Murder in the workplace: who pays compensation?

In insurance law, murder is regarded as an accident.

In the latest edition of De Rebus, the attorney’s journal, Justice Finger discusses the case of Twalo versus the Minister of Safety and Security and another 2009 2 All SA 491 E. He points out that, although the case was heard in 2009, it seems to have been largely overlooked. The case interprets an important aspect of the Compensation for Occupational Injuries and Diseases Act (COIDA) 130 of 1993, the South African workers’ compensation legislation, and is thus important to this series. But, before that is looked at, let’s review the relevant facts.

Dependants of murdered employees and compensation

The facts of the case are straightforward enough: one policeman shot and killed another, Twalo, while both were at work. To be more specific, Twalo was murdered by a colleague. Mrs Twalo decided to sue the Minister of Safety and Security for damages arising out of her husband’s death.

The Minister raised the defence that such an action was precluded by s35(1) of the COIDA. It has been well known for a hundred years, that employees who are injured at work are usually entitled to workers’ compensation, but cannot sue their employers for compensation. Not surprisingly, being sued, the Minister of Safety and Security raised s35(1) as a defence. The section reads as follows:

“No action shall lie by an employee, or any dependant of an employee, for the recovery of damages in respect of any occupational injury or disease, resulting in the disablement or death of such employee, against such employee’s employer, and no liability for compensation on the part of such employer shall arise, save under the provisions of this act in respect of such disablement or death.”

The important words are “any occupational injury”. If the deceased died as a result of an occupational injury, then the widow would be entitled to compensation, but could not successfully sue the Minister of Safety and Security.

Occupational injury is defined in the Act as a personal injury sustained as a result of an accident. The widow’s argument (more correctly the argument put forward by her lawyers on her behalf) was that her husband did not die as a result of an accident, arguing the murder was not an accident. Murder requires an intentional act and thus, so the argument goes, is not an accident.

An accident is always viewed from the position of the injured party

With all respect to the judge, this argument has never been accepted when it comes to insurance claims and, as I have often pointed out in this series of articles, workers’ compensation is based on insurance principles. As I have often argued, workers’ compensation should be seen as a statutory form of personal accident insurance. So, in the personal accident case of Sikweyiya versus Aegis Insurance Company Limited 1995 4 SA 143 ECD, the insured was advised that some people were waiting outside for him, in order to murder him. Nevertheless, he went out and was in fact murdered. His insurer declined to pay the claim but, as can be predicted, the court ruled against the insurer.

Whether or not a person died as a result of an accident must be judged from the view of the insured (usually the deceased), not the other party (the murderer). In insurance practice and law, it has always been accepted that, on the part of the murdered insured, murder is an accident.

In the Aegis case, the twist to the tale was that the deceased was advised that people were waiting for him. So, it can be argued, knowing this, the murder in this case ceases to be an accident. The court, however, would not deviate from the traditional view (one that the insurance market has always accepted), that murder, from the point of view of the deceased, is an accident.

I have previously argued that this case is probably now sufficient to change the popular view that, in law, the word accident retains its normal everyday meaning. Accident may now have acquired a technical meaning, which differs from what the man in the street (the proverbial reasonable man), would understand the word to be.

The most famous legal articulation of an accident is that it is an unexpected event, which can be located to a particular location and point in time. From the position of the murdered person, it is correct that the event was unexpected, but I would argue very few people would regard murder to be an accident. In its (now technical) insurance meaning, murder is an accident when seen from the point of view of the murdered person. The purpose of this broad interpretation is to ensure that the injured party (or his dependants), receives workers’ compensation, or a payout on a policy.

There are many workers’ compensation cases where intentional acts, including murder, have been interpreted as an accident. So In Re Manthe in 1979, an employee was injured in a robbery while at work and was awarded workers’ compensation. In a Zimbabwean case; that of Workers’ Compensation Commissioner versus FA Stewart (Pvt) Ltd 1991 3 SA 830 ZS, a farm manger was murdered while out inspecting the farm. He was awarded workers’ compensation.

If the courts take a narrow view of an accident, there are many cases where injured employees, who currently receive compensation, will not do so in the future. It looks as though the Supreme Court of Appeal will get an opportunity to clarify matters, because there is a case (that of De Necker versus MEC Department of Health 2012), where a medical doctor was raped at work and is seeking workers’ compensation.

Vicarious liability seen from the position of the perpetrator

Now, if the law is established and the widow is entitled to workers’ compensation, why is the widow suing the employer? Finger suggests: “It would appear that the reason for claiming outside of COIDA is motivated by the desire to get more money.” This view is probably correct. However, going down this route presents society with serious problems. In order to hold the employer liable, in law known as vicarious liability, the employer must be held, in law, liable for the acts of the perpetrator.

So, for compensation, the position is viewed from the position of the injured party, but, for vicarious liability, it is viewed from the position of the perpetrator. In principle, no one should be held accountable for the wrongful acts of another. This is a fundamental principle upon which society was built. An exception was introduced about 150 years ago and, under very limited grounds, an employer can be vicariously liable for the acts of employees.

In recent years, courts have been expanding the basis of vicarious liability. It is, however, suggested that to expand vicarious liability, as in this case, to that of murder, would be going too far. In a case like this, if the widow is entitled to compensation, the law should not be expanded into the dangerous territory of expanding criminal vicarious liability.

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 Wits University as a lecturer in insurance.