Thomas v Road Accident Fund (24987/2019) [2025] ZAGPJHC 1323 (31 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1323 | Noteup | LawCite sino index ## Thomas v Road Accident Fund (24987/2019) [2025] ZAGPJHC 1323 (31 December 2025) Thomas v Road Accident Fund (24987/2019) [2025] ZAGPJHC 1323 (31 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1323.html sino date 31 December 2025 IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, JOHANNESBURG CASE NO:  24987/2019 (1)  REPORTABLE: NO (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED: NO 31 December 2025       P Uys (AJ) In the matter between: THOMAS : ETHAN DARREN Plaintiff and ROAD ACCIDENT FUND Defendant Summary: Delictual patrimonial loss only competent on sufficient and cogent proven facts. JUDGEMENT UYS AJ: Order Having heard counsel for the plaintiff, considered the evidence, and handed down an ex tempora order on 4 December 2025 (uploaded to CaseLines 0-15), the following is now ordered: 1.     The ex tempora order of 4 December 2025 is mero motu set aside and rescinded. 2.     The defendant is liable for 100% of the plaintiff’s damages resulting from the collision which occurred on 9 June 2015. 3.     Determination of the plaintiff’s claim for general damages is separated from the balance of the issues and postponed sine die . 4.     The defendant shall furnish the plaintiff with an undertaking in terms of Section 17(4) (a) of the Road Accident Fund Act 56 of 1996 , for 100% of the costs of future accommodation of the plaintiff in a hospital or nursing home, or treatment or rendering of a service, or supplying of goods to the plaintiff, arising from the injuries sustained in the motor vehicle collision which occurred on 9 June 2015, and the sequelae thereof, after such costs have been incurred and upon proof thereof. 5.     Default judgment on the plaintiff’s claim for loss of earnings and earning capacity is refused. 6.     The plaintiff is authorised to return to the default judgment roll on duly supplemented evidence insofar as same is possible. 7.     The defendant shall pay the plaintiff’s taxed or agreed High Court party and party costs including costs of counsel on Scale C and all costs for obtaining expert reports to date. 8.     The plaintiff shall serve the notice of taxation to the defendant, and such costs shall be taxable on the party and party High Court scale. Reasons for the Order [1] Prior to the commencement of this default judgment trial the court invited the plaintiff’s representatives to supplement the evidence on the issues in dispute. [2] The default trial was stood down and the evidence supplemented through a supporting affidavit from the plaintiff, attesting that: “ 5. I have read the expert medico-legal reports and affidavits thereof and confirm correctness of contents thereof as far as they relate to matter concerning my motor vehicle accident which occurred on the 9 th day of June 2015, my injuries and damages as a result of the said accident”. [sic] [3] Relief was granted under: 3.1.         Rule 38(2) of the Uniform Rules of Court, for evidence in the trial to be adduced upon affidavits from the plaintiff and the experts. 3.2.         Section 3(1)(c) of the Law of Evidence Amendment Act , 45 of 1988 provisionally admitting the police statements and reports and the clinical medical records and treatment reports as hearsay evidence in the interests of justice. [4] The undisputed evidence of the plaintiff and the provisional hearsay evidence in the police report and statements confirms that on 9 June 2015 the plaintiff: 4.1.         Was the driver of a motorcycle, travelling in the second lane from the right of the M1 North highway in the vicinity of the Booysens offramp. 4.2.         Overtook a slow-moving truck by moving towards the far right lane, when he suddenly and unexpectedly collided with a tyre which was obstructing the right lane. [5] The orthopaedic surgeon: 5.1.         Assessed the plaintiff on 8 September 2021. (Six years after the collision) 5.2.         Considered the X rays of 8 September 2021 which identifies a united fracture of the right ulna. 5.3.         Reported that: 5.3.1.            The fracture was treated with below-elbow plaster of paris and has united. 5.3.2.            To relieve pain and improve quality of life in future the plaintiff will benefit from the use of analgesics, physiotherapy, lifestyle and activity modifications. 5.3.3.            No future orthopaedic surgery is foreseen. 5.3.4.            