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[2013] ZAWCHC 125
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Parker v Engineering Linings (Pty) Ltd and Another (16973/2010) [2013] ZAWCHC 125 (10 April 2013)
REPUBLIC
OF SOUTH AFRICA
W
ESTERN
CAPE HIGH COURT, CAPE TOWN
Case no: 16973/2010
In the matter between:
EBRAHIM PARKER
......................................................................................................
Plaintiff
and
ENGINEERING LININGS
(PTY) LTD
..............................................................
First
Defendant
GREGORY COLLOP
..................................................................................
Second
Defendant
___________________________________________________________________
JUDGEMENT delivered
this 10
th
day of April 2013
BOQWANA AJ
Introduction
On 09 August 2007 and at
approximately 21h00, a motor vehicle accident occurred at B2 Road,
Swakopmund, Namibia involving a bakkie
with registration number CA
758050, driven by the second defendant. The plaintiff and one
Mbulelo Ngxande (‘Ngxande’)
were passengers in this
vehicle. All three of them were employees of the first defendant.
The plaintiff’s
claim is that he sustained injuries as a result of this collision
and suffered damages in the amount of
R436 500.00, comprising
of R36 500.00 for estimated future, medical and related
expenses, R300 000.00 for future
loss of earning capacity and
R100 000.00 for general damages. He claims that the second
defendant was at all material times
acting in the course and scope
of his employment with the first defendant. The parties agreed to
separate the merits from the
quantum.
The defendant has raised
two special pleas which I will address before I deal with the merits
of the case. The first special plea
is that the claim is precluded
by section 35 of the Compensation for Occupational Injuries and
Diseases Act, 130 of 1993 (‘COIDA’)
and the second
special plea is that the plaintiff’s claim is limited by the
Motor Vehicle Accident Fund Act, 2001 (‘Namibian
Road Accident
Fund Act’ ) .
The defendants also deny
that the second defendant was negligent and that he was acting in
the course and scope of his employment
with the first defendant. The
defendants’ counsel has however conceded in his heads of
argument that the second denial
cannot be sustained as it is clear
from the evidence that the second defendant was in fact acting in
the course and scope of
his employment with the first defendant at
the time of the collision.
It also emerged during
the evidence that the plaintiff was not wearing a seatbelt. The
Defendants applied for amendment of their
Plea, as they did not
plead that the plaintiff did not wear a seatbelt. After due
deliberations on the matter, parties agreed
that this issue be
considered together with quantum as it is relevant to the extent of
damages to be awarded to the plaintiff,
should judgement be in the
plaintiff’s favour on the merits. This was also done to afford
the plaintiff, who was not in
court during argument the opportunity
to respond to the notice of amendment if he so wished.
Evidence
It is common cause that
in August 2007 the plaintiff, second defendant and Ngxande were sent
to a uranium mine in Trekkopje, Namibia
from Cape Town by the first
defendant to carry out a project for which the first defendant was
contracted.
The plaintiff is a
retired plastic welding technician who had been in the employment of
the first defendant for a period of eighteen
years.
The plaintiff testified
that on 09 August 2007 their way back to Swakopmund the three of
them stopped at a pub, where the second
defendant and Ngxande drank
beer, whilst the plaintiff was waiting in the car. That fact was not
denied by the second defendant
who however alleged that he and
Ngxande only had two 300 ml ‘dumpies’ of beer each. The
plaintiff testified that
he saw the second defendant and Ngxande
drinking beer when he went to call them after he had been waiting
for them to return.
He however could not confirm how much they
drank.
The plaintiff further
testified that the second defendant and Ngxande stopped at the pub
for about 2 hours. This was denied by
the second defendant who
testified that they were in the pub for not more than an hour. He
further testified that Ngxande was
also eating his food which
contributed to them being in the pub for that length of time.
There was however no
evidence by the plaintiff as to whether the consumption of alcohol
impaired the second defendant’s
ability to drive in any way.
