Worldwide, most if not every country has a social security scheme providing for one or another form of compensation for work-related injuries, death and diseases.
Zimbabwe has a statutory system for the payment of compensation for three work-related situations namely injury, deaths and diseases. The main statutory system is provided in terms of the National Social Security Authority Act (Chapter 17:04) which was established by the National Social Security Authority (Accident Prevention and Workers’ Compensation Scheme) Notice,1990 (S.I 68/1990).
The law covering compensation for work-related injuries, death and diseases is exclusively found in S.I 68/1990. The Accident Prevention and Workers’ Compensation Scheme is a compulsory work-based social insurance scheme established to provide financial relief to employees and their families in instances where an employee is injured or killed in a work-related accident. The scheme is a no- fault compensation scheme in that the injured worker does not have to prove any negligence on the part of the employer before he is entitled to compensation.
The main feature of the scheme is found in Section 8 of S.I 68/1990 which abolishes any common law claims for damages which the employee may have against the employer. Put differently, any employee or dependant to whom the scheme applies is not permitted to resort to the common law for compensation for work related injuries, death or diseases. There is an exception to this general rule provided in Section 9, which relate to cases where the accident is due to the negligence of the employer or a senior manager or is caused by a patent defect in the condition of the premises or machinery. In this case, the worker may institute a common law action against the employer for additional compensation. It is not competent where the employee has not or will not be paid compensation under the scheme.
In Sibanda v Independence Gold Mining Zimbabwe (Pvt) Ltd & Anor 2003 (2) ZLR 155 (H), the Plaintiff was seriously injured in an accident at the mine where he worked. The accident was caused by the negligence of one of the junior employees. The plaintiff was being paid under the NSSA Scheme but he sued his employer and the junior employee who caused the accident for damages. He claimed as damages, the difference between what he was paid under the NSSA Scheme and what he would have earned over the same period had he not been injured. It was held that the plaintiff’s cause of action had been abolished by the NSSA Scheme and therefore the common law action was not permissible. The court held that there is no liability for pain and suffering under the NSSA Scheme. It was further held that the junior employee who caused the accident was not in management and therefore fell outside Section 9 of S.I 68/1990.
In Ncube v Wankie Colliery Company 2007 (1) ZLR 96(H), the plaintiff’s son was killed in a motor vehicle accident. The vehicle was being driven by another employee in the course of his employment. The accident was due to the negligence of the driver. It was held that as the driver was not ‘a person entrusted by his employer with the management’ of the affairs of the business, Section 9 did not apply and therefore no common law action was available. Chatukuta J in Ncube v Wankie Colliery Company & Anor(supra) held that;
“Section 8 is peremptory. It has the effect of ousting the plaintiff’s right to a remedy against the employer under common law. The rationale for the provision, is better understood from the perspective that the employer is compelled in Part X of the Notice to contribute towards the Workers’ Compensation Fund from which an employee or his/her dependant will benefit in the event of an injury to the employee or his/her death. The contributions are intended to provide for compensation in the event of injury to death of an employee. The plaintiff admitted to have collected the benefit under the Notice…The plaintiff having received compensation under the Notice, would therefore not be entitled to bring an action for compensation under common law as in this case.”
In Nyaguse v ZETDC (Pvt) Ltd HH794-15 plaintiff was employed by the defendant and was injured at work while acting within the course and scope of his employment. He fell from a ladder and fractured his left wrist, fractured his left ribs, fractured the distal end of the left radius and sustained chest injuries. Subsequent to that the plaintiff was compensated for the injuries sustained under the Workers Compensation Fund administered by the National Social Security Authority. Plaintiff was not satisfied by the compensation from NSSA. He instituted summons action against the employer, the defendant, for delictual damages for loss of earning capacity, future earnings and disablement and for pain and suffering. The employer successfully excepted to the summons on the grounds that the claim was prohibited by Section 8 and that the Plaintiff had not explicitly pleaded that he was suing for additional compensation. In upholding the exception Mathonsi J held that;
I have said that counsel for the plaintiff admitted that the plaintiff received compensation under the Workers’ Compensation Fund meaning firstly that the defendant had joined the National Social Security Scheme providing for benefits and compensation of employees or their dependants in the event of injury or death. That therefore brought into effect the ouster provision contained in s 8 of the Notice. The common law delictual claim being made by the plaintiff therefore falls foul of s 8.If the plaintiff was seeking to rely on the shelter provided by s 9 (1) he should have pleaded it. Unfortunately, he did not. In fact he did not even suggest that he was making an additional claim or even disclose that he had benefited from the compensation provided for in the Compensation Scheme. The claim is pleaded as if it is a new claim unrelated to any compensation. There is therefore merit in the exception.”
See also Murozvi v Chawatama Sign & Ors HH 481/15.
In terms of Section 66 of S.I 68/1990 employers are compulsorily obliged to make contributions to the Workers’ Compensation Fund. This is in line with the common law duty of the employer to provide safe working conditions. Workers do not make contributions to the fund.
The compensatory framework under the scheme has some advantages not available under the common law. First, it is a no-fault scheme. The employee is not required to prove any fault on the part of the employer in order to get compensation. The employee simply has to prove that he was injured in the course of employment. Secondly, in a common law action there is always a risk of the employer being financially unable to pay the damages claimed. Thirdly, the scheme grants some benefits not available under common law such as to the dependants of the employees killed as a result of a work- related accident or disease.
Suffice to mention that the common law action is only prohibited against the employer and not third parties. However, actions against third parties are regulated by Section 10. NSSA also enjoys a right of action against a third party for the recovery of the compensation it is liable to pay under the Scheme. This right of NSSA has priority over the workers’ right against the third party. A worker cannot opt out of the compensation under the Scheme and instead proceed against a third party. An action against a third party can only be instituted as additional to a claim for compensation under the Scheme. Section 10(2) provides that the worker should notify the General Manager of NSSA of his intention to file proceedings to recover damages against any person before commencing action. Failure to so notify makes the proceedings still-born.
An employer may be granted an exemption from making contributions to the Fund based on assessments and proof that the employer has established and made provision for maintenance of a fund for insurance against any liability which may arise in respect of all workers employed by it. Any employer so exempted in this way is described as ‘an employer individually liable’.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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