Nyaguse v ZETDC (Pvt) Ltd. (HC 1598 of 2015) [2015] ZWHHC 794 (14 October 2015)

JELOUS NYAGUSE versus ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PRIVATE) LIMITED HH 794-15 HC 1598/15 HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 06 and 14 October 2015 Exception Ms L. Shambamuto, for the plaintiff Z. T. Zvobgo, for the defendant MATHONSI J: The plaintiff was employed by the defendant and was, in November 2012, 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. Ms Shambamuto, who appeared for the plaintiff, submitted that such compensation did not satisfy the plaintiff who wanted more. He then instituted summons action against the employer, the defendant, for delictual damages in the total sum of $120 000.00 being $100 000.00 loss of earning capacity, future earnings and disablement and $20 000.00 for pain and suffering. In his declaration, the plaintiff made the averments that the defendant owed him a duty of care. He had taken reasonable and proper look out before using the ladder but the defendant had “unlawfully and negligently” caused his loss by failing to take reasonable care and to maintain the work place equipment, had insisted on the use of a “precarious ladder” that led to the plaintiff’s injury, had carelessly exposed the plaintiff to harm and had failed to keep a proper look out for hazards at the work place. HH 794-15 HC 1598/15 The defendant excepted to the summons and declaration on the grounds that they do not disclose a cause of action against the defendant firstly in that, as the plaintiff’s claim is delictual in nature, it is prohibited in terms of s 8 of the National Social Security Authority (Accident Prevention and Workers Compensation Scheme) Notice 1990, S. I. 68 of 1990. Secondly there is no averment that the claim is not prohibited by that statutory instrument or that it is permissible in terms of s 9 of it. Section 8 provides: “From and after the 1st January 1960- (a) no action at common law shall lie by a worker or any dependant of a worker against such worker’s employer to recover any damages in respect of any injury resulting in the disablement or death of such worker arising out of and in the course of his employment; and (b) no liability for compensation shall arise save under and in accordance with this scheme in respect of such disablement or death (c) ………..” Section 9 (1) (a) of that statutory instrument presents an exception to the application of s 8. It reads: “Notwithstanding anything to the contrary contained in this Scheme if a worker meets with an accident which is due to the negligence- (i) (ii) of his employer; or of a person entrusted by his employer with the management or in charge of such employer’s trade or business or any branch or department thereof; or of a person having the right to engage or disengage workers on behalf of his employer; (iii) the worker or, in the case of his death as a result of such accident his representative, may within 3 years of such accident proceed by action in a court of law against the employer where the employer concerned is an employer individually liable or otherwise against the employer and the general manager jointly for further compensation in addition to the compensation ordinarily payable under this scheme.” I am in total agreement with the pronouncement of Chatukuta J in Ncube v Wankie Colliery Company & Anor HH 8/07 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 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.” of HH 794-15 HC 1598/15 On her way to granting absolution from the instance in that matter the learned Judge ruled that it was not only necessary for a plaintiff relying on the exception provided for in s 9 (1) to plead that he was relying on the negligence of the employer but also that he was claiming for “additional compensation” under that section. 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 Murozvi v Chawatama Sign & Ors HH 481/15. Ms Shambamuto submitted that although the plaintiff’s claim was the common law claim under delict, his was a claim sui generis and should be upheld at the expense of the exception. She could not explain what was sui generis about it, insisting however that whatever defects were in the pleading such would be cured by evidence. In my view the claim is bad at law by reason that it is prohibited by s 8 of S. I.68/90. There is nothing in the pleading that can be cured by evidence. Ms Shambamuto then sought to rely on the provisions of r 140 to try and save the summons. She submitted that the defendant did not give notice to the plaintiff as required by that rule for the plaintiff to remedy the defect in the pleading before filing the exception. For that reason the exception must fail. In Nyahuma v Corporate Twenty Four Hospital Group (Pvt) Ltd & Ors HH 483/15 I dismissed an exception where the excipient had not sent a letter of complaint to the plaintiff before filing an exception. There were other considerations though. For instance, the plaintiff had, in response to the exception, filed an amendment to the pleading which cured the defect. I did point out though that r 140 (1) is a directory provision especially as it uses the appellation “may” instead of “shall”. HH 794-15 HC 1598/15 While a practice has evolved in terms of which legal practitioners have to first dispatch a letter of complaint to the other legal practitioner requiring the latter to remove the source of the complaint before filing an exception as professional etiquette, that practice is usually useful were the exception will not dispose of the matter entirely but would, if upheld result in the pleader being accorded an opportunity to amend the offending pleading to bring it in line. In the present case, the offending pleading can scarcely be cured by an amendment offending as it does, a statutory provision. Upholding the exception may really mean the end of the road for the plaintiff. For that reason, in the exercise of my discretion, I will condone the excipients failure to comply with r 140 (1). In the result, it is ordered that: 1. The exception is hereby upheld. 2. The plaintiff shall bear the defendant’s costs. Matsikidze & Mucheche, plaintiff’s legal practitioners Dube, Manikai & Hwacha, defendant’s legal practitioners