Terblanche v The Minister of Safety and Security and another

Ettienne Terblanche was a farmer who had been farming since 1988, deriving his income solely from farming. He held a two-year diploma in agriculture and a mechanical diploma specialising in diesel engines. On 20 July 2005, while in police custody, Terblanche sustained severe injuries to his head, neck and back when he was negligently tossed around in the back of a police van driven at high speed over rough terrain. Before the injury, Terblanche was a 'hands-on farmer' who managed all aspects of his farm, including mechanical work on tractors, vehicles and irrigation centre pivots, monitoring crops, mending electronic fences, and maintaining equipment. His farm had extensive crops, livestock and wild game, and he employed seven permanent labourers and a foreman. After the injury, medical experts agreed that Terblanche was unfit for all physical aspects of farming he previously performed, but was still capable of managing his farm and supervising employees in a sedentary capacity. Liability was admitted by the respondents, and the only issue at trial was quantification of past and future loss of earnings.

• Whether Terblanche had proved a claim for future loss of earning capacity on a balance of probabilities
• Whether the cost of substituted labour could form the basis for quantifying loss of earning capacity for a farmer with specialised skills
• What is the appropriate method for quantifying diminution of earning capacity where a plaintiff can no longer perform physical aspects of his occupation but can continue in a supervisory capacity

The appeal was upheld with costs. The order of the full court was set aside. The appeal in respect of the claim for future loss of income was upheld with costs. Paragraph 1 of the trial court's order was supplemented to include the amount of R1,557,136.69 in respect of future loss of income. The appeal in respect of past loss of income was dismissed (this claim having been abandoned). Absolution from the instance was granted in respect of the claim for past loss of income. Costs were awarded in the normal course, not specifically providing for two counsel.

Where a farmer with specialized skills sustains injuries that prevent him from performing physical aspects of farming but remains capable of managing and supervising the farm, he is entitled to be compensated for loss of earning capacity on the basis of the cost of substituted labour. The cost of employing a substitute can form the basis of a claim for damages arising from a plaintiff's inability to carry on his pre-injury trade or profession, provided there is proof that the reduction in earning capacity gives rise to a pecuniary loss in the plaintiff's personal patrimony. This represents effective mitigation of damages. The quantification of such loss should be based on actuarial computations reflecting the reasonable cost of substitute labour at an appropriate skill level, taking into account the plaintiff's capacity to train and supervise such substitute labour.

The court noted with apparent disapproval that the trial judge had extensively cross-examined witnesses and interjected his own views and personal knowledge throughout the trial, at one stage remarking that he was delivering evidence himself ('ek lewer nou 'n bietjie getuienis'). While the court did not make a definitive finding on the propriety of this conduct, the specific mention of this aspect suggests judicial concern about the extent of the trial judge's interventions. The court also observed that while Terblanche was represented by two counsel on appeal, the costs of two counsel were neither justified nor motivated, indicating that such costs should only be awarded in appropriate cases with proper motivation.

This case is significant in South African delictual law for clarifying the principles applicable to claims for loss of earning capacity by farmers and other professionals with specialized skills. It confirms that the cost of substituted labour is an appropriate basis for quantifying loss of earning capacity where a plaintiff can no longer perform physical aspects of their occupation but can continue in a supervisory or managerial capacity. The case demonstrates that each claim for loss of earning capacity must be assessed on its own facts and circumstances, and that actuarial computations based on the cost of substitute labour provide a practical and equitable method of quantification. It also distinguishes situations where a plaintiff operates through a company (as in Rudman) from situations where the plaintiff operates in a personal capacity and will sustain direct pecuniary loss from employing substitute labour.