A legal comparison between South African, Canadian and Australian workmen's compensation law

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A

LEGAL COMPARISON BETW EEN SOUTH AFRICAN, CANADIAN

AND AUSTRALIAN WORKMEN'S COMPENSATION LAW

by

JOHANNA PETRONELLA JANSEN VAN VUUREN

Subm itted in accordance with the requirem ents for the degree of

MASTER OF LAWS

at the

UNIVERSITY OF SOUTH AFRICA

under the supervision of

PROF AH DEKKER

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I, JOHANNA PETRONELLA JANSEN VAN VUUREN, declare that

A LEGAL COMPARISON BETWEEN SOUTH AFRICAN, CANADIAN AND

AUSTRALIAN WORKMEN'S COMPENSATION LAW

is my own w ork and that all the sources that I have used or quoted have been indicated and acknowledged by m eans of com plete reference.

SIGNATURE

( JP Jansen Van Vuuren)

-DATE-2011

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06

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2

4

CLASS ....

A C C E S S .

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AUTHOR'S NOTES

The following should be noted:

• The thesis represents the law as at 30 October 2013; • Referral to male includes female and vice versa.

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DEDICATIONS & ACKNOWLEDGEMENTS

Dedicated to my Lord and saviour, Jesus Christ, for His everlasting love and grace.

I also dedicate this work to each and every worker who died on duty or sustained an occupational injury or contracted a dreaded occupational disease and in the humble trust that this work might assist in fair and just compensation for and the dignified treatment of these workers.

A number of people contributed towards the completion of this work and my sincere gratitude goes to each and everyone of them:

• I am greatly indebted to my husband, and dearest friend, Renier, for all his unconditional love, support and understanding in my years of study;

• Prof. Adriette Dekker, I am truly indebted to her and would like to express my sincerest gratitude for her excellent guidance and support;

• My employer and more specifically, Adv. Paul Mardon, who's support and comments were inspirational.

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SUMMARY

Workers’ compensation originated internationally because of the need to address the plight of workers and communities left destitute due to occupationally sustained disabilities or death. This study examines how the right to no-fault compensation developed in South Africa in comparison to the comparable law in Canada and Australia. Specific limitations regarding the right to workers' compensation pursuant to the South African compensatory laws were identified. Limitations identified include the persons falling within the ambit of the law, circumstances creating a right to compensation, the right to claims for increased compensation uniquely provided for in South African compensatory law and founded in the negligent conduct of employers as well as common law redress for damages. The background of the administrative remedy in the form of the right to compensation for occupational injuries and diseases ought to be seen in the light of the Constitution of the Republic of South Africa 1996.

KEY TERMS

Workers' compensation; COIDA; ODIMWA; COIDA section 56; Compensation for Occupational Injuries and Diseases Act (1993); Occupational Diseases in Mines and Works Act (1973); Social security law; History of workers' compensation; Workers' compensation for migrant employees; Administrative remedy; Who is an employee in terms of COIDA? Who is entitled to compensation? When is an employee entitled to compensation for an injury at work? Negligent employers; COIDA section 35; No­ fault compensation; Common law claims for occupational injuries and diseases.

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LIST OF ABBREVIATIONS AND ACRONYMS

AJLL: Australian Journal of Labour Law. Alta. L. Rev.: Alberta Law Review.

BCEA: Basic Conditions of Employment Act 75 of 1997. Brit. J. Industr. Med.: British Journal of Industrial Medicine. CC: Constitutional Court.

CLELJ: Canadian Labour and Employment Law Journal.

COIDA: Compensation for Occupational Injuries and Diseases Act 130 of 1993. Fn: Footnote.

GDP: Gross Domestic Product. HE: Her Excellency.

HSRC: Human Science Research Council.

IAVGO: Industrial Accident Victims Group Ontario. Indus. L.J.: Industrial Law Journal.

Iowa Orthop J.: Iowa Orthopaedic Journal.

ISCRR: Institute for Safety, Compensation and Recovery Research. Ito: In terms of.

J Occup Health Safety Aust NZ: Journal of Occupational Health and Safety Australia and New Zealand.

La. L. Rev.: Louisiana Law Review. LRA: Labour Relations Act 66 of 1995. NWS: New South Wales.

ODIMWA: Occupational Diseases in Mines and Works Act 78 of 1973. ODMWA: Occupational Diseases in Mines and Works Act 78 of 1973. OH & S: Occupational Health and Safety.

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OPSEU: Ontario Public Service Employees Union. Osgoode Hall L J: Osgoode Hall Law Journal. P: Page.

PAJA: Promotion of Administrative Justice Act 3 of 2000. Para: Paragraph.

Paras: Paragraphs. Pp: Pages.

Queensland U. Tech. L. & Just. J.: Queensland University of Technology, Law and Justice Journal.

RMA: Rand Mutual Assurance Company Limited. S: Section.

SADC: South African Development Community.

SAMAT: Southern Africa Multidisciplinary Advisory Team SCA: Supreme Court of Appeal.

Ss: Sections.

TEBA: The Employment Bureau of Africa. Unif. Law Rev.: Uniform Law Review. WC: Workers' compensation.

WCB: Workers' Compensation Board.

WHSCC: Workplace Health, Safety & Compensation Commission. WSIB: Workplace Safety & Insurance Board.

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TABLE OF CONTENTS

DECLARATION I

AUTHOR'S NOTES II

DEDICATIONS & ACKNOWLEDGEMENTS III

SUMMARY IV

ACRONYMS AND ABBREVIATIONS V

TABLE OF CONTENTS VII

CHAPTER 1 MILEU

1. INTRODUCTION 1

2. CONSTITUTIONAL IMPERATIVE 3

3. SADC INSTRUMENTS 6

4. STRUCTURE OF THE STUDY 8

CHAPTER 2

ADJUDICATIVE STRUCTURES AND THE HISTORICAL DEVELOPMENT OF COMPENSATORY LAW

1. INTRODUCTION 10

2. INTERNATIONAL HISTORY 12

3. SOUTH AFRICA 17

3.1. Introduction 17

3.2. South African court structure and compensatory legislation 19 3.3 A synopsis of the history of compensatory legislation in South Africa 24­

3.4. South African compensatory legislative framework 30

3.5. Problematic issues 30

3.6. Summary 33

4. CANADA 33

4.1. Introduction 33

4.2. Canadian court structure and compensatory legislation 35

4.3. A synopsis of the history of compensatory legislation in Canada 40

4.4. Canadian compensatory legislative framework 43

4.5. Problematic issues 44­

4.6. Summary 46

5. AUSTRALIA 46

5.1. Introduction 46

5.2. Australian court structure and compensatory legislation 47 5.3. A synopsis of the history of compensatory legislation in Australia 52

5.4. Australian compensatory legislative framework 55

5.5. Problematic issues 57

5.6. Summary 60

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CHAPTER 3

THE ADMINISTRATIVE NATURE, PURPOSE AND INTERPRETATION OF COMPENSATORY LEGISLATION

1. INTRODUCTION 64

2. THE ADMINISTRATIVE NATURE OF COMPENSATORY LEGISLATION 64

2.1. The administrative nature of compensatory legislation in South Africa 65 2.2. The administrative nature of compensatory legislation in Canada 68

