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[2023] ZAKZPHC 41
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Ramanand v Department of Labour: Compensation Commissioner (AR 191/2022) [2023] ZAKZPHC 41; [2023] 7 BLLR 702 (KZP); (2023) 44 ILJ 1816 (KZP) (14 April 2023)
FLYNOTES:
PTSD AND DISABILITY
LABOUR
– Compensation Commissioner – Disability – Post
Traumatic Stress Disorder (PTSD) – Single stressful
event
bring on the condition – Police officer shot by suspect –
Unable to resume duties – Expert evidence
that appellant
permanently disabled due to PTSD and unemployable due to his
condition – Commissioner and tribunal’s
finding of 39%
disability not sustainable – Appeal succeeding and
disablement to be determined at 100%.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: AR 191/2022
In
the matter between:
TREVOR
ARCHAN RAMANAND
APPELLANT
and
DEPARTMENT
OF LABOUR:
RESPONDENT
COMPENSATION
COMMISSIONER
Coram:
Mossop J (Smart AJ concurring)
Heard:
10 March 2023
Delivered:
14 April 2023
ORDER
On
appeal from
: The Tribunal
of the Department of Labour: Compensation Commissioner (sitting as
the tribunal of first instance):
1.
The appeal succeeds.
2.
The decision of the tribunal
dated 4 March 2022 is set aside and substituted with the following
order:
‘
The
Objector’s objection succeeds, with costs on the scale as
between party and party, and the Award of Compensation dated
28
August 2019 is set aside and replaced with the following order:
(a)
The Compensation Commissioner
is ordered to publish to the Objector’s attorneys and to his
erstwhile employer, the South African
Police Services, within twenty
(20) days of this order, a written Superseding Award of Compensation,
in favour of the Objector,
in the following terms:
(i)
That his earnings for the
purposes of calculating the compensation due to him remains unchanged
at R25 088.48;
(ii)
That the commencement date of
compensation, in the form of a monthly pension, remains unchanged at
14 January 2015;
(iii)
That the percentage of the
Objector’s disablement is determined at 100 percent;
(iv)
That the annual increases to
the monthly pension accrues from 14 January 2015 onward.’
3.
The respondent shall pay
interest at the rate of 10,25 percent on the amount of compensation
payable
a tempore morae
(i.e. from the date of the original award on 28 August 2019, to date
of payment).
4.
The respondent shall pay the
costs of the appeal on the scale as between party and party,
including the costs of two counsel where
so employed.
JUDGMENT
MOSSOP
J (SMART AJ concurring):
Introduction
[1]
This is an appeal brought in
terms of section 91(5)
(a)
of the Compensation for Occupational Injuries and Diseases Act 130 of
1993 (the Act).
Representation
[2]
When the appeal was argued, the
appellant was represented by Mr Kruger SC and the respondent was
represented by Mr Sibeko. Both
counsel are thanked for the assistance
that they provided to the court.
The
accident
[3]
The appellant is a former
warrant officer employed by the South African Police Service (SAPS),
who had served his employer for some
25 years before a catastrophic
event befell him on 14 January 2015. Whilst he was on his way to
serve a protection order, he and
his colleague, with whom he was on
duty, were informed by a member of the public that someone was
attempting to interfere with
a parked motor vehicle a short distance
away from where they then were. The appellant and his colleague drove
to the place described
to him by the member of the public and
observed two men near a motor vehicle. It appeared as if they were
changing the number plate
on the motor vehicle. The appellant
alighted from his motor vehicle and challenged the two men. One of
them produced a firearm
and fired two shots at him. The first shot
hit the appellant on his right upper abdomen and the second shot
‘whistled past
his ear’ and hit the windscreen of the
SAPS vehicle, shattering it.
[4]
According to the appellant, his
life was saved by the fact that he was wearing a bullet proof vest,
which assisted in absorbing
the impact of the bullet that struck him.
After attempting, but failing, to arrest his attackers, the appellant
was taken to St
Augustine’s Hospital in Durban where he was
treated for shock and a soft tissue injury to his abdomen. After
receiving that
treatment, he returned later that same day to his
police station but was unable to function and was sent home. He
ultimately never
regained his functionality at work and in July 2016,
the SAPS determined that he was unfit for further duties and his
employment
with it was terminated.