On this point, the second defendant testified that because he had
only two dumpies of beer, after
he had eaten, the amount of alcohol
did not affect his senses in any way.
The three individuals
eventually left the pub and drove to Swakopmund. Ngxande was sitting
in the middle whilst the plaintiff
sat on the left hand side. None
of the occupants were wearing a seatbelt. The plaintiff testified
that the reason for this was
that the bakkie they were travelling in
was small and did not allow them to fasten their seatbelts.
According to the
plaintiff, whilst they were travelling and on their way to
Swakopmund, a fox ran across the road and Ngxande
shouted to the
second defendant to brake. The second defendant testified that
Ngxande shouted ‘a jackal’ after which
he applied brakes
and the car swerved off the road and rolled for several times. The
plaintiff testified that he did not see
a fox himself but he saw a
“white thing” moving across the road.
It is common cause that
the speed limit on that road is 120 km and the second defendant was
driving between 110 and 120 kilometres
an hour. The second defendant
testified that the road was an open road, he had his lights on and
could clearly see in front of
him.
The plaintiff sustained
injuries on his right forearm. The three individuals were taken to
hospital in Swakopmund but the treatment
there was inadequate. They
were eventually taken to Groote Schuur Hospital in Cape Town for
treatment.
The plaintiff alleged
that he was absent from work for three months and that he was unable
to do his job due to the pain in his
right arm. After about eighteen
months he was forced to retire and was paid two months’
severance pay.
The plaintiff testified
that he knew nothing about a claim submitted in terms of COIDA or to
the Road Accident Fund on his behalf.
Evaluation
As
regards to the first special plea, the defendants submit that the
provisions of COIDA preclude an employee from bringing a
delictual
claim of damages against the first defendant, his employer.
The
purpose of COIDA is 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.
1
Section
15(1) provides for the establishment of a Compensation Fund which
consists of,
inter
alia,
amounts
paid by the employers.
2
In
terms of section 22(1) an employee who meets with an accident
resulting in his disablement, shall, subject to the provisions
of
COIDA be entitled to the benefits provided for and prescribed in the
Act.
In terms of COIDA
occupational injury is defined as:
‘
a personal
injury sustained as a result of an accident.’
An accident in turn
means:
‘
an accident
arising out of and in the scope of an employee’s employment and
resulting in a personal injury, illness, or the
death of the
employee.’
In terms of section 23
(1)(a) of COIDA:
‘
I
f
an employer carries on business chiefly in the Republic and an
employee of his ordinarily employed in the Republic, meets with
the
an accident while temporarily employed outside the Republic, such
employee shall, subject to paragraph (c), be entitled to
compensation
as if the accident had happened in the Republic.’
COIDA
would thus be
applicable to the plaintiff,
despite the
accident having occurred outside the Republic of South Africa.
Section 22(5) of COIDA provides further that:
‘
For the
purposes of this Act the conveyance of an employee free of charge to
or from his place of employment for the purposes of
his employment by
means of a vehicle driven by the employer himself or one of his
employees and especially provided by his employer
for the purpose of
such conveyance, shall be deemed to take place in the course of such
employee’s employment.’
The accident is
accordingly deemed by this provision, to have taken place during the
course and scope of employment of the plaintiff
with the first
defendant. This is supported by evidence from both the plaintiff and
the second defendant. COIDA is without question
applicable in the
present circumstances.
The defendants submit
that the plaintiff is barred by section 35 of the Act from suing his
employer in terms of the common law
for delictual damages. Section
35 of COIDA , which is the provision relied on by the first
defendant in this special plea provides
that:
‘
(1) No
action shall lie by an employee or any dependant of an employee for
the recovery of damages in respect of any occupational
injury or
disease resulting in the disablement or death of such employee
against such employee’s employer, and no liability
for
compensation on the part of such employer shall arise save under the
provisions of this Act in respect of such disablement
or death.’
