An open window on a train is a matter of commuter “comfort”, not safety, the Western Cape High Court has heard.

This was argued as the Passenger Rail Agency of South Africa (Prasa), the parastatal company in charge of Metrorail, fights off a R1.12m lawsuit over a damaged window on one of its trains.

Serge Loutala, 39, lost the sight in his right eye when a stone was thrown through a “missing” window.

The incident took place while the train was moving, just after Netreg station on October 29, 2006.

“An open window is more a matter of comfort, but not a matter of safety,” said advocate Donald Jacobs, SC, representing Prasa, during closing arguments on Tuesday.

He was responding to a query by Acting Judge Nape Dolamo, who questioned whether Prasa’s argument was that they had “no duty to provide a train that is proper in that it has windows”.

Jacobs said that when it came to train doors, passengers should not open them for safety reasons; however, passengers could open train windows for their own comfort.

Loutala’s advocate, Wayne Coughlan, attacked this distinction as being “artificial”, saying train windows took up a “very large portion” of the body of a carriage.

He said Prasa had an obligation to take steps to ensure the safety of its rail commuters, such as ensuring its windows were fixed and putting up fencing along its railway tracks.

In this case, they were not asking for “extensive security measures”, such as cameras and guards on every train.

“It’s not much to ask for windows on a train… we’re talking about basic, precautionary safety measures,” said Coughlan.

Another one of Prasa’s key arguments is that Prasa could not be expected to have control over the criminal behaviour of other people.

According to the testimony of eyewitness Guy Miemou-kondo Nsienta, who had also been on Loutala’s train, he had seen two teenage boys running in the opposite direction of the train after Loutala was struck by the stone.

Jacobs said: “There’s no duty on (Prasa) to guard against third parties acting criminally.”

He also argued that Prasa could not have foreseen that someone would throw a stone through an open window, saying that Loutala’s lawyers had failed to prove that it could have been foreseen.

But Coughlan replied that it was not a “major jump” for it to be reasonably foreseeable that a commuter could be injured as a result of stones being thrown through broken or missing windows.

He also responded to arguments in Prasa’s court papers, in which the rail company alleged that Loutala himself was negligent to sit close to a damaged window.

According to the papers, Loutala hadn’t taken adequate steps to ensure that he does not remain “in close proximity to the open window” and did not take proper precautions to ensure that he did not get injured while sitting near the window.

Coughlan dismissed this as “farfetched and untenable”.

“Once commuters have boarded trains, they’re in a very vulnerable situation because they can no longer protect themselves and control what happens to them from outside the train,” he said.

Dolamo reserved judgment.

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