Crafford v The South African National Roads Agency Limited

On 13 January 2006, late at night, the appellant was driving home along the R510 national roadway between Thabazimbi and Ellisras when his motor vehicle collided with a kudu cow. The kudu was propelled through the windscreen and the appellant was severely injured. The respondent was responsible for maintaining the road and road reserve. Since the road had been declared a national road on 22 October 2004, some 15 months had passed during which the grass in the road reserve had not been mown but left to grow wild. The appellant sued the respondent for damages, alleging the respondent negligently failed to cut the grass alongside the road, which prevented him from seeing the kudu until it entered the road at which point it was too late to avoid collision. The appellant suffered retrograde amnesia due to head injuries and had no recollection of how the collision occurred. The road passed through thick bushveld where kudu abound, with warning signs present, and the appellant had previously seen kudu near the road on numerous occasions.

• Whether the respondent's alleged failure to mow the grass in the road reserve was negligent
• Whether such failure was wrongful in the sense of being actionable as a matter of public and legal policy
• Whether the condition of the grass in the road reserve was the factual cause of the collision with the kudu
• Whether the appellant discharged the onus of proving causation on a balance of probabilities using the 'but for' test

The appeal was dismissed with costs, including the costs of two counsel.

The binding principle established is that in delictual claims based on omissions, a plaintiff must prove factual causation by establishing on a balance of probabilities that, but for the defendant's omission, the loss would probably not have occurred. This requires sufficient objective facts from which legitimate inferences can be drawn - not speculation. Where there are multiple equally plausible scenarios as to how an incident occurred, and insufficient evidence to determine which probably occurred, the plaintiff fails to discharge the onus of proving factual causation. The application of the 'but for' test is not based on mathematics or certainty but on common sense and a sensible retrospective analysis of what would probably have occurred based on the evidence. Where direct evidence is absent and the facts permit multiple explanations, courts must distinguish between permissible inference and impermissible speculation.

The court made obiter observations that even if negligence and wrongfulness had been established in the appellant's favor, the claim would still fail due to absence of proven causation. The court also made critical comments about the inappropriate granting of leave to appeal to the Supreme Court of Appeal rather than to a full bench of the high court. Leach JA noted that section 20(2)(a) of the Supreme Court Act 59 of 1959 requires appeals to be directed to a full court unless the questions involved require the attention of the SCA. This case, being a relatively straightforward factual matter involving well-settled legal principles, should clearly have been directed to a full court despite substantial damages being claimed. The court expressed concern about the SCA roll being clogged by cases that should properly be heard by full benches of the high court.

This case is significant in South African delictual law for its application of the factual causation test in circumstances where direct evidence of how an incident occurred is absent. It demonstrates the limits of inferential reasoning in establishing causation - courts will not indulge in speculation even where circumstances are sympathetic to a plaintiff. The judgment illustrates that even where negligence and wrongfulness might be established, a claim will fail if factual causation cannot be proved on a balance of probabilities. The case also reinforces that the 'but for' test requires practical, common-sense analysis based on proven objective facts rather than mathematical certainty or speculation about hypothetical scenarios. It is particularly instructive regarding the evidentiary burden on plaintiffs in motor vehicle collision cases involving animals where the plaintiff has no recollection of events.