The loss of earning capacity in this case would constitute a prospective loss. The prospective leg of prospective damage refers to losses that will occur in the future as a result of the injury, as opposed to losses that have already been incurred at the time of the claim. In Mrs Vusani's case, she will likely never be able to work as a physiotherapist again, which will lead to a loss of earning capacity in the future.
Case law supporting this can be found in the South African case of Minister of Police v Mawi. In this case, it was held that loss of earning capacity can be claimed as a prospective loss when it is established that the plaintiff's ability to earn an income in the future has been affected by the defendant's wrongful act.
Therefore, Mrs Vusani would be entitled to claim for the loss of earning capacity as a prospective loss in her case.
Your client, Mrs Vusani, approaches you for legal advice. She qualified as a physiotherapist in
2008 but only practised as such for a year thereafter. She was married in 2009 and has been
caring for the children born from their marriage since then while her husband provided for the
family. She was recently seriously injured at a water park due to one of the waterslides
malfunctioning. She was thrown over the side of one of the slides. Her spinal cord was injured as
a result and doctors fear that she will not be able to walk again. It is further expected that she
will incur further medical expenses in the future and she will probably never be able to work as
a physiotherapist again.
Advise Mrs Vusani on the following:
1.1 Does the loss of earning capacity constitute a present or prospective loss? Explain your
answer with reference to the prospective and present legs of prospective damage. Refer
to case law in support of your answer
1 answer
1 answer