The plaintiff will not be able to compete fairly for a job in the open labour market. 5.4.         Did not refer to or comment upon the admission X-rays of 9June 2015, which, according to the radiologist’s report, identified: 5.4.1.            A spiral fracture through the proximal shaft of the ulna with mild displacement of the fragments and an intact radius. 5.4.2.            Soft tissue swelling over the fracture site. 5.4.3.            Preserved axial relationship of the elbow and radiocarpal joints. 5.4.4.            The carpal bones being well-aligned with normal bone texture. 5.4.5.            No other fractures or dislocations. [6] The Occupational Therapist: 6.1.         Assessed the plaintiff on 28 July 2022 and issued a report on 28 September 2022. 6.2. Reported that the plaintiff [1] : 6.2.1.            “……… . indicated he was employed as a police officer at the time of the accident, which is classified as light work with aspects of medium work as per demands characteristics of work and requires frequent standing work, bilateral hand use, walking, forward bending, occasional squatting, lifting and carrying. He returned to work five months post-collision and reports that he is not coping with the work duties that arerequired, this is justifiable considering the reduced physical capacity. Thus, in turn, Mr Thomas’ physical capacity does not fully match his pre-accident occupation”. 6.2.2. Reported the following subjective complaints [2] : “ Right arm feels pain during cold weather conditions. Pins and needles at times. Right hand swells up at times. Unable to lift or carry heavy loads”. 6.2.3.            Demonstrated: 6.2.3.1. Full functional range of motion of all limbs with grade 5 muscle power/strength in the upper limbs. [3] 6.2.3.2. Good hand manipulation and manual dexterity with an average grip strength of the left and below average grip strength of the right hand. [4] 6.2.3.3. Significant limitation in elevated work involving weights with residual capacity to do work in an elevated position rarely (1 to 5% of the day). [5] 6.2.4.            May continue to work if he does not lift or carry heavy loads or engages in work demands that require bilateral hand use which exacerbate his symptoms. 6.3.         Reported that: 6.3.1.            The identified limitations and pain compromise the plaintiff’s ability to function at the same level as his uninjured co-workers even in a situation of the physical demand category matching his physical abilities. 6.3.2.            The plaintiff is a vulnerable job seeker. 6.3.3. Loss of future earnings are deferred to and should be reported upon by an industrial psychologist. [6] [7] The Industrial Psychologist: 7.1.         Assessed the plaintiff on 9 November 2022 and issued a report on 29 January 2024. 7.2. Reported that: [7] 7.2.1.            The plaintiff commenced employment as a traffic officer at the Johannesburg Metro Police Department on 1 January 2010, with primary duties which include road traffic management, VIP escorting and law enforcement. 7.2.2.            At the time of the assessment the plaintiff reported that he: 7.2.2.1.             Can no longer use a heavy firearm. 7.2.2.2.             Struggles with driving a motorcycle. 7.2.2.3. Is accommodated through assignment of a patrol car instead of a motorcycle. [8] 7.3.         Interviewed plaintiff’s Supervisor, Inspector Flynne Van Rensburg,  on 10 November 2022 and during January 2024, who confirmed that: 7.3.1.            The plaintiff was employed as a traffic officer at the time of the collision and had excellent work performance. 7.3.2.            Promotional scope to the rank of Sergeant and then Inspector are dependent upon availability, subsequent advertisement, successful application and interview. 7.3.3. Retirement age is set at 63. [9] 7.3.4.            The plaintiff’s work performance has deteriorated after the collision, and he is no longer as active as he used to be. 7.3.5.            The plaintiff’s income has increased to R377 031.48 (Which includes night, public holiday, Sunday and high-risk allowances, and encashment of leave). 7.3.6.            The plaintiff complains of pain in his hand during cold, however he can still perform all his pre-accident duties after having been assigned to a patrol- vehicle. 7.3.7.            The plaintiff does not take frequent sick leave. 7.3.8.            It is uncertain whether the plaintiff’s promotional prospects have diminished. 7.4.         