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[2002] ZASCA 129
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Rudman v Road Accident Fund (370/01) [2002] ZASCA 129; [2002] 4 All SA 422 (SCA); 2003 (2) SA 234 (SCA) (26 September 2002)

Reportable
Case
No 370/2001
In the Supreme Court of Appeal of
South Africa
In the matter between
ARTHUR OLIVER RUDMAN Appellant
and
ROAD ACCIDENT FUND Respondent
Coram: Howie, Cameron, Nugent JJA,
Jones et Lewis AJJA
Heard: 9 September 2002
Delivered: 26 September 2002
Summary: Delict – damages – loss
of earnings and loss of earning capacity – proof of – injured
party totally precluded from
being a professional hunter and
partially disabled from farming – employed by “family” company
– whether loss to him.
JUDGMENT
JONES AJA:
[1]
The appellant, whom I shall call Rudman, is a farmer of the farm
Blaauwkrantz in the Kirkwood district of the Eastern Cape Province.

He is a mohair farmer. He is also a game farmer, a hunting outfitter
and a registered professional hunter who brings large numbers
of
foreign hunters to the Eastern Cape. He runs a highly successful
operation, one of the most successful of its kind in the Eastern
Cape
and indeed in the whole country.
His activities were abruptly
interrupted on 5 May 1998 when he was involved in a motor collision.
He sustained serious bodily injuries,
notably bad
fracture-dislocations of both lower legs and ankles, fractures of the
right arm, the right hand and the ribs, and soft
tissue injuries to
the head, neck, back, hip and buttocks. After a spell in hospital he
returned to the farm. But never again to
hunt; nor to resume with
the same vigour the role of hands-on manager of a large angora goat
farm. He was permanently disabled.
He was then 53 years old.
[2]
Rudman
was an active man until the collision. He was a fine sportsman –
in his day, a provincial cricketer. He had always maintained
a high
level of personal fitness. This was part of his way of life and a
necessary ingredient of his activities as a professional
hunter and a
farmer. His passion was his work. He was brought up on a farm as a
child. After he left school his father put him
through a farming
apprenticeship before he began farming on his own account. In 1970
he purchased a farm in partnership with his
brother and then, in
1972, he purchased a farm on his own account with money borrowed from
his mother-in-law. This was the beginning
of what would develop into
one of the most extensive farming enterprises in the Eastern Cape.
By 1977 he had acquired other farms.
That year his accountant
advised, for reasons of estate planning and income tax strategy, that
he should restructure his affairs.
Acting on
this advice Rudman formed the Arthur Rudman Family Trust with
himself, his wife, his accountant and his attorney as trustees
and
his two sons as beneficiaries. He is neither a capital beneficiary
nor an income beneficiary. At about that time he also acquired
control of a company which later became registered as Blaauwkrantz
Farming Enterprises (Pty) Ltd. The trust holds 3900 shares in
the
company and Rudman the remaining 100 shares. He, his wife and his
children are the directors. The trust has become the property-owning
entity in the Rudman enterprise. The company is the income-producing
entity. Rudman is the driving force. Although the farming
and the
hunting business is done through the company the fact of the matter
is that Rudman continued to operate in the same way as
he has always
done – as if he were a farmer farming for his personal account in
his personal capacity. He used the company’s
banking account, but
treated it as a personal account. His wife wrote up the farming
books. His auditors saw to the financial statements.
He did not
bother himself with these things, which he regarded as technical
matters. He got on with running his farms.
[3]
Today
the company owns four farms. It leases sixteen other farms, fourteen
from the trust and two which are owned by Rudman personally.
These
farms are extensive. They form a single farming unit measuring more
than 20 000 hectares. Their resale value is said to
be about twenty
million rand. They are stocked with 11 000 angora goats and 3 000
sheep and boer goats. They are also stocked with
24 species of
antelope, about 5 000 head in all, and there are other varieties of
game as well. They are situated in rugged terrain
– much of it
steep mountainous slopes with deep gorges and valleys and thick bush,
inaccessible by vehicle.
