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[2022] ZAECMKHC 39
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Member of Executive Council for Roads and Public Works, Eastern Cape v Yeomans (CA 44/2021) [2022] ZAECMKHC 39 (7 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
REPORTABLE
Case
no: CA 44/2021
In
the matter between:
MEMBER OF EXECUTIVE
COUNCIL FOR
APPELLANT
ROADS AND PUBLIC
WORKS, EASTERN CAPE
and
RICHARD ALEXANDER
YEOMANS
RESPONDENT
FULL
COURT APPEAL JUDGMENT
VAN
ZYL DJP
[1]
The issue to be decided in this appeal is a limited one. It is
confined to whether
the plaintiff’s (the respondent in the
appeal) claim for damages arising from injuries which he sustained in
a motor vehicle
accident lies against the Road Accident Fund in terms
of section 17(1) of the Road Accident Fund Act
[1]
(the RAF Act) to the exclusion of the identified wrongdoer at common
law and the Compensation Commissioner appointed in terms of
the
Compensation for Occupational Injuries and Diseases Act
[2]
(COIDA).
[2]
The plaintiff was employed as a long-distance truck driver by a close
corporation
trading as RTD Transport (the employer). The accident
occurred at about midnight on 6 August 2012 when the plaintiff was
driving
a truck owned by his employer. He was conveying a load of
frozen vegetables for his employer. He failed to negotiate a sharp
bend
in the road while travelling between the Gariep Dam and
Venterstad. The truck overturned and the plaintiff was injured. The
road,
the R701, is a provincial road that is under the control and
the supervision of the Department of Roads and Public Works of the
Eastern Cape Government (the Department) in terms of the provisions
of the Eastern Cape Roads Act
[3]
(the Roads Act). The plaintiff subsequently sued the Member of the
Executive Council for Roads and Public Works of the Eastern
Cape
Province (the MEC, who is the appellant in the appeal) in her nominal
capacity, and the Road Accident Fund (the Fund) for
damages.
[3]
The plaintiff’s case against the MEC was premised on the
failure of the Department
to comply with its statutory duty to
control, maintain, protect and rehabilitate the road in question, and
to provide and maintain
traffic signs, traffic control devices and
markings, for the guidance and safety of road users.
[4]
The plaintiff alleged that the cause of the accident was the
negligent conduct of the Department by
inter
alia
failing to ensure that
“
sufficient
and appropriate traffic signs or control devices or markings were in
place to give motorists sufficient or adequate warning
that they were
approaching a
sharp bend to the
right, or to reduce their speed prior to entering a sharp bend, to
the right, or sufficient or adequate to reduce
their speed prior to
entering a sharp bend, or sufficient or adequate warning that the
road surface in that sharp bend and the
vicinity thereof, was in a
poor condition, or that the edges thereof were worn or neglected or
that the width of the tar road in
that sharp bend has been reduced by
wear and tear.”
[4]
In the alternative, the plaintiff pleaded that the Fund was liable to
compensate him
for his damages, in that the accident was caused by
the negligence of the owner of the truck and/or its employees. The
owner’s
negligence was averred to have arisen from its failure
or that of its employees to ensure that the truck was in a roadworthy
condition,
and by instructing the plaintiff to undertake a journey
with the truck without having taken reasonable steps to remedy a
problem
with the brakes of the truck that had previously been
identified. In the further alternative, the plaintiff sought to
apportion
liability for his damages caused by the accident to the MEC
and to the Fund by alleging that the accident was caused “
partly
by the fault of the first defendant and partly by the fault of the
plaintiff’s employer or of an employee of the plaintiff’s
employer.”
[5]
The trial court (Smith J) gave the plaintiff leave to withdraw his
claims against
the Fund. The court was of the view that the
withdrawal of the action against the Fund did not preclude the MEC
from raising the
issue of the Fund’s statutory liability, and
proceeded to decide the matter on that basis. The withdrawal of the
action was
motivated by a special plea raised by the Fund. The
defence raised in the special plea was simply that any liability of
the RAF
to compensate the plaintiff could only arise from a reliance
on a wrongful act of the owner of the truck or its employees as
contemplated
in section 17(1) of the RAF Act, and because the owner
of the truck was also the employer of the plaintiff, and its
liability to
compensate the plaintiff in that capacity is excluded by
the provisions of COIDA, the Fund is not liable to compensate the
plaintiff
for any damages arising from the accident.
[6]
The plaintiff’s withdrawal of his claims against the Fund was
on the premise
that the owner of the truck was also his employer, and
what he sustained in the accident was an occupational injury as
contemplated
in COIDA. On that basis, and on an interpretation of
sections 19(a) and 21 of the RAF Act together with section 35(1) of
COIDA,
the plaintiff’s acceptance that the Fund was not liable
to compensate him for his injuries, was correct. The requirements
for
the obligation of the Fund to compensate any person for any loss or
damage suffered as a result of any bodily injury or death,
is found
in section 17(1) of the RAF Act.
[5]
Section 19 however excludes the liability of the Fund as contemplated
in section 17(1) in certain circumstances. Paragraph (a)
of section
19 provides that the Fund shall not be obliged to compensate any
person in terms of section 17 for any loss or damage
“
for
which neither the driver nor the owner of the motor vehicle would
have been liable but for section 21”.