The
appellant’s condition and treatment
[5]
As a direct result of the
events of 14 January 2015, the appellant sought further medical
treatment after he was treated at St Augustine’s
Hospital. On
16 January 2015, he consulted with his general practitioner, who
referred him to a specialist psychiatrist, Dr Vasavan
Agambaram (Dr
Agambaram). Dr Agambaram diagnosed him as suffering from Post
Traumatic Stress Disorder (PTSD) and treated him for
that condition.
In February 2015, the appellant was admitted to the M-Care Private
Hospital for treatment by a multi-disciplinary
team, including
therapy by an industrial psychologist, Dr A Moola.
[6]
The appellant did not respond
well to the treatment that he received. Accordingly, in March 2015,
he was admitted to Life St Joseph’s
Hospital for further
treatment, which included a course of six electro-convulsive
therapies. After his discharge from that institution,
he returned to
work on 1 April 2015. However, the symptoms that he experienced were
exacerbated by his exposure to his former work
environment and he
managed only one day at work.
[7]
During October 2015, the
appellant sought a further opinion on his condition and consulted
with a different psychiatrist, namely
Dr A T Barrett (Dr Barrett),
who confirmed that he was suffering from PTSD. Dr Barrett noted that
the appellant had no prior psychiatric
history. She found him to be
significantly impaired in his functioning and proposed that he be
regarded as temporarily disabled
for a period of six months to assess
whether his condition would improve over this period.
[8]
During the same month, October
2015, the appellant saw an occupational therapist, a Ms D Pillay (Ms
Pillay), who confirmed the diagnosis
of Drs Agambaram and Barrett.
She found that the appellant had been exposed to a traumatic event,
namely the events that occurred
on 14 January 2015. Ms Pillay
investigated the appellant’s work and medical history in some
detail and ascertained that he
had previously experienced a back
problem which was unrelated to the symptoms that he was then
experiencing. She also confirmed
that he had no prior psychological
complaint.
[9]
Ms Pillay prepared a thorough
report on the appellant, comprising some 35 pages. He was subjected
to a battery of tests by Ms Pillay.
She ultimately found that there
was a substantial limitation on the appellant’s occupational
functioning but given the recency
of the stressful event relative to
the date upon which she consulted with the appellant, she was not
prepared at that stage to
consider the appellant as being permanently
disabled. She concluded that:
‘
It
is evident that the client is afflicted with severe/extreme PTSD
symptoms which are currently preventing him from adequate affective,
cognitive, functional and occupational performance. It is unlikely
that the client will be able to return to his former occupational
performance in the short term. Prognosis for future independent
skilled occupational performance within his occupational field
or an
alternate field can only be ascertained only [sic] after a period of
six months of intensive therapeutic intervention.’
[10]
Dr Agambaram, the specialist
psychiatrist, also prepared a report on the appellant. In an opinion
expressed in May 2019, Dr Agambaram
described the appellant’s
prognosis as ‘poor’. He concluded that the appellant had
a ‘total permanent disability’
as a consequence of
suffering from PTSD and that the appellant’s condition was due
to the result of the events on 14 January
2015, which he described as
‘the accident’. In a further note dated 13 February 2020,
Dr Agambaram stated that:
‘
The
above has a chronic history of PTSD and is on medication. His dose
has been adjusted accordingly. The above has significant
social and
occupational impairment. He is permanently disabled and is not able
to work in the open labour market.’
This
opinion was expressed approximately five years after the events of 14
January 2015.
The
appellant’s claim
[11]
As a result of his condition,
the appellant lodged a claim with the respondent in terms of section
43(1)
(a)
of the Act, which is the successor to t
he
Workmen’s Compensation Act 30 of 1941.
[12]
On 28 August 2019, the
respondent published a compensation award, without providing reasons
despite a request for such reasons,
in which it determined that the
appellant’s degree of permanent disablement was assessed at 39
percent.
[13]
At the time of the events of 14
January 2015, the appellant earned a salary of R25 088.48. As a
consequence of the compensation
award, the appellant would
accordingly receive a monthly pension of R7 337.80.
The
appellant’s objection
[14]
The appellant lodged an
objection to the award in terms of section 91(1) of the Act, which
objection was heard by a tribunal (the
tribunal) comprised of a
presiding officer assisted by three assessors, one of whom was a
medical assessor, who were appointed
in terms of section 91(2) of the
Act.
[15]
Before the tribunal, the
appellant contended that he ought to be classified as 100 percent
disabled in terms of schedule 2 of the
Act and not merely 39 percent
disabled.