(2)
For the purposes of sub-section (1) a person referred to in Section
56(1) (b), (c), (d) and (e) shall be deemed to be an employer."
Section 56 of COIDA
further provides for increased compensation if the employer is found
to have been negligent.
The provisions of
Section 35(2) read with Section 56 of COIDA are important. Section
35 extends the definition of an employer
to certain categories of
persons referred to in Section 56 of COIDA. These are:
- An employee charged by
the employer with the management or control of the business or of any
branch or department thereof;
- An employee who has the
right to engage or discharge employees on behalf of the employer;
- An engineer appointed
to be in general charge of machinery, or a person appointed to assist
such engineer;
- The person appointed to
be in charge of machinery in terms of any regulation made under the
Occupational Health and Safety Act 1993
.
The persons referred to
in
Section 56
are generally those in management positions. COIDA
precludes claims by an injured employee against these categories of
persons.
From the provisions of
section 35
(1) it is clear that the plaintiff is prevented from
bringing an action for damages against his employer. The plaintiff
however
argues that he is not precluded from bringing an action
against the second defendant and that notwithstanding the
prohibition
in
section 35(1)
the first defendant remains vicariously
liable for the wrongdoing of the second defendant. The plaintiff’s
counsel referred
to the provisions of
section 36
of COIDA to advance
his argument.
Section 36
of COIDA reads as follows:
‘
(1) 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 –
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; and
the Director-General or the employer
by whom compensation is payable may institute action in a court of
law against the third
party for the recovery of compensation that he
is obliged to pay in terms of this Act.
(2) In awarding damages in an action
referred to in subsection (1) (a) the court shall have regard to the
compensation paid in terms
of this Act.’
According to the
plaintiff, COIDA does not alter the common law on vicarious
liability of employers for the wrongful deeds or
omissions of their
employees that were committed in the course and scope of employment
with the employer.
That
position, in my view, is clear when an accident is caused by a
stranger or a non-employee. The circumstances of this case
are
however different. The second defendant was an employee of the first
defendant. In my view, whilst
COIDA does not preclude a claim
by an employee against a fellow employee who is not in a management
position referred to in Section
56, the prohibition on employees and
the dependants of employees instituting an action against an
employer covers both claims
based on an employer’s vicarious
liability for the acts of employees and claims occasioned by the
employer’s own
negligence. Any different interpretation would
in my view be absurd. I agree with Mr Van Reneen’s submission
that, to argue
that liability can be attributed against the first
defendant through vicarious liability, in these circumstances will
simply
make a mockery of the provisions of section 35 (1),
especially because employers are generally juristic persons that are
primarily
represented by their employees who are natural persons. I
am therefore of the view that the plaintiff is barred by section
35(1)
from bringing an action against his employer.
Mr
Olivier who appeared for the plaintiff argued that section 35(1)
bars action against an employer expressly ‘
for
compensation on the part of such employer’
.
He proposed that this implies that the employee cannot institute
action against an employer as such for an occupational injury
for
which he or she can claim under COIDA but that does not preclude an
action based on vicarious liability for damages that
are expressly
placed outside the ambit of COIDA such as against the third party.
Accordingly, even if the plaintiff was awarded
damages under COIDA
for non-patrimonial loss, he was entitled to sue both the first and
second defendants for non-patrimonial
loss notwithstanding the
provisions of section 35(1) of COIDA.
I do not agree with this
proposition. In my view all claims for damages are excluded by
COIDA, including those for pain, suffering
and loss of amenities of
life. In
Sanan
v Eskom Holdings Limited
3
C
J Classens J stated the following at paragraphs 7 to 8:
‘
The
predecessor to Act 130 of 1993 was the Workman’s Compensation
Act No 30 of 1941. Section 7 of that Act contained a similar
provision as is contained in section 35 of the 1993 Act. It has been
held that section 7 of the 1941 Act
totally
precludes any damages action by an employee against an employer
resulting from injuries suffered or occupational diseases
contracted
in the exercise of the employee’s employment.