What this exclusion means is that if the third party cannot hold the
wrongdoer in section 21 liable at law, that is, for a reason
other
than the exclusion of his liability in terms of section 21, the Fund
is also not liable. Who a wrongdoer is in terms of section
21, is
dealt with in paragraphs [39] to [43] of this judgment.
[7]
Section 35(1) of COIDA in turn precludes an employee from recovering
damages from
his or her employer in respect of an occupational
injury. It 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.”
The
Constitutional validity of the exclusion of the employers’
liability in COIDA was challenged in
Jooste
v Score Supermarket Trading (Pty) Ltd
.
[6]
The Constitutional Court found that the exclusion of an employee’s
common law right to claim damages in favour of certain
benefits not
available at common law, did not infringe upon any Constitutional
right. The exclusionary effect of section 35 (1)
was confirmed by the
Supreme Court of appeal in
Mankayi
v AngloGold Ashanti Ltd
[7]
:
“
The
common law may be altered expressly or by implication. To my mind the
clear provisions of s 35(1) of COIDA show that there is
an intention
to alter the common law and to make inroads into existing rights: its
plain meaning is that it bars claims by all
employees as defined.”
[8]
[8]
The legislative intent of a provision worded similarly to section
35(1) was construed
in
Mphosi
v Central Board for Co-Operative Insurance Ltd
[9]
to preclude an employee’s common law delictual action for all
damages against his employer in respect of any occupational
injury.
That being the position, and provided that the plaintiff suffered an
“
occupational
injury,”
the owner of the truck in the present matter would not, if section 21
of the RAF Act had not been enacted, have been liable to
the
plaintiff for any loss or damage suffered by him in respect of the
injuries caused by his negligence, and the Fund is accordingly
in
terms of section 19(a) of the RAF Act not liable to compensate the
plaintiff for such loss or damage. Simply put, if the plaintiff
is
found to have been injured while at work and he has a claim for
workers compensation in terms of COIDA, he cannot also claim
delictual damages from his employer, and as a consequence of which,
also not receive compensation from the Fund.
[9]
The exclusion in section 35(1) is limited to damages for which the
employer would
otherwise have been liable for at common law. Read
with section 36, section 35 does not preclude an employee from
claiming compensation
in terms of COIDA, and instituting a claim for
damages in a court of law when someone other than his employer is
liable for damages
in respect of an occupational injury. Section
36(1)(a) reads as follows:
“
If
an occupational injury or disease in respect of which compensation is
payable, was caused in circumstances resulting in some
person other
than the employer of the employee concerned (in this section referred
to as the ‘third party’) being liable
for damages in
respect of such injury or disease –
(a)The
employee may claim compensation in terms of this Act and may also
institute action for damages in a court of law against
the third
party.”
[10]
The construction given to section 35(1) in
Mphosi
was
confirmed in a later decision in
Road
Accident Fund v Monjane
.
[10]
Scott JA reasoned that since the legislature retained the statutory
provisions upon which the
Mphosi
case was decided, it must be accepted as being a correct reflection
of the legislature’s intention:
“
Section
19 (a) of the RAF Act, read with s 35(1) of COIDA, indicates when
that line has been drawn: an employee who sustains an
‘occupational
injury’ in the context of a motor accident will have no claim
under the RAF Act if the wrongdoer is his
or her employer. This was
recognised by this court as long ago as 1974 in
Mphosi’s
case.
It is well-established rule of construction that the legislature is
presumed to know the law, including the authoritative
interpretation
placed on its previous enactments by the courts. Significantly, the
legislature has in a series of subsequent enactments
retained in
substance the statutory provisions upon which Mphosi’s case was
decided. It must be accepted, therefore, that
the construction placed
upon them correctly reflects the policy of the legislature.”
[11]
[11]
The decision in Monjane has been criticised.
[12]
The basis for the criticism is in essence the unfairness that may
arise from the construction placed on the section 35(1) of COIDA
read
with section 19(a) of the RAF Act. The unfairness complained of
arises from the fact that an employee who is the victim of
a motor
vehicle accident which is due to the negligence of the driver or the
wrongful act of the owner, and who has sustained an
injury as
contemplated in COIDA, is limited to a claim for compensation on the
scale of benefits provided for in COIDA. The view
expressed is that
such a claimant should, as in the case of a passenger who is an
employee of the driver or the owner of the vehicle,
be entitled to
benefit from both Acts.
[13]
As
this issue, which is primarily the result of section 19(a) of the RAF
Act, does not arise in the present matter on the facts
found by the
trial court to have been proved, it is not necessary to deal with
what
prima
facie
appears to be the unequal treatment without a rational basis of
equally placed victims of a road accident.
[12]
The withdrawal of the action against the Fund left the MEC as the
only remaining defendant in
the action. The MEC did not seek to amend
its plea following the withdrawal. On the pleadings as it stood, the
MEC denied that
the Department was negligent, alleging instead that
the accident was caused by the negligence of the plaintiff as the
driver of
the truck, alternatively, that if the Department is found
to have been negligent, the accident was caused by the contributory
negligence
of the plaintiff. The MEC further pleaded that if the
plaintiff is found to have been injured as a result of an unlawful
act of
the owner of the truck, the Fund must be held solely liable
for the plaintiff’s damages.