The
tribunal’s proceedings and decision
[16]
The tribunal conducted its
proceedings on the papers only and called no
viva
voce
evidence. Indeed, it
was, significantly noted by the tribunal that the parties:
‘
.
. . agreed that it would not be necessary for the Applicant to give
viva voce evidence as the facts contained in “Exhibit
A”
were common cause and not in dispute.’
Exhibit
‘A’ apparently comprised the documents relied upon by the
appellant, which included all his expert’s reports.
The
judgment went on further to record that:
‘
The
Applicant provided reports by various experts, ie. Dr A T Barret
[
sic
]
; Devindree Pillay (Occupational Therapist) and Dr V A Agambaram all
of which was accepted and undisputed by the Respondent.’
[17]
On 4 March 2022, the
tribunal delivered the following ruling:
‘
It
is therefore a unanimous decision of the tribunal that :-
1.
The calculation of the
permanent disability of the Applicant at 39% is correctly calculated;
2.
The Applicant’s objection
is hereby dismissed with no order of costs.’
The
appeal
[18]
The dismissal of the
appellant’s objection has resulted in this appeal. Section
91(5)
(a)
of the Act provides as follows:
‘
(5)(
a
) Any
person affected by a decision referred to in subsection (3) (
a
),
may appeal to any provincial or local division of the Supreme Court
having jurisdiction against a decision regarding—
(i) the
interpretation of this Act or any other law;
(ii) the question
whether an accident or occupational disease causing the disablement
or death of an employee
was attributable to his or her serious and
willful misconduct;
(iii) the question
whether the amount of any compensation awarded is so excessive or so
inadequate that the award thereof
could not reasonably have been
made;
(v)
the right to
increased compensation in terms of section 56.
’
The
issues on appeal
[19]
The issues on appeal are
relatively crisp. The appellant contends that he is entitled to be
regarded as being 100 percent disabled
in terms of the Act.
[1]
In support of this submission, the appellant’s notice of appeal
sets out various grounds on which it is alleged that the
tribunal
erred in confirming his disablement at only 39 percent. In broad
terms, two principal grounds are relied upon: firstly,
it is
contended that the tribunal incorrectly interpreted the Act and
secondly, that the compensation ultimately awarded to him
was so
inadequate that it could not reasonably have been awarded. It was
further contended that the tribunal was not entitled to
rely on the
provisions of a document that was referred to as ‘Circular
Instruction 172’ (the circular), it being submitted
that the
circular aimed to override, amend or modify the provisions of the Act
and is in conflict with it. Finally, it was contended
that the
appellant was entitled to his costs before the tribunal on the scale
as between attorney and own client.
[20]
The respondent, on the other
hand, denies all of the above and contends that by virtue of the
provisions of the circular, the appellant
has correctly been assessed
as being only 39 percent disabled. The monthly pension awarded to the
appellant has accordingly been
correctly calculated.
The
circular
[21]
In
its judgment, the tribunal recorded that the respondent had relied
upon the circular in determining the compensation to be awarded
to
the appellant. The circular must consequently be considered in some
detail.
[22]
The
circular
is dated 21 May
2003 and was issued under the hand of the then Director-General of
Labour and was published in the
Government
Gazette
on 27 June 2003.
[2]
The circular was ostensibly issued in order to clarify the position
in regard to the compensation of claims arising out of PTSDs.
[23]
The relevant part of the
circular reads as follows:
‘
4.2
Permanent Disablement
Payment
of permanent disablement shall be made, where applicable, when a
Final Medical Report and/or the report from the panel is
received.
Permanent disablement shall only be determined after 24 months of
optimal treatment. The Compensation Commissioner shall
calculate the
permanent disablement and 100% impairment due to PTSD shall be
equivalent to 65% permanent disablement whereas impairment
less than
20% will not be awarded permanent disablement.’
[24]
In addition, the circular
provided in para 3 thereof, that inter alia, the impairment was to be
evaluated using the Global Assessment
Functioning (GAF) Scale.
Judicial
consideration of the circular
[25]
The circular has in the past
been the subject of judicial scrutiny. In particular, it has enjoyed
the attention of this very court.
In
Odayar v Compensation
Commissioner,
[3]
Theron J (with Hugo J concurring) found, dealing with the same
circular, that:
‘
[16]
T
he Act does
not confer upon the Director-General of the Department of Labour the
power to issue regulations. Despite being published
in the
Government
Gazette
,
the circular is no more than an internal memorandum setting out
guidelines on the manner in which compensation claims relating
to
post-traumatic stress disorder ought to be dealt with.