2.3. The administrative nature of compensatory legislation in Australia 72

2.4. Summary 75

3. SOUTH AFRICA: PURPOSE AND INTERPRETATION 75

3.1. Purpose of COIDA 76

3.2. Interpretation through case law 77

3.2.1. Jooste v Score Supermarket Trading (Pty) Ltd (Minister o f Labour

Intervening) 77

3.2.2. Davis v Workmen's Compensation Commissioner 78

3.2.3. Healy v Compensation Commissioner and Another 78

3.3. Summary 79

4. CANADA: PURPOSE AND INTERPRETATION 79

4.1. Purpose of the Northwest Territories Workers' Compensation Act, 2007 79

4.2. Interpretation through case law 81

4.2.1. Medwid v Ontario 81

4.2.2. Henry v Saskatchewan (Workers' Compensation Board) 81

4.2.3. Budge v Alberta (Workers'Compensation Board) 83

4.2.4. Wilson v City o f Medicine Hat 83

4.3. Summary 84

5. AUSTRALIA: PURPOSE AND INTERPRETATION 84

5.1. The purpose of the South Australian Workers Rehabilitation and

Compensation Act, 1986 84

5.2. Interpretation through case law 86

5.2.1. Johnston v Commonwealth 87

5.2.2. Cloncurry Shire Council v Workers' Compensation Regulatory

Authority &Anor 87

5.2.3. Bird v Commonwealth ("Maralinga case") 88

5.2.4. Melanie Gillian Jefferts and Comcare Australia 89

5.3. Summary 90

6. CONCLUSION 90

CHAPTER4

CAUSALITY AND THE RELATIONSHIP WITH EMPLOYMENT

1. INTRODUCTION 92

2. SOUTH AFRICA 93

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2.2. Interpretation through case law 95

2.2.1. Early English case law 96

2.2.2. Briesch v Geduld Propriety Mines, Ltd 98

2.2.3. Min ister o f Justice v Kh oza 9 8

2.2.4. Workmen's Compensation Commissioner v Van Rooyen 100

2.2.5. KauvFourie 1 0 1

2.2.6. Ex Parte Workmen's Compensation Commissioner: In re Manthe 102 2.2.7. Rauffv Standard Bank Properties (A Division o f Standard Bank o f

SA Ltd) and Another 103

2.3. Extended right to compensation 105

2.3.1. Serious and wilful misconduct 106

2.3.2. Court interpretation of serious and wilful misconduct 107

2.3.3. Commuting injuries 108

2.4. Migrant labour 110

2.5. Summary 113

3. CANADA 114

3.1. Statutory definition of an injury: the test 114

3.2. Interpretation through case law 117

3.2.1. Canada Post Corp. v Nova Scotia (Workers' Compensation

Appeals Tribunal) 119

3.2.2. Puddicombe v Workers’ Compensation Board (N.S.) 120

3.2.3. Gellately v Newfoundland (Workers' Compensation Appeal Tribunal) 121

3.2.4. Workmen's Compensation Board v C.P.R. 122

3.3. Extended right to compensation 124

3.3.1. The presumption and death 124

3.3.2. Other instances of extended coverage 125

3.3.3. Serious and wilful misconduct 125

3.3.4. Court interpretation of serious and wilful misconduct 126

3.3.5. Transgression of employment laws or rules 127

3.3.6. Commuting injuries 127

3.3.6.1. Court interpretation on commuting injuries 128

3.4. Migrant labour 129

3.5. Summary 132

4. AUSTRALIA 134

4.1. Statutory definition of an injury: the test 134

4.2. Interpretation through case law 136

4.2.1. Kavanagh v Commonwealth 137

4.2.2. Dayton v Coles Supermarkets P/L 138

4.2.3. Hatzimanolis v A.N.I. Corporation Limited 140

4.2.4. PVYW v Comcare 142

4.3. Extended right to compensation 144

4.3.1. Serious and wilful misconduct 14-4

4.3.2. Court interpretation of serious and wilful misconduct 14-5

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4.3.4. Commuting injuries 146

4.3.4,1. Court interpretation on commuting injuries 14-7

4.4. Migrant labour 148

4.5. Summary- 151

5. CONCLUSION 151

5.1. Statutory definition of an injury: the test phrase 151

5.2. Extended right to compensation 153

5.3. Migrant labour 153

5.4. Policy documents

CHAPTER 5

THE SCOPE OF APPLICATION OF COMPENSATORY LEGISLATION

155

1. INTRODUCTION 156

2. SOUTH AFRICA 157

2.1. Statutory definition of an "employee" 157

2.2. Statutory definition of an "employer" 161

2.3. Requirements regarding the contract of service 163

2.3.1. Smit v Workmen's Compensation Commissioner 164

2.4. Labour legislation and the definition of an employee 165

2.5. Validity of the Contract of Service 167

2.5.1. Van Wyk obo Van Wyk v Daytona Stud Farms & Others 168

2.6. The role of remuneration 169

2.6.1. Workmen's Compensation Commissioner v Crawford & Another 170

2.6.2. Davis v Workmen's Compensation Commissioner 171

2.7. Employer registration and payment of levies 172

2.7.1. Boer v Momo Development CC en 'n Ander 172

2.8. Third party employers 172

2.8.1. Rieck v Crown Chickens (Pty) Ltd t/a Rocklands Poultry 172

2.8.2. Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 173

2.8.3. Some practical implications: Rieck-rulings 175

2.9. Atypical employment arrangements 176

2.10. Migrant labour 180

2.1 1. Domestic workers 184

2.1 1.1. Van Vuuren v Pienaar 185

2.1 2. Summary 186

3. CANADA 187

3.1. Statutory definition of an "employee” 188

3.2. Statutory definition of an "employer" 191

3.3. Requirements regarding contract of service 192

3.3.1. Joey's Delivery Service v New Brunswick (Workplace Health and

Safety Compensation Commission) 194

3.3.2. University o f Lethbridge v Alberta (Workers' Compensation Board,

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3.4. Validity of contract of service 198 3.4.1. Decision 20053860 (Re), 2005 CanLII 63196 (NB WHSCC) 198