[13]
The trial court found that the plaintiff sustained an occupational
injury, and that the liability
of the Fund was as a result excluded
by section 19(a) of the RAF Act. It held that the plaintiff was not
negligent in any way,
and that the sole cause of the accident was the
negligence of the Department. The MEC did not appeal the finding that
the Department
was negligent in failing to comply with its statutory
obligations. It is consequently not necessary to consider the
correctness
of that finding. The position in the appeal is therefore
that the MEC accepted that the Department was negligent. The
case
advanced was instead that the trial court erred in finding that
the Department’s negligence was the sole cause of the conduct.
It was contended that on the evidence the culpable conduct of the
owner of the truck contributed to the accident. The MEC argued
that
the contributory negligence of the owner meant that the exclusive
liability to compensate the plaintiff for his loss or damage
suffered
by him must be found to lie with the Fund. That submission was
essentially based on four grounds: The first is that the
plaintiff
did not sustain an “
occupational injury”
as
envisaged in section 35(1) of COIDA. The second is that the injuries
sustained by the plaintiff was due to a wrongful act of
the owner of
the truck as contemplated in section 17 (1) of the RAF Act. Thirdly,
the wrongful act of the owner contributed to
the accident, and
following therefrom, the last leg of the argument was that section
17(1) “
fixes liability at the door”
of the Fund to
the exclusion of a wrongdoer at common law.
[14]
The wrongful act on which the MEC sought to place reliance on was
what was said to be the wrongful
instruction given to the plaintiff
by his employer, who was also the owner of the truck, to drive the
truck while its brakes were
faulty. What was contended on behalf of
the MEC to constitute wrongful conduct on the part of the employer is
premised on a factual
finding that the brakes of the truck were
defective before the accident; that the employer had knowledge of the
defect (or reasonably
ought to have had such knowledge); that the
employer instructed the plaintiff notwithstanding to drive the truck;
and that the
defect in the brakes was a contributory cause of the
accident. The trial court found that the evidence did not establish
that the
brakes were faulty, or that it contributed to the accident.
The sole cause of the accident was found to be the negligence of the
Department in failing to comply with its statutory duty to maintain
the road and to provide adequate warning to road users of the
sharp
bend in the road.
[15]
As stated, the trial court found that the plaintiff’s injuries
were occupational injuries
as defined in COIDA. It reasoned that he
was employed as a truck driver, and the accident occurred while he
drove the truck within
the course and scope of his duties as such.
This, the court concluded, meant that any liability on the part of
the Fund for any
damages sustained by the plaintiff in the accident,
was excluded by virtue of section 19 (a) of the RAF Act read with
section 35
of COIDA, and that the MEC was liable to compensate the
plaintiff for such damages as he may be able to prove. This
conclusion
is, on the facts found to have been proved, consistent
with section 36(1)(a) of COIDA referred to earlier.
[16]
The premise on which the MEC based the argument that the Fund is
exclusively liable to compensate
the plaintiff for any damages
suffered by him, is not supported by the evidence and the facts. It
is further based on a wrong construction
of the relevant sections in
the RAF Act, and an incorrect application of the requirements for an
“
occupational injury”
as envisaged in COIDA. The
focus of the argument in the appeal was predominantly on the question
whether the fact that the owner
of the truck, who was also the
plaintiff’s employer, meant that any liability that may lie
with the Fund, was excluded by
the provisions of COIDA. For that
reason alone, I shall commence with a determination of the issues
raised by the provisions of
COIDA.
[17]
It was not in dispute that if the plaintiff did not suffer an
occupational injury as envisaged
in COIDA, the plaintiff would on the
factual position contended for by the MEC, have had the right to
claim compensation from the
Fund in terms of section 17(1) of the RAF
Act. The driver of a motor vehicle in a single driver vehicle
accident is a “
third
party”
as envisaged in the section.
[14]
It is further not necessary for the injury (or death) to have been
caused by or arising from the negligence of the driver of the
motor
vehicle, for liability to arise. The section explicitly provides for
legally blameworthy conduct as the cause of an injury
on the part of
persons other than the driver, such as the failure to maintain a
vehicle.
“
The
negligence or unlawful conduct … may consist of some
antecedent or ancillary act or omission on the part of the driver
or
the owner of the vehicle or the servant of the owner, such as failing
to maintain a vehicle in a roadworthy condition or overloading
the
vehicle. The death or bodily injury … must be causally related
to this negligent or otherwise unlawful act and also
to the driving
of the vehicle.”
[15]
[18]
Counsel
for the MEC in argument also referred to the decisions in
Road
Accident Fund v Abrahams
[16]
(a burst tyre) and
Maatla
v Road Accident Fund
[17]
(a defective steering) as authority for the fact that the failure of
an owner of a motor vehicle to maintain his vehicle may constitute
a
“
wrongful
act”
as envisaged in section 17 (1) of the RAF Act.
Applied
to the factual scenario proposed by the MEC, the failure by the owner
to maintain the truck, and by instructing the plaintiff
to drive it
knowing it to be defective (or ought to have known it to be
defective), would constitute wrongful conduct for purposes
of section
17(1).
This
blameworthy conduct of the owner would further be sufficiently
closely connected to the injury sustained by the plaintiff to
conclude that it was “
arising
from the driving of a motor vehicle”
as envisaged in section 17(1).