[17]
The provisions of the circular are, in fact, contrary to the
provisions of the Act. In terms of s 65(1)
(b)
of
the Act, an employee who claims compensation for an occupational
disease such as post-traumatic stress disorder must prove
that the
disease arose “out of and in the course of his or her
employment”. An employee need not prove exposure
“to
an extreme traumatic event or stressor” as required by the
circular.
’
[4]
[26]
The
circular has also been considered in
J
L v
Rand
Mutual Assurance
,
[5]
where the court stated the following:
‘
The
circular does not purport to be issued in terms of any provision of
the Act. It purports simply to be an attitude which the
Department
should consider assuming in dealing with PTSD cases. If the
Director-General did not have express statutory power to
issue this
circular, then it was barely a policy document which did not bind
anyone but was a mere pointer to the preferred exercise
of a
discretion. The consequence, as I see it, is that the circular did
not constitute subsidiary legislation and therefore, for
purposes of
the definition of “
law”
in section 1 of the
Interpretation Act 33 of 1957, it did not qualify as “
Any
law; proclamation, ordinance, Act of Parliament or other enactment
having the force of law"
.’
[27]
Why this should be so is,
perhaps, best explained by Harms JA in
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
,
[6]
where the learned judge succinctly stated the following regarding the
status of policy determinations by bureaucratic functionaries:
‘
I
prefer to begin by stating the obvious, namely that laws, regulations
and rules are legislative instruments, whereas policy determinations
are not. As a matter of sound government, in order to bind the
public, policy should normally be reflected in such instruments.
Policy determinations cannot override, amend or be in conflict with
laws (including subordinate legislation). Otherwise the separation
between Legislature and Executive will disappear.’
[28]
I do not believe that the
decision in
Odayar
is incorrect and I must conclude that
the provisions of the circular are not binding, but remain, at best,
merely an expression
of its author’s attitude to PTSD and how
such claims should be dealt with by his functionaries.
The
approach of a tribunal
[29]
In
hearing objections to decisions of the respondent, the tribunal does
not merely play the part of an impartial referee ensuring
that the
rules are applied equally to each of the parties. It is required to
adopt a more inquisitorial approach, and a more proactive
approach,
in its quest to arrive at an equitable decision.
[7]
In
Pretorius
v Compensation Commissioner and another
,
the court stated that:
‘
The
tribunal should not, like in this matter, follow a mechanistic
approach. An equitable award need not be an award equal to that
stipulated in the guidelines. The medical evidence, consisting of
signs, symptoms and medically acceptable clinical and laboratory
diagnostic techniques, as well as the subjectively quantifiable
complaints of the individual should be considered. The subjective
complaints of the individual must however be in synch with the
medical evidence. The tribunal should exercise its discretion
judiciously
and not arbitrarily. It should not approve the director-
general's decision without proper consideration and thereby reducing
itself
to a body that rubber stamps the director-general's decisions.
It should set out its reasons in sufficient detail to enable the
employee and if necessary the court of appeal to discern the
principles used in making the assessment. The Compensation Act
should not be interpreted restrictively so as to prejudice an
employee if it is capable of being interpreted in a manner more
favourable to him or her
.’
[8]
The
purpose of the Act and its interpretation
[30]
Mr Kruger, correctly in my
view, noted in his heads of argument that the Act is an important
piece of social legislation. Its purpose
is to be ascertained from
its preamble, namely:
‘
To
provide for compensation for disablement caused by occupational
injuries or diseases sustained or contracted by employees in
the
course of their employment, or for death resulting from such injuries
or diseases; and to provide for matters connected therewith.’
[31]
As was stated in
Davis
v Workmen’s Compensation Commissioner
:
‘
The
policy of the Act is to assist workmen as far as possible. See
Williams v Workmen’s
Compensation Commissioner
1952
(3) SA 105
(C) at 109C. The Act should therefore not be interpreted
restrictively so as to prejudice a workman if it is capable of being
interpreted
in a manner more favourable to him.’
[9]
[32]
The Act is thus essentially
concerned with providing appropriate social security to employees who
have suffered disablement as a
result of an occupational injury or
disease and its provisions are to be interpreted generously to
promote this purpose.
