South African Railways and Harbours v South African Stevedores Services Co Ltd
Jurisdiction | South Africa |
Citation | 1983 (1) SA 1066 (A) |
South African Railways and Harbours v South African Stevedores Services Co Ltd
1983 (1) SA 1066 (A)
1983 (1) SA p1066
Citation | 1983 (1) SA 1066 (A) |
Court | Appellate Division |
Judge | Wessels JA, Corbett JA, Miller JA, Trengove JA and Diemont AJA |
Heard | September 3, 1982 |
Judgment | November 30, 1982 |
Flynote : Sleutelwoorde
Master and servant — Workmen's Compensation — Claim for compensation under Act 30 of 1941 — Such a purely statutory liability.
Master and servant — Workmen's Compensation — Claim for compensation — Action by Commissioner or employer to recover compensation paid — Essential to establish that workman had a cause of action against the third party — Act 30 of 1941 s 8 (1) (b).
1983 (1) SA p1067
Master and servant — Workmen's Compensation — Claim against employer — Employer individually liable — Can invoke s 8 (1) (b) of Act 30 of 1941 against third party even though employer negligent.
Master and servant — Workmen's Compensation — Claim for A compensation — Payment of — Not damage in legal sense — Therefore claim by employer under s 8 (1) of Act 30 of 1941 not a claim for damages within meaning of Apportionment of Damages Act 34 of 1956 — Not subject to apportionment between two joint wrongdoers.
Negligence — Action for damages — Apportionment of B Damages Act 34 of 1956 — Claim for compensation by workman under the Workmen's Compensation Act 30 of 1941 — Such not damages within meaning of s 1 of Act 34 of 1956 — When workman awarded damages such not subject to apportionment between joint wrongdoers.
C Negligence — Action for damages — Apportionment of Damages Act 34 of 1956 — Action against joint wrongdoers — Individual wrongdoer entitled to plead that he is not individually liable.
Headnote : Kopnota
The liability to pay compensation under the Workmen's Compensation Act 30 of 1941 is a purely statutory liability.
D The right of action conferred on the Workmen's Compensation Commissioner or the employer individually liable under s 8 (1) (b) of Act 30 of 1941 is dependent on the workman having a right of action at common law for damages against the third party. This is a fundamental prerequisite. The Commissioner (or the employer) cannot recover compensation under s 8 (1) (b) unless he can show that the third party was causally negligent E in relation to the accident in which the workman was injured.
In view of the provisions of Act 30 of 1941, taken as a whole, and the clear and explicit language of s 8 (1). an employer individually liable can invoke the provisions of s 8 (1) (b) against a third party even though he (the employer) was also causally negligent in relation to the accident in which the workman was injured.
The payment of compensation under Act 30 of 1941 cannot be F regarded as damage in the legal sense nor can a claim under s 8 (1) of the Act be regarded as a claim in respect of damage suffered by the commissioner or the employer individually liable. Furthermore, a claim under s 8 (1) (b) is a statutory claim and not founded in delict, even though the negligence of the third party is one of the elements of liability under the section. Accordingly what an employer claims under s 8 (1) is not a claim for damages within the meaning of s 1 of the G Apportionment of Damages Act 34 of 1956.
Act 34 of 1956 does not deprive a person, who, in terms of s 2 (1), is alleged to be a joint and several wrongdoer, of his right to plead that he is not actually liable as such.
