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Millard, Daleen --- "Protecting Dependants against the Effects of Occupational Hazards: Extended Damage in South African and Belgian Law" [2009] IntJlSSWC 5; (2009) 1(1) International Journal of Social Security and Workers Compensation 47

PROTECTING DEPENDANTS AGAINST THE EFFECTS OF OCCUPATIONAL HAZARDS:

EXTENDED DAMAGE IN SOUTH AFRICAN AND BELGIAN LAW

Daleen Millard[∗]

ABSTRACT

The South African workmen’s compensation system is most probably the longest-running system that deals with disability in South Africa. In terms of current legislation, a no-fault system aims to provide coverage for occupational injuries and diseases, and to provide employees with substantial protection against loss of income.

South African legislation is broadly up to par with international standards. However, one aspect that has been neglected is the position of those who suffer a loss of support as a direct result of such a worker’s disability, where that worker has survived but with a significantly reduced earning capacity. Currently, an employee’s dependants are only entitled to compensation where that employee has died.

Damage suffered by dependants of the employee during the lifetime of such an employee is not recognised, let alone compensated. Typically, a spouse may have to stop working to take care of an injured or ill workman, or a whole family may forfeit opportunities, because of the reduced income of such an employee. Those are but two forms of indirect or extended damage.

The Belgian system makes provision for damage suffered by close relatives and dependants of injured employees. This is best described in legal terms as extended damage. The purpose of this article is to investigate the nature of extended damage and to suggest ways in which the existing system can be reformed to allow for compensation for extended damage.

This article compares the Belgian and South African systems and shows how compensation for extended damage can be incorporated in the existing compensation scheme. The conclusion is that extended damage has long been neglected in South African law and that it is particularly evident in the area of occupational injuries and diseases. The South African system will benefit from the inclusion of extended damage and it is one way in which the system can be strengthened.

A. INTRODUCTION

Viane et al state:

There would be no problems concerning this question if human damage were an individual feature and only found among people who have been directly affected. But this is not the case. Man never suffers damage alone. Damage is always a social phenomenon. When someone is injured, it also involves all those who have close, positive ties with him. The legal bonds do not apply here. The actual form of the more or less social ties with the directly damaged person determines the extent of human damage (i.e. loss of earnings or health damage) affecting the other members of his group. If a death occurs, for example, there is only ‘extended damage’. The directly injured person no longer suffers damage, but those close to him do.[1]

Although Viane et al use the term ‘extended damage’ to refer to the damage that others suffer as a result of injury to a specific individual, it is submitted that the word ‘reflect’ in English has a different meaning. It is more correct to speak of extended damage because the damage extends to others, notably the dependants or close family members who are perhaps not dependent on the victim. In South Africa, both common law delictual claims and claims for benefits following an occupational injury focus on the direct victim and do not provide for compensation, in the strict sense of the word, to the relatives of an incapacitated individual.[2] The question is then whether South African law is perhaps too narrow in its approach to human damage and whether there is good cause for extending remedies to victims other than the direct victim. Also, one needs to have a proper understanding of common law delictual compensation before one can appreciate the fact that this forms the basis of all compensation systems in South Africa, including the workmen’s compensation system. So, even though statutory compensation systems can change the common law principles in order to meet a specific objective, where common law is conservative and has certain restrictions, subsequent legislation often has the same underlying traits.

This article analyses the meaning of extended damage in the South African and Belgian legal systems and investigates the extent to which these two legal systems have already given recognition to extended damage, either in common law or by way of statutes. Finally, the article argues that the time is right for a new take on the concept of human damage in South Africa and, possibly, for the introduction of statutory measures to provide those close to the victim of a damage-causing event, such as an occupational injury or disease, with an appropriate remedy.

B. SOUTH AFRICA

I. Common Law Position

For the purposes of this discussion, extended damage refers to patrimonial loss suffered by those who have a sufficiently close relationship with the victim of a damage-causing event. This phrase has not been coined by South African jurists, probably because there is uncertainty in the law as to whether those who stand in a sufficiently close relationship to the incapacitated individual should in fact be granted an action based on the actio legis Aquiliae. Note well that one can only consider the impact of extended damage where the primary victim’s injuries are of such a serious nature as to impact severely on those close to him. For instance, where a healthy, economically active father suddenly sustains a debilitating brain injury, it stands to reason that the resultant job loss and lowering of the household income will have a rippling effect on his family. However, where the same man only suffers a minor whiplash injury, the payment of damage to him alone in accordance with the general principles of delictual liability poses no problems.