[10]
In addition, in
Mahlangu and
another v Minister of Labour and others,
[11]
the court stated that the Act:
‘
must
now be read and understood within the constitutional framework of s
27 and its objective to achieve substantive equality.’
Section
27 of the Constitution guarantees everyone a right to access to
social security and enjoins the State to take steps to progressively
realise this right.
The
uncontroverted evidence
[33]
At the hearing before the
tribunal, there was no dispute regarding the expert medical reports
relied upon by the appellant. Neither
was there any dispute about the
facts of the matter. Implicit in this is that the events of 14
January 2015 are not disputed, nor
is the significance of those
events in the development by the appellant of PTSD. It can safely be
accepted therefore that the respondent
accepted that there was a
single stressful event that brought upon the appellant’s PTSD.
In other reported cases which have
dealt with PTSD it was often
difficult to pinpoint a single stressful event that triggered the
disorder, it being triggered by
a gradual accumulation of stressors.
That is not the case in this matter. It must be so that being shot at
and being hit by a bullet
must be an extremely frightening experience
and forces one to reflect on one’s mortality. That the
appellant has suffered
from PTSD as a consequence of his experience
is not difficult to understand. The appellant’s experts have
confirmed this
event as being the catalyst that brought on his
condition.
[34]
It is also not disputed that Dr
Agambaram found the appellant to be permanently disabled due to PTSD.
This was not a decision arrived
at immediately after the events of 14
January 2015. A number of years have elapsed since that day and Dr
Agambaram remains of the
view that the appellant is unable to compete
on the open labour market. He is thus unemployable given his
condition. No evidence
was led on behalf of the SAPS before the
tribunal and accordingly no expert medical evidence was adduced to
gainsay the evidence
of Dr Agambaram on this issue. The reports of
the appellant’s experts thus went unchallenged and Dr
Agambaram’s final
findings remain undisturbed.
The
errors of the tribunal
[35]
It appears to me that in
considering its judgment, the tribunal fell into the trap cautioned
against in
Pretorius
.
It mechanistically confirmed the respondent’s approach and
provided no trace of its reasons for upholding the respondent’s
decision. It incorrectly elevated the circular to something akin to a
statute and simply ratified its application to the facts
of this
case. It acknowledged in its judgment that the respondent had relied
upon the contents of the circular to arrive at its
assessment of the
appellant’s disablement, but did not question whether the
respondent was entitled to rely on the circular.
[36]
That the tribunal merely rubber
stamped the decision of the respondent is evident from the fact that
the calculation that generated
the answer of a 39 percent disablement
in respect of the appellant was not mentioned at all during the
course of the tribunal’s
written judgment. Nor for that matter
was there any indication what the GAF scale comprises and what values
should be allocated
in this matter using this scale. The tribunal
simply found that:
‘…
the manner in which the permanent
disability was calculated as set out in the respondent’s heads
of argument is plausible
and given the Applicant’s
circumstances appears to be just and equitable.’
The
heads of argument referred to in the extract mentioned above are not
before this court. We do not know what was stated therein.
That we
are now aware of how the calculation is to be performed arises not
from the judgment of the tribunal but from Mr Sibeko’s
heads of
argument submitted to us in advance of the appeal.
[12]
This, naturally, is entirely unsatisfactory.
[37]
In passing, I mention that I
have difficulty in understanding what the plausibility of the
respondent’s decision has to do
with the matter. The
calculation is either correct and is sustainable in law or it is not.
‘Plausible’ seems to me
to indicate that something may
have the appearance of being correct when it may not necessarily be
so.
[13]
It was the function of the tribunal to ascertain whether the
calculation was correct in law, not that it merely appeared to be
correct.
[38]
On a procedural level, Mr
Kruger made the following submissions about the circular:
(a)
It did not form part of the
record before the tribunal;
(b)
It was not attached to the
respondent’s written submissions to the tribunal, nor did the
respondent lay any foundation for
its introduction before the
tribunal; and
(c)
The tribunal was accordingly
not entitled to rely on it in coming to its decision.
These
submissions appear to be correct and were not refuted.
[39]
In any event, so submitted the
appellant, the tribunal was not entitled to rely on the circular as
it offends against the Act. Relying
on
Odayar
,
it was submitted that the Director-General of Labour (the
Director-General) lacked the power to impose the provisions of the
circular. In purporting to do so, the Director-General had exceeded
his powers and had acted without legal authority. Accordingly,
so it
was submitted, the tribunal’s reliance on the circular was
improper and resulted in the misinterpretation of the provisions
of
the Act.
