CHAPTER 11: EXCLUSION OF EMPLOYER’S LIABILITY BY THE COMPENSATION FOR OCCUPATIONAL

INJURIES + DISEASES ACT 130 OF 1993

 Under common law, employees can claim damages from employer if can prove that
employer was negligent.
 COIDA provides a limited compensation system, which is not based on fault.
o Employees who qualify for this compensation can’t use their common-law claim
against their employer by s35 of the Compensation Act.

COMMON-LAW POSITION

 Fault-based claim for patrimonial + non-patrimonial harm.

 Contributory negligence would result in proportional reduction of damages under
Apportionment of Damages Act 34 of 1956.
 Possibility of legal costs (unsuccessful).
 Employer could be unable to pay damages (even if successful).

POSITION UNDER THE COMPENSATION ACT

 System that allows employees to get limited compensation from a fund to which employers
are obliged to contribute.
 Purpose:
o to provide compensation for disability caused by occupational injuries / diseases
sustained / contracted by employees in the course of their employment.

 Operation:
o If disabled, employee has right to claim for patrimonial harm only (no compensation
for pain + suffering) through an administrative process.
o D-G to determine amount that employee is entitled to.
o Amt due is paid out of a fund to which the employer is obliged to contribute with a
criminal sanction for non-compliance.
o Payment not depend on proof of negligence, on part of employer /anyone else.
o S22(1): Injured employee’s contributory negligence does not reduce the
compensation.
 S22(3)(a): Except if ‘serious + wilful misconduct’ – no compensation paid,
unless
 Serious disablement / death + dependant left and is financially dependant.
o Amt may be increased if employer/co-employee negligent, but not beyond extent
of claimant’s actual pecuniary loss.
o Employee retains common-law action against a wrongdoer (excl employer) referred
to as a ‘3rd party’.
 Reduced by the amt recoverable under Act, SO NOT over compensated.
o D-G also has claim against such 3rd party ‘for recovery of compensation that he is
obliged to pay ito Act.’
  If an employee is dissatisfied with the D-G’s interpretation of the Act/an award, an
application may be lodged w/in 180 days, in prescribed manner. If employee STILL
dissatisfied, can appeal to HC, which has jurisdiction in following matters:
o The interpretation of the Act/ any other law.
o Whether an employee’s serious + wilful misconduct caused an accident / occ disease
that caused the disablement/death of an employee.
o Whether the amt of any compensation awarded is so excessive / so inadequate that
the award could not reasonably have been made.
o The right to increased compensation ito s56.

 Employees entitled to C under CA can’t claim against their employer acc to s35 of the Act.

SECTION 35 provides as follows:

 (1) No action shall lie by an employee / any dependant of an employee for the recovery of
damages in respect of any occupational injury/disease resulting in the disablement / death of
such employee against such employee’s employer, + no liability for compensation on the part
of such employer shall arise save under the provisions of this Act in respect of such
disablement/death.
 (2) For the purposes of subsection (1) a person referred to in s56 (1)(b)(c)(d) + (e) shall be
deemed to be an employer.

 The validity of this exclusion of employer’s liability has been challenged under the 1993
Constitution, but the CC did not declare the section invalid. [Jooste v Score Supermarket
Trading]
o Court found that s35 restricted the rights of employees to claim damages at
common law.
o Alternatively, the CA allows employees to obtain limited compensation w/out having
to prove negligence.
o Open question whether scheme under Act was to disadvantage of employees.
o Whether an employee should be able to keep the common-law right to claim
damages, either over + above, or as an alternative to advantages conferred by CA,
was highly controversial policy issue.
o Legislature considered that it was appropriate to grant employees certain benefits
not available at common law, while excl certain common law rights.
o S35(1) of the CA was therefore logically + rationally connected to a legitimate
government purpose:
 A comprehensive regulation of compensation…

 For the exclusion of employer’ liability ito s35 to apply, the parties + the claim in question
must meet the rqmts as set out in relevant definitions:
 o ‘employee’ : a person who has entered into, or works under a contract of
service/apprenticeship/learnership, with an employer, whether the contract is
express/implied, oral/in writing, + whether the remuneration is calculated by time /
by work done, or is in cash or in kind.
 Crown Chickens v Rieck
 Court held that a person contracted out to a company by a labour
broker was an employee of the labour broker + not of the company
where she worked.
 Therefore, she could sue the company for injuries arising out of an
accident in which she was taken as a hostage by robbers + where
security guards employed by the company negligently caused her
injuries when firing at the robbers.

o ‘employer’: any person, incl State, who employs an employee; any person
controlling the business of an employer; a temporary employer to whom the
services of an employee is lent/let; + a labour broker who against payment provides
a person to a client to supply a service or perform work.
 S35 uses the term in an extended sense. Ito s35(2), read with sections 56(1),
‘employer’ includes:
 Manages or controls business/branch.
 Right to engage/discharge employees
 Engineer apptd to be in general charge of machinery
 Person in charge of machinery ito any regulation made under OHSA.

 Employees have no claim against their employer for an ‘occupational injury/disease’

o Occupational injury: personal injury that results from an ‘accident’ – accident arising
out of + in course of an employee’s employment.
 Rauff v Standard Bank Properties
 Court held that an employee, who was injured while leaving work
when the lift in the building that she worked in malfunctioned, did
not suffer ‘occupational injury’, because she was no longer working
at the time +the injury did not arise ‘out of + in the course of
employment’
 S35 did not apply + she could sue her employer.

 S35 also applies to claims under the RAF Act.

o In Mphosi v Central Board for Co-operative Insurance Ltd,
 The court held that an employee has no claim against the predecessor of the
current RAF if the claim is based on his employer’s negligence, because the
liability of the Fund depends on whether a claim under common law exists,
which in this case would have been excluded by the predecessor of the
current s35.