1. The loss of earning capacity in Mrs Vusani's case would constitute a prospective loss rather than a present loss. This is because she has not been actively working as a physiotherapist for several years due to her role as a stay-at-home parent. As a result of her spinal cord injury, it is anticipated that she will not be able to work as a physiotherapist in the future. The prospective leg of prospective damages relates to future loss of earnings and earning capacity, which is applicable in this case.
In the case of Govender v Minister for Safety and Security 2006 (6) SA 235 (SCA), the court held that prospective damages are based on future loss and impairment of earning capacity. In this case, Mrs Vusani's inability to work as a physiotherapist due to her spinal cord injury constitutes a prospective loss of earning capacity.
2. The 'once and for all' rule states that a plaintiff must claim all damages arising from the same cause of action in one claim, and cannot later bring another claim for the same damages. In Mrs Vusani's case, the application of the 'once and for all' rule would mean that she would need to claim all potential future losses, including loss of earning capacity, in her initial claim against the water park for the injury she sustained.
This rule is important in ensuring finality and efficiency in litigation. Therefore, Mrs Vusani would need to include her prospective loss of earning capacity in her current claim against the water park to ensure that she is adequately compensated for all potential future losses related to her spinal cord injury.
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
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
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.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
2.The application of the ‘once and for all’ rule in this case, particularly with regard to the
prospective loss of Mrs Vusani.
1 answer
1 answer