[40]
It was argued by Mr Sibeko that
the provisions of the circular are applicable to PTSDs and that the
assessment of the appellant’s
permanent disablement arising out
of a PTSD was correctly assessed at 39 percent. The respondent
submitted that, as a PTSD is not
referred to in schedule 2 of the
Act, there is a lacuna in the legislation and the respondent is
accordingly empowered by the Act
to provide guidance on the
assessment of permanent disablement arising out of a PTSD.
[41]
The difference between the
position of the appellant and the respondent lies in the reliance by
the respondent on the provisions
of the circular, which equates a 100
percent disablement arising out of PTSD to only a 65 percent total
disablement. Mr Sibeko
was asked to address the court on why this
conversion was necessary but could not advance any reason why this
conversion had been
introduced. I could not independently think of
any reason either.
[42]
I consequently agree with the
submission of counsel for the appellant that the decision of the
tribunal was based upon a misinterpretation
of the Act. The circular
was not binding on the respondent or the tribunal and in law has no
status. The Act does not permit the
Director-General to override the
provisions of the Act and to issue instructions that are binding upon
employees. Thus an injury
that renders an employee 100 percent
disabled cannot by a diktat of the Director-General be transformed
into a 65 percent disablement.
[43]
There are other aspects of the
tribunal’s judgment that excite some unease. Firstly, the
following is stated in the judgment:
‘
The
applicant presented himself at the hearing as a well groomed, able
bodied person without the necessity of any assistance whatsoever,
be
it physical OR mental, that is, a lack of following and understanding
the proceedings.’
[44]
From this, it appears
that the tribunal relied upon the physical appearance of the
appellant before it as a reason why it upheld
the respondent’s
earlier decision. If this is true, it is a gross and severe
misdirection. The condition of the appellant
has nothing to do with
how he looks or presents himself but has everything to do with how he
functions in his chosen career. It
would appear that the considered
findings of the medical experts that the appellant is not able to
function were discounted by
this observation of the tribunal. Given
the uncontroverted evidence adduced by the appellant referred to
previously, there was
no place for such a ‘diagnosis’ by
the tribunal, of which only one person has a medical qualification
and which person
has, in any event, not professionally examined the
appellant. The appellant could not have known that the tribunal would
regard
itself as competent to assess whether he, indeed, suffered
from PTSD by the way he appeared or conducted himself and would in
such
circumstances not have had the ability to correct or contradict
the conclusion of the tribunal based upon the consideration of such
superficial criteria.
[14]
[45]
Secondly, in its judgment, the
tribunal found that:
‘
The
Applicant’s Representative failed to convince this tribunal
that PTSD can emanate from an “accident” which
qualifies
PTSD as an “occupational injury” which falls within the
category of Item 6 of Schedule 2 thereby according
it a 100%
permanent disablement.’
The
Act defines an accident as meaning ‘an accident arising out of
and in the course of an employee's employment and resulting
in a
personal injury’.
[15]
The tribunal appears to have lost sight of the fact that the
respondent did not dispute that the events of 14 January 2015 were
the trigger that brought on the appellant’s condition. By
accepting the expert reports, the respondent accepted the facts
disclosed therein and the conclusions drawn therein. It is
accordingly not clear why the tribunal needed to be convinced that
the appellant’s condition arose from an accident. There was no
other hypothesis before it other than the appellant’s
that the
events of 14 January 2015 were the catalyst that triggered the
occurrence of the PTSD.
[46]
Finally, the tribunal appears
to have overlooked the fact that where possible, it should interpret
the Act in a manner that is most
beneficial to a claimant. The
tribunal appears not to have considered the long service of the
appellant in serving his employer
and his community and that the
compensation it confirmed as being correct was pitifully small in
relation to these factors. In
fact, it was so inadequate that it
could be regarded as not having been reasonably awarded.
Schedule
2
[47]
Having
found that the circular ought not to have been applied by virtue of
the facts of this matter, it is necessary to consider
whether the
appellant is correct in contending that he falls to be regarding as
100 percent disabled in terms of the provisions
of schedule 2 to the
Act.
[48]
Schedule
2, like the Act of which it is a part of, must be interpreted
generously so as to do justice to the employee to the extent
possible
within the ‘give and take framework’ of the Act.
