n Law, Democracy & Development - Loss of earning capacity : the difference between the sum-formula approach and the 'somehow-or-other' approach

Volume 11, Issue 1
  • ISSN : 1028-1053
  • E-ISSN: 2077-4907



When instituting a delictual claim for loss of earning capacity, an individual needs to submit evidence on a number of matters. The court is called upon to weigh the evidence and make an appropriate award. The purpose of this article is to provide an overview of the terminology employed, to explain the two different ways in which earning capacity is calculated and to illustrate how South African courts not only confuse terms with each other and use them interchangeably, but also that there is no consistent approach to the way in which loss of earning capacity is calculated. Finally it will be argued that it is time to address this matter, possibly by looking at other areas of the law, such as social security law. Although the current social security system can probably not provide solutions to all the problems mentioned in this article, an integrated approach to loss of earning capacity is urgently needed and the new social security system might just add a much needed new dimension to the way in which jurists approach this area of the law.

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