[4]
The
motor collision of 5 May 1998 led in due course to a claim by Rudman
for compensation in terms of the provisions of the Road Accident
Fund
Act, Act No 56 of 1996 as amended. The amount of the damages he
claimed was R2 340 015,95 which is made up as follows:
past provincial hospital expenses
208,00
past private hospital expenses
6 926,20
past medical expenses
15799,75
estimated future medical expenses
81 200,00
past loss of earnings
745 882,00
loss of earning capacity
1 380 000,00
general damages
100 000.00
R 2 340 015,95
[5]
Summons
was issued on 20 October 2000, and the matter proceeded to trial
before Liebenberg J in the South Eastern Cape Local Division
on 28
May 2001. At the trial the Fund conceded liability on the merits.
It also conceded liability to pay for past medical and
hospital
expenses and submitted to an order that it furnish an undertaking to
pay all future medical and hospital expenses as and
when they are
incurred. The parties went to trial on the claims for past loss of
earnings, loss of earning capacity and general
damages.
The trial
Court delivered judgment on 18 July 2001. It awarded general damages
in the sum of R100 000,00, which included a comparatively
large
allowance for loss of the enjoyment of hunting. But it dismissed the
claims for past loss of earnings and loss of earning
capacity.
Rudman appeals to this Court against the dismissal of those claims,
with leave from the Court
a quo
.
[6]
The
evidence establishes beyond question that Rudman’s injuries have
given rise to severe permanent disability. The claims for
past loss
of earnings and loss of earning capacity arise from the physical
handicaps from which he suffers. He has severe restriction
of
movement caused by the injuries to his ankles, and muscular weakness
of the right hand and arm. The prognosis is poor. The parties
accept that he will never again function as a professional hunter,
and that he is physically unable to do the maintenance work which
he
formerly did on the farms.
The
pleadings allege that the past loss of income suffered by the hunting
side of the operation amounts to R553 882-00 for the years
1998, 1999
and 2000. This is the sum of
the
difference between the anticipated turnover for those years and what
was actually produced after numerous hunters either cancelled
their
commitments or did not confirm their provisional bookings because of
Rudman’s unavailability (R523 882-00); and
additional travelling and marketing expenses which were incurred to
regain clients who had cancelled or threatened to cancel their
bookings (R30 000-00).
The past
loss suffered by the farming side of the enterprise is the cost of
employing a maintenance manager to do work which Rudman
would have
done himself. The manager was employed at a monthly salary of R8
000-00 for the period June 1998 to June 2000. The amount
is R192
000-00. This gives a total claim of R745 882-00 for past loss of
earnings.
[7]
With
regard to loss of earning capacity, the pleadings allege that Rudman
is permanently and completely disabled from earning a living
as a
professional hunter, and permanently and partially disabled in his
efficiency as a farmer in that he can no longer do the maintenance
work which he formerly did. But for his disabilities he would have
continued to do these things until the age of 65 years (that
is, for
a further 10 years). He would have hunted for 150 days a year at a
rate of R600-00 per day. An amount of R900 000-00 is
claimed under
this head. For the other half of the year he would have continued to
perform,
inter alia
, maintenance duties on the farm which will
now be performed by a maintenance manager at a salary of R8 000-00
per month. R480 000-00
is claimed under this heading, being half an
annual salary of R96 000-00 for the next 10 years. The total claimed
for loss of earning
capacity is R1 380 000-00.
[8]
The
trial judge dismissed the claims for past loss of earnings and loss
of earning capacity for the following reasons:
‘
On the evidence before me I
must conclude that the losses suffered as a result of the temporary
decline in the income generated by
the professional hunting and
professional outfitter operations due to the incapacity of the
plaintiff are losses suffered by the
company and do not represent a
diminution in the patrimony of the plaintiff. I may pause to remark
that the fact that the plaintiff
personally is registered as the
professional outfitter does not change the situation. According to
the evidence before me it must
be held that he was employed by the
company in order to conduct that section of the business. The same
holds true of the costs of
employing a professional hunter to stand
in for the plaintiff as well as the employment of the repair and
maintenance manager …
. These persons are also employed by the
company to take over functions performed by the plaintiff and they
are paid by the company.
Any loss which may have occurred as a
result thereof is a loss to the company and not to the plaintiff’s
private estate. It follows
that in real terms the plaintiff’s
private estate was not diminished due to his incapacity.
…
In my judgment the plaintiff has
failed to prove that his patrimony was diminished due to any loss of
earning capacity past or future
resulting from his injuries and
consequently he has failed to prove any entitlement to be compensated
in respect of these heads of
damages.’