3.5. The role of remuneration 199

3.5.1. Decision: 2010-385-AD (Re), 2010 CanLII 69811 (NS WCAT) 200

3.6. Employer registration and payment of levies 202

3.6.1. Isaac v British Columbia (Workers' Compensation Board) 202

3.7. Migrant labour 203

3.8. Fishers 204

3.8.1. Mime'j Seafoods Ltd. v Nova Scotia (Workers' Compensation Appeals

Tribunal) 204

3.9. Domestic workers 206

3.10. Third party employers 207

3.10.1. Homes by Avi Ltd. v Alberta (Workers' Compensation Board,

Appeals Commission) 208

3.11. Atypical employment arrangements 211

3.12. Summary 214

4. AUSTRALIA 215

4.1. Statutory definition of an "employee" 216

4.2. Statutory definition of an "employer" 219

4.3. Requirements regarding contract of service 220

4.3.1. Humberstone v Northern Timber Mills 221

4.3.2. Stevens v Brodribb Sawmilling Company Pty Ltd 222

4.3.3. Hollis v Vabu Pty Ltd [2001] HCA 44 224

4.3.4. Abraham Abdalla re Abraham Abdalla v Viewdaze Pty Ltd t/as

Malta Travel PR927971 225

4.3.5. Yu Cang Zhao v Monlea Pty Ltd trading as Nordex Interiors 227

4.4. Validity of contract of service 228

4.4.1. Workcover Corporation (San Remo Macaroni Co Pty Ltd) v Liang

Da Ping 229

4.4.2. Riley v Workcover/Allianz Australia (Robinvale Transport Group

(SA) Pty Ltd) 231

4.4.3. Singh v TAJ (Sydney) Pty Limited 233

4.5. The role of remuneration 233

4.6. Employer registration and payment of levies 234

4.7. Migrant labour 235

4.7.1. Mynott v Barnard 236

4.8. Fishers 237

4.9. Domestic workers 239

4.10. Third party employers 239

4.10.1. Workcover Corporation & Ors v Fogliano 24-0

4.11. Atypical employment arrangements 241

4.12. Summary 24-3

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CHAPTER 6

THE RIGHT TO DELICTUAL REMEDIES

1. INTRODUCTION 247

2. SOUTH AFRICA 248

2.1. Statutory provisions absolving an employer from liability 248

2.2. Interpretation through case law: Constitutional challenges 251 2.2.1. Jooste v Score Supermarket Trading (Pty) Ltd (Minister o f Labour

Intervening) 251

2.2.2. Mlomzale v Mizpah Boerdery (Pty) Ltd 252

2.2.3. Mankayi v Anglogold Ashanti Ltd 253

2.3. Interpretation through case law: Applicability of statutory provisions 258 2.3.1. Van De Venter v MEC o f Education: Free State Province 258 2.3.2. Free State Consolidated Gold Mines Bpk h /a Western Holdings

Goudmyn v Labuschagne 259

2.4. Fault based claims: Delictual claims 260

2.5. Interpretation through case law: Claims for increased compensation 263

2.5.1. Looyenv Simmer and Jack Mines Ltd. and Another 267

2.5.2. Grace v Workmen's Compensation Commissioner and Another 267 2.5.3. Young v Workmen's Compensation Commissioner and Another 269

2.6. Summary 271

3. CANADA 271

3.1. Statutory provisions absolving an employer from liability 273 3.2. Interpretation through case law: Constitutional rulings 275

3.2.1. Reference re: Workers'Compensation Act 275

3.2.2. Pasiechnyk v Saskatchewan (Workers'Compensation Board) 283

3.2.3. Prentice v Canada (F.C.A.) 287

3.3. Interpretation through case law: Applicability of statutory provisions 289

3.3.1. Kovach v Singh 289 3.3.2. OPSEU v Ontario et al 291 3.3.3. Decision No. 622/891 293 3.3.4. Decision No. 324000 294 3.4. Summary 296 4. AUSTRALIA 297

4.1. Statutory provisions absolving an employer from liability 299 4.2. Interpretation through case law: Constitutional rulings 302 4.3. Interpretation through case law: Applicability of statutory provisions 303

4.3.1. Ninkovic v Pajvancek 303

4.3.2. To Ha Lu v Mediterranean Shoes Pty Ltd & Ors 304­

4.3.3. Haden Engineering Pty Ltd v McKinnon 308

4.3.4. Guppy v Victorian WorkCover Authority & Anor 310

4.3.5. Parry v Masterpet Australia Pty Ltd 313

4.4. Summary 315

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CHAPTER 7 CONCLUSION

1. INTRODUCTION 321

2. THE SCOPE OF WORKERS’ COMPENSATION IN SOUTH AFRICA 323

3. THE ADMINISTRATIVE REMEDY AND ACCESS TO COURTS 331

4. COMMON LAW CLAIMS 334

5. FRAGMENTATION 339

DIAGRAMS & TABLES

South African judicial structure 20

Canadian judicial structure 35

Australian judicial structure 4-8

Table: Claims for increased compensation 265

BIBLIOGRAPHY

STATUTES: SOUTH AFRICA 342

STATUTES: CANADA 343

STATUTES: AUSTRALIA 343

OTHER INTERNATIONAL STATUTES & INSTRUMENTS 34-5

TABLE OF CASES: SOUTH AFRICA 345

TABLE OF CASES: CANADA 347

TABLE OF CASES: AUSTRALIA 348

TABLE OF CASES: BRITAIN 350

TABLE OF POLICIES & GUIDELINES: CANADA 350

TABLE OF POLICIES & GUIDELINES: AUSTRALIA 352

BOOKS 353

THESES AND DISSERTATIONS 354

PERIODICALS 355

PAPERS, REPORTS, SPEECHES & MEDIA STATEMENTS 357

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CHAPTER 1

MILEU

1. INTRODUCTION

Workers' compensation is a liability neither in tort nor in contract. It is a responsibility postivi juris and is annexed by law to a relationship, that of master and servant. The parties may choose whether they will enter into the relationship; but if they do the employer's liability for, and the worker's and his dependants' corresponding right to, compensation are legal consequences which are independent of and cannot be controlled by their agreement.1

These words of the honourable Justice Dixon2 indicate the uniqueness of workers’ compensatory law, a relatively new field of law resembling features of delict, contract, human rights and labour law. It forms part of social security law3 and true to social security law, aims to provide a safety net in circumstances when the need arise. To determine if the current South African workers' compensatory scheme provides the necessary safety net, a comparison will be drawn between the workers' compensatory legislation of South Africa, Canada and Australia in the light of these countries' shared common law origins, the influence of the first British Workers' Compensation Law4 and how compensatory legislation was developed in the three countries. Canadian workers' compensatory legislation is of particular importance to South Africa as the Workmen's Compensation Act 30 of 1941s was

Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68. Hereinafter: Mynott. Retrieved on 08/11/2012 from http://www.austlii.edu.au/au/cases/cth/HCA/1939/13.html as per Dixon J. Ibid.

Molefe v Compensation Commissioner and Another (25579/05) [2007] ZAGPHC 365, Seriti J at [5] found in this unreported case that “The Compensation for Occupational Injuries and Diseases Act supra, is a social legislation and according to section 39(2) of the Constitution, it must be interpreted in such a manner that the said interpretation promotes the spirit, purport and objects of the social security right as enshrined in section 2 7 (l)(c ) of the Constitution.” Hereinafter: Molefe.

Frank, GS. 1940. The South African law o f workmen's compensation. Durban: Butterworths. Frank at vii refers to the similarities between the Workmen's Compensation Act 25 of 1914, the Workmen’s Compensation Act 59 of 1934 and the English Workmen's Compensation Act of 1925 and its antecedent acts.

Hereinafter: 1941 Act. 2

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greatly influenced by the then Ontario Workmen's Compensation Act6 and the work done by Chief Justice WR Meredith.7 Ison8 reports that South Africa imitated the Ontario Workmen's Compensation Act which not only incorporated the same principles but in effect meant that Meredith was considered to be the founder of the South Africa workers' compensation system.9 The differences in exercising the right to compensation between the three countries will be explored to specifically determine the position of South African employees who are faced with occupational injuries or diseases.

