Skorbinski v Bezuidenhout t/a DB Transport (1935/08) [2009] ZAECPEHC 14; 2009 (5) SA 461 (ECP); (2009) 30 ILJ 2847 (ECP) (5 May 2009)

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[2009] ZAECPEHC 14
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Skorbinski v Bezuidenhout t/a DB Transport (1935/08) [2009] ZAECPEHC 14; 2009 (5) SA 461 (ECP); (2009) 30 ILJ 2847 (ECP) (5 May 2009)

FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case
Number:
1935/08
High
Court:
PORT
ELIZABETH
DATE
HEARD:
30
April 2009
DATE
DELIVERED:
5
May 2009
JUDGE(S):
LEGAL
REPRESENTATIVES –
Appearances:
for
the Excipient(s):
Adv
P.E Jooste / Adv T. Zietsman
for
the Respondent(s):
Adv
L.A Schubart SC
Instructing
attorneys:
Applicant(s):
Nash
Vandayar & Associates (ref: Vandayar)
Respondent(s):
Pagdens
(ref: R.H Parker)
CASE
INFORMATION -
Nature
of proceedings
:
Exception
Topic:
Key
Words:
Exception
– Compensation forOccupational Injuries and Diseases Act 130/1993
– S 35 (1) precluding action against the Employer
for occupational
injury – Exception upheld
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – PORT ELIZABETH
In the matter between: Case
No: 1935/08
GEORGE HENRY
SKORBINSKI Plaintiff/Respondent
And
DEON BEYERS BEZUIDENHOUT t/a
DB TRANSPORT
Defendant/Excipient
Coram: Chetty,
J
Date Heard: 30
April 2009
Date
Delivered: 5 May 2009
Summary:
Exception
– Compensation for Occupational Injuries and Diseases Act 130/1993
– S 35 (1) precluding action against employer for
occupational
injury – Exception upheld
___________________________________________________________
____
JUDGMENT
_______________________________________________________________
CHETTY, J
[1] The defendant
has excepted to the plaintiff’s particulars of claim on the basis
that he is precluded from seeking damages
against him by virtue
of the provisions of s 35 (1) of the
Compensation
for Occupational Injuries and Diseases Act
1
(the
Act). Under the rubric,
Substitution
of Compensation for other legal remedies
,
s 35 (1) provides that –
“
(1) 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.”
[2] In
Jooste
v Score Supermarket Trading (Pty) Ltd
2
Yacoob J succinctly summarised the common law right of an employee
to claim damages and contrasted it to the legislative regime

regulated by the Act in order to posit the context in which s 35 (1)
deprived an employee of the right to claim damages under
the Act. At
paragraph [14] of the judgment he articulated the position thus –
“[14] By
way of contrast, the effect of the Compensation Act may be summarised
as follows. An employee who is disabled in the
course of employment
has the right to claim pecuniary loss only through an administrative
process which requires a Compensation
Commissioner to adjudicate upon
the claim and to determine the precise amount to which that employee
is entitled. The procedure
provides for speedy adjudication and for
payment of the amount due out of a fund established by the
Compensation Act to which the
employer is obligated to contribute on
pain of criminal sanction. Payment of compensation is not dependent
on the employer’s
negligence or ability to pay, nor is the amount
susceptible to reduction by reason of the employee’s contributory
negligence.
The amount of compensation may be increased if the
employer or co-employee were negligent but not beyond the extent of
the claimant’s
actual pecuniary loss. An employee who is
dissatisfied with an award of the Commissioner has recourse to a
Court of law which is,
however, bound by the provisions of the
Compensation Act. That then is the context in which s 35 (1) deprives
the employee to the
right to a common-law claim for damages.”
[3] 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.
[4] The mere fact
that the defendant was less than dilatory in expeditiously reporting
the accident to the Commissioner does not
assist the plaintiff in any
way. The latter was entitled in terms of the provisions of s 38 (1)
of the Act to give notice of the
accident to the Commissioner in the
event of the employer failing to comply with the statutory obligation
imposed on him. Whatever
delay there may have been thereanent does
not transform the plaintiff’s claim into a delictual one entitling
him to institute
an action for damages under the common law. The
plaintiff’s remedy was to seek compensation pursuant to the
machinery created
by the Act. The injury sustained to his hand was
and remains an occupational injury in terms thereof. As adumbrated
earlier s 35
(1) of the Act precludes an employee from claiming
damages from his employer in respect of such an injury.
[5] In my view the exception must be
upheld and in the result the following order will issue –
The exception is upheld with
costs.
The plaintiff’s particulars of
claim is set aside and the plaintiff, if so advised, afforded a
period of one month to amend
his particulars of claim.
__________________________
D. CHETTY
JUDGE OF THE HIGH COURT
Obo the Plaintiff/Respondent: Adv
P.E Jooste / Adv T Zietsman
Instructed by Andre Dorfling
Attorneys
C/o Nash
Vandayar & Associates
1
st
Floor, Nedbank Building
522 Govan Mbeki Ave
North End
Port Elizabeth
Obo the Defendant/Excipient Adv
L.A Schubart
Instructed by Pagdens
Attorneys
18 Castle Hill
Central
Port Elizabeth
(Ref: R.
H Parker)
1
Act 130 of 1993
2
1999 (2) SA (1) CC