Further reported that: 7.4.1. The plaintiff has not suffered a past loss of income [10] but has suffered a reduction of work capacity. 7.4.2. The plaintiff [11] : 7.4.2.1.             Does not fully match the employment requirements as a traffic officer. 7.4.2.2.             Is a vulnerable employee in the open labour market and is accommodated. 7.4.2.3.             Will not be able to progress to pre-collision career prospects. 7.4.2.4.             Is only working due to accommodation, and should he lose his current job he will struggle to secure similar type of employment or sympathetic employment. 7.4.2.5.             Is not at risk of losing his current employment but likely to remain employed at his current income in line with inflation. [8] Two issues must be proven to establish liability: 8.1.         Was the loss or damage caused by the driving of a motor vehicle? 8.2.         Did the causal negligence of the insured driver contribute to the collision? [9] In the Full Bench judgment of the Gauteng Division, Pretoria of Allan Rae v the Road Accident Fund [12] it was held that: “ [14]     In Setshogo v Road Accident Fund 2024 JDR 1783 (GP), the Court agreed with the plaintiff’s counsel that, since the defendant did not plead contributory negligence or risk apportionment, those issues were not before the Court and should not be entertained. The defendant neither called witnesses to substantiate his claim nor submitted expert reports. Consequently, the Court found the defendant 100% liable. ... [16]      The respondent did not file a notice of intention to defend or raise a plea of contributory negligence. I agree with the appellant’s counsel that the appellant had proven the insured driver’s negligence and that the Court a quo had not mero motu been entitled to determine contributory negligence in the circumstances of this case. The defendant must therefore be held 100% liable.” [10] In paragraph 21, the full bench approved of what was held in: 10.1. Kabini v Road Accident Fund [13] : “ It is trite that a plaintiff only has to prove 1% negligence on the part of an insured driver for a claim to be established. It is then for the defendant to prove contributory negligence on the side of the plaintiff.” 10.2. Blignaut v RAF [14] : “ It is trite law that the defendant must prove the contributory negligence of the plaintiff. The defendant failed to discharge its onus in proving plaintiff s contributory negligence.” [11] In Meyers v MEC Department of Health [15] , the SCA held that: “ In that regard it is important to bear in mind that in a civil case it is not necessary for a plaintiff to prove that the inference that she asks the court to draw is the only reasonable inference; it suffices for her to convince the court that the inference that she advocates is the most readily apparent and acceptable inference from a number of possible inferences.” [12] The test in respect of causality as set in Lee v Minister of Correctional Services [16] was placed in the right perspective in Mashongwa v PRASA [17] : “ Lee never sought to replace the pre-existing approach to factual causation. It adopted an approach to causation premised on the flexibility that has always been recognised in the traditional approach.  It is particularly apt where the harm that has ensued is closely connected to an omission of a defendant that carries the duty to prevent the harm. Regard being had to all the facts, the question is whether the harm would nevertheless have ensued, even if the omission had not occurred. However, where the traditional but-for test is adequate to establish a causal link, it may not be necessary, as in the present case, to resort to the Lee test.” [13] Generally , culpa , or negligence, arises if a diligens paterfamilias in the position of the party would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss, and would take reasonable steps to guard against such occurrence, and the party concerned fail to take such steps. [14] Consideration of negligence in vehicle collision cases essentially deals with: 14.1. codes and conventions governing traffic on public roads, and 14.2. driving and road usage which demand a substantial degree of skill and experience. [15] Generally, road users may expect compliance with these codes and conventions and reasonable instead of unreasonable conduct from other road users. Departure from these codes and conventions may give rise to unexpected and dangerous situations amounting to negligence. [16] Highways are generally continuous