The purpose of this study is to determine if South African employees find themselves in a less favourable position and if so, the extent thereof when compared to other compensation systems in respect of the right to workers’ compensation in the light of:

• the historical and current circumstances giving rise to this right;

• the administrative system that underpins the exercise of the right to workers’ compensation;

• the purpose of this type of legislation; • the requirements of a valid right;

• the scope of protection afforded to employees by workers' compensatory laws; and

• the scope of protection afforded to employers by workers' compensatory laws.

It is submitted that it is of the utmost importance that all employees who find

Ontario: An Act to provide for Compensation to Workmen for Injuries sustained and industrial Diseases contracted in the course of their Employment, S.O, 1914, c. 25. Hereinafter: Ontario Workmen's Compensation Act.

Ison, TG. 1996. A historical perspective on contemporary challenges in workers’ compensation. Osgoode Hall L. J. 34: 807-833. Hereinafter: Ison 1996. Retrieved on 07/03/2012 from http://heinonline.org.

Ibid.

Le Roux, PAK. 1977. An administrative law enquiry into the nature and function o f the powers o f the Workmen's Compensation Commissioner. LLM thesis, University of South Africa. At 3 1 -3 3 Le Roux noted that the Departmental Committee on Workmen’s Compensation appointed in 1930, had to investigate a State-run collective liability fund based "as far possible" on the Ontario system and although a proposed Bill was approved by a Select Committee, political reasons delayed promulgation until 1941 when the 1941 Act which in essence embodied the recommendations of the 1930 Committee, was reintroduced.

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themselves in the unfavourable situation of being harmed by occupational injuries or diseases, are duly protected against financial distress and in applicable cases are compensated fairly, both in amount and manner in a just and speedy manner.

2. CONSTITUTIONAL IMPERATIVE

The Constitution of the Republic of South Africa 1996 is the supreme law of the Republic and forms the basis of all law in the country. It provides for the needs of its people in every aspect of life and all other legislation should give life to the rights and provisions of the Constitution.10 The Constitution 1996 includes the Bill of Rights11 which sets out and jealously protects the fundamental rights that protect life itself as well as human dignity and equality in various life situations. It determines how these rights should be promoted,12 interpreted13 and how it may be limited14 in "an open and democratic society based on human dignity, equality and freedom."15

Social security aims at social protection and forms an important, although at times a silent part of everyday life, as in the words of the International Labour Organisation (ILO) "social security or its absence touches nearly everyone on the planet”.16 The nature of social security systems are described as financial instruments "fulfilling economic and social purposes” created and shaped by law.17 From the viewpoint of an individual, social security is rights-based and entails legislated "prescribed entitlements, qualifying conditions and procedural guarantees".18 The concept of social security includes various forms e.g. social assistance, social welfare and social insurance such as workers’ compensation which is normally instituted and ruled by

10 Constitution of the Republic of South Africa, 1996 ss 1-2. Hereinafter: Constitution 1996. 11 Ibid Chapter 2.

12 Ibid s 7(2). 13 Ibid s 39. 14 Ibid s 36. 15 Ibid s 36(1).

16 International Labour Conference. 100th Session. 2011. General survey concerning social security instruments in light o f the 2008 Declaration on Social Justice fo r a Fair Globalization. Hereinafter: ILO Conference (2011). Retrieved on 25/09/2012 from http://www.ilo.org/wcmsp5/groups/public/ @ed_norm/@relconf/documents/meetingdocument/wcms_152602.pdf.

17 Frank vii. 18 Molefe [5].

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legislation.19 Section 2720 of the Constitution 1996 determines the rights pertaining to social security. Section 27(1) (c) states that "everyone" has the right of access to social security in circumstances of inability to provide for themselves and their dependants. The justiciability of this right was challenged in the Certification case.21

Subsequent interpretation by the Constitutional Court gave direction to the state's responsibility on the "progressive realisation"22 of this right.23

Section 9 of the Constitution deals with one of the core human rights values namely equality of all people while subsection (3) prohibits both direct as well as indirect unfair discrimination on a listed ground. Subsection (4) also prohibits direct and indirect unfair discrimination but on an unlisted ground and furthermore instructs the state to enact legislation to prevent or prohibit unfair discrimination. Discrimination on a listed ground will be unfair unless it can be proven to be fair. The listed grounds consist of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.24 Discrimination against people with disabilities will therefore be unfair unless it can be proven to be fair and may only be limited if 19 Harger L [Sa], Workers' Compensation, a b rief history. Retrieved on 17/03/2012 from

http://www.myfloridacfo.com/wc/history.html. Harger distinguishes between "insurance" and social insurance as part of social security. Insurance relates to a contractual relationship where one party undertakes to indemnify the other against risk and workmen’s compensation is the oldest form of social security. Social security in this study refers to the social protection afforded ito compensatory legislation which is a form of social insurance rather than social assistance.

2° "27. Health care, food, water and social security.(1) Everyone has the right to have access to

-(a) health care services, including reproductive health care; (b) sufficient food and water; and

(c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.”

21 Ex Parte Chairperson o f the Constitutional Assembly: In Re Certification o f the Constitution o f the Republic o f South Africa, [1996] ZACC 26; 1996 (4) SA 744; 1996 (10) BCLR 1253 (CC) see [78], Hereinafter: Certification case.

22 ILO Conference (2011). At 66 the ILO Committee of Experts traced the concept of progressive realisation of social security rights to the United Nations Covenant on Economic, Social and Cultural Rights which expects from States to develop medium and long-term policies and programmes to realise the rights progressively. The right to social security is considered to be achieved progressively in accordance to the level of economic and social development of the particular State and the availability of resources. Progressive realisation entails "moving as expeditiously and effectively as possible towards that goal."

23 Government o f the Republic o f South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169.

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limitations satisfy the conditions laid down in section 36.25 Occupational injuries and diseases often result in disabilities of a temporary as well as a permanent nature.

Interpretation of the rights included in the Bill of Rights should be in accordance with section 39 which places an obligation upon a "court, tribunal or forum" to promote the values that underlie an open and democratic society based on human dignity, equality and freedom. It also requires from a court, tribunal or forum to consider international law and allows it to consider foreign law. When legislation is interpreted, every court, tribunal or forum "must promote the spirit, purport and objects of the Bill of Rights."26

The Bill of Rights further provides for just administrative action in section 33 which specifies that everyone has the right to administrative action that is “lawful, reasonable and procedurally fair."27 Everyone also has the right to written reasons when administrative actions adversely affect them.28 Workers' compensatory legislation functions primarily in an administrative environment and decisions by the applicable bodies are generally of an administrative nature.

The Constitution furthermore determines how international law and soft law instruments find application in South African law in sections 39,29 2 3 1 30 and 23331.

25 “36. Limitation of rights.- (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors,

including-(a) the nature of the right;

(b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights."

26 Constitution 1996 s 39(2). 27 Ibid s 33(1).

28 Ibid s 3 3 (2 )”Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons."

29 "39. Interpretation of Bill of Rights.- When interpreting the Bill of Rights, a court, tribunal or forum-(a) must promote the values that underlie an open and democratic society based on human

dignity, equality and freedom; (b) must consider international law, and (c) may consider foreign law.”