[18]
[19]
The question is then whether the Fund’s liability is excluded
by section 35(1) of COIDA
as the trial court concluded. In short, the
argument of the MEC in this regard, based on the proposed set of
facts, was that:
(a)
The instruction issued to the plaintiff by
his employer to drive a truck with faulty brakes was an unlawful
instruction which he
would otherwise have been entitled to disobey;
(b)
The unlawful instruction was the legal
cause of the accident of the plaintiff’s injuries, in that if
it was not for the instruction,
the plaintiff would not have
undertaken the journey, and he would not have been injured; and
(c)
With
reliance on the decision in
MEC
for Health, Free State Province v DN
[19]
,
the wrongful instruction was not a “
risk
incidental”
to the employment of the plaintiff.
[20]
I intend to deal with the validity of this argument on the assumption
of the correctness of the
facts relied on by the MEC. Before doing
so, it may be convenient to first make some general observations, and
to highlight a few
aspects. The first aspect is that the right of an
employee to claim compensation, and the duty of the Compensation
Commissioner
to compensate the employee, arises from the provisions
of section 22(1) of COIDA
[20]
.
Consequently, the requirements for the existence of a liability to
pay such compensation are derived from COIDA itself, and are
not to
be conflated with the requirements for the liability of the Fund to
pay compensation for damages as envisaged in the RAF
Act. The
compensation structure created by COIDA provides for a form of the
no-fault liability. As stated, in
Jooste
v Score Supermarket Trading (Pty) Ltd
[21]
the Constitutional Court was asked to
inter
alia
decide whether the prohibition in section 35(1) of COIDA violates the
constitutional right to equal protection and treatment under
the law.
The Court held that COIDA is important social legislation with the
purpose of providing “
no
fault”
compensation
to employees from a Compensation Fund.
[22]
The fact that liability is not based on fault (
culpa
),
means that the fact that the employee is injured in an accident
caused by his own negligence, does not constitute a bar to a
claim
for workmen’s compensation.
[21]
Culpable conduct on the part of the employer does similarly not
exclude a claim for compensation.
“
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.”
[23]
That this is so, is confirmed by section 56(1) of COIDA. It provides
that if an employee meets with an accident which is due to
the
negligence of his employer, he is entitled to increased compensation.
Of particular significance in the context of the present
matter is
the deeming provision in sub-section (2). It reads as follows:
“
For
the purposes of subsection (1) an accident or occupational disease
shall be deemed also to be due to the negligence of the employer
if
it was caused by a patent defect in the condition of the premises,
place of employment, equipment, material or machinery used
in the
business concerned, which defect the employer or a person referred to
in paragraph (b), (c), (d) or (e) of subsection (1)
has failed to
remedy or cause to be remedied.”
[22]
Unlike the position under COIDA, liability in terms of the RAF Act is
based on fault. The substantive
basis for the Fund’s liability
is found in common law delictual liability.
[24]
Section 17(1) provides that the Fund shall be obliged to compensate
any person “
if
the injury or death is due to the negligence or other wrongful act of
the driver or the owner of the motor vehicle or of his
or her
employer.”
This is an important difference between the RAF Act and COIDA that
makes it advisable to avoid using legal concepts and terminology
that
belong in the sphere of determining liability based on fault, when
asked to determine whether an employee is entitled to compensation
as
envisaged in section 22 of COIDA. Otherwise than the RAF Act, the
application of COIDA is based on the proposition that the
common law
requirements for delictual liability for personal injuries incidental
to the operations of the workplace based upon
negligence of the
employer, with its defences of contributory negligence and the
assumption of risk, are inapplicable to workmen’s’
compensation.
[23]
The second aspect, which flows from the first, is that the liability
to pay workmen’s compensation
must be determined on the facts
of each case by having regard to the wording of COIDA. Accordingly, a
test that is convenient and
appropriate to the facts of a particular
case, must not be elevated to a general statement of the law, and be
applied without more
outside of the context in which it was
originally used. In
Plumb
v Cobden Flour Mills Co Ltd
[25]
the Court appropriately cautioned as follows in the context of the
British workmen’s compensation legislation: “
It
is well, I think, in considering the cases, which are numerous, to
keep steadily in mind that the question to be answered is
always the
question arising upon the very
words
of the statute. It is often useful in striving to test the facts of a
particular case to express the test in various phrases.
But such
phrases are merely aids to solving the original question, and must
not be allowed to dislodge the original words. Most
of the erroneous
arguments which are put before the courts in this branch of the law
will be found to depend on disregarding this
salutary rule. A test
embodied in a certain phrase is put forward, and only put forward, by
a judge in considering the facts of
the case before him. That phrase
is seized on and treated as if it afforded a conclusive test for all
circumstances, with the result
that a certain conclusion is plausibly
represented as resting upon authority, which would have little chance
of being accepted
if tried by the words of the statute itself.”
[24]
In
MEC
for Heath, Free State v DN
[26]
the Supreme Court of Appeal similarly emphasised that there is no
“
bright
line”
test that applies to claims for workmen’s compensation, and
that each case must be dealt with on its own facts. This is correct.
The enquiry is always first and foremost whether, on the particular
facts and in the circumstances of each case, the statutory
requirements as expressed by the wording of COIDA have been
satisfied, rather than a mechanical application of some word test or
a definition used in another case. The obvious reason lies in the
fact that the enquiry envisaged by the definition of an “
accident”
is factual in nature, and that a factual finding in one case cannot,
for reasons equally obvious, without more be transposed onto
another.