Neethling et al point out that the dependants of a person who was injured in a wrongful and culpable way should be able to claim loss of maintenance with the Aquilian action in the same way they would have claimed where the breadwinner had died.[3] Three cases support this viewpoint.

In Abbott v Bergman,[4] the court allowed an amount of damage to be paid to a husband married in community of property for ‘loss of his wife’s services in running the boarding house.’[5] De Villiers JA referred to Union Government v Warneke[6] and argued that although there is a rule in Roman-Dutch law which states that a money value could not be placed upon the body or limb of a free man, Roman law allowed a father to claim for medical expenses and loss of services of a son who was wounded.[7] The judge continued:

As in the case of the death of a wife, our law is, however, silent whether a husband can recover from a person who has through culpa injured his wife, though not fatally. But no reason can be suggested why a husband should not be allowed to recover the actual pecuniary loss sustained by him under these circumstances. If he is allowed to recover the loss sustained by him through the death of his wife, he must also be allowed to recover when the injuries are not fatal. For, in principle, no distinction can be drawn between the two cases.[8]

Similarly, in Plotkin v Western Assurance Co Ltd,[9] the court awarded damage to a husband where the couple was married out of community of property, where there was a duty on his wife to contribute to the common household.[10] In the same vein, the court stated, in Erdmann v Santam Insurance Co Ltd:[11]

Prima facie one would imagine that either of the two spouses could institute action to recover that loss [of maintenance]. The family unit has suffered because it is deprived of the services of one of its members. That deprivation has been quantified. Whether the husband or the wife recovers the loss, is not really material, as it can be assumed that the award would be used for the family unit. Whilst there is something to be said for the husband as nominal head of the household suing, there would appear to be more merit in allowing such a claim to be brought by the spouse who suffered the physical injuries.[12]

However, in casu, the court still thought it better to allow the injured spouse to bring the claim in her private capacity.[13] In contrast with the cases which recognised the right of a spouse to claim damage in his or her own name, the court in De Vaal v Messing[14] refused to allow a wife and children to claim for loss of support where the husband was injured. Greenberg J argued that any claim by the dependants of such an injured husband and father should be rejected on the basis that ‘they have suffered no damage.’[15] The judge stated that Abbott v Bergman[16] was probably incorrect but that the court made the award because there was damage to the joint estate.

Neethling et al disagree with the argument in De Vaal v Messing that the dependant has not suffered damage[17] and state that a dependant who suffers damage because of an injury to his or her breadwinner should have an action. In support hereof, they argue that where a breadwinner is 80 per cent to blame for his or her own damage and the wrongdoer 20 per cent, the breadwinner can only claim 20 per cent of his or her future loss of income.[18] The dependant has a significant loss of income. They continue to argue that the Apportionment of Damages Act[19] provides, in section 2(1B), for cases where someone suffers damage because of the injury or death of another person, which means that a dependant has an action and the breadwinner and wrongdoers are considered joint wrongdoers.

When considering the above cases, it is clear that the courts hinge on two thoughts and that although there are convincing arguments for the recognition of extended damage, South African private law remains conservative and slow to extend the operation of the Aquilian action.

It is submitted that there are two compelling arguments in support of the recognition of extended damage. First, where a breadwinner is permanently and seriously incapacitated and not able to conduct his or her own affairs, it is conceivably simpler for a dependant like a spouse to institute an action in his or her own name. He or she then does not have to wait for his or her incapacitated spouse’s curator to apportion his or her award for future loss of income in order to provide for his or her monthly maintenance. Second, the loss is definitely the dependant’s and not that of their estate. If the dependant’s income per month will be lower post-morbid, he or she will be able to prove a loss.

From the above it is clear that although the law has not been settled on this point, there is definitely a basis in common law for the recognition of the concept of extended damage. If that be the case, legislation that regulates the payment of benefits to dependants, such as the Compensation for Occupational Injuries and Diseases Act, can draw from this basis and allow for the payment of those close enough to the victim who sustain a loss because of the serious, permanent incapacitation of their breadwinner.