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In examining the South African compensation legislation, it will be compared to the Canadian and Australian legislations to determine if South Africa's legislation is on par with standards and trends in those two countries.

3. SADC INSTRUMENTS

Regional instruments are important as migrant labour32 forms an integral part of the workforce in the region. The Southern African Development Community (SADC)33 protects social security benefits at a regional level through specifically- designed policy documents, e.g.:

• the SADC's founding Treaty which forms the regional framework for regulation and development of social security in Southern Africa;34

30 "231(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).

(3) An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within reasonable time.

(4] Any international agreement becomes law in the Republic when it is enacted by law into national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament."

31 "233 Application of international law .- When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law."

32 The relevancy of migration labour in the South African labour market will be discussed in Chapter 5 under the definition of an "employee".

33 Member states comprises of the People's Republic of Angola, the republics of Botswana, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Zambia, Zimbabwe, the Democratic Republic of Congo, the United Republic of Tanzania and the kingdoms of Lesotho and Swaziland.

34 The SADC's founding Treaty provides for rights in respect of social security for workers and non-workers. Article 6 deals with equality of all people and forbids discrimination based on grounds similar to the RSA Constitution e.g. "ARTICLE 6 GENERAL UNDERTAKINGS. 2. SADC and Member States shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture or disability.” Social development is addressed as an objective in article 5 as "ARTICLE 5 OBJECTIVES The objectives of SADC shall be to: promote sustainable and equitable economic growth and socio-economic development that will ensure poverty alleviation with the ultimate objective of its eradication, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration." Article 21 deals with cooperation with regard to policies, strategies, as well as programmes and projects. Jordaan, B, Kalula, E & Strydom, E (eds). 2009. Understanding social security law. Cape Town: Juta Law. Hereinafter: Jordaan eta l. At 26-57 the authors noted that the Treaty is continuously being expanded by additional instruments in the form of charters, protocols and codes for example the Charter on Fundamental Social Security Rights (also known as the Social Charter) in the SADC.

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• the Charter of Fundamental Social Rights in the SADC which aims to provides for regional regulation of labour law protection;35

• the Code on Social Security (2007) acknowledges the right to social security and supports social dialogue to promote development of social security on national level through co-ordination, harmonization and involvement of communities in social security policies;36

• the Protocol on the Facilitation of Movement of Persons (2005) promotes free movement of people in the SADC region;37

• The Protocol on Health (1999) deals with sustainable human development and productivity dependant upon a healthy population through a process of close co-operation in the area of health.38

35 The objectives contained in article 2 of the Social Charter provides for regional regulation of labour law protection with specific protection for certain vulnerable groups like children and young persons and people with disabilities, enabling environments for health, safety and environmental protection as well as ratification of ILO instruments by member states. Social security receives specific attention in article 2 (l)(e ) providing for a process of facilitation between the social partners to "(e) promote the establishment and harmonisation of social security schemes" inclusive of health and safety in the workplace in article 2 (l)(f).

36 Jordaan et al 5 0 -5 1 . The authors explain that the SADC Code on Social Security of 2007 to be of crucial importance in the development of the right to social security at national level and further supports social dialogue to promote development of social security on national level and the African nature of ubuntu shows from the importance given to co-ordination, harmonization and involvement of communities in social security policies. It acknowledges the fact that governments are not on its own able to fully provide in the social security needs of the region’s people. The position of marginalised groups like women, children and persons with disabilities, migrants and foreign workers are recognised. A reading of the Code on Social Security shows that it guides on the implementation of Article 5 of the Charter of Fundamental Social Rights and of specific importance for purposes of this study are: Article 4: The Right to Social Security; Article 5: Social Assistance, Social Services and Social Allowances; Article 6: Social Insurance; Article 9: Death and Survivors; Article 12: Occupational Injuries and Diseases as well as Article 17: Migrants, Foreign Workers and Refugees.

37 Jordaan et al 53-54. Southern African Development Community. 2005. Protocol on facilitation o f the movement o f persons. This Protocol gives expression to the objectives of the SADC Treaty, which requires SADC to develop policies aimed at the progressive elimination of obstacles to the free movement of capital and labour, goods and services and of the people of the region generally amongst the member States. Retrieved on 26/05/2012 from

http://www.sadc.int/index.php/documents-publications/protocols?sortBy=34&pageSize=4& doc_q_0=&sort0rder=desc&filterByKey=&filterByVal=&page=2.

38 Southern African Development Community. 1999. Protocol on health. Retrieved on 26/05/2012 from http://www.sadc.int/documents-publications/themes/health/. This Protocol aims to achieve sustainable human development and productivity dependant upon a healthy population and SADC identified the need for close co-operation in the area of health to effectively control communicable and non-communicable diseases in dealing with common concerns in the region. The Protocol came into force in 2004 and coordinates regional preparedness on epidemics, prevention procedures, disease control and where feasible the eradication of communicable and non-communicable diseases. The Protocol deals with education, training, efficient laboratory services and universal strategies in addressing the health needs of women, children and vulnerable groups.

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According to a study by Fultz and Pieris,39 the relationship between a social security scheme and its milieu is dynamic and is influenced by economic factors of resources, distribution,40 productivity, labour mobility and labour costs41 and regional policy instruments should be seen in the context of economic limitations, high informal employment realities and the realities of limitations on the administrative capacity of governments 42

The role of social security in strengthening political and economic transition in the SADC region is important43 as it inter alia provides protection to workers "who are displaced or lose employer-provided benefits as markets are opened to increased competition".44

4. STRUCTURE OF THE STUDY

This study will follow a similar structure in each of the chapters starting with general background information, and then discuss the statutory provisions and case law of South Africa, Canada and Australia before concluding the chapter.

The right to workers' compensation will be explored from different angles to determine the historical need for the right to workers' compensatory legislation, the nature and purpose of workers' compensatory laws and trends of interpretations flowing from it, circumstances under which the right will arise or will defeat such right and person’s entitled to the right as well as limitations the right to delictual remedies. In exploring the right, it will be prudent to give some attention to the systems of government and adjudicative structures applicable to each of the three countries. For purposes of this study, discussions will be limited to one act per jurisdiction per aspect unless appropriate to discuss more than one. The right to workers’ compensation by employees and the right to protection against delictual

39 Fultz, E & Pieris, B. 1999. Social security schemes in Southern Africa: An overview and proposals fo r future development Harare: ILO. At 7. Hereinafter: Fultz & Pieris,

« Ibid 35. 41 Ibid ix. « Ibid 7. 43 Ibid ix. 44 Ibid ix.

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actions afforded to employers will be discussed under the following headings, being:

• Chapter 2: Adjudicative structures and the historical development of compensatory law. In discussing these aspects, information will be given on the differences in adjudicative structures between the three countries and it will be demonstrated how compensatory legislation developed. Due to the stare decisis doctrine applicable in all three countries, it is important to have insight in the hierarchical court structure applicable to case law and as workers' compensation is in essence an administrative remedy, the limitation on the right of access to courts will receive attention.

