Workmen's Compensation Commissioner v Van Zyl

• Jurisdiction: South Africa
• Judge: Botha JA, Smalberger JA, Vivier JA, Scott JA and Plewman AJA
• Judgment Date: 25 March 1996
• Citation: 1996 (3) SA 757 (A)
• Docket Number: 388/94
• Hearing Date: 29 February 1996
• Counsel: J E Hewitt SC for the appellant. S M Govender for the respondent.
• Court: Appellate Division

Scott JA:

The respondent was employed from 25 April 1967 to April 1991 in a factory which manufactured tanning salts. One of the steps in the manufacturing process involves J converting raw chrome to powder.

Scott JA

A This results in chrome dust being released into the air. Chrome dust is an industrial chemical which is an irritant to the respiratory system and causes ulceration and other well-known clinical changes. The respondent began work in the factory as a plant operator. In due course he rose to the position of assistant foreman and then foreman. B Finally in 1985 he was made plant superintendent. He was retrenched in 1991 together with other employees in his age group. By that time, however, the years of exposure to the dust had taken their toll and his upper respiratory tract was in a sorry state.

It appears that his exposure to chrome dust began to affect his health as early as 1970. In C 1972 he consulted his general practitioner who referred him to Dr Hackmann, an ear, nose and throat specialist. Dr Hackmann's clinical examination revealed that what would have begun as an ulcer had developed even at that stage into an anterior septal perforation, ie a perforation in the cartilaginous wall between the nostrils at the front of the D nose. The damage was irreparable. There was also a thickening of the nasal mucosa and the respondent was found to be suffering from a chemical rhinitis (discharge from the nose) which was chronic and infective. A claim for compensation was lodged on the respondent's behalf in terms of the (now repealed) Workmen's Compensation Act 30 of E 1941 ('the Act') in respect of a partial permanent disablement resulting from his exposure to chrome dust. It is common cause that he was a workman within the meaning of the Act and that the disease which was diagnosed was an industrial disease in terms of the Second Schedule of the Act. The Commissioner (who is the appellant), however, F rejected the claim on the grounds that, according to the medical reports at his disposal, the respondent had suffered no permanent disablement for employment as a result of his condition.

In 1992, ie some 20 years later and after his retrenchment, the respondent again lodged a claim. By then the septal perforation had become large and central. In other words, it was G no longer confined to the cartilaginous wall between the nostrils at the anterior part of the nose; it had progressed to include the posterior bony plate between the nostrils. The thickening and gross hypertrophy of the nasal tissue by this time was also of such a nature as to cause blockages and to severely affect the proper functioning of the nose as a filtration unit.

The respondent's second claim was more successful than the first, but only marginally so. H The Commissioner assessed his disablement for employment at 3%. Notwithstanding the rejection of the respondent's first claim, the Commissioner, somewhat ironically, and in terms of s 91(1) of the Act, fixed 28 September 1972 as the date of the 'commencement of the disablement' and as such the 'date of the accident' for the purposes of the Act. The I significance of 28 September 1972 is that it was the date upon which the respondent was first diagnosed as suffering from the effects of chrome dust. Because, in terms of the Act, compensation is calculated with reference to the workman's remuneration at the time of the accident, the compensation for disablement which was ultimately awarded to the J respondent was no more than the sum of R208.

Scott JA

A The respondent lodged an objection against the Commissioner's decision in terms of s 25(2) of the Act. Initially, the objection was directed solely against the percentage of the disablement which had been determined by the Commissioner. At the hearing of the objection before the Commissioner sitting with assessors, the respondent was permitted B to argue a further ground of objection which was that the Commissioner had erred in fixing 28 September 1972 as 'the date of the accident' rather than April 1991 when the respondent's employment had terminated. Dr Colvin, who is attached to the industrial health unit at the University of Natal, gave evidence on behalf of the respondent. He C expressed the view that the deterioration in the respondent's condition between 1972 and 1992 was attributable to his further exposure to chrome dust during that period. He explained that, once a person suffering from the effects of chrome dust ceases to be exposed to the dust, his condition stabilises and there is no further deterioration. In other words, it was clear from his evidence that had the respondent ceased to be exposed to D chrome dust in 1972 his condition would have stabilised and the deterioration observed in 1992 would not have occurred. This evidence was not disputed. At the conclusion of the hearing the Commissioner upheld the objection that the percentage of disablement was too low and...