Klass Looch Associates

Employer OHS Champion since 1986 

 

RAF v Monjane [2007] (SCA)

Key Words

Motor vehicle accident – Claim against Road Accident Fund – Compensation for Occupational Injuries and Diseases Act 130 of 1993 – Applicability

Mini Summary

The respondent had sued the appellant fund for damages after he was injured in consequence of the negligent driving of a motor vehicle by the vehicle's driver. The driver of the vehicle was the respondent's employer. The fund filed a special plea, averring that even if the respondent's injuries were caused by the employer's negligent driving the fund was not liable to the respondent in law because in terms of section 19(a) of the Road Accident Fund Act 56 of 1996 the fund shall not be obliged to compensate any person for loss for which neither the driver nor the owner of the motor vehicle concerned would have been liable, and in terms of section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, no action shall lie by the respondent (as employee) against the insured driver (the employer).

Held that an employee who sustains an occupational injury as defined in Act 130 of 1993 will have no claim under the Road Accident Fund Act 56 of 1996 if the wrongdoer is his employer. The special plea was sound, and should not have been dismissed. The appeal was thus upheld.

SCOTT JA

[1]  The appellant is the Road Accident Fund, a juristic person established in terms of section 2 of the Road Accident Fund Act 56 of 1996 ("the RAF Act"). The respondent (the plaintiff in the court below) instituted action in the Pretoria High Court against the fund for the payment of damages in the sum of R417 600 in respect of injuries he sustained in consequence of the negligent driving of a motor vehicle by Mr Michael Duarte. The circumstances in which his injuries were sustained are set out in paragraph [3] of his amended particulars of claim, which reads:

"On or about the 22 May 1997 and at approximately 11am and at the Krugersdorp Market, Krugersdorp, Gauteng Province, the plaintiff was engaged in the loading of vegetables on a certain motor vehicle with registration number GZT056T driven by one Michael Duarte when the said driver suddenly and without warning and with reckless disregard for the presence and safety of the plaintiff pulled away or put his said truck in motion causing the plaintiff to fall from the said vehicle."

The fund filed a special plea in which it averred that on 22 May 1997 the plaintiff's employer was the driver of the vehicle concerned and that even if the plaintiff's injuries were caused by the former's negligent driving the Fund was not liable to the respondent in law:

". . . because in terms of s 19(a) of the Road Accident Fund Act 56 of 1996 (the fund) shall not be obliged to compensate any person for any loss or damage for which neither the driver nor the owner of the motor vehicle concerned would have been liable (and) in terms of s 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, no action shall lie by the plaintiff (as employee) against the said insured driver (the employer)."

The matter came before Shongwe J who, at the request of the parties, ordered that the special plea be dealt with first. No evidence was adduced but the parties reached agreement on the facts necessary for the determination of the special plea. They were: (a) that the respondent was "a pedestrian" at the time of the accident (by which the parties presumably intended to convey that the respondent was not "being conveyed in or on the motor vehicle concerned" within the meaning of section 18 of the Road Accident Fund Act 56 of 1996); (b) that he was in the employ of Duarte and was carrying out his duties in pursuance of that employment when the accident occurred; and (c) that Duarte was solely to blame for the accident. After hearing argument and reserving judgment Shongwe J dismissed the special plea with costs, but subsequently granted the fund leave to appeal to this Court.

[2]  Before dealing with the issues raised in the special plea it is necessary to outline the relevant statutory provisions.

[3]  Section 17 of the Road Accident Fund Act 56 of 1996 imposes on the fund (or an agent) an obligation "to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself . . . caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle . . ." Where the identity of the driver or owner has been established (as in the present case) this obligation is stated in section 17(1)(a) to be "subject to this Act". The sections that follow contain a number of qualifications to the general obligation imposed in section 17.

[4]  In terms of section 18(1) and (2) the fund's liability is limited in certain specified circumstances where the third party was at the time of the occurrence being conveyed in or on the motor vehicle concerned. Section 18(2) is relevant. It provides for a limitation of the fund's liability:

"where the loss or damage contemplated in s 17 is suffered as a result of bodily injury to or death of any person who, at the time of the occurrence which caused that injury or death, was being conveyed in or on the motor vehicle concerned and who was an employee of the driver or owner of that motor vehicle and the third party is entitled to compensation under the Compensation for Occupational Injuries and Diseases Act 130 of 1993, in respect of such injury or death."

[5]  In terms of section 19 the liability of the fund (or agent), as contemplated in section 17, is excluded altogether in certain circumstances. Of relevance is section 19(a). It provides that the fund shall not be obliged to compensate any person in terms of section 17 for loss or damage:

"for which neither the driver nor the owner of the motor vehicle concerned would have been liable but for s 21."

Section 21, in turn, provides that when a third party is entitled under section 17 to claim from the fund or agent, "that third party may not claim compensation in respect of that loss or damage from the owner or from the person who so drove the vehicle, . . . unless the fund or such agent is unable to pay the compensation".

[6]  Section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ("COIDA") precludes an employee from recovering damages from his or her employer in respect of an "occupational injury". The section reads:

"No action shall lie by an employee or any dependant of any 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 Act in respect of such disablement or death."

'Occupational injury' is defined in s 1 to mean 'a personal injury sustained as a result of an accident'. 'Accident', in turn, is defined as 'an accident arising out of and in the course of an employee's employment and resulting in personal injury, illness or death of the employee'."