[25]
What may look like a test applied in a particular case, is in effect
nothing more than an explanation
for a finding that the accident in
that case arose from or occurred within the course of the workmen’s
employment. The correct
approach, which is not always clearly stated
in the judgments referred to, is that the court is required to have
regard to, and
weigh in the balance every factor which may be
pointing towards or away from a finding that the accident in the case
at hand arose
from and occurred in the course of the employee’s
employment. Some factors may be found to be either material or
irrelevant
in a given factual situation, but it is generally
unhelpful to attempt to lay down rules or tests.
[27]
[26]
Workmen’s compensation is payed when an employee meets with an
accident and suffers an
occupational injury.
[28]
What an occupational injury is, is defined in section 1 of COIDA. It
reads as follows:
“
Occupational
injury” means a personal injury sustained as a result of an
accident.”
“
Accident”
is in turn defined as:
“…
an
accident arising out of and in the course of an employee’s
employment and resulting in a personal injury, illness or the
death
of the employee.”
[27]
On reading of these definitions, it is evident that there are four
distinct components to determining
the existence of an occupational
injury. First, a personal injury must have been sustained by an
employee. Second, the injury must
result from an accident. The third
aspect is that the accident must arise from the employee’s
employment. Finally, it must
be demonstrated that the injury was
sustained in the course of the employment.
[28]
The first requirement does not in the present matter present with any
difficulties. What an accident
is, is not defined.
[29]
Our courts have adopted a meaning that extends beyond the
ordinary grammatical meaning of an accident as being an unintended
or
unexpected occurrence.
[30]
It
will be wrong in my view to attempt to define the word “
accident”
with any precision when technological advances are redefining
traditional notions relating to the workplace. It may lead to results
that are inconsistent with the legislative intention and the purpose
of the enactment.
[29]
What an “
accident”
is must be construed in its
setting and in the context and the purpose which appears from COIDA.
What the definition contemplates
is an external identifiable event or
occurrence, from the perspective of the person that is injured, that
is the factual cause
of the injury sustained. The event or occurrence
with which the statute is concerned, is circumscribed by the
definition itself,
in requiring it to have two limiting
characteristics: It must be the factual cause of the misfortune that
befell the employee;
and it must be an event or occurrence that can
be identified as arising out of and in the course of the employee’s
employment.
[30]
The terms “
arising
out of”
employment, and “
in
the course of”
employment, are not synonyms and are treated as two separate elements
or requirements. “
In
order for a common law claim against an employer to be precluded, the
accident must have occurred during the course of an employee’s
employment
and
it must
also
arise out of that employment.”
(My
emphasis)
[31]
An injury to an
employee is said to arise from his employment if there is, in a broad
sense, a causal connection between the employment
and the injury
sustained
.
“… dit ontstaan “uit sy diens” as die
ongeval in verband staan met sy werksaamhede …”
and it “
eis
alleen in breë sin ʼn kousale verband tussen diens en
ongeval.”
[32]
[31]
An injury is said to arise “
in
the course”
of employment if it occurred while the employee was busy fulfilling
his duties of his employment
.
“… die ongeval moet plaasvind terwyl die werksman besig
is met sy werksaamhede.”
[33]
Where the first requirement is concerned with whether or not
the injury was caused by the employee’s employment, the
latter
requirement raises the question whether or not the employee was doing
the work he was employed to do when he was injured.
[32]
The question is then whether on the facts on which the MEC says the
trial court should have determined
the matter, the plaintiff’s
injuries were caused by an accident that arose out of and in the
course of his employment. The
question must be answered in the
affirmative. The plaintiff suffered a personal injury. The cause of
the injury was the motor vehicle
accident. The plaintiff’s
driving of the truck at the time was an act which he was engaged in
performing for the purposes
of, and in connection with his employer’s
business. Put differently, at the time of the occurrence that caused
the injury,
the plaintiff was doing what he was employed to do at a
place he may reasonably have been at in the performance of his
duties.
[33]
The flaw in the argument put forward on behalf of the MEC is that it
equates what is culpable
conduct on the part of the employer, with
what the legislature intended to be an external occurrence or an
event that is the cause
of the personal injury sustained by the
employee. As stated, the object of COIDA is to provide for
compensation to be paid to workmen
where the employer would not
otherwise at common law have incurred any liability. COIDA does not
deprive an employee of a claim
for compensation because of the
existence of fault, but rather because the accident did not arise out
of and in the course of his
employment. Accordingly, the culpable
conduct of the employee or that of the employer, is not a bar to a
claim for compensation
in terms of COIDA.
[34]
This would in my view include culpable conduct of the employer that
may consist of the giving
of an order or instruction to perform a
specific action that may in itself be culpable. In terms of section
22 (4) of COIDA, “
an accident shall be deemed to have arisen
out of and in the course of the employment of an employee
notwithstanding that the employee
was at the time of the accident
acting contrary to any law applicable to his employment
or
to any order by or on behalf of his employer, or that he was acting
without any order of his employer.
”
(My
emphasis). The effect of this provision is that the accident is
deemed to have arisen out of and in the course of the employment
notwithstanding the employee having acted against an order or
instruction given to him by his employer. It is difficult to see
how
an employee who complies with an instruction from his employer can be
said to have acted outside of the course and scope his
employment,
when the failure of an employee to comply with an order of his
employer does not place the accident outside the course
and scope of
his employment.