In other
words, the learned judge concludes that although Rudman has proved
physical disabilities which, potentially at any rate,
could give rise
to a reduction in his earning capacity, he has not proved that this
has resulted in patrimonial loss. He has not
proved that the
reduction in earning capacity translates into loss in the sense that
his patrimony after the delict was less than
it would have been if
the delict had not been committed.
[9]
Mr
Eksteen’
s argument on behalf of Rudman is that on a proper
reading of the authorities to which he refers the learned trial
judge’s reasoning
fails to distinguish between a claim for loss of
earnings (past or future) and a claim for loss of earning capacity.
1
He says that Rudman’s capacity to earn a living as a professional
hunter and his capacity to perform the maintenance necessary
for a
large farming concern are assets in his estate which have a
measurable monetary value, and that the value of his estate has
necessarily been diminished when that capacity is eliminated or
impaired. He argues further that Rudman does not have to rely on
his
contract of employment with Blaauwkrantz Farming Enterprises (Pty)
Ltd to place a monetary value on his loss,
2
especially where, as here, his earnings from the company bear no
relationship to the value of his services. Indeed, at an early
stage
in the pleadings Rudman expressly disavowed any reliance on his
drawings from the company, asserting that they have no bearing
on his
earning capacity. In so far as past loss is concerned, he is
entitled to use the loss to the company as a measure of his
personal
loss, and his future loss may in these circumstances be quantified by
the costs of employing substitute labour to do the
work which Rudman
would have done if he had not been injured.
3
[10]
Mr
Eksteen
’s submission is correct that on the facts of this
case the nature of the loss (if Rudman has indeed suffered loss under
these heads)
is his diminished earning capacity. In
Santam
Versekeringsmaatskappy Bpk
v
Byleveldt
4
Rumpff JA states the principle in the following terms:
5
‘
In 'n saak soos die
onderhawige word daar namens die benadeelde skadevergoeding geëis
en skade beteken die verskil tussen die
vermoënsposisie van die
benadeelde vóór die onregmatige daad en daarna. Kyk,
bv.,
Union
Government
v
Warneke
,
1911 AD 657
op
b1. 665, en die bekende omskrywing deur Mommsen,
Beiträge zum
Obligationenrecht
, band 2, b1. 3. Skade is die ongunstige verskil
wat deur die onregmatige daad ontstaan het. Die vermoënsvermindering
moet wees
ten opsigte van iets wat op geld waardeerbaar is en sou
insluit die vermindering veroorsaak deur 'n besering as gevolg
waarvan die
benadeelde nie meer enige inkomste kan verdien nie of
alleen maar 'n laer inkomste verdien. Die verlies van geskiktheid om
inkomste
te verdien, hoewel gewoonlik gemeet aan die standaard van
verwagte inkomste, is 'n verlies van geskiktheid en nie 'n verlies
van
inkomste nie.’
The same
learned judge of appeal again dealt with the principle in
Dippenaar
v
Shield Insurance Co Ltd.
6
He says:
7
‘
In our law, under the
lex
Aquilia
, 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. The capacity to earn money is considered to be part of a
person's estate
and the loss or impairment of that capacity
constitutes a loss, if such loss diminishes the estate. This was the
approach in
Union Government (Minister of Railways and Harbours)
v
Warneke
1911 AD 657
at 665 where the following appears:
"In later Roman law
property came to mean the
universitas
of the plaintiff's
rights and duties, and the object of the action was to recover the
difference between the
universitas
as it was after the act of
damage, and as it would have been if the act had not been committed
(
Greuber
at 269). Any element of attachment or affection for
the thing damaged was rigorously excluded. And this principle was
fully recognised
by the law of Holland."
See also
Union and National
Insurance Co Ltd
v Coetzee
1970 (1) SA 295
(A) where damages were
claimed and allowed by reason of impairment of earning capacity.’
[11]
In
my opinion the learned judge in the Court
a
quo
has not
misdirected himself in his understanding of these authorities or in
his application of the law to the facts. His judgment
correctly
emphasizes that where a person’s earning capacity has been
compromised, “that incapacity constitutes a loss,
if such loss
diminishes the estate
” (Rumpff CJ in the above quotation from
Dippenaar’s
case) and “he is entitled to be compensated
to
the extent that his patrimony has been diminished
” (Smalberger
JA in
President Insurance Co Ltd
v
Mathews
).
