The Application of COIDA in South Africa INSURANCE & RISK MANAGEMENT IIB

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1 The Application of COIDA in South Africa INSURANCE & RISK MANAGEMENT IIB Vutlhari Shirley Mabasa Student no: University of the Witwatersrand 14 August 2013

2 Sections to be discussed 1. Liability under Common Law 2. Claims by Dependants Employees of the mine Employees of the independent Contractor 3. Compensation under COIDA Section 22 Section The Employer s Liability policy 5. The General Liability policy 1

3 Introduction A mine accident at a mine owned by a large mining group occurred resulting in not only the deaths of the mine s own employees, but also the deaths of employees of an independent contractor employed by the mine. Negligence on the part of the mine s employees played a role in causing the accident. This paper examines the mine s liability towards the dependants of the all workers who died as a result of the accident. Liability under common law At common law, an employee has the right to institute a civil claim against his/her employer; this means that employers are severely exposed. It is therefore not uncommon for an employer to arrange employer s liability insurance in order to mitigate this risk. Common law requires that, in order for liability to attach, the Five elements of delict be met, of these elements, the requirement of fault however provides the biggest challenge for employees as in most cases they are partly at fault Historically, this made it almost impossible for employees to successfully sue their employers. The introduction of the Compensation for Occupational Injuries and Diseases Act (COIDA) 130 of 1993 made compensation for injuries more accessible for employees. Section 35 of COIDA however, expressly prevents employees from bringing a civil claim against their employers (Vivian, 2013: p 2 0f 29). Claims by dependants Employees of the mine A dependant claim can arise if an employee dies as a result of a work-related accident and leaves behind dependant(s) who are financially reliant upon him. According to section 1 of COIDA, a dependant of an employee can be any one the following: A widow/widower who at the time of the accident was married to the employee A widow/widower who was party to a marriage with the employee under customary law, if neither of the two parties were already married. A person with whom the employee was living as husband/wife. 2

4 A child under the age of 18 (this includes adopted and illegitimate children). Any other person over the age of 18 who at the time of the accident was completely or partially reliant on the employee for financial support. Section 22 of COIDA provides that should an employee meet with an accident which results in his disablement or death, then that employee or the dependants of that employee can, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act put simply this means that the dependants of a deceased employee are entitled to receive some form of compensation, the specifics of which would be determined by the compensation commissioner. It is important to note that the dependants of an employee who is deceased are classified as employees under section 1 of COIDA. Employees of an independent contractor What then can be said of the dependants of employees of the independent contractor? Section 1 of COIDA excludes a number of people from being classified as employees, including a person who contracts for the carrying out of work and himself engages other persons to perform such work. This statement effectively rules out Independent contractors who, themselves are employers and thus, for all purposes related to the completion of their given mandate, are required to register with the commissioner as an employer and to pay the necessary assessments. Section 89 of COIDA states that if a contractor registers with the commissioner then the dependants of those workers can claim compensation from COIDA and are also furnished with the option of pursuing a civil claim against the mine under section 36 of COIDA. If however the contractor fails to fulfil this requirement, then according to section 89 of COIDA those employees will be considered to be employees of the mine, in which case the mine would be liable for payment of the assessments (the mine can of course, recover this cost from the contractor). This means that the mine would also be protected from civil claims from the dependants under section 35 of COIDA. Whatever the case may be, it seems almost unspoken that the dependants of the employees of the contractor can also claim under section 22 of COIDA, even though this is not expressly stated in the Act. 3

5 Compensation under COIDA COIDA is a statutory enactment that was put into place in order to provide compensation for work-related injuries since the common law position made it virtually impossible to do so. Unlike common law, it is based on a no-fault system meaning that employees are not required to prove fault before they can be compensated (Boggs, 2008). Statutory law is our main source of law for this paper, statute is often used to modify common law rules that are undesirable or irrelevant (Sharrock, 2012: p 24) Section 22 of COIDA Section 22 of COIDA provides for normal compensation to employees, but before an employee can receive compensation under this act, the act stipulates that 3 basic requirements must be met, these are: The person looking to claim must be an employee: an employee being a person who is party to a contract of service or of apprenticeship or learnership, with an employer, regardless of whether the contract is express or implied, oral or written. This includes: I. Casual workers employed for the purpose of the employer s business II. Directors acting on behalf of a corporate body (Only executive directors) III. Persons provided by a labour broker as employees in return for remuneration IV. The dependants of a deceased employee or a curator acting on behalf of the employee. An accident... In this context "accident" is taken to mean an unexpected and unusual event that occurs during the course of an employee's employment and results in a personal bodily injury. Must have resulted in his disablement or death. "Disablement" is taken to mean permanent injury or serious disfigurement. This fund only makes provision for claims for personal injuries, not damages therefore claims for pain and suffering as well as damage to material property will not be compensated. 4