4
It has also
been held that section 7 precludes any claim by the employee for the
difference between the compensation paid under
that Act and the
common law damages suffered by the employee.
5
(
own
emphasis
)
It is now settled law that the bar
contained in section 7 of the 1941 Act and section 35 of the 1993 Act
is not unconstitutional.
The bar against civil claims contemplated
therein is rationally connected to the purposes of the Act of
providing financial compensation
to employees from a compensation
fund to which employers are required to contribute.
6
‘
The plaintiff’s
argument that COIDA does not exclude claim for general damages must
therefore fail.
This brings me to the
question of whether or not the second defendant was negligent.
Negligence in the form of
culpa
has been defined as the
‘failure to exercise a degree of care and skill that a
reasonable person would have exercised in
the circumstances’.
7
In
Kruger
v Coetzee
8
Holmes, JA
held that negligence
arises for the purpose of liability if:
“
(a)
a
diligens paterfamilias in the position of the defendant –
(i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b) the defendant
failed to take such steps.”
In
Mukheiber v Raath &
Another
9
the test for negligence
was stated as follows:
“
For
the purposes of liability
culpa
arises if –
(a) a reasonable
person in the position of the defendant –
(i) would have
foreseen harm of the general kind that actually occurred;
(ii) would have
foreseen the general kind of causal sequence by which the harm
occurred;
(iii) would have taken
steps to guard against it; and
(b) the defendant
failed to take those steps.”
The
defendants’ defence in this case is that of sudden emergency.
In
Ntsala
and others
v
Mutual
and Federal Insurance Co Ltd
10
the
court held that
:
‘
Where
a driver of a vehicle suddenly finds himself in a situation of
imminent danger, not of his own doing, and reacts thereto and
possibly takes the wrong option, it cannot be said that he is
negligent
unless
it can be shown that no reasonable man
would
so have acted
.
It must be remembered that with a sudden confrontation of danger a
driver only has a split-second or a second to consider the
pros and
cons before he acts and surely cannot be blamed for exercising the
option which resulted in a collision.’
11
(
own
emphasis
).
A
driver who is faced with a sudden emergency is required to exercise
reasonable care and use reasonable skill to avoid the imminent
danger. He is required to take such steps as a reasonable and
careful person would fairly be expected to take in the circumstances
as the Court in
SA
Railways v Symington
12
said:
'One
man may react very quickly to what he sees and takes in, whilst
another man may be slower. We must consider what an ordinary
reasonable man would have done. Culpa is not to be imputed to a man
merely because another person would have realised more promptly
and
acted more quickly. Where men have to make up their minds how to act
in a second or in a fraction of a second, one may think
this course
the better whilst another may prefer that. It is undoubtedly the duty
of every person to avoid an accident, but if
the acts reasonably,
even if by a justifiable error of judgment he does not choose the
very best course to avoid the accident as
events afterwards show,
then he is not on that account to be held liable for culpa.'
The second defendant
testified that a jackal came into the road and that jackal was on
the plaintiff’s side of the road
(plaintiff was sitting on the
left). He swerved to the left in order to avoid it, he lost control
of the vehicle and it skidded
on the gravel and the vehicle
capsized. In my view, the second defendant’s reaction was not
unreasonable. It might have
been different had he swerved to the
right. That is however not the evidence before me. It must also been
borne in mind that
a person faced with a sudden situation cannot be
judged by the standards of an armchair observer
ex post facto
.
The Court must deal with evidence placed before it in order to
establish whether the second defendant acted like a reasonable
person when faced with the situation.
