What happens when an occupational accident and disease claim against an employer is dismissed?
We have often pointed out that if an employee is injured, or contracts an occupational disease, he or she would receive compensation in terms of the workmen’s compensation scheme and not from their employer. This article discusses two recent cases where employees unsuccessfully attempted to sue their employers for occupational disease.
It is well known that an injured employee cannot sue his or her employer for occupational injury or disease, but, as pointed out in previous articles, the reason for this prohibition is less clearly understood. It is usually said that, with regard to occupational injuries and diseases, a trade-off exists between the interests of employers and those of employees.
Employees get compensation through an administrative process, which is more certain, quicker and cheaper than suing the employer. In return, the employer is relieved of the risk of being sued by his employees. This is an anachronism – when workmen’s compensation was introduced, there was very little chance of a successful action being brought against the employer, because of three defences that existed.
In the United Kingdom there was the “fellow employee” also known as the “doctrine of common employment” defence. No claim could succeed if the accident was caused through the negligence of a fellow employee, which is almost always the case. The “fellow employee” defence was abolished in 1947 (about 50 years after workmen’s compensation had been introduced).
The second defence was the volenti non fit injuria – the “voluntary assumption of risk”. This defence still exists today, but is seldom evoked and, when evoked, is seldom successful. The third defence is “contributory negligence” which, until the 1950s, was a completed defence.
Over and above these defences, winning a court case is expensive, risky and takes a long time to resolve – sometimes more than a decade. To deal with claims on this one-on-one basis is simply too inefficient to be considered as a viable policy option.
The original purpose of prohibiting claims against employers was to prevent double compensation; an employee would not be able to receive compensation from the compensation fund and then also from the employer.
This would be equivalent to suing the person who causes a motor accident, after getting paid by the other motorist’s insurer, and then also wanting to receive payment from the motorist, because, in your view, the motorist had not paid.
So, compensation can come from only one source.
In addition, it is correct to say that the employer would not like to be involved in litigation (which could take several years) when a more efficient method, such as the workmen’s compensation system, can be put into place.
In South Africa, the prohibition against suing the employer is contained in section 35 of the Compensation for Occupational Injuries and Diseases Act of 1993 (commonly referred to as Coida).
An unsuccessful attempt was made to have section 35 of Coida declared unconstitutional in the case of Jooste versus Compensation Commissioner 1997 SACC.
For a long time, the system has been that claims are made against compensation funds and not employers. There have been two recent attempts by injured employees to sue their employers, but neither succeeded. These are examined in chronological order.
In Skorbinski versus Bezuidenhout ta/DB Transport 2009, Eastern Cape High Court, Skorbinski sued his employer DB Transport. It is not at all clear why Skorbinski thought he could sue his employer when this has been prohibited for nearly a century.
When someone is being sued (the defendant) and believes that no basis exists in law for the action, they can raise an exception and the court can then simply look at the legal arguments. This is what happened in this case.
The judge identified the argument and concluded: “The gravamen of the plaintiff’s defence to the exception raised is the contention that his damages claim against the defendant is founded in delict and ‘falls outside the ambit of the Act’. The stance adopted is disingenuous and the invitation by plaintiff’s counsel to view the particulars of claim benevolently to sustain such an interpretation must be declined.”
In short, the judge could find no legal basis for the action. The exception was thus upheld. Skorbinski raised some issues such as his employer’s late notification of the accident to the commissioner, but this did not constitute a valid basis for the claim to be entertained.
The second case is Sanan versus Eskom 2010, which was heard in in the South Gauteng High Court, where an employee tried to sue Eskom for R16 million, alleging that he contracted an occupational disease. He alleged that he was employed by Eskom as an apprentice electrician from 1966 to 1971 and while working there he had been exposed to asbestos.
In 2009, 38 years later, he was diagnosed with mesothelioma. Once again, the defendant (Eskom) raised an exception based on section 35 of Coida. When this case was heard the Supreme Court of Appeal (SCA) had upheld the same exception in Thembekile Mankayi versus AngloGold Ashanti Ltd 2010 5 SA 137 SCA.
The SCA confirmed the dismissal of the case in the High Court. The court once again upheld the exception, holding that in South Africa there are no legal grounds to sue an employer for an occupational disease, since such a claim is barred by section 35.
The plaintiff tried to raise a technical matter, alleging that the case should have been dealt with as a special plea and not as an exception. However, it is usual to deal with a matter such as this by way of an exception.
The judge was also not impressed with this argument and went on to say: “In my view there is no substance in this argument. First of all, it is highly relevant that the section 35(1) objection to particulars of claim in the Mankayi matter was raised by exception before the court a quo. In the judgment of Malan JA as well as that of Harms DP and Cloete JA, the procedure adopted of raising the defect by way of an exception, was not criticised or disapproved of.”
Cases where the event takes place four decades prior to the manifestation of harm are problematic for a number of reasons (other than legal ones), particularly where some form of insurance is involved.
First, insurance is never designed to deal with this circumstance. So, to bring a claim within the purview of the policy, the interpretation of the words used in insurance policies would need some distortion.
The usual words used are “accidental injury, which occurs during the period of insurance”. An accident is usually traceable to a particular time and place, so when a person contracts an occupational disease we need to know when the “accidental event” occurred. This is a relevant, but complex question, since, by their very nature, most diseases occur gradually and they do not meet the commonly thought of idea of an accident.
Second, it needs to be determined which policy would be involved – the accident must occur during the period of insurance.
Since it is not possible to pinpoint the event, it is not possible to allocate the event to a specific policy. With some imaginative interpretation the American courts came up with the idea of “multiple triggers”. This could result in all the policies along the way being triggered.
One solution adopted in many insurance markets was to change the wording from “losses occurring” to “claims first made” wherein the insurance policy in place when the claim is made becomes liable for the claim. This solved only part of the problem… For example, if the claim is contested in court, the “claims first made” policy does not address the delays caused by protracted litigation.
It can therefore be said that in South Africa the general rule is that an employee cannot sue an employer for an occupational injury or disease. One exception to this rule is the case of mineworkers, who, as a result of the Constitutional Court’s surprising decision in the Mankayi case, have been held to fall outside the section 35 prohibition.
Legally Speaking is a regular column by Albert Mushai from the school of Economics and Business Sciences, University of the Witwatersrand. Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining the University of the Witwatersrand as a lecturer in insurance.