[7]  Against the background I turn to the contentions of the parties. The appellant's defence raised in the special plea is simply that on the basis of the agreed facts it is not liable to the respondent (ie the third party) for compensation in terms of section 17 of the Road Accident Fund Act 56 of 1996 because, by virtue of section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993, the respondent's employer, Duarte, being the driver whose negligence caused the accident, would not have been liable to the respondent; and in terms of section 19(a) of the Road Accident Fund Act 56 of 1996, the fund is not obliged to compensate a third party for loss or damage for which neither the driver nor the owner of the motor vehicle concerned would have been liable but for section 21.

[8]  As I understand the contention advanced on behalf of the respondent – and seemingly accepted by the court a quo – it is this. Section 18(2) of the Road Accident Fund Act 56 of 1996 does not create a new right of action against the fund; it serves merely to qualify or limit the fund's liability under section 17. That limitation, it is argued, relates solely to the situation where the third party is conveyed "in or on the motor vehicle concerned" and accordingly section 18(2) contemplates that a third party will have an unlimited claim where he or she was not being conveyed in or on the motor vehicle concerned even though the vehicle was owned or being driven at the time by the third party's employer. I pause to observe that this argument would no doubt be correct if it were not for the provisions of section 19(a), read with section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993. The respondent contends, however, that if section 19(a) of the Road Accident Fund Act 56 of 1996 were to be construed so as to preclude an action against the fund in every case where the vehicle concerned was owned or driven by the third party's employer regardless of whether the third party was being conveyed in or on the vehicle, the effect would be to render meaningless the limitation contained in section 18(2). Accordingly, so it was contended, section 19(a) had to be strictly construed so as not to exclude the liability of the fund in a case such as the present.

[9]  The argument is unsound. The effect of section 18(2), when read with section 19(a) (and section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993) is that the limited claim contemplated in section 18(2) will lie against the fund when the wrongdoer, whether the driver or the owner of the vehicle concerned, is not the third party's employer. In such a case the claim is limited but not precluded. It is only when the wrongdoer is the third party's employer that the claim is precluded. In such a case the claim will be precluded regardless of whether or not the third party is being conveyed in or on the motor vehicle concerned, provided only that the injury sustained by the third party is an "occupational injury" as defined in Compensation for Occupational Injuries and Diseases Act 130 of 1993. The effect of section 19(a), read with section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993, is therefore not to render section 18(2) meaningless.

[10]  The same argument which was advanced by the respondent in the present case was advanced in Mphosi v Central Board for Co-operative Insurance Ltd1  in relation to paragraph (aa) of the second proviso to section 11(1) of the Motor Vehicle Insurance Act 29 of 1942, being the equivalent of the present section 18(2) of the Road Accident Fund Act 56 of 1996.2  In rejecting it, Botha JA at 646B gave as an example of when the paragraph would be applicable, the case where A, the owner of the insured motor vehicle, lets the vehicle to B, an employer of labour, to transport his workers from one place to another, and one or more of the workers are injured in an accident arising out of the negligence of the owner of the vehicle for having let a dangerously defective vehicle to B. In such a case (as the Learned Judge pointed out in relation to the provisions of the Motor Vehicle Insurance Act 29 of 1942) the injured workers would be entitled to compensation under Compensation for Occupational Injuries and Diseases Act 130 of 1993 but their common law action for damages would not be precluded by section 35(1) of that Act. They would accordingly be entitled to proceed against the fund, but subject to the limitation imposed by section 18(2) of the Road Accident Fund Act 56 of 1996.

[11]  It follows that the respondent's answer to the special plea cannot prevail and the appeal must succeed.

[12]  It is no doubt so that where an "occupational injury" is sustained in the context of a motor accident section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993 may on occasions have seemingly unfortunate consequences. The reason is that the basis upon which compensation is determined under Compensation for Occupational Injuries and Diseases Act 130 of 1993 differs markedly from that under the Road Accident Fund Act 56 of 1996. The effect of section 35(1) is to deprive an employee of his or her common-law right of action to claim damages from an employer. But Compensation for Occupational Injuries and Diseases Act 130 of 1993 substitutes a system, which has advantages for an employee not available at common law.3  The Road Accident Fund Act 56 of 1996, like Compensation for Occupational Injuries and Diseases Act 130 of 1993, constitutes social legislation but it caters for a different situation. Inevitably, as in the present case, there will be some overlapping of the areas covered by each and provision is made for an injured party in certain circumstances to claim under both Acts.4  But ultimately, however, a line must be drawn and where that is to be is essentially a question of policy for the legislature to decide. Section 19(a) of the Road Accident Fund Act 56 of 1996, read with section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993, indicates where that line has been drawn: an employee who sustains an "occupational injury" in the context of a motor accident will have no claim under the Road Accident Fund Act 56 of 1996 if the wrongdoer is his or her employer. This was recognised by this court as long ago as 1974 in Mphosi's case. It is a well-established rule of construction that the legislature is presumed to know the law, including the authoritative interpretation placed on its previous enactments by the courts. Significantly, the legislature has in a series of subsequent enactments retained in substance the statutory provisions upon which Mphosi's case was decided.5  It must be accepted, therefore, that the construction placed upon them correctly reflects the policy of the legislature.

[13]  The appeal is upheld with costs. The order of the court a quo is set aside and the following order is substituted in its place:

"The special plea is upheld with costs."

(Cameron, Cloete, Maya JJA and Theron AJA concurred in the judgment of Scott JA).