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 , cases to support

Answer 1

The loss of earning capacity in Mrs Vusani's case would constitute a prospective loss. A prospective loss refers to a loss that is anticipated to occur in the future, as opposed to a present loss which has already occurred.

In Mrs Vusani's situation, it is expected that she will never be able to work as a physiotherapist again due to her spinal cord injury. This means that she will not only lose her current income as a physiotherapist, but she will also lose the opportunity to earn income in the future. This loss of future earning capacity is a prospective loss that she will incur.

In the South African case of Van Wyk v Lewis 1924 TPD 387, the court held that loss of earning capacity is a prospective damage and should be compensated accordingly. The court recognized that the plaintiff had suffered a future loss of income due to his injuries, and awarded him damages to cover this loss of future earning capacity.

Therefore, in Mrs Vusani's case, the loss of earning capacity would be considered a prospective loss as she will be unable to work in the future due to her injury. She may be entitled to compensation for this prospective loss of future income.