Raath v Nel

The respondent, a businessman, suffered severe physical and psychological harm following a failed intubation by the appellant, an anaesthetist, prior to a scheduled back operation in May 2000. The appellant admitted liability for damages arising from the intubation. The respondent alleged that as a result of his prolonged hospitalisation and subsequent depression, he was unable to manage his business interests effectively, particularly Koos Nel Auto (Pty) Ltd, leading to reduced profits. Initially the respondent was the sole shareholder of the company, but on 1 April 2001 he sold his shares and loan account to the Koos Nel Trust for estate planning purposes. He claimed damages for loss of income and earning capacity, future medical expenses, and general damages.

The appeal was upheld in part. The award for loss of income and earning capacity after 1 April 2001 was set aside, but the award for the earlier period, future medical expenses, and general damages was confirmed. The trial court’s order was substituted with an order that the appellant pay R1,187,934.44 plus interest. The respondent was ordered to pay the appellant’s costs of appeal.

The case reinforces the principle that trusts and companies are separate from individuals, and that personal damages claims require proof of actual patrimonial loss. It affirms and applies Rudman v Road Accident Fund in the context of trusts, cautioning against conflating trust or company losses with personal losses, even where estate planning structures are used. The judgment is significant for damages claims involving entrepreneurs who operate through corporate or trust vehicles.