• Chapter 3: The administrative nature, purpose and interpretation of compensatory legislation. This is closely related to the historical development of compensatory law and it will be shown that the courts often examine and consider the historical development in the process of interpretation of the purpose of the right to compensation and the barring of the right to delictual actions.

• Chapter 4: Causality and the relationship with employment. The right to compensation is limited to injuries and diseases arising within the boundaries of employment; and establishing whether an injury arose out of and in the course of employment may include gray areas clouded by the circumstances of the injury and the law that needs to be applied.

• Chapter 5: The scope of application of compensatory legislation. The statutory definitions of employee and employer will be explored. The right to workers' compensation and the right to protection against delictual action are limited rights and will only arise within an employment relationship. However, proving the existence of an employment relationship is not always an easy task in the absence of a contract of service.

• Chapter 6: The right to delictual remedies. Abrogation of this right forms an intimate part of the history and purpose of workers' compensatory legislation and is dealt with differently in the three countries.

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CHAPTER 2

ADJUDICATIVE STRUCTURES AND THE HISTORICAL DEVELOPMENT OF COMPENSATORY LAW

1. INTRODUCTION

One of the aims of this study is to determine how and why a statutory right to workers' compensation was developed. In addition to exploring the historical development of compensatory law, the adjudicative structures of South Africa, Canada and Australia warrant attention as to provide an understanding of the background applicable to court cases due to the commonly shared stare decisis doctrine and as workers' compensation is in essence an administrative remedy. Limitations to the right of access to courts will also receive attention in this Chapter.

Legislation on occupational injuries and diseases regulates a tripartite relationship of social partners,1 aiming to balance the interests of state, employer and employee.2 The intention of this kind of social security legislation is to create a right

Olivier, MP, Smit, N & Kalula, ER (eds). 2003. Social security: A legal analysis. Durban: LexisNexis Butterworths. At 38. Hereinafter: Olivier et al (2003). Ison 1996: 8 0 7 -8 3 3 argues that the Canadian workers compensation system is increasingly complex and open to pressure groups. See also Winder, C. 2009. The development of OHS legislation in Australia./ Occup Health Safety AustNZ 2 5 (4): 2 7 7 -2 8 7 . Retrieved on 17/03/2012 from

http://0-search.informitcom.au.oasis.unisa.ac.za/browseJournalTitle;res=APAFT;issn=0815-6409. In Jooste v Score Supermarket Trading (Pty) Ltd (Minister o f Labour Intervening) 1999 (2) SA 1 (CC). (Hereinafter: Jooste). At [9] the CC discussed the importance of this type of legislation and the "significant impact on the sensitive and intricate relationship amongst employers, employees and society at large." The Court recognised the intervention by the State to create an appropriate balance. The balance struck "between the competing interests of employers and employees" was also a point of interest in the case of Healy v Compensation Commissioner and Another 2010 (2) SA 470 (E) at [11]. (Hereinafter: Healy). In Canada, courts often refer to this balance as the "historic trade-off' introduced to compensatory law by Chief Justice Meredith in Ontario as in Puddicombe v Workers' Compensation Board (N.S.), 2005 NSCA 62 (CanLII) para [29]. Retrieved on 09/04/2011 from http://canlii.ca/t/lk549. (Hereinafter: Puddicombe). In Australia the Victorian Accident Compensation Act, Act No. 10191 of 1985 (retrieved on 12/06/2010 from http://www.austlii.edu.au/au/legis/vic/consol_act/acal985204/) s 2 0 (l)(o ) requires from the Compensation Authority to foster the relationship between the parties while the Queensland Act, Workers' Compensation and Rehabilitation Act 2003 in s 5(5) acknowledges the need for a balance by not placing too heavy a burden upon industry or society. Retrieved on 12/06/2010 http://www.austlii.edu.au/au/legis/nt/consol_act/wraca400/.

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to no-fault3 compensation in the form of an administrative remedy4 replacing common law litigation. The right to compensation is the main objective of compensatory legislation5 but as no right is absolute, the right to workers' compensation will only arise under specific circumstances dependent upon the fulfilment of specific criteria. It is predominantly exercised through an administrative process.

In this chapter the need for legislation to provide for workers who sustained harm in the workplace will be viewed from its historical perspective and background information on the three countries' judicial structures will also be given because it is in court that practical meaning is attached to the words of an act through interpretation.6

The MEC fo r Education, Western Cape Province v Strauss 2008 (2) SA 366 (SCA) explains no­ fault compensation at para [11]-[12] as: "COIDA came into operation on 1 March 1994 providing for a system of no-fault compensation for employees who are injured in accidents that arise out of and in the course of their employment or who contract occupational diseases. A compensation fund is established to which employers are required to contribute and from which compensation and other benefits are paid to employees. Employees meeting the requirements of the Act are entitled to the benefits provided for and prescribed by COIDA. COIDA ‘supplants the essentially individualistic common-law position, typically represented by civil claims of a plaintiff employee against a negligent defendant employer, by a system which is intended to and does enable employees to obtain limited compensation from a fund to which the employers are obliged to contribute.’

[12] At common law an employee has to show that his or her employer acted negligently thereby risking a finding that he or she was contributory negligent. The employee claiming damages from the employer would also bear the risk of the employer’s insolvency or his inability to meet a judgment debt. While the employee ran the risk of an adverse cost order if he or she was unsuccessful, a common-law action might lead to his or her recovering substantially more by way of damages than under the compensation provided by COIDA. Section 35 abolished an employee's common-law right to claim damages."

Piron, J. 1978. Workmen's compensation law: The test fo r "arising out o f and in the course o f employment. Pretoria: Institute for Labour Relations UNISA. The author at 1, discussed the phrase "out of and in the course o f’ as contained in s 2(i) in the 1941 Act. But the third element in the word "resulting" was not included in the discussion.

Ontario. Workmen's Compensation Commission. 1913. Final report relating to the liability o f employers. (Meredith, WR Chairperson). Toronto: Legislative Assembly of Ontario. Hereinafter: Meredith Report. Meredith states at 4: "... the true aim of a compensation law is to provide for the injured workman and his dependants..." Retrieved on 09/05/2010 from

http://www.awcbc.org/common/assets/english%20pdf/meredith_report.pdf.

South Africa (Republic). Law Reform Commission. 2006. Discussion paper 112: Statutory revision: Review o f the Interpretation Act 33 o f 1957. Retrieved on 24/07/2013 from http://www.justice.gov.za/salrc/dpapers/dpll2_interpretation.pdf. At 2 the duty of the courts is described as "... to ascertain and give effect to the will of Parliament as expressed in its enactments. In the performance of this duty the Judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from which issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science

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2. INTERNATIONAL HISTORY

In general, legislation serves the society which it regulates.7 The intention of an act determines the purpose and objectives8 which is often based on the historical context that gave rise to the need for that particular legislative measure.9

Compensation for bodily injuries dates back to antiquity with Nippur Tablet No. 3191 from Sumeria on the law of Ur-Nammu, king of Ur approximately 2050 B.C. Monetary compensation were granted for certain injuries to workers' limbs, including fractures.10 In the collection of laws and rules of the king of Babylon (1750 B.C.), the Code of Hammurabi, similar determinations were made to provide for widows, orphans and the permanent impairments of the injured.11 The model was followed by ancient Greeks, Arabs, Chinese and Romans by enacting laws providing for fixed schedules determining exact compensation for the loss of specified body parts.12

10

and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing."

