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document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number:2024/127831
In the matter between:
In the matter between:
K[...] M[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
MAKGATE AJ:
INTRODUCTION
[1] This action came before this Court as an application for default judgment
against the Road Accident Fund ("the RAF"). Save for the issue of general
damages which counsel for the Plaintiff requested that it be postponed sine die,
the Plaintiff proceeded on aspects of merits , past and future loss of income. At
commencement of the application, an order in terms of Rule 38(2) of the
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
21 APRIL 2026 _________________________
DATE SIGNATURE
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Uniform Rules of Court was sought and granted, permitting the Plaintiff to
present evidence on affidavit and by way of expert reports.
[2] The brief chronological facts of the matter is that on or about 26 April 2023, at
approximately 12h45, and at or near the corner of Piet Joubert Street and
Wolmarans Street, Monument, Krugersdorp, the Plaintiff, then a 16- year-old
pedestrian on a skateboard, was struck by a motor vehicle alleged to have
been a grey Toyota Fortuner, the registration letters and numbers of which are
unknown to the Plaintiff, and which was at the time driven by an unidentified
insured driver.
[3] The Plaintiff pleaded version is that the cause of the accident was the negligent
driving of the insured driver in that he or she, amongst others, drove the insured
vehicle at an excessive speed in the circumstances, failed to keep a proper
lookout, failed to apply the brakes timeously, and failed to avoid the collision
when by the exercise of reasonable care and skill, he or she could and should
have done so
1.
[4] As a result of the accident, the Plaintiff sustained a fracture of the midshaft of
the right clavicle. He was conveyed to Life Flora Hospital where he was
attended to and discharged the same day. The fracture was treated
conservatively by way of immobilisation in a sling.
[5] Pursuant the above, the Plaintiff then lodged a claim against the RAF.
Summons were duly served on the RAF on the 09 December 2024
2. The
requisite time within which to file a plea lapsed without any action being taken
1 Amended POC, CL 01 - 19
2 Caselines 01 - 1
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by the RAF. Accordingly, the matter was properly enrolled to be heard as a
default judgment application3.
[6] In this application, amongst others, the Plaintiff seeks an order in the following
terms:
[6.1] That the RAF be held liable for 100% of the Plaintiff's proven damages;
[6.2] Compensation in the sum of R 1 025 355.00 (One million twenty-five
thousand three hundred and fifty -five rand), comprising of past and
future loss of earnings and/ or earning capacity;
[6.3] An undertaking in terms of section 17(4)(a) of the Road Accident Fund
Act 56 of 1996 in respect of future medical and related expenses;
[6.4] Payment of interest in the event the RAF fails to make payment within
14 days from the date of the order; and
[6.5] Costs on the High Court Scale B.
MERITS
[7] The Plaintiff's evidence on the merits is contained in the affidavit of his father,
Mr H [… ] H[…] K[...]4, deposed to in his capacity as natural guardian, which
3 See notice of set down Caselines A 5
4 Caselines 02-30
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records the version of events as relayed to him by the Plaintiff shortly after the
collision occurred. The affidavit reads, in relevant part:
"On the 26 April 2023, at approximately 14:00, while at home, my son, M[...],
returned home and he informed me that he was involved in an accident. He
said that he was making his way down Piet Joubert Street on his skateboard
when the accident occurred. A driver of a Grey Toyota Fortuner was driving
along Wolmarans Street and as he approached the stop sign in the left lane
of Piet Joubert Street, the driver suddenly made a turn, into the right lane
from her perspective, he tried to avoid the collision by turning his
skateboard, but was unsuccessful and the driver subsequently collided with
him."
[8] The Accident Report uploaded on Caselines
5, together with the Plaintiff's own
affidavit recorded at the South African Police Service, Krugersdorp, confirms
that the collision did indeed occur at the place and on the date, and that the
Plaintiff was a pedestrian struck by an unidentified motor vehicle.