[16]
[49]
Section 49(1)
(a)
of the Act reads as
follows:
‘
Compensation
for permanent disablement shall be calculated on the basis set out in
items 2, 3, 4 and 5 of Schedule 4 subject to
the minimum and maximum
amounts.’
[50]
The relevant portion of
schedule 2, upon which the appellant relies, reads as follows:
Injury
Percentage
of permanent disablement
Loss of two limbs
100
Loss of both hands, or of all
fingers and both thumbs
100
Total loss of sight
100
Total paralysis
100
Injuries resulting in employee
being permanently bedridden
100
Any other injury causing permanent
total disablement
100
[51]
The appellant contends that it
is not disputed that a medical expert in the form of Dr Agambaram has
determined him to be totally
permanently disabled and that such
disablement falls within the last category of classification referred
to in the table above
(the sixth classification).
[52]
Schedule 2 to the Act
specifically identifies those injuries that entitle a claimant to
claim total disablement. The sixth classification
does not specify
the nature of the injury, unlike the five classifications that appear
before it. The sixth classification is dependent
for its
applicability not on the nature of the injury, but on the effect of
that injury, whatever it may be. It stands to reason
that the
legislature could not have thought of every type of injury that would
lead to 100 percent disablement. The range of human
activity is vast
and the possibility for misfortune is virtually limitless. Any injury
that results in 100 percent disablement
thus falls within the sixth
classification, irrespective of the physical nature of the injury. It
must be assumed that the sixth
classification was inserted in the
schedule for a purpose. It seems to me that that purpose is to cater
for injuries that were
not initially thought of or capable of
description when the Act was conceived but which result in 100
percent disablement. An excessive
exposure to nuclear radiation may
be one such example of this.
[53]
It is so
that schedule 2 was considered in
Department
of Labour: Compensation Commissioner v Botha
,
[17]
and, in particular, the provisions of the sixth classification.
Nicholls JA stated the following:
‘
It
is inconceivable that any injury not listed in Schedule 2 should
attract an award of 100% permanent disablement, irrespective
of the
nature of the injury. There are countless injuries which an employee
may suffer in the workplace which are not listed in
the Schedule. As
pointed out by this Court, almost anything which unexpectedly causes
illness, injury to, or death of, an employee
falls within the concept
of an accident. Should an injury, which is not listed in Schedule 2,
befall an employee as a result of
such an accident, this does not
axiomatically mean that he or she is 100% disabled. The extent of the
disability must be determined
in light of the facts of the specific
case and according to medical evidence.’
[18]
(Footnote omitted.)
[54]
In my view, this does not
create an impediment to the success of the appeal. The appellant’s
case is not that because his
injury is not listed in schedule 2 he is
automatically 100 percent disabled, as alluded to in
Botha
.
Botha
makes it plain that the extent of the disablement must be determined
with reference to the facts of the case, which facts would
include
the opinions of the medical experts who have ventured an opinion in
the matter. In this case, only the appellant presented
evidence, none
of which was disputed by the respondent. His injury, whilst not
mentioned in schedule 2, nonetheless thus falls
within the sixth
category mentioned in schedule 2 by virtue of the fact that he is
totally permanently disabled.
[55]
I must thus find that the
appellant’s contention regarding the classification of his
injury as falling within the sixth classification
is correct.
Costs
[56]
Regarding the question of
costs, the appellant argued that there is a duty on the State and its
organs to both know the law and
to apply it properly. In this
instance it has not done so. It was submitted on behalf of the
appellant that he has been put to
the expense of this appeal and
should not be out of pocket because this has occurred, it being
contended that the scale of those
costs should be on the attorney and
own client scale. I am in agreement with all these submissions, save
the scale of the costs
to be awarded. In
Botha
,
where the delay by the respondent in finalising the appellant’s
claim was described as being ‘unconscionable’,
the
Supreme Court of Appeal agreed that the appellant should not be out
of pocket but only awarded costs on the party and party
scale.
[19]
I am unpersuaded that merely being incorrect attracts a punitive
costs order in the absence of any mala fide conduct.
Conclusion
[57]
In my view, it was undisputed
that the injury sustained by the appellant arose from the stressful
events that he experienced on
14 January 2015. It was thus caused by
an accident contemplated by the Act. His PTSD rendered him totally
unfit to continue with
his employment and it was also undisputed that
he was certified as being 100 percent disabled. His condition
accordingly fell within
the sixth classification in schedule 2 to the
Act. There was accordingly no need for the respondent to rely on the
circular and
the fact that it did, meant that it misinterpreted the
provisions of the Act. The appeal must therefore succeed.