WorkSafe (British Columbia). Policy and Regulation Development Bureau. [Sa], Royal Commission briefing papers. Richmond: WorkSafeBC. Retrieved on 09/08/2012 from

http://www.worksafebc.com/regulation_and_policy/archived_information/royal_commission_ briefing_papers/assets/pdf/rc_introduction.pdf. At 15 the purpose of an enquiry by a Royal Commission is stated, to: "examine the statutory framework, mandate, structure, organization, and governance and administration of the British Columbia workers’ compensation system in order to meet the needs of the people of British Columbia for a high quality public system that is equitable, effective and efficient in the context of changing workplaces and consistent with the underlying principles of workers’ compensation in British Columbia, namely:

(a) accident prevention (b) no-fault compensation (c) collective employer liability (d) industry funding

(e) universal coverage

(f) administrative adjudication." (Own emphasis). Hereinafter: Royal Commission briefing papers.

Botha, C. 2005. Wetsuitleg. 4 th edition. Cape Town: Juta Law. At 81.

Burger, AJ. 2009. A guide to legislative drafting in South Africa. Cape Town: Juta law. At 25 Burger discusses the purposive method of interpretation and quote the very old case of Heydon [1584] 3 Co Rep 7a; where four principles were laid down: firstly, what the common law was before the enactment; secondly, what was the deficiency that the common law lacked; thirdly, what remedy was instituted by Parliament and fourthly, the proper motive for that remedy. Guyton, GP. 1999. A Brief History of Workers' Compensation. Iowa Orthop J 19: 111 -1 2 1 . Retrieved on 17/03/2012 from http://www.ncbi.nlm.nih.gov/pmc/issues/144831/.

Winder 2 7 7 -2 8 7 .

Guyton 111-121. Ancient Arab law assessed the loss of a joint of the thumb equal to one-half the value of a finger while loss of part of a penis was compensated proportionally to the length lost 7

0 9

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Feudalism became the structure of government during the Middle Ages causing compensation for workers to be dependent upon the honour, goodwill and generosity of feudal lords.13

The development of English common law which influenced the legal system in western countries and continued into the Industrial Revolution replaced the compensation schedules with common law rules.14

The Industrial Revolution changed the way in which work was done forever by introducing sources of inanimate power; the introduction of machines and production methods and in the process aggravated the risk to injury and disease proportionally.15 If the ability to earn is lost through injuries or diseases, it usually is unexpected and it results in a cost transfer to the injured employee, his next of kin and society at large.16

In Britain, the incidence of fever amongst child labour in cotton mills led to the Health and Morals Apprentices Act of 1802 which marked the creation of legislation regulating working conditions, initially primarily pertinent to child labour.17

Social assistance was provided through the guild system of the Middle Ages, according to which artisans contributed to a fund administered by the guild and from which compensation could be claimed in instances of incapacity due to injuries or diseases.18 But not all workers could afford this form of mutual insurance19 which was also provided by trade unions.20

13 Ibid.

14 Guyton 1 1 1 -1 2 1 . Winder 277 -2 8 7 .

15 Winder 2 7 7 -2 8 7 . Derickson, A. 1988. Workers' health, workers’ democracy: the Western miners' struggle, 1891-1925. New York: Cornell University Press. At 37 the death rate of hard rock miners in the metal and coal sectors in British Columbia (Canada) is tabled as 4.2 per 1,000 between 1 8 9 8 -1 9 0 8 and 3.3 per 1,000 for the period 1 9 0 9-1920. These sectors were notorious for the dangers associated therewith and the risk of being fatally injured due to an occupational injury was more than ten times as high as in the manufacturing industry during 1910.

16 Meredith Report at 4 states: "... the true aim of a compensation law is to provide for the injured workman and his dependants and to prevent their becoming a charge upon their relatives or friends, or upon the community at large."

Winder 277 -2 8 7 .

18 Le Roux 3. Le Roux contended that "workmen's compensation legislation is a typical manifestation of the modern welfare state where the state plays an increasing role in many facets of society. The result is a corresponding increase in the power of the state to regulate and

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Workers could sue employers for negligence under common law, known to be an expensive, onerous and protracted process and workers were subject to court decisions by judges firm on maintaining existing social conditions.21 An employer, normally being in a stronger financial and influential position than the worker, could manipulate court processes to his own advantage and could afford the best legal representation.22 Employees taking legal action against employers usually lost their work.23 In cases where workers were fatally injured, the key source of evidence for litigation would be the post-mortem done by the coroner's juiy but under influence of the employer, the process was open to prejudice often blaming the victim24

Employers defended claims based on three key, relatively solid, common law (known as the "unholy trinity of defences")25 defence principles:26

Volenti non fit injuria: damage through consent produces no cause of action. Employees were considered to be familiar with hazards inherent to a particular job and voluntarily assumed that risk in taking up the job. Assumption of risk was formalised through both employment contracts excluding the right to sue contractually and through the interview process;

organise the life of the citizen through granting discretionary powers to state officials." Le Roux at 5 confirmed the assistance through guilds, fraternities and social assistance organisations. Derickson examines the role of trade unions in social assistance and Workmen’s Compensation Legislation in the western mining districts of the USA as well as in the Canadian province of British Columbia. At xi the conclusion is drawn that most unions provided social assistance and death assistance programmes to their members following the example set earlier by “railroad brotherhoods and other craft organizations..."

19 Winder 2 7 7 -2 8 7 .

20 Derickson at 63 relates the preamble to the Gold Hill constitution of 1866 which declared “Experience has taught us... that the dangers to which we are continually exposed are,... fully verified by the serious and often fatal accidents that occur in the Mines, and that Benefits in many of these cases are positively necessary." It is calculated that the main expense in time and money to unions in the western mining regions of the USA and the Canadian province of British Columbia was devoted to mutual aid. Loss of income caused a lack of subsistence and thus unions provided mutual insurance to provide a continuous flow of income for periods of temporary incapacity, Derickson 64. Costs incurred by occupational injuries and diseases were predominantly borne by the injured parties themselves, their relatives, unions, mutual benefit associations and society, Derickson 174.

21 Winder 2 7 7 -2 8 7 . Guyton 111-121. 22 Derickson 174-176.

23 Ibid 177.

24 Derickson 174-175. According to Derickson the coroner often was employed as the company's doctor.

25 Mushai, I & Hutcheson, H. 2013. Injuries, compensations, myths and realities: Is increased compensation under the South African workmen's compensation system a myth or reality? SHEQ Management Journal March/April 2 0 1 3 :1 0 -1 2 .

