Question

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

Answer 1

[AI-generated answer — Bot GPT 3.5]

1.1 The loss of earning capacity in this case constitutes both a present and prospective loss. A present loss refers to the loss of income or earning capacity that has already occurred as a result of the injury, such as the fact that Mrs Vusani will no longer be able to work as a physiotherapist. On the other hand, a prospective loss refers to the potential future loss of income or earning capacity that Mrs Vusani may suffer as a result of her inability to work in the future.

In the case of Grobler v Naspers Bpk 2004 (6) SA 295 (SCA), the South African Supreme Court of Appeal held that prospective damages for loss of earning capacity consist of two legs - present loss (past financial disadvantage) and future loss (future financial disadvantage). Mrs Vusani would be entitled to claim for both present and prospective loss of earning capacity as part of her damages due to the injuries sustained at the water park.

1.2 In relation to the application of the 'once and for all' rule in this case, the rule states that a plaintiff can only claim once for all the damages they have or will suffer as a result of the defendant's negligence. In this case, Mrs Vusani's prospective loss of earning capacity would fall under the future loss leg of the prospective damages.

Visser & Potgieter (The Law of Damages 4th ed) explain that the 'once and for all' rule does not prevent a plaintiff from claiming for prospective loss of earning capacity separately from present loss. Therefore, Mrs Vusani would be able to claim for both her present loss of earning capacity (the fact that she can no longer work as a physiotherapist) and her prospective loss of earning capacity (the potential future loss of income) as separate components of her damages.