Clementz v Millbo Paper CC and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Gilbert AJ
• Judgment Date: 19 March 2021
• Court: Gauteng Local Division, Johannesburg
• Hearing Date: 19 March 2021
• Citation: 2021 (4) SA 186 (GJ)
• Counsel: C van Reenen for the plaintiff. F Sangoni for the first and fourth defendants/excipients. No appearance for the second and third defendants. DS Hodge for the fifth defendant/excipient.
• Docket Number: 27096/2019

Gilbert AJ:

[1] The plaintiff pleads in these action proceedings that he suffered severe injuries at work while performing his duties on machinery when hot molten adhesive blew up onto his face, hands and abdomen. The plaintiff further pleads that the incident was caused by the sole negligence of three of his (now former) employer's senior management while they were under the influence of alcohol. [1]

[2] What I am required to decide is nothing new. What I am to decide is the narrow issue of whether the incident pursuant to which the plaintiff suffered personal injuries at his workplace arose out of his employment, within the meaning of 'accident' in s 1 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (the Act). If it did, then the plaintiff would not be able to pursue his common-law claim for damages against his erstwhile employer and the senior management because of the exclusionary provisions of s 35 of the Act, which substitutes that common-law civil claim with a statutory administrative claim for compensation.

[3] The courts regularly have to decide this issue, both in South Africa and in foreign jurisdictions in relation to similarly worded statutes providing for statutory compensation to employees for workplace injuries. The reported cases show that often it may be a difficult task to decide whether on a particular set of facts the accident arose out of the employee's employment.

Gilbert AJ

[4] In this instance I am asked to decide the issue on exception, and without having had the benefit of evidence at a trial.

[5] Navsa ADP in MEC for Health, Free State v DN, [2] after referring to one of the appeal court's earlier decisions nearly fifty years previously, had this to say:

'In Minister of Justice v Khoza 1966 (1) SA 410 (A) this court had to wrestle with the vexed question of whether an accident arose out of an employee's employment. That question is at the heart of the present case.'

[6] Navsa ADP continued that 'South African courts have not been a model of consistency in their approach to the determination of whether an accident arose out of an individual's employment', [3] pointing out that a similar situation prevails internationally. [4]

[7] After considering the oft-cited Minister of Justice v Khoza, [5] which required that there be in the broad sense a causal connection between the employment and the accident, Navsa ADP in para 31 of his judgment refined the test to asking —

'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.' [6]

[8] Nonetheless Navsa ADP continued in that same paragraph, that:

'There is of course, as pointed out in numerous authorities, no bright-line test. Each case must be dealt with on its own facts.'

[9] Navsa ADP also [7] referred to Addleson J's consideration of Khoza in Ex parte Workmen's Compensation Commissioner: In re Manthe 1979 (4) SA 812 (E), that Khoza did not 'intend to "lay down" any principle of invariable application to all possible combinations of circumstances' and that 'the facts must rule the decision in each case'.

[10] In last year's South African Law Reports, for 2020, there are two reported cases wrestling with the same question and which both unsurprisingly refer to MEC v DN.

[11] In De Gee v Transnet SOC Ltd 2020 (2) SA 488 (GJ) this division repeated what Navsa ADP had stated, that there was no bright-line test and each case must be dealt with on its own facts. [8] In that matter, on the facts, the court found that the accident did not arise out of the employee's employment and therefore his common-law damages claim was not excluded.

Gilbert AJ

[12] In Churchill v Premier, Mpumalanga and Another 2020 (2) SA 309 (MN) the court too referred to MEC v DN [9] and reiterated [10] that whether an injury suffered by a workman is an 'occupational injury' for purposes of the Act is 'a perplexing question' and that over a century ago, in McQueen v Village Deep GM Co Ltd 1914 TPD 344, the court then already stated at 347 that 'the most difficult question which arises in the present case is whether the facts as stated by the magistrate can be said to constitute an "accident" within the meaning of the law'.