[35]
Seen against the purpose and the scheme of COIDA, the blameworthy
conduct of an employer that
consists of a failure to maintain its
equipment or machinery which he then expects an employee to use in
the performance of his
duties, is in my view exactly the type of
mischief the statute intended should not operate to exclude the
liability of the Compensation
Commissioner to pay compensation to an
employee for harm suffered by him in the course and scope of his
employment. COIDA “
supplants
the essentially individualistic common-law position, typically
represented by civil claims of a plaintiff employee against
a
negligent defendant employer, by a system which is intended to and
does enable employees to obtain limited compensation from
a fund to
which the employers are obliged to contribute.”
[34]
[36]
The MEC’s reliance on the decision in
MEC
for Health, Free State v DN
[35]
in support of its argument that a wrongful instruction to an employee
by his employer is not a risk incidental to such employee’s
employment is misplaced. The argument employs the term “incidental
risk” in the wrong context. The question is not
whether the
culpable conduct of the employer constitutes an incidental risk, but
rather whether the accident, that is, the occurrence
that caused the
injury, constitutes a risk that is incidental to the employee’s
employment. The decision in
DN
is also clearly distinguishable on the facts. The event or the
occurrence that gave rise to a personal injury in that case
constituted
a criminal act. The employee was a medical doctor who was
assaulted by an intruder and was raped while she was on night duty at
her place of employment. The trial court was asked to determine the
employer’s special plea that liability based on negligence
was
barred by section 35(1) of COIDA. It dismissed the special plea. On
appeal the Supreme Court of Appeal upheld the decision
of the trial
court to dismiss the special plea. It agreed with the trial court
that the rape did not arise from the employee’s
employment as
envisaged in COIDA. In deciding this aspect, the court asked the
question whether “
the
wrong causing the injury bears a connection to the employee’s
employment. Put differently the question that might rightly
be asked
is whether the act causing the injury was a risk incidental to the
employment.”
[36]
[37]
The term “
incidental risk”
on which the MEC seeks
to place reliance in the present matter is nothing more than a factor
that may be relevant in a particular
factual context for determining
whether the “
accident”
arose from the employee’s
employment, by having regard to whether or not the accident is a
peril which the employee is at
risk of encountering while doing what
he is employed to do. It gives consideration to whether there is
something about the employee’s
employment that exposes him to
the occurrence that caused the injury beyond that of the public
generally. Simply put, was it part
of the injured employee’s
employment to risk that, or to do that, which caused the injury?
[38]
Otherwise than in the present matter where the risk of meeting with a
motor vehicle accident
when driving his employer’s truck in the
course of his employer’s business, is a risk that is inherent
to the plaintiff’s
employment as a truck driver, and clearly
“
arose”
from his employment as envisaged in COIDA, the risk of becoming a
victim of crime at the work place was found by the Court on appeal
in
MEC
for Health, Free State v DN
[37]
not to be a risk that is connected to the employee’s
employment. The decision is correct. Unlike an employee whose duties
require the safekeeping of monies, the exercise of which may expose
that employee to the risk of being the victim of certain kinds
of
crime, such as a security guard or possibly a bank teller, the duties
of the employee bore no connection to the crimes committed.
The
performance of her duties as a medical doctor did not place her in a
position any different to that of a patient at the hospital
or any
other member of the public.
[38]
[39]
I accordingly conclude that on the facts relied on by the MEC, the
Fund’s liability is
excluded by section 35 (1) of COIDA read
with section 19 (a) of the RAF Act. The next aspect to consider is
the correctness or
otherwise of the MEC’s submission, based on
the same factual scenario relied on, that a finding that a wrongful
act of the
owner of the truck contributed to the accident, section
17(1) makes the Fund exclusively liable for the plaintiff’s
damages.
This argument is premised on the fact of the Department’s
own negligence. On the proposed factual context, that makes the
Department a concurrent wrongdoer. “
Concurrent
wrongdoers” are persons whose independence or ‘several’
delictual (or omissions) combine to produce
the same damage.”
[39]
The
import of the MEC submission is therefore that the protection
afforded to wrongdoers by the RAF Act extends to a concurrent
wrongdoer whose negligence contributed to an accident that otherwise
falls within the provisions of section 17(1) of the Act.
[40]
This submission is based on a wrong interpretation of section 17(1)
of the RAF Act. Section 17(1)
sets out the requirements for attaching
liability to the Fund, and it must be read “
subject to this
Act”
. The obligation of the Fund to compensate a third
party is derived from section 17 read with sections 19 and 21 of the
Act. Its
effect is to substitute the Fund for the insured wrongdoer,
that is, the Fund steps into the shoes of the wrongdoer. The
wrongdoers
for whom the Fund is substituted, are identified in
section 21. It reads as follows:
“
Abolition
of certain common law claims.
(1)
No claim for compensation in respect
of loss or damage resulting from bodily injury to or the death of any
person caused by or arising
from the driving of a motor vehicle shall
lie –
(a)
Against the owner or driver of a
motor vehicle; or
(b)
Against the employer of the driver.”
[41]
On a reading of section 21, the protection afforded by the RAF Act is
limited to the driver of
the motor vehicle, the employer of the
driver, and the owner of the motor vehicle. Section 17 and 21 do no
more than to substitute
for the common law action for damages, based
upon the negligence or other unlawful act of the identified wrongdoer
causing injury
or death, an action against the Fund, thereby
relieving the wrongdoer,
viz-a-viz
the third party, of his original liability.