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• Contributory negligence: if the worker was partly negligent, irrespective of the extent, the employer could not be held liable;27

• Fellow servant rule: an employer could not be held liable if the injury was affected through negligence of a co-worker of the injured employee.28

Compensation in successful cases was often meagre29 but over time, more workers approached the courts and with legal assistance, the number of successful claims gradually increased.30 The increase in successful court actions and a number of other factors forced legislative change e.g. respondent employers in successful civil litigation cases faced insolvency, social pressure by both organised labour and the socialist movement increased in combination with labour unrest due to a lack of compensation for occupational injuries and diseases.31

These pressures led to the first successful comprehensive legislated social insurance scheme as developed by Chancellor von Bismarck in 1884.32 Other countries soon followed suit33 with presently some form of cover in most countries of the world and still based on the Bismarckian model. It was preceded in 1838 by legislative protection of railroad workers in the event of an accident and in 1876 by a failed Voluntary Insurance Act.34

27 Contributory negligence still defeats a claim for increased compensation pursuant to s 56 of COIDA in South Africa currently as will be discussed in Chapter 6.

28 The fellow servant rule is still partly applicable in claims pursuant to COIDA's s 56 because of the working of s 35(2) and s 5 6 (l)- (e ) which afforded identical protection to specific categories of employees and employers. The protection will be further discussed in Chapter 6.

29 Derickson 177, as is evident from a report by the Montana Department of Labor and Industry (1 9 1 3 -1 4 ) revealing that "only a small percentage of the victims ... are receiving adequate and proportionate compensation for the loss sustained."

30 Guyton 1 1 1 -1 2 1 . Derickson 176.

31 Guyton 1 1 1 -1 2 1 . Le Roux 18. Derickson 177.

32 Olivier et al (2003) 29. According to Le Roux similar legislation followed worldwide i.e.: Germany (1884); Austria (1887); Norway (1894); Great Britain (1897); Denmark, Italy & France (1898); Spain, New Zealand & South Australia (1900); New South Wales, Netherlands, Greece & Sweden (1901); Western Australia, Luxembourg & British Colombia (1902); Russia & Belgium (1903); Cape of Good Hope (1905); Hungary & Transvaal (1907); Alberta (1908) & Quebec(1909). In America the "Employers' Liability Act of 1880" excluded the defence by employers that employees voluntarily accepted the risk (volenti non fit injuria), Le Roux 11. 33 Derickson 175 -1 7 9 , although some legislative reform was made to the common law defences

raised by employers, no real difference was affected before the promulgation of no-fault legislation resulting in unions advocating it. Initially employers opposed social insurance measures but eventually had to accede to demands from trade union movements.

34 Le Roux 25. Derickson 178 remarks that following the enactment of compensatory legislation the United Mine Workers (a trade union) of British Columbia assisted its members in obtaining the amount of $70,000 in compensation by 1909.

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The scheme was from its inception controlled by the social partners consisting of labour, business and the State.35 Although a great improvement from the common law recourse previously available, a measure of tension remained. It is obvious from the words of Miller who lamented that employers initially did their best to prevent compensatory legislation and when sensed it to be unavoidable "they changed their tactics and got into it to make the law and make it as harmless to themselves as they could".36 It was perceived that the major western countries enacted laws characterised by inadequate benefits, tedious processes and unnecessarily restrictive in nature rather protecting employers against economic loss than compensating employees for their losses.37

It is submitted that the historical development of compensatory legislation shows that its main purpose is the benefit of society at large by removing the economical burden society historically had to endure due to occupational injuries and diseases.38 In the words of Du Toit: "no society can prosper if large numbers of its citizens suffer insecurity or destitution".39 From the beginning, social security was characterised by a sense of solidarity between social groupings as is evident from the mutual insurance schemes organised by the guilds and unions since the Middle Ages discussed supra.40

The purpose of an act ought to be seen in the light of its historical development.41

Compensatory legislation had its origins in the need for social security and the protection of employees and their dependents against losses due to occupational 35 Olivier et al (2003) 38. Ison 1996: 8 0 7 -8 3 3 . Winder 2 7 7 -287.

36 Derickson 179. 37 Derickson 180.

38 Derickson 179. Australia (Commonwealth). Productivity Commission. 2004. National workers' compensation and occupational health and safety frameworks, Report no. 27. Canberra: Productivity Commission. At 160 -1 6 1 . Hereinafter: Productivity Commission Report (2004). The Report identified the problems faced by the growing number of self-employed people in Australia who will be dependent upon the Government’s social security system in instances of injuries sustained or diseases contracted, be it occupational or otherwise. Retrieved on 25/03/2012 from http://www.pc.gov.au/_data/assets/pdf_file/0006/18546/workerscomp.pdf. 39 Olivier, MP (ed.), Okpaluba, MC, Smit, N & Thompson, M. 1999. Social security law - General

principles. Durban: Butterworths. At vii. Hereinafter: Olivier e ta l (1999).

40 Olivier et al (2003) 3 8 -3 9 & Chapter 2 fn 18.

41 Botha at 1 cited Du Plessis LM, stating the purpose of statutory interpretation to be "about construing enacted law-texts with reference to and reliance on other law-texts, concretising the text to be construed so as to cater for the exigencies of an actual or hypothesised concrete situation."

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injuries, diseases and fatalities associated with it.42 The Industrial Revolution increased the risk of injury and disease proportionally due to the augmented occupational exposure.43

3. SOUTH AFRICA

3.1. Introduction

The Republic of South Africa has nine provinces with a central government enacting national legislation applicable to the entire country and of which the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (hereinafter: COIDA) is an example. All legislation needs to conform to the Constitution 1996 and COIDA, as part of the social security rights provided for in section 27 of the Constitution, should aim to gradually "realise" these rights.44 Interpretation of these rights should be in accordance with section 39 of the Constitution which places an obligation upon “a court, tribunal or forum" to promote the values that underlie an open and democratic society based on human dignity, equality and freedom 45 According to Currie,46 constitutional interpretation entails a two step enquiry: firstly determination of the meaning of a right and secondly it should be established whether the challenged provision conflicts with the Bill of Rights. Every court, tribunal or forum is obliged to "promote the spirit, purport and objects of the Bill of Rights"47 when these rights, inclusive of social security rights, are interpreted. Currie contends that a purposive interpretation aims at carefully examining the essential values underpinning the "listed fundamental rights in an open and

42 According to Le Roux 22, the first no-fault compensatory act in a common law country was the British "Workmen's Compensation Act, 1897". Two clear characteristics distinguished it: i) the employee was entitled to compensation irrespective whether the injury was caused through the fault of any person, thus the very important no-fault principle, according to which an employee had a valid claim even if he was injured through a fault of his own, and ii) compensation was paid by the employer based on pre-determined amounts.

43 Le Roux 6.

44 Botha 67. In determining the purpose and intention of a statute it should in principle be interpreted in the light of the Bill of Rights (Chapter 2) in the Constitution of the RSA.

45 These values are important to the injured or diseased.

46 Currie, I & De Waal, J. 2005. The Bill o f Rights handbook. 5th edition. Cape Town: Juta Law. At 145. 47 Constitution 1996 s 39(2).

Figure

Updating...

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  24. /www.randmutual.co.za/AboutUs/HistoryandNatureoftheBusiness/tabid/15
  25. http://ssreform.treasury.gov.za/Publica
  26. http://www.labour.gov.za/media-desk/speeches/2013/
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  28. /www.cwbpi.com/AIDS/reports/SouthAfri caGoldMining.pdf.
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  30. http://books.google.co.za/
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