In the matter of Terblanche v The Minister of Safety & Security & 1 Other ((20006/2013) [2015] 48 ZASCA) the Supreme Court of Appeal was concerned with the question as to whether the Appellant had succeeded in proving his claim for loss of earning capacity, where both the trial Court and subsequently on appeal to the full bench of the Gauteng Division, Pretoria, it was held that he had not succeeded in doing so.

The Appellant’s claim arose from certain severe bodily injuries which he sustained as a result of the agreed negligence of the Respondent(s). At the time of the incident which gave rise to the subsequent action, the Appellant had been a farmer for some 20 years, farming inter alia with an array of crops, livestock and wild game. The evidence indicated that he was a ‘hands-on’ farmer and that in the course of his farming activities he attended to the maintenance and repair of various machinery. The evidence led on behalf of the Appellant, including not only his own testimony but that of a number of medical experts, established that as a result of the injuries which he sustained he was not able to resume and attend to all aspects of his farming activities, as had been the case previously. The Appellant’s further evidence in this regard was that he envisaged having to employ an additional worker in the future in order to attend to those aspects which he could no longer manage. The Appellant’s industrial psychologist proposed that the calculation of the Appellant’s loss of earning capacity be premised on the costs of the employment of a foreman until the age of 65 years.

The trial court – relying inter alia on the similar facts of Rudman v RAF 2003 (2) SA 234 (SCA) - held that the Mr Terblanche could delegate the work which he could no longer do to existing employees and on that basis held that he had not proved his claim for loss of earning capacity, which finding was confirmed by the full bench in the dismissal of the first appeal.

The Supreme Court of Appeal, per Mayat AJA, however was careful to point to the distinguishing features of the present matter as compared to those in Rudman, viz the fact that in Rudman the farmer in question conducted his farming activities through a company and that no devaluation in the value of his shares in the company had been established through the evidence; further, that the evidence in casu had indisputably established that the Appellant would suffer a diminution in his personal patrimony in the event that he employed the additional necessary labour. The Court thus applied the principle laid down in President Insurance Company Ltd v Mathews SA 1992 (1) (A) at 5E-G that:

There is no reason in principle why, in an appropriate case, the cost of employing a substitute should not form the basis of a claim for damages arising from a plaintiff‟s inability to carry on his pre-collision trade or profession... By adopting such course he is effectively mitigating his damages, as he is obliged to do.‟

The appeal was therefore upheld with costs and the Appellant was awarded loss of earning capacity on the basis of an actuarial calculation previously agreed upon for the cost of “substituted labour for an artisan for specified physical functions” in the sum of R1 557 136.69.