[9] It is trite law that in a pedestrian's claim, where the pedestrian was lawfully
proceeding and was struck by a negligently driven motor vehicle, the duty of
care squarely rests on the driver of the vehicle. The pedestrian, in the absence
of any conduct on his part contributing to the collision, bears no liability for the
accident. This principle is well established in our law and need not be
discussed at length.
[10] On the evidence placed before this Court, which is uncontested, the Plaintiff’s
version is that on the day in question, the insured driver “came from the front
driving in the wrong side of the road and knocked me down from my
5 Caselines 02 - 25
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skateboard.” According to the Plaintiff, the insured driver fled the scene without
stopping.
[11] Based on the uncontested version of the Plaintiff , there is no basis why this
version should not be accepted in totality. Accordingly, I find the RAF liable for
100% of the Plaintiff's proven damages.
MEDICO-LEGAL EVIDENCE
[12] As a result of the collision, the Plaintiff sustained bodily injury, being a midshaft
fracture of the right clavicle. The Plaintiff has obtained reports from several
medico-legal experts in support of his claim, which I summarise below.
DR GEOFFREY READ & DR TAPESHWAR AJODHA – ORTHOPAEDIC
SURGEONS
[13] Dr Read and Dr Ajodha jointly examined M[...] K[...] approximately one-year
post-accident, at which time the Plaintiff was 17 years old. They confirmed that
the Plaintiff was a pedestrian on a skateboard when struck by a motor vehicle
on 26 April 2023, and that he sustained a single injury , a fracture of the right
clavicle which was managed conservatively by way of a sling.
[14] The clinical examination revealed mild asymmetry over the right clavicle due to
malunion, but no scarring, no draining sinuses, no neurovascular deficit of
either upper limb, no tenderness on palpation, and full pain- free range of
movement of the shoulders. Radiological investigation confirmed a malunited
midshaft clavicle fracture with approximately 65 degrees postero- superior
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angulation of the apex and approximately 2cm shortening of the right clavicle
compared to the left, with no plain X -ray evidence of degenerative change in
the shoulder area.
[15] The orthopaedic surgeons concluded that the prognosis is good. They
recommended provision for a possible corrective osteotomy of the clavicle
should the Plaintiff be so inclined (estimated cost R80,000.00) together with
conservative treatment for residual right shoulder symptoms (estimated cost
R10,000.00), all to be covered by an undertaking from the Road Accident Fund.
[16] They opined that the Plaintiff may have been severely to considerably disabled
for up to four months following the accident, but at present he has no significant
orthopaedic disability and this should not change in future. Crucially, they
recorded that the right clavicle fracture does not preclude him from working,
that it will not have any significant long- term effect on his income or
employment prospects, and that his retirement age is unaffected.
DR MILTON E. TOBIAS – RADIOLOGIST
[17] Dr Tobias performed and reported on radiological imaging of the Plaintiff's right
shoulder and clavicle on 7 May 2024 at the request of Dr Read. The findings
confirmed a malunited fracture of the right clavicle slightly beyond mid- shaft
level, with up to 65 degrees postero-superior angulation of the fracture apex. As
measured on the AP panoramic view, the right clavicle was 13.5cm in length
compared to 15.7cm on the left, confirming approximately 2cm shortening of
the right clavicle because of the malunion.
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[18] Dr Tobias further noted that the right acromioclavicular joint was mildly widened
in comparison with the left (5mm on the right versus 2mm on the left) but with
no step deformity. The sternoclavicular, coracoclavicular and glenohumeral
relationships were normal, with no dystrophic calcification noted. Importantly,
there was no plain X-ray evidence of degenerative change in the shoulder area,
and the right upper ribs appeared normal. The radiological findings therefore
objectively confirmed the orthopaedic s urgeons' diagnosis of a malunited
midshaft clavicle fracture without any associated joint pathology or signs of
progressive degenerative disease.