[13] The court in Churchill found that the employee plaintiff who was injured during an employment-related protest by protesting employees had suffered injury from an accident arising out of her employment and therefore her common-law damages claim was excluded.

[14] During the course of preparation of my judgment, the Supreme Court of Appeal overturned the decision of the court a quo in Churchill. [11] Again, this time per Wallis JA, the court found that formulating a single test to determine whether an injury arose out of the injured party's employment is neither feasible nor desirable. [12]

[15] After referring to the appeal court's previous decision in MEC v DN, Wallis JA held that —

'(t)he only safe approach is to examine closely the facts of each case in order to decide whether the person's injuries arose out of their employment. The closer the link between the injury sustained and the performance of the ordinary duties of the employee, the more likely it will be that they were sustained out of their employment. The further removed from their duties, and the less likelihood that those duties will bring the employee into a situation where such injuries might be sustained, the less likely that they arose out of their employment.' [13]

[16] To emphasise the point, Wallis JA later in the judgment [14] stated that:

'It is necessary to repeat what has oft been said before in these cases, namely that there is no bright-line test and the enquiry is always whether the statutory requirement that the accident arose out of the person's employment, as well as in the course of that employment, is satisfied. The court must analyse the facts closely to determine whether on balance the accident arose out of the person's employment. And in the last resort an employer seeking to rely on s 35 to avoid liability bears the onus of satisfying the court that the accident arose out of the claimant's employment.'

[17] Ordinarily, the vexing issue whether the accident arose out of the employee's employment is to be decided by a trial court after having had

Gilbert AJ

the benefit of evidence. But in this particular instance the first, fourth and fifth defendants seek of the court to decide this vexing question by way of exception. The second and third defendants have not excepted and have pleaded.

[18] The excipients acknowledge that the facts pleaded by the plaintiff must be accepted as correct for purposes of deciding the exception but submit that even on a benevolent interpretation of those accepted facts, [15] the plaintiff will not be able to establish at trial, after evidence is led within the parameters of what is pleaded, [16] that the accident arose out of his employment, and that therefore their exception, that the particulars of claim lack averments which are necessary to sustain an action, should be upheld.

[19] Once the contours of deciding the issue include that there is no bright-line test and each case must be decided on a close consideration of its own facts, the limitations of answering the question by way of exception become apparent. This is not to say that the issue is incapable of determination by exception. [17] No doubt there are the 'run-of-the-mill' cases, which do not usually make the law reports, where the facts may not present any difficulty and the question can be decided on exception. Is this one of those cases? The excipients contend so.

[20] Having set out this introduction, the rest of this judgment is structured as follows:

[20.1]

a brief overview of the relevant provisions of the Act;

[20.2]

the relevant pleaded facts that must be accepted as correct for purposes of determining the exception;

[20.3]

whether on exception I am able to find that on the pleaded facts the plaintiff will not be able at trial, after leading evidence, to prove that the accident arose out of his employment.

Gilbert AJ

A brief overview of the relevant provisions of the Act

[21] As the long title of the Act expressly provides, its purpose 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.

[22] The Constitutional Court in Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC) (1999 (2) BCLR 139; [1998] ZACC 18) described the Act as —

'important social legislation which has a significant impact on the sensitive and intricate relationship amongst employers, employees and society at large'. [18]

[23] Section 22, which is the central operative provision and which is headed 'Rights of employee to compensation', provides:

''(1) 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.'

[24] Section 22(3)(a) limits this right of an employee to compensation:

'If an accident is attributable to the serious and wilful misconduct of the employee, no compensation shall be payable in terms of this Act, unless —

(i)

the accident results in serious disablement; or

(ii)

the employee dies in consequence thereof leaving a dependant wholly financially dependent upon him.'

[25] 'Serious and wilful misconduct' is defined in s 1 to include 'being under the influence of intoxicating liquor or a drug having a narcotic effect'.

[26]...