vehicle-priority routes developed and reticulated to ensure the speedy flow of traffic. [17] All road users have a duty to keep a general and appropriate look-out and travel at safe and suitable speeds under specific road conditions and change lanes and reduce speed safely and opportunely. [18] Tyres are part of the essential componentry to all vehicles. [19] Dislodged tyres (either being previous freight or componentry) may constitute hazardous road obstructions that should be removed from the road or demarcated until removal. The failure to identify, remove or demarcate dislodged tyres from the road poses a material risk to fellow road users. [20] In the absence of clear facts to the contrary, the presence of a dislodged tyre on a road implies prima facie : 20.1. A close association with the use of a vehicle on that road. 20.2. Negligence, associated with the failure to maintain the vehicle or affixing freight properly. [21] There is no specific evidence that the tyre in question is not associated with the driving of a vehicle or that plaintiff acted negligently or should have anticipated such a hazard in the road at the time. [22] The injury of the plaintiff evidently resulted from the use of a vehicle of which the driver or owner was at least 1% causally negligent. [23] A Plaintiff claiming loss of earnings/earning capacity must prove the physical disabilities, that same would impair earnings/capacity and the actual patrimonial loss. [18] [24] Loss of earnings or earning capacity, is assessed under the Lex Aquilia on the basis that the Defendant must make good the difference between the value of the Plaintiff’s estate after the delict compared to before the delict. [19] [25] Proof of the disability giving rise to a patrimonial loss, will depend on the occupation or nature of the work which the Plaintiff did before the delict, or would probably have done if he had not been injured. [20] [26] Chetty J held in Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) : 'A person's all-round capacity to earn money consists, inter alia, of an individual's talents, skill, including his/her present position and plans for the future, and, of course, external factors over which a person has no control, for instance, in casu, considerations of equity. A court has to construct and compare two hypothetical models of the plaintiff's earnings after the date on which he/she sustained the injury. In casu, the court must calculate, on the one hand, the total present monetary value of all  that the plaintiff would have been capable of bringing into her patrimony had she not been injured, and, on the other, the total present monetary value of all that the plaintiff would be able to bring into her patrimony whilst handicapped by her injury. When the two hypothetical totals have been compared, the shortfall in value (if any) is the extent of the patrimonial loss. ... At the same time the evidence may establish that an injury may in fact have no appreciable effect on earning capacity, in which event the damage under this head would be nil . [27] Causation should be distinguished from quantification. Causation depends on a test of probability while quantification depends on the Court’s estimation of likelihood of a future situation. The worst-case basis of quantification is not accepted, subject to the best evidence being adduced. [21] [28] In Chakela v Road Accident Fund (33599/2015) [2017] ZAGPJHC 141 (5 June 2017) : 28.1.  The defendant: 28.1.1.        Raised that: 28.1.1.1.         The plaintiff suffered no impairment in her capacity to earn an income in the future. 28.1.1.2.         It is only once impairment has in fact been established that the question of quantification arises. 28.1.1.3.         The question of appropriate contingency provisions fits into the quantification exercise not the first, a priori, enquiry. 28.1.2.        Supported the above contentions with reference to: 28.1.2.1. Deysel v Road Accident Fund (2483/09) [2011] ZAGPJHC 242 (24 June 2011); 28.1.2.2. Rudman v Road Accident Fund (370/01) [2002] ZASCA 129 ; [2002] 4 All SA 422 (SCA) (26 September 2002); 28.1.2.3. Van Heerden v Road Accident Fund (6644/2011) [2014] ZAGPPHC 958 (8 December 2014) ; 28.1.2.4. Prinsloo v Road Accident Fund (3579/06) [2008] ZAECHC 193 ; 2009 (5) SA 406 (SE) (18 November 2008). 28.2.      Van der Linde, J held that having regard to the judgements the correct approach is that: 28.2.1.        