MS DESIRÉ L. VAN ONSELEN (MARIA GEORGIOU INC.) – OCCUPATIONAL
THERAPIST
[19] Ms Van Onselen assessed the Plaintiff's functional capacity using the WorkWell
FCE V.2 protocol and clinical assessment procedures. She recorded that the
Plaintiff was working for his uncle's business, R & R Electrical, as a Home
Maintenance Worker at the time of the accident, that the work falls within the
medium physical demand level with aspects of heavy and very heavy work, and
that the Plaintiff was absent from work for 8 to 10 weeks following the accident.
[20] On testing, the Plaintiff demonstrated below -normal grip strength of his right
(dominant) hand (17.4kg versus a normal range above 32.6kg) and was able to
safely lift 17.5kg in the waist -to-floor lift, which placed him at the mid- range
medium physical demand level. He reported pain of his right clavicle and
shoulder during elevated work and material handling. There was no cognitive or
psychological fallout identified.
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[21] Ms Van Onselen concluded that the Plaintiff retains the physical capacity to
perform sedentary to mid- range medium physical demand work with pain, but
that he no longer meets all of the physical demand aspects of his pre- accident
work as a Home Maintenance Repair Worker, particularly tasks requiring right
hand strength and endurance, elevated work, bi -manual dexterity and load
handling. She nevertheless expressly recorded that, given the favourable
prognosis provided by the Orthopaedic Surgeons and following the
recommended intervention, rehabilitation and use of assistive devices, the
Plaintiff's pain levels and physical demand achievement should improve and he
should achieve a better job match in relation to his current work.
[22] Most pertinently, she opined that he should not be precluded from pursuing a
career of his choice, and that it is anticipated that the Plaintiff's employment
prospects should improve following successful intervention. She recommended
an allowance of R36,000.00 to R38,000.00 for occupational therapy in the first
year and provision for various assistive devices, all to be covered by an
undertaking.
MR DAVID DE VLAMINGH – INDUSTRIAL PSYCHOLOGIST
[23] Mr de Vlamingh interviewed the Plaintiff and obtained collateral feedback from
the Plaintiff's uncle and employer, Mr R[...] K[...] of R & R Electrical. He
recorded that the Plaintiff completed Grade 7 as his highest level of education
in 2019, repeated Grade 3, attempted Grade 8 in 2020 and the first term of
Grade 8 in 2021 but did not complete it, and thereafter left school due to "family
drama." The Plaintiff has no further formal qualifications and no driving licence.
He commenced employment at R & R Electrical in November 2022 and was
earning R175 per day (approximately R3,792 per month, plus overtime of R400
bringing the total to R4,192 per month at 2023 values), which placed him just
above the median for unskilled workers in the non-corporate sector.
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[24] Mr R[...] K[...] confirmed that the Plaintiff was a hard worker and one of his best
employees. Following the accident, the Plaintiff convalesced for 8 ½ weeks
without compensation, attempted to return to work for a few days but could not
cope, and has remained unemployed since.
[25] Mr de Vlamingh postulated that, but for the accident, the Plaintiff would have
continued in unskilled work in the non- corporate sector and would have
reached a peak at the upper quartile (R9,583 per month in 2025- rand value) by
approximately age 45.
[26] Post-accident, he opined that the Plaintiff would remain unemployed until
completion of the recommended treatment by approximately January 2027,
after which he should be able to return to the labour market in a similar but
reduced capacity (restricted to mid- medium work) doing lighter maintenance
work, starting at the median for unskilled workers in the non- corporate sector
(R4,500 per month in 2025- rand value) and reaching a lower earnings peak
between the median and upper quartile (R7,000 per month in 202 5-rand value)
by age 45.
[27] He accepted the orthopaedic surgeons' opinion that the Plaintiff's retirement
age is unaffected and recommended that his residual vulnerability to periods of
unemployment and reduced earnings be addressed by application of a
moderately higher than normal post -accident contingency deduction. The
asserted loss therefore turns on the assumption that the Plaintiff will not derive
the predicted benefit from the recommended intervention, an assumption which
itself rests on the experts' own "favourable" and "good" prognoses.
