Brief Summary

Compensation — Occupational injuries — Claim for compensation under the Compensation for Occupational Injuries and Diseases Act — Appellant's claim for compensation following a motor vehicle accident while fetching spare parts for employer's combine — Claim repudiated on grounds that appellant was not acting in the course and scope of employment — Tribunal dismissing appellant's objection to the repudiation — Legal issue of whether the appellant was within the course and scope of employment at the time of the accident — Court finding that the appellant was indeed acting within the course and scope of his employment, thus entitling him to compensation.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an appeal in terms of section 91(5) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) against the dismissal of an objection to the repudiation of a compensation claim. The proceedings arose from a workplace-related compensation claim following a motor vehicle accident in which the claimant sustained serious head injuries.

The appellant was Coenraad Jacobus Gunter, who at the relevant time was employed as a farm manager/foreman by the Gunter Familie Trust. The respondent was the Compensation Commissioner (referred to in the judgment interchangeably with the Director-General in relation to the original decision).

The procedural history was as follows. The appellant lodged a compensation claim on 21 October 2002 in terms of section 43(1)(a) of COIDA. The respondent repudiated the claim by letter dated 2 November 2004. The appellant lodged an objection under section 91(1). The objection was heard on 17 October 2007 by a tribunal constituted under section 91(2). On 11 April 2008, the presiding officer dismissed the objection, finding that the appellant had not been acting in the course and scope of employment at the time of the accident. The appellant then appealed to the High Court under section 91(5).

The general subject matter of the dispute was whether the injuries were compensable under COIDA, specifically whether the accident occurred “arising out of and in the course of” the appellant’s employment, and whether section 22(5) (which deems certain employer-provided conveyance to be in the course of employment) was applicable.

2. Material Facts

It was common cause that the accident occurred on Tuesday, 18 June 2002, notwithstanding that the repudiation letter referred to an accident at “22h00 on a Sunday night.” The High Court recorded this common cause position and treated the Tuesday date as correct.

The appellant was employed by the Trust as a farm foreman/manager with responsibility for the day-to-day running of the farm. The court accepted evidence (summarised in argument and supported by the testimony of the appellant and the Trust’s trustee) that the appellant’s duties included running errands and fetching supplies and spare parts from town when required for the farming operation, particularly when machinery broke down.

The accident occurred while the appellant was travelling to Klerksdorp to obtain spare parts for a combine harvester used to harvest sunflowers. The trip was described as urgent because the combine had broken down during the harvesting season and needed repair so harvesting could continue. The evidence accepted by the court was that the appellant had no fixed working hours and was expected to be available as required by the farming operation; the trip therefore occurred while he was on duty, even though it required travel beyond what might ordinarily be described as standard office hours.

The vehicle involved in the trip was driven by Reverend D J Goosen, who was not an employee of the Trust. The respondent’s repudiation letter relied, among other things, on the fact that the driver was not an employee and implied that the timing of the trip rendered the claim non-compensable. The tribunal proceedings proceeded on the basis that the repudiation had been made with reference to section 22(5).

The respondent led no evidence before the tribunal to contradict the version presented by the appellant and his witnesses. The High Court treated the factual version advanced on behalf of the appellant as materially unrebutted on the record.

3. Legal Issues

The central legal questions the court was required to determine were whether, on the facts placed before the tribunal, the appellant’s accident was compensable under COIDA because it occurred in the course and scope of employment, and whether the tribunal’s dismissal of the objection could stand.

A related issue raised on behalf of the appellant was whether the tribunal acted ultra vires by deciding the matter on a basis different from the one said to underlie the original repudiation (namely, moving from a focus on section 22(5) to an enquiry grounded in section 22(1) read with the definition of “accident” in section 1). This issue was framed as one of the tribunal’s jurisdictional limits under section 91, with reliance placed on authority dealing with a tribunal’s statutory powers.

In the manner the High Court resolved the appeal, the dispute primarily concerned the application of legal principles to largely uncontested facts, specifically the legal characterisation of the appellant’s travel (to fetch spare parts) as constituting the performance of his work, and the tribunal’s approach to the “control” element in determining course and scope of employment.

4. Court’s Reasoning

The court recorded that the repudiation and the tribunal hearing initially proceeded on the premise that the relevant provision was section 22(5) of COIDA. The presiding officer ultimately found that section 22(5) did not apply, but then proceeded to determine whether the appellant had been acting within the course and scope of employment at the time of the accident, and dismissed the objection on that ground.

On the appellant’s argument that the tribunal acted ultra vires (supported by reference to Venter v Compensation Commissioner 2001 (4) SA 753 (TPD)), the court noted the contention that the tribunal is a “creature of statute” whose powers are sourced in section 91 and that it should not usurp the Director-General’s functions by deciding the claim on a basis not forming part of the original decision. The respondent argued that section 91(3)(a) empowered the tribunal, after considering an objection, to “confirm the decision” or “give such other decision as may be equitable,” contending that this permitted a broader enquiry.