[58]
In all the circumstances, I
would propose that the appeal be upheld in the following terms:
1.
The appeal succeeds.
2.
The decision of the tribunal
dated 4 March 2022 is set aside and substituted with the following
order:
‘
The
Objector’s objection succeeds, with costs on the scale as
between party and party, and the Award of Compensation dated
28
August 2019 is set aside and replaced with the following order:
(a)
The Compensation Commissioner
is ordered to publish to the Objector’s attorneys and to his
erstwhile employer (the SAPS) within
twenty (20) days of this order,
a written Superseding Award of Compensation, in favour of the
Objector, in the following terms:
(i)
That his earnings for the
purposes of calculating the compensation due to him remains unchanged
at R25 088.48;
(ii)
That the commencement date of
compensation, in the form of a monthly pension, remains unchanged at
14 January 2015;
(iii)
That the percentage of the
Objector’s disablement is determined at 100 percent;
(iv)
That the annual increases to
the monthly pension accrues from 14 January 2015 onward;’
3.
The respondent shall pay
interest at the rate of 10,25 percent on the amount of compensation
payable
a tempore morae
(i.e. from the date of the original award on 28 August 2019, to date
of payment).
4.
The respondent shall pay the
costs of the appeal on the scale as between party and party,
including the costs of two counsel where
so employed.
MOSSOP
J
I
agree:
SMART
AJ
APPEARANCES
Counsel
for the appellant:
Mr. P. Kruger SC
Instructed
by:
Cornelius Boshoff Attorneys
Locally
represented by:
Tatham Wilkes Incorporated
200
Hoosen Haffejee Street
Pietermaritzburg
Counsel
for the respondent:
Mr V. G. Sibeko
Instructed
by:
The State Attorney
Second
floor, Magistrate’s Court Building
302
Church Street
Pietermaritzburg
Date
of Hearing: 10 March 2023
Date
of Judgment: 14 April 2023
[1]
An
assessment of 100 percent disablement does not, however, mean that
the appellant would be entitled to his full salary. In terms
of
schedule 4, such a disablement would result in him being paid a
monthly pension of 75 percent of his salary calculated at
the time
of the accident.
[2]
Circular Instruction Regarding Compensation for Post Traumatic
Stress Disorder (PTSD), GN 936,
GG
25132,
27 June 2003.
[3]
Odayar
v Compensation Commissioner
2006 (6) SA 202 (N).
[4]
Ibid paras 16 and 17. See
also
Knoetze
v Rand Mutual Assurance
[2022]
2 All SA 458
(GJ) para 57 and
J
L v Rand Mutual Assurance
[2019] ZAGPJHC 392 para 48.
[5]
J
L v Rand Mutual Assurance
[2019]
ZAGPJHC 392 para 48.
[6]
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
2001
(4) SA 501
(SCA) para 7.
[7]
Pretorius v Compensation Commissioner
and another
(2010) 31 ILJ 1117 (O) para 14.
[8]
Ibid
para 15.
[9]
Davis
v Workmen’s Compensation Commissioner
1995 (3) SA 689
(C) at 694F-G.
[10]
Mahlangu
and another v Minister of Labour and others
[2020] ZACC 24
;
2021 (2) SA 54
(CC) par 52.
[11]
Ibid.
[12]
The equation is the following: 100% - 40% GAF = 60 x 65 = 39%
permanent disablement.
[13]
https://dictionary.cambridge.org/dictionary/english/plausible
.
The definition of the word ‘plausible’ is: ‘Seeming
likely to be true, or able to be believed’ or ‘possibly
true’.
[14]
Board
of Education v Rice
[1911]
AC 179
at 182.
[15]
Section
1.
[16]
Healy
v Compensation Commissioner and another
[2008] ZAECHC 167; 2010 (2) SA 470 (E); (2009) 30 ILJ 859 (E) para
18.
[17]
Department
of Labour: Compensation Commissioner v Botha
[2022] ZASCA 38
; (2022) 43 ILJ 1066 (SCA).
[18]
Ibid
para 18.
[19]
Department
of Labour: Compensation Commissioner v Botha
[2022] ZASCA 38
; (2022) 43 ILJ 1066 (SCA) para 22.