8
(The underlining is from the trial judge’s judgment.) In his
view, Rudman’s disability giving rise to a diminished earning
incapacity was proved, but the evidence did not go further and prove
that his incapacity constituted a loss which diminished his
estate.
I believe
that this conclusion is correct. The fallacy in Mr
Eksteen
’s
criticism is that it assumes that Rudman suffers loss once he proves
that his physical disabilities bring about a reduction in
his earning
capacity; thereafter all that remains is to quantify the loss. This
assumption cannot be made. A physical disability
which impacts upon
capacity to earn does not necessarily reduce the estate or patrimony
of the person injured. It may in some cases
follow quite readily
that it does, but not on the facts of this case. There must be proof
that the reduction in earning capacity
indeed gives rise to pecuniary
loss. Thus, in
Union and National Insurance Co Ltd
v
Coetzee,
9
which is
referred to in the passage quoted above from
Dippenaar
’s case
10
and which deals with a lump sum award for loss of earning capacity,
Jansen JA makes the point
11
that “
'n [b]epaalde liggaamlike gebrek bring egter nie
noodwendig 'n vermindering van verdienvermoë mee nie
of
altyd 'n vermindering van gelyke omvang nie - dit hang o.a. af van
die soort werk waarteen die gebrek beoordeel word”. (My
underlining.)
12
This is what is emphasised by the learned trial judge in the
passages quoted from his judgment which he has underlined.
13
[12]
The
case made by Rudman and his accountant Van der Ryst in their evidence
is that the company is for all practical purposes Rudman’s
alter
ego. According to Rudman, the auditors prepare the company’s
annual financial statements from the company’s cash-book
and
cheque-books. They advise on the amount of directors’ fees,
rentals, interest and the like that should be reflected in the
financial statements in any given year. They consolidate the loan
accounts. They work out the taxes. Rudman has little or no
understanding
of most of this. He is a down-to-earth farmer. The
fact of the matter is that over the years he has virtually
single-handedly produced
the company’s income. He deposits the
income in the company’s banking account. He pays all the expenses
and other farming costs
from the company’s banking account. He
also makes whatever drawings he needs from the company’s banking
account for his living
and other requirements and those of his
dependants. There is no difference between the way he operates and
the way a farmer operates
who farms solely for his own account,
except that the banking account and the farming operation is not in
his own name.
The
argument on Rudman’s behalf in the Court below, particularly with
regard to the claim for past loss of earnings, was that he
is the
person who felt the pinch because there was less money coming in to
the company. He is the person who in fact suffered the
loss incurred
by the company. He is the person who should be compensated. The
counter-argument, which was accepted by the learned
trial judge, is
that this ignores entirely that the company is a separate legal
entity with its own personality and its own estate,
which is distinct
and separate from Rudman’s estate.
Mr
Eksteen
has not pressed this argument before us. He has
submitted instead that in the circumstances of this case it is
appropriate to use
the loss to the company as a method of placing a
monetary value on Rudman’s personal loss.
[13]
For
present purposes I am prepared to accept the proposition (without
pronouncing finally upon it) that in appropriate circumstances
a
farmer in Rudman’s position, who operates through a “family”
company, may be able to prove and quantify his personal loss
in a
delictual claim with reference to the loss of income suffered by the
company, provided that he does not fall into the trap of
regarding
the loss to the company as automatically and necessarily equivalent
to his personal loss. In the present case, there is
evidence to show
that the company has lost income because, by reason of Rudman’s
injuries, it did not achieve the increases in
hunting income that
were confidently and reasonably expected. There is also evidence to
show that the company has incurred and will
in future incur the
additional expense of employing others to do what Rudman used to do.
However, there is no proof that this produces
loss to Rudman. There
is no evidence, for example, that the value of his shares in the
company is less, or even that he received
less from the company by
way of dividends or fees or drawings because of the company’s
reduced income, or that he will do so in
the future. Rudman’s
financial statements, the company’s financial statements, and the
trust’s financial statements for the
years 1997, 1998, 1999 and
2000 do not show any loss to Rudman at all, and neither does Rudman’s
evidence nor the evidence of his
accountant.
