1.1 The loss of earning capacity in this case constitutes both a present and prospective loss. A present loss refers to the loss that has already been incurred as a result of the injury, such as the inability to work as a physiotherapist immediately after the incident. A prospective loss, on the other hand, refers to the loss that is expected to occur in the future, such as the inability to work in the future and incurring further medical expenses.
In the case of Van Wyk v Lewis 1924 AD 438, the court held that a plaintiff who has suffered a permanent disability is entitled to recover damages for future loss of earning capacity. Therefore, Mrs Vusani would be entitled to claim both present and prospective loss of earning capacity as part of her damages.
1.2 The 'once and for all' rule may apply in Mrs Vusani's case with regard to the prospective loss. The 'once and for all' rule, as explained in Visser & Potgieter, states that a plaintiff is entitled to recover all damages at once and cannot come back to claim further damages in the future for the same injury.
In the case of Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), the Constitutional Court held that the 'once and for all' rule applies to future pecuniary loss, meaning that Mrs Vusani would need to claim all future loss of earning capacity and medical expenses at once in her claim for damages. This would require her to make a comprehensive claim for all expected future expenses and losses resulting from her injuries sustained at the water park.
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:
1.1 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. refer to visser&potgieter for answers page 130-140, footnote 45 cases for support
1 answer