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[2002] ZAWCHC 76
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Mouton v Compensation Commission (A38/2002) [2002] ZAWCHC 76 (30 August 2002)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
: A38/2002
DATE
:
30
AUGUST 2002
In
the matter between:
KAREL
PETRUS JOOSTE MOUTON
Appellant
and
THE
COMPENSATION COMMISSIONER
Respondent
JUDGMENT
TRAVERSO.
DJP
The
appellant in this case lodged a claim with the Compensation
Commissioner for compensation fn terms of the Compensation for
Occupational Injuries and Diseases Act, No 130 of 1993 (The Act)
wherein he claimed compensation due to the fact that he was suffering
from a stress condition caused as a result of his work in the control
room.
The
Compensation Commissioner refused the claim and from the summary,
which was prepared b the Compensation Commissioner, the
legal
section of the Compensation Commissioner, stated the basis for the
refusal of his claim was the following;
"On
16 November 1999 the employee was informed that compensation and
medical aid expenses are not payable in terms of the Act
as the
chronic adjustment disorder and anxiety condition for which he
received medical treatment did not arise out of or from the
cause of
his employment."
The
appellant objected to this refusal of his claim in terms of Section
91 of the Act. Many points were raised in argument before
us,
particular in the heads, but in my view there is only one relevant
point.
The
evidence of the appellant was clear, he stated that he was at all
material times employed by the Department of Correctional
Services.
It was common cause at the hearing that the appellant was boarded due
to a major depressive disorder from which he was
suffering. The
appellant's work in SrandvEei Prison was that of manning the control
room, where his function was to monitor conversations
between
prisoners, amongst themselves, and between prisoners and their
visitors. During the course of these duties the appellant
became
privy to highly confidential and potentially dangerous information.
It was not disputed that the appellant during his working
hours was
to all Intents and purposes In "Isolation". He was alone in
the control room, and due to the confidential nature
of the
information which came to his attention, he could not discuss this
information with either his peers or members of his family.
On
behalf of the appellant two medical practitioners, a psychologist and
psychiatrist also testified. From their evidence it became
clear that
the appellant was a very religious person, and a soft person, and
found this situation extremely stressful. He perceived
the knowledge
which he obtained during the course of performing his functions as
potentially dangerous. The problems which the
appellant started
experiencing started manifesting themselves as far back as 1996. The
appellant was treated for his condition
but his condition steadily
deteriorated to the point where it was decided by the medical
practitioners that he should no longer
remain in his employment but
should cease employment completely.
This
decision was not lightly taken. This decision was only taken after
the psychiatrist had in fact requested the Department of
Correctional
Services to transfer the appellant out of this particular prison and
out of this particular work environment, and
more particularly the
control room, but this request fell on deaf ears.
The
tribunal based its finding sofely on the basis that the appellant was
not entitled to compensation because;
"According
to the evidence led it is clear that the employee was never exposed
to any life-threatening situation whereby his
life was in danger.
There was no incident or accident which can be linked to the
employee's condition and treatment he received."
The
Compensation for Occupational Injuries and Diseases Act contains two
relevant provisions relating to compensation, the one is
for
occupational injuries, which is contained in Section 22, in Chapter 4
of the Act, whereas the other deals with occupational
diseases and is
contained in chapter 7 of the Act, and more specifically Section 65.
It is accordingly clear that compensation
can be claimed, either by
virtue of an occupational injury, which by its very nature, and by
virtue of the provisions of Section
22,
wi3]
arise out of an accident or an incident. Compensation for
occupational diseases on the other hand will be claimable if it is
proved to the satisfaction of the Director General, and I leave out
(a) and quote (b);
"That
the employee has contracted a disease other than a disease
contemplated in paragraph and that such disease has arisen
out of and
in the course of his or her employment."
In
my view the evidence overwhelmingly established that the appellant's
condition arose as a result of, and in the course and scope
of
his
employment. The term "arising out of" and "in the
course of the employment" have often been considered,
with
specific reference to the Act under consideration. The authors
Thompson
and Benjamin
in paragraph H. 1.16 point out that anything "arising in the
course of an employee's employment
1
'
is a much wider concept than arising "out of his employment".
I was refered to various decisions where this clause has
been
considered and decided, and from that it is apparent that an accident
arises out of the employment if it has a broad causal
connection to
the employment. In my view there was nothing to contradict the
evidence that was presented.
There
is however a further problem. In terms of Section 91 {5} of the Act
an appellant's right of appeal is limited to
inter
alia
a
question dealing with the interpretation of this Act or any other
law. Whereas on the face of it it might seem that this appeal
depends
on a factual inquiry it is in my view not so at all. What the
tribunal did in this case was to loose sight of the provisions
of
Section 65 completely. They did not consider it at all, and neither
did they consider any of the provisions relevant to occupational
diseases as contained in Chapter 7 of the Act. They interpreted the
Act as if a claim would only lie if there was an incident or
accident.
How
matters of this nature should be approached was discussed in the
Supreme Court of Appeal, in the case of
Workmen's
Compensation Commissioner v van Zvl
1996(3) SA pg 757 AD at 763. In that case the Court said that
although the facts which were relevant to the case had to be
discussed
and that reference had to be made to the facts, that was
only done in order to give meaning to the provisions of the Act, and
I
refer specifically to 763 b-J.
In
all the circumstances I am of the view that the appeal must succeed,
with costs. The matter is referred back to the tribunal
to determine
the compensation payable to the appellant in accordance with the
provisions of Chapter 7 of the Act.
It
is so ordered.
TRAVERSO,
DJP
McDOUGALL,
AJ