G had sued the respondent for the recovery of damages sustained by her in consequence of the death of her husband, a workman, H through the negligence of the respondent's servants. The respondent had cited and joined the appellant as a third party in terms of s 2 (6) of Act 34 of 1956. The appellant had filed a claim, as an intervening party, against the respondent in terms of s 8 (1) (b) of the Workmen's Compensation Act 30 of 1941. In a case stated in terms of Rule of Court 33 it was agreed that the total amount of damages sustained by G was R20 300; that the degree of fault attributable to the respective parties was 60 per cent to the respondent and 40 per cent to the appellant; that under Act 30 of 1941 the appellant had paid to G R13 287,72 as compensation and it sought to recover
1983 (1) SA p1068
this amount from the respondent in terms of s 8 (1) (b) of Act 30 of 1941; that G was entitled to judgment against the appellant for an amount of R70 12,28 being R20 300 less R13 287,72. The respondent contended that by virtue of Act 34 of A 1956 it was entitled to recover the R70 12,28 from the appellant and that the appellant's claim against the respondent for the payment of R13 287,72 had to be reduced by 40 per cent. The Court a quo gave judgment in favour of the respondent on both of the issues raised and the question of costs was reserved but was settled by agreement between the parties and the Court's order read as follows: "The Court grants judgment for the plaintiff (G) against the defendant (respondent) for: (a) payment of the sum of R7 012 with costs; (b) that, upon B payment by the defendant to the plaintiff of such amount, the South African Railways and Harbours (appellant) will be liable to pay 40 per cent of the amount paid to her and 40 per cent of the plaintiff's costs incurred after 10 April 1979; (c) there will be judgment for the South African Railways and Harbours against the defendant for the sum of R7 927,63; (d) that the South African Railways and Harbours pay the C defendant's costs of the third party proceedings; (e) that the defendant pay the costs of the South African Railways and Harbours in regard to its claim against the defendant up to and including 26 May 1980 and the South African Railways and Harbours pay the defendant's costs in regard thereto subsequent to 26 May 1980." In an appeal,
Held, that the whole of the appellant's claim, viz R13 287,72, D was recoverable from the respondent under s 8 (1) (b) of Act 30 of 1941 and that the Court a quo had erred in reducing it by 40 per cent in that an employer's claim under s 8 (1) was not a claim for damages within the meaning of s 1 of Act 34 of 1956.
Held, further, that the respondent had no right of recourse against the appellant and it had to pay the full amount of G's damages.
Held, accordingly, that the appeal had to be allowed and the E order of the Court had to be amended in the following respects: (i) that para (b) had to be deleted; (ii) that in para (c) the amount of R7 927,63 had to be deleted and the amount of R13 287,72 substituted therefor; (iii) that para (d) had to be deleted; (iv) that in para (e) the words "up to and including 26 May 1980 and the South African Railways and Harbours pay the defendant's costs in regard thereto subsequent to 26 May 1980" had to be deleted.
F The decision in the Durban and Coast Local Division in Govender v South African Stevedores Services Co Ltd and Another1981 (1) SA 353 in part reversed.
Case Information
Appeal from a decision in the Durban and Coast Local Division (SHEARER J). The facts appear from the judgment of TRENGOVE JA.
M L Mitchell SC (with him P C Combrinck) for the appellant: The Court a quo was wrong in deciding that the claim by the appellant as intervening party in terms of s 8 (1) (b) of the Workmen's Compensation Act 30 of 1941 is a claim for damages by one joint wrongdoer against another joint wrongdoer and therefore falls to be determined in accordance with the H provisions of the Apportionment of Damages Act 34 of 1956. The appellant's claim in terms of s 8 (1) (b) is a statutory one in respect of compensation and not damages. The Courts have consistently held that damages claimable under the common law are different and distinct from compensation payable in terms of the Workmen's Compensation Act. See Table Bay Stevedores (Pty) Ltd v SA Railways and Harbours 1959 (1) SA at 391B; African Guarantee v Workmen's Compensation Commissioner1963 (2) SA 636. Furthermore, in Bonheim v South British Insurance Co Ltd 1962 (3) SA at G
1983 (1) SA p1069
269C OGILVIE THOMPSON JA (as he then was) not only reiterated the distinction between the compensation payable in terms of the Act and damages, but further indicated that the whole of the amount paid by the Workmen's Compensation Commissioner or employer individually liable in terms of the Act was A recoverable from the third party whose negligence (or the negligence of whose servants) gave rise to a common law claim for damages against such third party by the workman to whom compensation was paid in terms of the Act. See also Wille and Another v Yorkshire Insurance Co Ltd 1962 (1) SA at 187. The Court, at 267A of Bonheim's case, indicated that the negligent B third party had a dual liability: (a) to the injured workman for damages under the common law; and (b) to the Commissioner (or employer individually liable in terms of the Act) by virtue of the statutory obligations created by s 8 (1) (b); which are separate liabilities. Similarly, the appellant had two capacities - as employer individually liable and as C joint wrongdoer and the Court a quo erred in finding otherwise. Such dual capacity is no different in principle from a father suing in his capacity as guardian and in his personal capacity for damages in respect of injuries to his child. See Schnellen v Rondalia Assurance Corporation of SA Ltd1969 (1) SA 517.
In its reasons for coming to the conclusion that the provisions D of the Apportionment of Damages Act 34 of 1956 were relevant to the appellant's claim the Court a quo gives an example of what would happen before the Apportionment of Damages Act was passed. The example relates to a workman who himself was negligent and whose negligence was a contributory cause of the accident. In this case the plaintiff was without blame and was E entitled to receive judgment for the full...
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