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:

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. (5)
1.2 The application of the ‘once and for all’ rule in this case, particularly with regard to the
prospective loss of Mrs Vusani.

Answer 1

1.1 The loss of earning capacity in this case constitutes a prospective loss. This is because Mrs Vusani's inability to work as a physiotherapist in the future and the associated loss of income is a future event that has not yet occurred but is expected to happen. The prospective damage rule allows for the recovery of damages for future losses that are reasonably foreseeable. In the case of Masetlha v Phoenix Construction (Pty) Ltd 1969 (2) SA 257 (A), it was held that prospective damages could be recovered where they can be shown with reasonable certainty. Therefore, Mrs Vusani would be entitled to claim for the loss of earning capacity as a prospective loss.

1.2 The 'once and for all' rule states that a plaintiff in a personal injury case is entitled to claim for all future losses stemming from the injury in one claim. In this case, the application of the 'once and for all' rule means that Mrs Vusani will need to claim for all her future medical expenses, loss of earning capacity, and any other damages resulting from the injury in one claim. This is to ensure that the defendant is not exposed to multiple claims for the same injury in the future. Mrs Vusani will need to carefully calculate and include all her future expenses and losses in her claim to ensure she is adequately compensated for her injuries.