[14]
There
is another fallacy in Mr
Eksteen
’s argument. It does not
consider Rudman’s earning capacity as a whole. His earning
capacity is a complex of abilities which
together make up an asset in
his estate
14
and which becomes part of the
universitas
of his rights and
duties which has allegedly been compromised and for which
compensation is sought.
15
Mr
Eksteen
’s argument isolates individual elements
of Rudman’s ability to earn a living which have been compromised
and places a monetary
value on them, without considering whether they
bring about a diminution in his earning capacity as a whole. Rudman
is not employed
as a maintenance man or as a professional hunter on a
game farm, and his earning capacity is not to be confined or
compartmentalized
as if he were. Although he might have performed
these and other functions which he can no longer perform, his real
function was
and is that of chief executive officer of a large
farming undertaking. He still performs that function. He remains
the driving
force behind the entire enterprise. On the evidence
before us the disabilities from which he suffers, serious and real
though they
are, do not impair his capacity to do what matters most –
to see to it that the Rudman empire which he has developed continues
to flourish in all its spheres for the benefit of himself, the trust,
the company, and, through the trust and the company, the rest
of his
family. Whether or not he no longer does things which he formerly
did, those things will still be done by his sons and his
employees
under his direction and supervision. He is in a different position
from the disabled banana farmer in
Coetzee’
s case,
16
in respect of whom Jansen JA makes the following observation:
‘
Dat die
eiser se beweeglikheid ingekort is en verder ingekort sal word, is
duidelik. 'n Bepaalde liggaamlike gebrek bring egter nie
noodwendig
'n vermindering van verdienvermoë mee nie of altyd 'n
vermindering van gelyke omvang nie - dit hang o.a. af van die
soort
werk waarteen die gebrek beoordeel word. Die
verlies
van die eerste lit van die linkerhand se pinkie kan vir 'n kassier,
wat verdienvermoë betref, onbeduidend wees maar vir 'n pianis
noodlottig; so ook 'n stywe enkel vir die kassier teenoor die geval
van 'n balletdanser. Dat die eiser se soort ongeskiktheid, sy
verlies
aan beweeglikheid, egter 'n boer, en bepaaldelik 'n piesangboer, se
werkvermoë nadelig sou aantas, en aldus sy verdienvermoë,
is deur die Hof a quo aanvaar en is in die lig van die getuienis
kwalik te ontken.’
Rudman’s
disabilities may well have constituted a loss for which he would be
entitled to compensation if his injuries had been incurred
when, like
the plaintiff in
Coetzee
, he had been on the threshold of his
career as a farmer and about to begin the development of his empire.
But he is not in that
position, and his disabilities do not give rise
to loss any more than a stiff ankle or the loss of part of a little
finger diminishes
the estate of a bank teller.
[15]
Mr
Eksteen’s
alternative argument is that Rudman should in any
event be awarded a globular amount to compensate him for his general
handicap on
the open labour market. This is to cater for the
possibility of his no longer being able to offer his services as a
professional
hunter should it ever become necessary for him to seek a
livelihood in that capacity. Compensation is sometimes awarded for
this
sort of contingency.
17
An example is
Union and National Insurance Co Ltd
v
Coetzee.
18
[16]
The
question is whether or not Rudman has proved that he is entitled to
an award of this nature. Like the plaintiff in
Coetzee’
s
case,
19
his mobility is restricted and he suffers from other physical
handicaps as well, but this does not necessarily translate into a
reduction
of earning capacity causing loss. Has he proved such a
reduction? What is the probability of Rudman ever leaving his farm
in order
to seek a livelihood elsewhere? The answer involves a
consideration of a variety of possibilities. In considering them it
must
be remembered that in the final analysis an award cannot be
based upon speculation. It must have an evidential foundation.
20
There is in this case no evidence at all that Rudman may for some
reason be forced to have recourse to the open labour market to
earn a
living. The evidence indicates the contrary. The Rudman enterprise
continues to flourish under his stewardship. The chances
are that
this will continue. The evidence of experts is that the future
prospects for the professional hunting industry in the Eastern
Cape
are good, better than anywhere else in the country. There is every
reason to suppose that the Rudman game farms will continue
to
generate profits. There is no reason to suppose that the future
prospects for the Rudman mohair enterprise, which is described
as one
of the largest, if not the largest in the world, are anything but
sound. The financial statements of the trust and the company
show
continued growth and a healthy relationship between assets and debts,
one which makes it unlikely that this farming empire will
disintegrate for financial reasons. Rudman’s personal liabilities
are small in relation to his assets. The Rudman family –
father,
mother, two sons and a daughter - is closely knit and supportive.