II. Occupational Injuries and Diseases

The workmen’s compensation system is most probably the longest-running system in South Africa which deals with disability.[20] Before the introduction of this system, the obligations of employers towards their employees were based on common law. In attempting to overcome the glaring shortcomings of the delictual system,[21] a no-fault system was devised.[22]

In terms of current legislation, where a person who falls within the definition of ‘employee’ in terms of the Compensation for Occupational Injuries and Diseases Act becomes disabled because of an accident that occurs in the scope of his or her employment, or such an employee contracts a disease in the scope of his or her employment, the Compensation for Occupational Injuries and Diseases Act provides for the payment of benefits to these individuals. The basic idea of this system is that, where a person carries on economic activities by using machinery and the labour of other persons, and in the process creates an organisation that may harm workers, such employer should be responsible for providing compensation without any questions being asked about fault, since the employer gains the economic benefits. Another aspect of this approach is the fact that the employer is solely responsible for financing the scheme.[23] The aim of this no-fault system is therefore to give broad coverage for occupational injuries and diseases, and to provide employees with substantial protection against loss of income.[24]

South African legislation is broadly up to par with international standards. However, an aspect that has been neglected is the position of the dependants of such a worker who experience a significant loss of support. Currently, an employee’s dependants are only entitled to compensation where that employee died because of his or her injuries or a disease contracted in the scope of his or her employment. Furthermore, in cases of severe disability, relatives of the injured worker may have to take care of this injured relative and this may have a negative effect on their own economic activities. Interestingly, section 28 of the Compensation for Occupational Injuries and Diseases Act provides for payment of a constant attendance allowance if an employee requires constant help. This section reads as follows:

If the injury in respect of which compensation is payable causes disablement of such a nature that the employee is unable to perform the essential actions of life without the constant help of another person, the Director-General may in addition to any other benefits in terms of this Act grant an allowance towards the cost of such help.

Of course, while this section recognises the fact that workers with permanent, serious disabilities need constant care, this allowance cannot be categorised as compensation, as it is rather a type of salary that is payable to a caretaker. Furthermore, this allowance can be paid to anyone who takes care of the disabled worker and is not limited to a spouse or other dependants. Also, even if the allowance is paid to a blood relative, it is possible that this allowance can be much less than any salary that such a relative could have earned, were they able to work in the open labour market. Therefore, although this provision attempts to provide relief to someone other than the primary victim, the fact remains that a dependant’s loss of support due to his or her breadwinner’s injuries, or his or her curtailed economic activities, which result in loss of income, are but two forms of indirect or extended damage that manifest themselves because of employment injuries and diseases.

Apart from the provisions of section 28, an overview of the current South African system shows that where a person who falls within the definition of ‘employee’ in the Compensation for Occupational Injuries and Diseases Act becomes disabled because of an accident which occurs in the scope of his or her employment, or such an employee contracts a disease in the scope of his or her employment, the Act provides for the payment of benefits to these individuals.[25]

Furthermore, where an employee is injured in an accident that arises out of, and in the course of, his or her employment, or an employee contracts a disease in a similar way, section 35 of the Compensation for Occupational Injuries and Diseases Act provides that:

[N]o action shall lie by an employee or any dependant of an employee for the recovery of damage in respect of any occupational injury or disease resulting in the disablement or death of such an 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.[26]

As was indicated above, claims against the Compensation Commissioner in terms of the Compensation for Occupational Injuries and Diseases Act are not based on fault.[27] The aim of this particular system is furthermore to give broad coverage for occupational injuries and diseases, and to provide substantial protection against loss of income. Sufficient medical care and rehabilitation must also be provided where an employee was injured or the employee had contracted a disease. Most importantly, the prevention of injuries and diseases by creating a safe environment should be the duty of all employers.

One must bear in mind that only employees who fall within the definition of the Compensation for Occupational Injuries and Diseases Act are protected in terms of the Act. In this context, the Act defines an employee as a person who has entered into, or works under, a contract of service or of apprenticeship or learnership with an employer, whether the contract is express or implied, oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind.[28] Furthermore, unless the context indicates otherwise, ‘accident’ means an accident arising out of, and in the course and scope of, an employee’s employment and resulting in the personal injury, illness or the death of an employee.[29]

Under this system, benefits are calculated with reference to a person’s earnings.[30] The Compensation Commissioner also pays all medical costs upon the occurrence of an accident or where the employee contracts a disease. Protection against loss of income in terms of the Compensation for Occupational Injuries and Diseases Act is of particular significance for this discussion. Legislation provides for compensation in those instances where an employee suffers either a temporary or permanent total disability. As far as compensation for permanent disability is concerned, there is a distinction between disability that is less than 30 per cent and disability of more than 30 per cent.[31] In the first instance, a lump sum based on 15 times the employee’s monthly earnings, up to a specified maximum, is paid out to the employee.[32] Where the disability is 31 per cent or more, a monthly pension is paid to the employee. The monthly pension is calculated in the same way as the lump sum.[33] In calculating benefits for loss of earning capacity, the Compensation Commissioner makes use of a so-called ‘meat chart’. This guideline contains a list of injuries and the corresponding percentage of disability that is attached to specific injuries. This so-called ‘meat chart approach’ of compensation, where the loss of a limb, for example, is adjudged to constitute a certain percentage of compensable injury or disease, has been the subject of severe criticism.[34]