ANALYSIS – LOSS OF EARNINGS AND EARNING CAPACITY
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[28] It is trite that the loss of earnings or earning capacity is assessed on the basis
that the Defendant must make good the difference between the value of the
Plaintiff's estate after the commission of the delict and the value it would have
had if the delict had not been committed. See Santam
Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) at 150 B -D and
Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at 917 B-D.
[29] As a result, there must be proof that the disability gives rise to a patrimonial
loss. This in turn will depend on the occupation or nature of the work which the
Plaintiff did before the accident or would probably have done if he or she had
not been disabled. The mere existence of an injury does not, without more,
equate to a loss of earnings or earning capacity. The injury must be shown to
have impaired the income- producing potential of the Plaintiff in a meaningful
and quantifiable way.
[30] Having regard to the aforesaid, the inquiry is not whether the Plaintiff was
injured, but whether the accident has caused, or will cause, a patrimonial
diminution of his earning capacity. What therefore needs to be determined is
whether the Plaintiff has suffered a loss of earnings, either actual or probable.
The evidence presented must demonstrate that the Plaintiff is, or will be, worse
off in the labour market than he would probably have been but for the accident.
Pre-morbid earnings
[31] The evidence relating to the Plaintiff's pre -accident earnings is as per t he letter
dated 19 May 2023 and on a letterhead bearing the name "R & R Electrical", in
which the Plaintiff's uncle, Mr R[...] K[...], attests that the Plaintiff has been
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working for him "from 2020/01/22 until now and we pay day by e day R
150.00"6. the Plaintiff was paid in cash and received no documentary proof of
his earnings.
[32] The dates given in the proof of income are inconsistent with that contained in
the Industrial Psychologist’s report which records that the Plaintiff commenced
employment in November 2022. Further, t he Plaintiff's father stated in his
affidavit that the Plaintiff was working at R & R Electrical on parttime basis7 "in
preparation of completing his electrical apprenticeship upon his attainment of
majority" and earned R150.00 per day. As to when did the alleged employment
commenced, and on what basis, is unclear.
[33] On the most favourable view of the evidence, the Plaintiff was e arning R150
per day on a "no work, no pay" basis. He had no contract of employment, no
statutory benefits, and no formal vocational qualification. The total monthly
earnings on this version, even allowing for weekends overtime (2 Saturdays per
month) and on a simple calculation, did not exceed R4,192.00 as opined by the
IP in h is report. The evidence reflects, at most, that the Plaintiff was absent
from work for a period of approximately eight to ten weeks following the
accident.
[34] The Industrial Psychologist records that, after the convalescence period, the
Plaintiff returned to work for his uncle for a few days before discontinuing
because he could not cope with the physical demands of the work. His uncle
confirms that the Plaintiff is welcome to return to work for him once he has
recovered. The Plaintiff has thus not been dismissed nor is he unemployable;
the evidence is that he is unemployed by election while he convalesces.
6 Caselines 05 - 2
7 Caselines 02 – 31, para 5
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Future loss of earnings
[35] The experts’ evidence does not, on a proper analysis, support a future loss of
earnings. The Orthopaedic Surgeons' evidence is unequivocal in that the right
clavicle fracture does not preclude the Plaintiff from working. His retirement age
is unaffected, his Whole Person Impairment is rated at 1%, and the prognosis is
good. Save for the malunion of the clavicle and the minor cosmetic asymmetry,
the Plaintiff has, at present, no significant orthopaedic disability related to this
accident, and this should not change in future.
[36] The Occupational Therapist's evidence supports the Orthopaedic Surgeons'
opinion. She concludes that the Plaintiff retains capacity for sedentary to mid-
range medium physical demand work and that, following the recommended
intervention, his employment prospects should improve and he should achieve
a better job match. She expressly states that the Plaintiff should not be
precluded from pursuing a career of his choice.
