Sanan v Eskom Holdings Ltd

• Jurisdiction: South Africa
• Court: South Gauteng High Court, Johannesburg
• Judge: CJ Claassen J
• Judgment Date: 07 October 2010
• Citation: 2010 (6) SA 638 (GSJ)
• Hearing Date: 21 September 2010
• Docket Number: 2010/16004
• Counsel: N Riley for the plaintiff. APS Nxumalo for the defendant.

CJ Claassen J: D

[1] This is an exception taken by the defendant to the plaintiff's particulars of claim. In it the plaintiff claims an amount of R16 060 000 (sixteen million and sixty thousand rand) as damages, in respect of past hospital expenses, past medical expenses, estimated future medical expenses, past loss of income, estimated future loss E of income, general damages for pain and suffering, disability and loss of amenities of life.

[2] The plaintiff alleges that he was employed by the defendant as an apprentice electrician during the period 1966 to 1971. During the course F of this employment the plaintiff was exposed to asbestos and/or asbestos fibres and/or asbestos dust particles. During or about May 2009 the plaintiff was diagnosed with malignant epitheloid mesothelioma. This disease is a rare form of cancer which develops in the protective lining that covers many of the body's internal organs. This cancer is usually caused by exposure to asbestos. G

[3] The plaintiff's claim for damages is framed in delict. He alleges that he suffered the damages due to the negligence of the defendant's employees and servants while acting within the course and scope of their employment with the defendant, in that they failed to advise the plaintiff H about the dangers of working with asbestos, and failed to provide a safe working environment for the plaintiff. Due to the defendant's negligent breach of the aforesaid duty of care, the plaintiff alleged that he contracted the disease and suffered the damages referred to above.

Exception I

[4] The defendant alleges that the plaintiff's particulars of claim disclose no cause of action, in view of the statutory embargo to such claims contained in s 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). Section 35 of the aforesaid Act reads as follows: J

C J Claassen J

A '35 Substitution of compensation for other legal remedies

(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 B Act in respect of such disablement or death.

(2) For the purposes of subsection (1) a person referred to in section 56(1)(b), (c), (d) and (e) shall be deemed to be an employer.'

[5] Section 56 of the Act provides for increased compensation payable to an employee by the employer in case of the latter's negligence which C caused the employee's accident or occupational disease. Section 56(1) recognises the employer's responsibility in regard to various individuals, including other employees and/or engineers whose negligence may have caused the employee's accident and/or occupational disease. In such event ss (3) permits an employee to apply for increased compensation D from the commissioner.

[6] The defendant contends that s 35 is a complete bar to the plaintiff's claim as alleged in the particulars of claim and thus discloses no cause of action.

Evaluation E

[7] The predecessor to Act 130 of 1993 was the Workmen's Compensation Act 30 of 1941. Section 7 of that Act contained a similar provision as is contained in s 35 of the 1993 Act. It has been held that s 7 of the 1941 Act totally precludes any damages action by an employee against an employer, resulting from injuries suffered or occupational diseases F contracted in the exercise of the employee's employment. [1] It has also been held that s 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. [2]

[8] It is now settled law that the bar contained in s 7 of the 1941 Act and G s 35 of the 1993 Act is not unconstitutional. The bar against civil claims contemplated therein is rationally connected to the purpose of the Act of providing financial compensation to employees from a compensation fund to which employers are required to contribute. [3]

[9] In my view, the matter has now been settled, authoritatively, by the H Supreme Court of Appeal in the decision of Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA).

C J Claassen J

That matter commenced before Joffe J in A the South Gauteng High Court. Joffe J upheld an exception against the appellant's particulars of claim. The appellant was employed as a mine worker by the respondent and he sought payment from the respondent of some R2 600 000 (two million, six hundred thousand rand) with interest and costs, based on the latter's alleged breach of duty or care B owed to him. The claim was, therefore, also framed in delict. It was alleged that the appellant's claim against the respondent arose both under the common law and statute, to provide a safe and healthy environment in which the plaintiff could work. The plaintiff contracted a disease known as miner's phthisis. Exception was taken before Joffe J, relying on s 35(1) of the 1993 Act. Joffe J upheld this exception and, with C leave of that court, the appellant appealed to the Supreme Court of Appeal.

[10] In the Mankayi case Malan JA traversed the history of workmen's- compensation legislation in South Africa. He noted that the 1993 Act came into operation on 1 March 1994 and repealed the entire D Workmen's Compensation Act 30 of 1941. At 151, para 21, Malan JA said the following:

'[21] Section 35(1) of COIDA abolished an employee's...