The court did not finally determine whether the Venter approach was correct or whether the tribunal’s jurisdiction had been exceeded in the present case. Instead, it proceeded on the assumption (favourable to the respondent) that the tribunal could consider whether the appellant was acting in the course and scope of his employment. On that assumption, the court considered whether the tribunal’s conclusion on course and scope was correct on the record.

In addressing course and scope, the court applied the principles articulated in Minister of Justice v Khoza 1966 (1) SA 410 (AD) regarding the requirement that an accident must occur “in the course of” employment (while the employee is engaged in work activities) and must “arise out of” employment (requiring, in a broad sense, a causal connection between the employment and the accident). The court emphasised the approach in Khoza that, given the purpose and wide scope of compensation legislation, the causal connection is generally sufficiently established where the employee is injured at the place where the employee is when performing work. The court also referred to Rauff v Standard Bank Properties 2002 (6) 693 (WLD) as supporting authority in this context.

Applying these principles to the facts accepted on the record, the court reasoned that the appellant’s case was not that he was merely travelling to or from his workplace. Rather, he was performing his work by travelling to obtain a necessary part for urgent repairs, an activity falling within his duties as farm foreman. The court distinguished the situation from ordinary commuting scenarios, and held that section 22(5) did not apply because that subsection is directed at extending liability for conveyance to or from the place of employment in specific circumstances, whereas the appellant was engaged in a work task at the time.

The tribunal had relied on a “control” analysis, concluding that the employer had no control over the appellant at the time of the accident. The High Court held that this was an incorrect application of the control enquiry on the accepted facts. The court reasoned that the appellant had a wide discretion in running the farm and did not require authorisation for each operational decision, including travel to fetch parts and the means of transport to be used. On the court’s reading, the existence of such discretion did not remove the appellant from the course of his employment; instead, it meant that the appellant could act within the scope of his duties without seeking specific instructions, while still acting under the employer’s general control in furtherance of the employer’s business.

The court further distinguished Ward v Workman’s Compensation Commissioner 1962 (1) TPD 728, which the tribunal had relied upon. The court noted that Ward concerned an employee using his own vehicle to travel to work where there was no duty to use the vehicle, whereas in the present matter the appellant had a duty to obtain the necessary parts by an appropriate means so that the farming operation could continue.

On these grounds, the court concluded that, once section 22(5) was correctly found inapplicable, the tribunal still erred in finding that the appellant was not acting within the course and scope of employment. The appeal accordingly had to succeed.

5. Outcome and Relief

The High Court upheld the appeal and set aside the tribunal’s adverse conclusion by dismissing the tribunal’s decision.

The court upheld the appellant’s objection to the Director-General’s repudiation and held that the appellant was entitled to payment of his claim.

The respondent was ordered to pay the appellant’s costs of the appeal as well as the costs of the proceedings before the tribunal.

Cases Cited

Venter v Compensation Commissioner 2001 (4) SA 753 (TPD)

Minister of Justice v Khoza 1966 (1) SA 410 (AD)

Rauff v Standard Bank Properties 2002 (6) 693 (WLD)

Ward v Workman’s Compensation Commissioner 1962 (1) TPD 728

Legislation Cited

Compensation for Occupational Injuries and Diseases Act 130 of 1993, sections 1 (definition of “accident”), 22(1), 22(5), 43(1)(a), 91(1), 91(2), 91(3)(a), 91(5)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the accident occurred while the appellant was performing his duties by travelling to obtain urgently needed spare parts for farm machinery, and therefore the accident arose out of and in the course of his employment for purposes of COIDA.

It held that section 22(5) did not apply because the appellant was not being conveyed to or from his place of employment; he was engaged in a work task. It further held that the tribunal misapplied the control-related considerations and erred in concluding that the appellant was not acting within the course and scope of employment.

The tribunal’s decision dismissing the objection was overturned, the objection succeeded, the claim was payable, and costs were awarded against the respondent for both the appeal and the tribunal proceedings.

LEGAL PRINCIPLES

The judgment applied the principle that, for compensation legislation requiring that an accident must occur arising out of and in the course of employment, the enquiry is directed at whether the employee was engaged in employment-related activities at the time, and whether there is a sufficiently broad causal connection between the employment and the accident, as articulated in Minister of Justice v Khoza 1966 (1) SA 410 (AD).

It applied the principle that section 22(5) creates a deeming provision in defined circumstances relating to conveyance to or from the place of employment, and that this deeming provision does not govern cases where the employee is already performing work (including travel undertaken as part of the employee’s duties).

It applied the principle that an employee’s operational discretion and the absence of specific instructions for a particular trip do not necessarily remove the conduct from the course and scope of employment where the conduct is undertaken in furtherance of the employer’s business and within the employee’s recognised duties, and that an unduly narrow “control” approach may mischaracterise such work-related travel.

Gunter v Compensation Commissioner ((2009) 30 ILJ 2341 (O)) [2009] ZAFSHC 144; [2009] ZAFSHC 42 (5 March 2009)