[37] The Industrial Psychologist's postulation of a reduced earnings ceiling rests,
fundamentally, on two assumptions, namely, first, that the Plaintiff would have
continued indefinitely as a low -paid maintenance worker, and second, that
following the accident he is now permanently restricted from heavy physical
work.
[38] Both assumptions are open to questi on. The first ignores the fact that the
Plaintiff, having left school in Grade 7 at an early age and by his own choice,
has demonstrated no inclination towards skills development or formal training.
The second is contradicted by the Orthopaedic Surgeons' opinion that,
following recommended treatment, the Plaintiff should have no significant long-
term effect on his income or employment prospects.
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[39] Critically, the Industrial Psychologist himself records the prognosis to be "fair"
and the Occupational Therapist describes it as "favourable". The asserted
future loss therefore depends, in large measure, on a hypothetical post -
treatment scenario in which the Plaintiff fails to derive the predicted benefit from
the recommended intervention. That hypothesis is speculative and is not borne
out by the medical evidence.
[40] Having regard to the above, my considered view is that the Plaintiff has not
discharged the onus of proving the loss of future earnings and/ or earning
capacity as claimed in that the Orthopaedic Surgeons have opined that the right
clavicle fracture does not preclude the Plaintiff from working and also the
Occupational Therapist opinion that , following the recommended intervention,
the Plaintiff’s employment prospects should improve and he should achieve a
better job match.
[41] Considering the above, this Court is not willing to exercise its discretion and
grant default judgment against the RAF in respect of the Plaintiff's claim for loss
of future earnings and/ or earning capacity . The rationale being that , in my
view, the outcome of the recommended medical intervention that the Plaintiff is
yet to undergo is important for the determination of this aspect.
[42] In the circumstances, it may well be that the Plaintiff has a potential claim for
some component of loss of future earnings and/ or earning capacity , however,
on the available evidence, the Court has its own doubts about the quantum
thereof. As a result, the aspect of loss of future earnings and/ or earning
capacity requires a trial. In that way, the interests of justice would be better
served.
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[43] There is however some past loss of earnings attributable to the convalescence
period. The Plaintiff claims a past loss of earnings in the amount of R152
570.00. This is in terms of the Actuarial calculations , which the Court is
prepared to award.
COSTS
[44] Costs ordinarily follow the result. The Plaintiff has been successful on the
merits, section 17(4)(a) undertaking and a claim for past loss of earnings . He
has, however, not been successful in respect of the future loss and/ or earning
capacity claim and the general damages have been postponed sine die.
[45] In the exercise of my discretion and having regard to the matter, costs on the
High Court Scale B is appropriate.
[46] In the result, the following order is made:
Order
1. The Defendant is held liable for 100% (one hundred percent) of such
damages as the Plaintiff may agree or prove.
2. The Defendant is ordered to furnish the Plaintiff with an undertaking in terms
of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 in respect of the
costs of future accommodation of the Plaintiff in a hospital or nursing home or
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treatment of, or rendering of a service to, or the supplying of goods to him
arising out of the injuries sustained by him in the motor vehicle collision which
occurred on 26 April 2023, after such costs have been incurred and on proof
thereof.
3. The Defendant is ordered to pay the Plaintiff an amount of R152 570.00. (One
hundred fifty- two thousand five hundred seventy rand) in respect of a
claim for past loss of earnings.
4. The application for default judgment in respect of the Plaintiff's claim for future
loss of earnings and/ or earning capacity is refused, with leave to the Plaintiff
to enrol the matter for trial in respect of such relief.
5. The Defendant is ordered to pay the Plaintiff's costs to date on the High Court
Scale B.
___________________________
T J MAKGATE
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Plaintiff: Adv H Schouten instructed by Wim Krynauw Attorneys.
Date of Hearing: 26 February 2026.
Date of Judgment: 21 April 2026.
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