All contribute to the family farming operation. All appear
to accept
the family policy of working for the good of the family as a whole,
rather than concentrating on an increase in personal
wealth. There
is no hint of the possibility of Rudman branching off on his own for
personal family reasons. On the facts, the risk
of Rudman ever being
forced to seek a living on the open labour market, or the possibility
of his ever choosing to do so, is so remote
that in my view it must
be disregarded.
[17]
My
conclusion is that Rudman has failed to discharge the onus of proving
that he has suffered a diminution in the value of his patrimony.
It
is therefore unnecessary to consider the evidence and arguments
dealing with the quantification of loss.
[18]
In
the result the appeal is dismissed with costs.
RJW
JONES
Acting
Judge of Appeal
HOWIE JA
CAMERON
JA
NUGENT
JA
LEWIS
AJA
concur
1
Santam Versekeringsmaatskappy Bpk
v
Byleveldt
1973 (2) SA 146
(A);
Dippenaar
v
Shield
Insurance Co Ltd
1979 (2) SA 904
(A);
Commercial Union
Assurance Co
v
Stanley
1973 (1) SA 699 (A) 705 A-C.
2
Dippenaar’s case supra
(footnote 1)
917F
; President Insurance Co Ltd v
Mathews 1992 (1) SA 1 (A) 5 D.
3
Muller
v
Mutual &
Federal
Insurance Co Ltd and another
1994 (2) SA 425
(C)
451 J – 452 B;
Mathews’
s case
supra
(footnote 2)
at 7 C;
Blyth
v
Van den Heever
1980 (1) SA 191
(A);
and
Estate De Villiers
v
Bell
(1975 RAD) reported in
Corbett and Buchanan,
The Quantum of Damages in Bodily and Fatal
Injury Cases
vol 2 at 454, especially at 457 and 458.
4
Supra (
footnote 1 paragraph
9).
5
at 150 B – D.
6
Supra (
footnote 1 paragraph
9).
7
at 917 B – D
.
8
supra
(footnote 2 paragraph
9) at 5 C – D.
9
1970 (1) SA 29(5 (A).
10
See footnote 7, paragraph 10.
11
At 300 A
12
See also
Krugell
v
Shield
Versekeringsmaatskappy Bpk
1982 (4) SA 95
(T) per Van Dijkhorst
J at 99 E: “Die blote feit dat 'n besondere betrekking verloor is
of 'n besondere rigting vir 'n eiser
geslote is, beteken nog nie
noodwendig dat sy vermoë om te verdien daardeur geheel of
gedeeltelik vernietig is nie. Dit hang
van die omstandighede af.”
13
They are reproduced earlier in this
paragraph.
14
See
Dippenaar
’s
case
supra
(footnote 7 paragraph 10): “
The
capacity to earn money is considered to be part of a person's estate
and the loss or impairment of that capacity constitutes
a loss, if
such loss diminishes the estate.”
15
See
Dippenaar’s
case
supra
(footnote 7 paragraph 9) quoting from
Union
Government
v
Warneke
:
“… property came to mean the
universitas
of the
plaintiff's rights and duties, and the object of the [Aquilian]
action was to recover the difference between the
universitas
as it was after the act of damage, and as it would have been if the
act had not been committed.”
16
Supra
at 301 C – D
(footnote 7 paragraph 10).
17
Burger
v
Union National
South British Insurance Co
1975 (4) SA 72
(W).
18
supra
(footnote 7 paragraph 9
and footnote 16 paragraph 14).
19
supra
(footnote 7 paragraph 9 and footnote 14 paragraph 15)
.
20
See
Monumental Art Co Ltd
v
Kenston Pharmacy (Pty) Ltd
1976 (2) SA 111
(C) 118 E and, for
example, the approach of Jansen JA in C
oetzee’s
case
supra
(footnote 4 paragraph 10)
at 301 D – E.