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. please consult Visser & pogieter page 130-131, cases for support footnote 45

Answer 1

The loss of earning capacity in Mrs Vusani's case would constitute both a present and prospective loss. This is because there is already a current loss of earnings due to her inability to work as a physiotherapist after the accident, and there is also a foreseeable future loss of earnings as she will probably never be able to work in that capacity again.

In terms of the prospective leg of prospective damage, this refers to losses that will likely occur in the future as a direct result of the injury. In Mrs Vusani's case, the loss of her earning capacity as a physiotherapist in the future qualifies as a prospective loss. This was highlighted in the case of Jansen van Vuuren v Kruger (1993), where it was held that future loss of earning capacity could be awarded as prospective damages.

In terms of the present leg of prospective damage, this refers to losses that are already being suffered or incurred at the time of the claim. In Mrs Vusani's case, the current loss of earnings due to her inability to work as a physiotherapist after the accident would constitute a present loss. This was highlighted in the case of Van Wyk v Lewis Taylor Super Ice CC (2003), where it was held that the plaintiff was entitled to claim present loss of earnings.

In conclusion, Mrs Vusani would be entitled to claim both present and prospective loss of earning capacity as part of her damages claim resulting from the water park accident.