6 Section 56 of COIDA This section of the act makes provision for what is referred to as increased compensation, which is payable if negligence on part of the employer contributed to accident or where there was a patent defect. Section 1 of COIDA defines an employer as any person, including the State, who employs an employee, including: (a) Any person controlling the business of an employer. (b) An engineer or any other person placed in charge of machinery. (c) Any person who can hire and fire on behalf of the employer. Contributory negligence remains a complete defence in this section, thus if an employee contributed to their own injury, then they do not qualify for increased compensation. In this particular case, the facts clearly state that negligence was on the part of a fellow employee and there is no mention of any patent defects, therefore section 56 has not been triggered. The dependants of the employees of the contractor would not be able to claim for increased compensation because their employer was simply not negligent (this is assuming that they are not considered employees by virtue of section 89 of COIDA). The Employer s Liability Policy The operative clause: The employer s liability policy is an indemnity policy that agrees to indemnify the insured for any damages (with respect to specified events) which the insured shall become legally liable to pay consequent upon death of or bodily injury of a person employed under a contract of service or apprenticeship with the insured which occurred in the course of, or in connection with such person s employment by the insured within the territorial limits. It should be noted that this policy is claims made, thereby covering claims first made in the period of insurance. The burden of proof lies with the insured, i.e. the insured has to prove that all the terms in the operative clause have been met (Vivian, 2013: p 4 of 6). Based on the facts of this case the employees case falls squarely within the operative clause. However, section 35 of COIDA which deals with the liability of an employer, has some very important implications; It states that no claims can be brought by any person classified as an employee under section 1of COIDA for the recovery of damages in respect of any 5

7 occupational injury or disease resulting in the disablement or death of such employee against such an employee s employer This exempts all the people regarded as employers under the act from civil action by their employees. It is for this reason why many people question the necessity for employer s liability insurance, as far as many are concerned there is no visible need for employer s liability policies in South Africa but they still remain popular (Vivian, 2013 p 2 of 6). This policy exists to cover any gaps that might not be covered by COIDA and/or the general liability policy. The policy would not respond to claims from the employees of the independent contractor simply because they are not employees of the mine. General Liability Policy Also known as a public liability policy, this policy was designed to cover individuals against the risk of claims being brought against them by 3 rd parties. The operative clause reads as follows The Insurer will indemnify the insured against damages which the insured shall become legally liable to pay consequent upon injury (accidental death, bodily injury, illness) or damage. Occurring within the territorial limits. In the course or in connection of the business. This policy excludes employer s liability because a policy specific to those kind of claims already exists, this means then that the policy would not respond to claims from the employees of the mine. A company normally takes out this policy to protect itself, therefore it does not mean that the person who caused the claim (the mine employees) is covered; this has to be included back into the policy. This extension is known as the additional insured extension and it includes employees, partners and directors of the insured (the mine) (Vivian, 2013: p 51 of 54). If then that is the case, the dependants of the employees of the contractor however could sue the mine under section 36 of COIDA which states that If an occupational injury or disease in respect of which compensation is payable, was caused in circumstances resulting in some person other than the employer of the employee concerned (in this section referred to as the "third party") being liable for damages in respect of such injury or disease then that employee may claim for compensation in terms of this Act and against the insured. If however, by virtue of section 89, the employees of the contractor are deemed to be employees of the mine, then section 35 would come into play meaning that they could not sue the mine which accordingly, is not liable to pay. 6

8 Conclusion Employees could often be exposed to dangerous situations during the course of their employment, this is especially true for those employed in industrial sectors such as mining and construction. But what happens once an employee suffers injury or even dies from a work-related accident? For the case in question the following would be the outcome: Under section 22 of COIDA, the dependants of both the mine s employees and the employees of the independent contractor would receive compensation. Contributory negligence is not a defence under this section. From the information given, none of the workers qualify for increased compensation under section 56 of COIDA for reasons already stated in this paper. The Employer s liability policy would not react to the claim because while the employer (being the insured) could bring the case within the operative clause, section 35 of COIDA prevents an employee from being able to institute a civil claim against an employer. The general liability policy would react to a claim made by the employees of the independent contractor (only if they are not considered employees by virtue of section 89 of COIDA) but not to any claims made by the employees of the mine (this is because of the specific exclusion in this policy). 7

9 References Boggs, CJ (2008) Employers liability insurance Agents need to know what lawyers already Do My new markets, Retrieved August 04, 2013 from Compensation for Occupational Injuries and Diseases Act (COIDA) 130 of Retrieved August 04, 2013 From Sharrock, R (2011) Business Transactions Law. Cape Town, South Africa: Juta & Co, Ltd. Vivian, R.W Insurance and Risk Management IIA University of the Witwatersrand, School Of Economic and Business Sciences. Published by Marsh Incorporating Alexandra Forbes Risk Services. Vivian, R.W Insurance and Risk Management IIB University of the Witwatersrand, School Of Economic and Business Sciences. Published by Sasria SOC Limited. Wanblad, D (2005) Liabilities and legal claims arising from industrial accidents and Diseases Insurance Gateway. Retrieved August 04, 2013 From 8

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