There is a conceptual difference between the question whether a plaintiff has suffered an impairment of earning capacity and the question whether a plaintiff will in fact suffer a loss of income in the future. [Paragraph 25] 28.2.2.        The answer to the former question is determined on a balance of probability which plaintiff has the onus to discharge. 28.2.3.        The latter is a question of assessment in respect of which there is no onus in the traditional sense. This assessment involves the exercise of quantifying as best one can the chance of the loss occurring. [Paragraph 26] 28.2.4.        The answer to the former question is at least theoretically answered affirmatively if the plaintiff has established a 51% chance of impairment being present, the answer to the latter question is provided by the best match between the likelihood of a loss that has been suffered and the fraction expressed as a percentage. [Paragraph 27] [29] In Burger v Union National South British Insurance Company 1975(4) SA 72 (W) PAGE 74 the court held that: 29.1.        Where the available evidence established a likelihood of some fact, situation or event which is incapable of quantification within narrow limits, the court is not obliged to act on the possibility least favourable to Plaintiff. 29.2.        What the Court will not do in such a case is to select, from the range of possibilities presented by the evidence, the possibility which is least favourable to the Plaintiff because he bears the onus and has not proved that a more favourable possibility ought to be preferred. 29.3. Once the value of the income which the Plaintiff will lose in future has been ascertained, contingencies must be considered. [30] The report of the Orthopaedic Surgeon (Compiled 4 years prior to the trial) and the Occupational Therapist (Compiled 3 years prior to the trial) are essentially stale and lack facts to support a future loss in patrimony. [31] To meet the onus on causation the plaintiff must prove that the collision-related injuries will cause a reduction in future patrimony to be more likely than not. [32] But for limited pain, the plaintiff made a complete recovery from the ulna fracture. [33] The orthopaedic prognosis is favourable, and pain and discomfort already successfully accommodated through allocation of a patrol vehicle instead of a motorcycle without any detrimental effect on income or continued employment until retirement. [34] Possible employment inequality is negated by Employment Equity policies and legislation. [35] There is a complete factual hiatus on how the plaintiff: 35.1.      Does not fully match the employment requirements as a traffic officer. 35.2.      Is treated as disadvantaged or vulnerable and truly accommodated to the extent of patrimonial detriment. 35.3.      Will not be able to progress to pre-collision career prospects. 35.4.      Is at risk of retrenchment or of losing his work because of the injuries. [36] Such conclusions remain medically, factually and logically unsupported. [37] Objectively the plaintiff has not proven a loss of patrimony and the question of quantification of loss is not activated. [38] An Order is made as set out above and I hand down the judgment. P UYS ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION JOHANNESBURG Signed Electronically Delivered: This judgement was prepared and authored by the Acting Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 31 December 2025 . FOR THE PLAINTIFF:                              Adv TI Khumalo Sibanda Bukhosi Attorneys Incorporated DATE OF THE HEARING:                        3 December 2025 DATE OF JUDGMENT:                            29 December 2025 [1] Paragraph 4.1.3, CaseLines 022-48 [2] Paragraph 4.3.1, CaseLines 022-49 [3] CaseLines 022-50 [4] CaseLines 022-51 [5] CaseLines 022-53 [6] CaseLines 022-57 [7] CaseLines 022-71 [8] CaseLines 022-72 [9] CaseLines 022-71 [10] CaseLines 022-75 [11] [12] Case No A114/2022. [13] (26209/2018) [2020] ZAGPPHC 100 (19 February 2020) at para 21. [14] (24248/2015) [2017] ZAGPPHC 940 (15 December 2017) at para 21. [15] 2020 (3) SA 337 (SCA) on 363 para [82] H [16] 2013 (2) SA 144 (CC) [17] 2016 (3) SA 528 (CC). [18] Rudman v Road Accident Fund 2003(SA 234) (SCA). [19] Santam Versekeringsmaatskappy Beperk V Beyleveld 1973(2) SA146 (A) 150 B-D and Dippenaar V Shield Insurance Co Limited 1979(2) SA904 (A) 917 B-D [20] Union and National Insurance Co Limited v Coetzee 1970(1) SA295 (A) AT 300A. [21] De Klerk v ABSA Bank Ltd and others 2003(4) SA 315 (SCA) sino noindex make_database footer start