Transforming a child's claim for loss of earning capacity

Abstract

This article explores the possible constitutional transformation of a child's delictual claim for loss of earning capacity. As such, it is located at the intersection of the law of delict and child law. The current law on a child's claim for loss of earning capacity is explained first. It is shown that such a claim involves a concurrent violation of the constitutional rights to bodily integrity and property which common-law thinkers call a person's "personal immaterial property". A claim for loss of future earning capacity may be brought by or on behalf of a child in terms of the common law's rules for Aquilian liability. In this regard, it is noted that the assessment of future losses is a controversial legal issue because it necessarily involves speculation about future hypotheticals. While controversial, claims of this nature may be reasonably determined with reference to available evidence. In terms of the law, as it stands, factors that courts consider in quantifying a child's damages for loss of earning capacity include the average probable income, the child's schooling and familial context, wage statistics, and broad judicial discretion. It will be shown that these factors could be applied (and sometimes have been applied) in ways that perpetuate past patterns of exclusion and poverty that are often racially determined - ultimately resulting in some children's claims for loss of earning capacity being pitched below a liveable wage. Relying on the constitutional right to equality and the constitutional best interests of the child standard, it is argued that the common law ought to be developed in this regard to move our law of delict in the direction of distributive justice. In this regard, reference to "liveable wages" and "fairness" (as a consideration in exercising judicial discretion) may be appropriate guidelines used to quantify children's claims for loss of earning capacity in future.