The second defendant
conceded that the road was narrow, it was dark and not raining. He
however had clear sight of the road in
front of him. His reaction to
swerve arose as a result of the jackal that suddenly appeared in
front of the vehicle. This is
not disputed by the plaintiff. The
plaintiff alleges that he did not personally see the jackal, but
witnessed a ‘white
thing’ appearing in front of the
vehicle. He, however, confirmed that both the second defendant and
Ngxande said it was
a jackal and that Ngxande shouted ‘brake’
or ‘watch out’. The second defendant cannot be found to
have
acted unreasonably under the circumstances. He swerved to avoid
an animal. That occurrence as well as a shout from Ngxande to ‘watch
out’ may have reasonably encouraged the sudden reaction to
swerve and by doing so the second defendant lost control of
the
vehicle.
It was not, in any
event, suggested under cross examination that the second defendant
acted unreasonably by swerving. What the
plaintiff seems to rely on
is that the second defendant drank beer which might have slowed his
reaction time to brake. No evidence
was led to the effect that the
amount of alcohol he consumed impaired his judgement nor was there
any indication that he showed
signs of a person so impaired by the
two 300ml beers he consumed. The second defendant testified that he
was not drunk nor was
he impaired in any way by the two beers he had
drunk. He also suggested that he could not have been drunk, because
he had eaten
before taking those two beers. Plaintiff’s
counsel alleged that drinking and driving is plainly wrong and
unlawful. That
is not enough in my view, there must be evidence
linking the accident to the consumption of alcohol by the second
defendant.
Either the second defendant should have been observed to
have been impaired by the beer or expert evidence should have been
led
to show that two 300ml of beer consumed by an adult male would
impair a person’s driving and reaction time in those
circumstances.
The second defendant
drove within the speed limit allowed, which was between 110 and 120
km, he applied his brakes when it was
necessary to do so. Nothing
turns on whether he applied breaks before or after Ngxande shouted.
Proper analysis of the evidence
shows that the reaction was sudden.
I therefore cannot find that the collision was caused solely by the
second defendant’s
negligent driving.
In conclusion, I find
the following:
The plaintiff is
precluded from bringing an action against the first defendant, his
employer in terms of section 35(1) of COIDA
and therefore his action
against the first defendant fails.
As regards allegation of
negligence, the plaintiff has not been able to prove that the
collision was caused by the negligent driving
of the second
defendant.
In view of my findings
on negligence, I do not need to deal with whether the claim is
limited by the Namibian laws.
As regards costs, my
view is that the plaintiff is retired and was injured at during the
course and scope of his employment. It
was not unreasonable for him
to approach the Court. I will therefore not award costs against him.
In the result, I make
the following order:
The plaintiff’s
claim against the defendants is dismissed.
There is no order as to
costs.
___________________
NP BOQWANA
Acting Judge of the High
Court of South Africa
APPEARANCES:
For the Plaintiff:
Advocate G Olivier
Instructed by: J Ramages
Attorneys & Conveyancers C/O Ashersons Attorneys, Cape Town
For the Defendant:
Advocate Deneys van Reenen
Instructed by: Cohen
Shevel and Fourie, Cape Town
1
See
COIDA
2
See
section 15(2)(c)
3
2010
(6) SA 638
(GSJ) (7 October 2010)
4
See
Mphosi v Central Board for Co-operative Insurance Ltd
1974 (4) SA
633
(A) where Botha JA at 644A – B held:
“
The conclusion to which I
come, therefore, is that sec. 7 (a) precludes a workman’s
common law action for all damages, including
damages for pain and
suffering and loss of amenities, in respect of an injury which is
compensable under the Act.”
5
See
Vogel v South African Railways
1968 (4) SA 452
(ECD).
6
See
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour
Intervening)
1999 (2) SA 1
(CC) at 11 paragraph [15].
7
Neethling
& another v Oosthuizen
2009 (5) SA 376
(WCC) at para 6 with
reference to Kruger v Coetzee at 430 E-F
8
1966
(2) SA 428
(A) at 430E-F
9
1999
(3) SA 1065
(SCA) at 1077E-F
10
1996(2)
184 (T)
11
At
page 192 F-G
12
1935
AD 37
at 45