries directly to the accident.
- Document your injuries by taking photographs and getting copies of medical reports, which will be used as critical evidence in the claim.
2. Report the incident to PRASA.
- The accident must be reported to PRASA within six months of it happening. It is always best for an attorney to do this.
- A personal injury lawyer with experience in PRASA claims and state agencies will ensure that all detailed requirements are met at this and other stages of the process. Keep a copy of the report to PRASA.
3. Gather evidence to support the claim.
Evidence is essential to support your claim, show unsafe conditions and prove liability. An attorney will help you collect and collate critical evidence that includes:
- If a passenger, your valid rail ticket
- Witness statements from the accident
- Photographs from the accident scene
- Police reports
- Medical records and reports
- CCTV footage
- Expert testimony
4. Negotiation and litigation.
Attorneys may be able to resolve PRASA claims through negotiations. If your attorney fails, the case will go to court.
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Haslam notes that there are also other special requirements to be aware of. ‘Legal proceedings can be instituted 30 days after PRASA has been given the required statutory notice of the intention to sue.’
‘If you or your legal representative fails to send this notification and you have a valid reason, you can apply to the court for condonation – permission to continue with the case even though it has officially lapsed.’
PRASA successfully defended 17 claims with an average value of R5.3 million per claim during the 2022/23 financial year (FY). According to its 2022/23 financial report, the state organ’s provisions for claims for the 2023/24 FY amount to approximately R1.5 billion.
Haslam adds that victims should always keep their valid train tickets from the date of the incident.
In 2016, a claim against PRASA was dismissed in the Pretoria High Court because the plaintiff could not produce a valid train ticket.
‘A valid train ticket would constitute at the very least prima facie proof that the plaintiff was a passenger and a lawful train user,’ the judgement read.
‘Of course, a ticket is not a sine qua non for the defendant’s liability. It is however not irrelevant as argued by the plaintiff. This, regardless of whether the claim is founded in contract, or (…) delict based on PRASA’S public law obligations.’
This means that even though you don’t need a ticket for PRASA to be held liable, it still matters in proving your case.
During the 2016 case, the plaintiff could not produce proof of purchasing their ticket either, resulting in the court dismissing the case and ordering them to pay the defendant’s (PRASA) costs.
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Also read:
Prasa ordered to pay R3.5 million to passenger who fell from moving train
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