[40]
From the perspective of the injured party, section 21 of the RAF Act
takes away his right to recover his damages from any of the
insured
wrongdoers. The Department is not an insured wrongdoer for purposes
of the RAF Act, and as stated in
Evins
v Shield Insurance Co Ltd
,
[41]
the statutory liability of the Fund goes no wider than the common law
liability of the identified insured wrongdoers. An important
aspect
to also bear in mind is that the intended beneficiary of the Fund is
the innocent injured claimant, and not the wrongdoer
whose fault was
the cause of his injuries.
[42]
[42]
With this in mind, section 21 of the RAF Act cannot operate to
relieve a wrongdoer other than
the insured wrongdoer from his own
common law delictual liability to compensate an injured claimant. The
MEC is, on the proposed
factual scenario, a concurrent wrongdoer
whose independent wrongful act combined with that of an identified
wrongdoer in the RAF
Act (the owner) to cause the same harmful
consequences. At common law an injured party has the right to
fully recover his
damages in respect of injuries suffered as a result
of negligence of another person. Where there are concurrent
wrongdoers, a claimant
may recover the full amount of his loss from
any one of the number of wrongdoers. The reason lies in the fact that
concurrent wrongdoers
are at common law severally liable
in
solidum
[43]
.
[43]
The principle of liability
in
soldium
means that each one of the wrongdoers are liable for the full amount
of the claimant’s damages, and the claimant may choose
which
one of the wrongdoer’s he will sue.
[44]
One wrongdoer may therefore be called upon to pay the whole of a
claimant’s claim. The wrongdoer paying the claimant then
has
right to a contribution against the other. On the proposed facts, the
MEC is liable to the plaintiff
in
solidum,
and
there is no reason to conclude that the legislature has intended to
alter the common law position, and to take away existing
rights
beyond the express wording of section of the RAF Act.
[45]
The plaintiff was therefore entitled to choose to recover the fall
amount of his loss from the MEC.
[44]
That leaves the correctness or otherwise of the factual findings made
by the trial court. As
stated, those findings do not support the
MEC’s submission that there was culpable conduct as
contemplated by section 17(1)
on the part of the owner of the truck.
The factual findings of the trial court, which are relevant to the
issue raised in this
appeal, are in essence confined to the question
whether the employer in the present matter was negligent in failing
to maintain
the brakes of the truck, and instructing the plaintiff to
drive the truck knowing that the brakes were defective. The defect in
the brakes of the truck on which the MEC sought to rely on, was what
the plaintiff described as a slight shudder whenever he applied
the
brakes. The plaintiff’s evidence was that he had reported this
to the employer. The employer then instructed him to take
the vehicle
for inspection and repairs to a repair shop. The braking system was
disassembled and inspected in the plaintiff’s
presence. There
was no obvious fault found with the brakes and their ability to cause
the truck to slow down or stop, except the
shudder when the brakes
were applied. In a written report the engineer advised the owner to
“
have the brake drums skimmed and the brake shoes radius
ground as this normally cures a shudder.”
It was thereafter
that the plaintiff undertook his journey with the truck on the
instructions of his employer.
[45]
The evidence does not support the conclusion contended for on behalf
of the MEC. The factual
findings made by the trial court in this
regard are supported by the evidence, and in the absence of any
obvious and serious misdirection,
I can find no reason to interfere
with those findings.
[46]
[46]
I accordingly conclude that the trial court cannot be faulted for
finding that in law and on
the facts there was no merit in the
submission that the Fund was exclusively liable for any such damages
as the plaintiff may have
suffered.
[47]
In the result, the appeal is dismissed with costs, such costs to
include the costs of two counsel
where so employed.
SIGNED
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
I
agree:
SIGNED
N
G BESHE
JUDGE
OF THE HIGH COURT
I
agree:
SIGNED
M
S RUGUNANAN
JUDGE
OF THE HIGH COURT
Counsel
for the Appellant:
ADV RORKE SC & ADV DALA
Instructed
by:
N N DULLABH & CO
5
BERTRAM STREET
MAKHANDA
6140
Counsel
for the First Respondent:
ADV CROWE SC & ADV COLE SC
Instructed
by:
WHEELDEN RUSHMERE & COLE
119
HIGH STREET
MAKHANDA
6140
Date
heard:
28 FEBRUARY 2022
Date
delivered:
7 JUNE 2022
[1]
Act
56 of 1996.
[2]
Act
130 of 1993.
[3]
Act
3 of 2003.
[4]
Section
3 (1)(a) of the Roads Act.
[5]
It
reads:
(1)
The Fund or an agent shall –
(a)
Subject to this Act, in the case of
a claim for compensation under this section arising from the driving
of a motor vehicle where
the identity of the owner or the driver
thereof has been established;
(b)
Subject to any regulation made under
section 26, in the case of a claim for compensation under this
section arising from the driving
of a motor vehicle where the
identity of neither the owner nor the driver thereof has been
established,
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of
any bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the
driving of a motor
vehicle by any person at any place within the Republic, if the
injury or death is due to the negligence or
other wrongful act of
the driver or of the owner of the motor vehicle or of his or her
employee: Provided that the obligation
of the Fund to
compensate a third party for non-pecuniary loss shall be limited to
compensation for a serious injury as contemplated
in subsection (1A)
and shall be paid by way of a lump sum.
