Your client, Mrs Vusani, approaches you for legal advice. She qualified as a physiotherapist in

Question

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

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.

Answer 1

The loss of earning capacity in Mrs Vusani's case would constitute a prospective loss. This is because the injury she sustained at the water park has resulted in her inability to work as a physiotherapist in the future, rather than an immediate loss of income at the time of the incident.

In terms of prospective damage, there are two legs that need to be considered - the prospective loss of earnings and the prospective loss of earning capacity. The prospective loss of earnings refers to the loss of income that the victim would have earned in the future had the injury not occurred. On the other hand, the prospective loss of earning capacity focuses on the impairment of the victim's ability to earn income in the future.

In Mrs Vusani's case, she is facing a prospective loss of earning capacity as she will not be able to continue working as a physiotherapist due to her spinal cord injury. This loss of earning capacity will impact her ability to generate income in the future. Therefore, this loss is not immediate but rather a potential future loss.

A relevant case that supports this distinction between present and prospective loss is the South African case of Kruger v Coetzee (1966). In this case, the court emphasized the difference between present and prospective damages, stating that prospective damages should be based on probabilities rather than possibilities.

In conclusion, the loss of earning capacity in Mrs Vusani's case is a prospective loss as it pertains to her future ability to earn income as a physiotherapist due to her spinal cord injury. She should seek compensation for this prospective loss in her claim against the water park for negligence.