[6]
1999
(2) SA 1 (CC).
[7]
2010
(5) SA 137 (SCA).
[8]
At
para [38].
[9]
1974
(4) SA 633
(A). See also Mankayi v Anglogold Ashanti supra fn
7 at paras [21] and [29].
[10]
2010
(3) SA 641 (SCA).
[11]
At
para [12].
[12]
See
eg Ahmed
Finding
the intention of the legislature – RAF v Monjane
2010 (3) SA
641
(SCA)
2011 (74), Tydskrif vir Heedendaagse Romeins – Hollandse Reg
at page 494.
[13]
Section
18(2) of the RAF Act.
[14]
Abrahams
v Road Accident Fund 2016 (6) SA 545 (WCC).
[15]
Wells
and Another v Shield Insurance Co Ltd
1965 (2) SA 865
(C) at 670 C –
D and Santam Versekeringsmaatskappy Bpk v Kemp
1971 (3) SA 305(A)
at
332 D- F.
[16]
2018
(5) SA 169 (SCA).
[17]
(11690/11)
[2015] ZAGPPHC 129 (6 March 2015).
[18]
Wells
supra fn 15 at 870 E-F.
[19]
2015
(1) SA 182 (SCA).
[20]
It
reads: “
If
an employee meets with an accident resulting in his disablement or
death such employee or the dependants of such employee shall,
subject to the provisions of this Act, be entitled to the benefits
provided for and prescribed in this Act.”
[21]
Supra
fn 6.
[22]
Mankayi
v Anglogold Ashanti supra fn 7 at para [16] and MEC for Health, Free
State v DN supra fn 19 at para [8].
[23]
Jooste
v Score Supermarket Trading (Pty) Ltd supra fn 6 at para [14].
[24]
Road
Accident Fund v Abrahams supra fn 16 at para [13].
[25]
[1914]
AC 62
at 65 to 66. Also Blair and Co Ltd v Chilton
(1915)
84 LJKB 1147
at 1148 and Harris v Associated Portland Cement
Manufacturers Ltd
[1938] All ER 831
HL.
[26]
Supra
fn 19 at para [31]. See also Churchill v the Premier of
Mpumalanga and Another (889/2019)
[2021] ZASCA 16
(4 March 2021) at
para [36].
[27]
In
Plumb v Cobden Flour Mills Co Ltd supra fn 25 Lord Dunedin pointed
out that most of the erroneous arguments put forward in
cases
involving workmen’s compensation in England will be found to
be the result of disregarding the salutary rule that
a “
test”
convenient in a particular case must not be allowed to override the
wording of the enactment itself.
[28]
Section
22 (1) of COIDA.
[29]
McQueen
v Village Deep G M Co Ltd
1914 TPD 344
at 347 to 348 and 350.
See generally Joubert
The
Law of South Africa
(LAWSA) vol 30 at para 126.
[30]
See
the case law discussed with apparent approval in MEC, for Health v
DN supra fn 19 at para [17].
[31]
MEC
for Health, Free State v DN supra fn 19 at para [17].
[32]
Minister
of Justice v Khoza
1966 (1) SA 410
(A) at 417 D.
[33]
Ibid.
See also MEC for Health, Free State v DN fn 19 supra at paras [16]
and [17].
[34]
Jooste
v Score Supermarket Trading (Pty) Ltd supra fn 6 at para [14].
[35]
Supra
fn 19.
[36]
At
para [30].
[37]
Supra
fn 19.
[38]
See
also Churchill v The Premier of Mpumalanga supra fn 26 at para [36].
[39]
Nedcor
Bank Ltd t/a Nedbank v Lloyd – Gray Lithographers (Pty) Ltd
2000 (4) SA 915
(SCA) at para [10]. “
The
distinction between joint and concurrent wrongdoers is, of course,
now largely academic in view of the provisions of the Act
(Apportionment
of Damages Act)
which
recognise and regulate a right of contribution between ‘joint
wrongdoers’ who are so defined as to include both
joint and
concurrent wrongdoers at common law.”
[40]
See
Da Silva and Hunter v Coutinho
1971 (3) SA 123
(A) at 139 E –
G, where the court dealt with legislation that preceded the RAF
Act. The purpose of the legislation
is the same.
[41]
1980
(2) SA 814
(A) at 841 E – G.
[42]
Smith
v Road Accident Fund
[2006] ZASCA 15
;
2006 (4) SA 590
(SCA) at para
[9]
.
[43]
Union
Government (Minister of Railways) v Lee
1927 AD 202
; Windrum v
Neunborn
1968 (4) SA 286
(T) at 287 H – 288 A and Nedcor Bank
Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd supra fn 39 at
para [10].
[44]
Nedcor
Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd supra fn
39 at para [10].
[45]
See
the authorities referred to in Rose’s Car Hire (Pty) Ltd v
Grant
1948 (2) SA 466
(A) at 471.
[46]
See
R v Dhlumayo
1948 (2) SA 677
(A) at 705 – 706; Mashongwa
v Prasa
2016 (3) SA 528
(CC) at para [45] and JMYK Investments CC v
600 SA Holdings (Pty) Ltd
2003 (3) SA 470
(WLD) at para [7].