In summary, although the protection for total disablement afforded in terms of the Compensation for Occupational Injuries and Diseases Act plays a very important role, it is not above criticism.[35] The most important criticism against the current system is that it only provides for the payment of benefits to employees directly or for the dependants of those employees who have died because of an employment-related injury or disease. However, where an employee is severely or totally incapacitated, that injury also has a devastating effect on the household of such an employee. It is submitted that there are deserving cases where the payment of benefits to the dependants of an incapacitated individual, while that individual is still alive, would be more equitable and would alleviate the lot of those dependants whose standard of living has been reduced significantly. These benefits should go beyond the scope of the existing section 28 and should in fact provide for maintenance as well.

III. Link between Common Law and the Compensation for Occupational Injuries and Diseases Act

The discussion of the common law position in section B(I) above in this paper may have raised a number of concerns as to the way in which compensation should be calculated where the incapacitated victim is still alive but the dependants claim compensation in their own name. For instance, one concern would be as to the apportionment of the household income. Another concern has to do with the operation of the ‘once-and-for–all’ rule. What is the point of paying compensation to a spouse of a permanently incapacitated individual if there is a chance that they may divorce and the healthy spouse may marry someone with a significantly higher income? There are in fact solutions to those dilemmas and these form part of a more detailed discussion that cannot be continued here. The point is that it is necessary to recognise the concept of extended damage and that it will offer a remedy to those who are sufficiently close to the incapacitated person.

Because injuries and diseases in the workplace are regulated by statute, reform in this area is markedly easier than it is at common law. For actions based on the latter, the courts need to recognise the concept of extended damage and the fact that parties other than the victim should have actions based on the actio legis Aquiliae. On the other hand, reform in the area of occupational injuries and diseases will entail amendments to the existing statute. Because compensation is paid in instalments, a spouse who divorces an injured workman will cease to receive benefits. Furthermore, it is possible to list categories of dependants who will be entitled to benefits. Although it is preferable to work with a liberal concept of ‘family’ in the South African context, it is probably preferable to limit the payment of additional compensation to spouses and to other de facto dependants such as children. Also, the total claim should be more than it would have been, had benefits only been paid to the victim. Rather, the victim’s benefits for future loss of income should be apportioned between himself or herself and other claimants. By doing that, the household as a unit will be placed in the position it would have been in had the accident not occurred. Although it is conceivable that amendments such as these will have a potentially enormous impact on the system, one must bear in mind that this is a tool that has the potential of alleviating the lot of many who suffer because of a breadwinner’s permanent disability.

The suggestions above can easily be implemented but it is submitted that due consideration should be given to the nature of extended damage and other policy issues before the Compensation for Occupational Injuries and Diseases Act can be amended.

The next section looks at extended damage in Belgian law. Before discussing the details of human damage in Belgian law, the reader is asked to focus on the underlying philosophy regarding human damage and to appreciate the fact that compensation is in fact a policy issue.

C. BELGIUM

I. Recognition of Extended Damage

Belgian lawyers have conducted extensive research in the area of human damage or ‘schade aan de mens’. Viane et al state:

De algemene schadeleer bestat uit drie delen: de eigenlijke schadeleer, de preventieleer en de schadeloosstellingsleer ...[36]

All three parts of the doctrine are of equal importance. Damage or schade is a given. It is necessary to know what is meant by damage in order to do something about it.[37] Viane et al suggest that damage is more or less a serious disruption of the normal occurrence of events, a complex reality that should be investigated as such. As opposed to that, prevention and indemnification are two forms of policy which aim to prevent or cancelling the disruption.[38]

Viane et al convincingly argue that the traditional doctrine of damage, in the strictest sense of the word, investigates the phenomenon of damage as fully as possible, but without looking at the measures that may be used to prevent, or even bring to an end, damage.[39] At this initial stage of the investigation, policy has nothing to do with damage. Rather, a mere factual investigation is made into the occurrence of damage.[40]

Prevention (de preventieleer), as a second constitutive element of the doctrine of damage, on the other hand does not merely observe, but aims primarily at thwarting, imminent danger and inevitable harm, and secondarily attempts to impede the further development of damage that has already started.[41]

Indemnity (schadeloosstelling) as the third element is aimed at bringing an end to damage already incurred. This third element consists of two components, namely repair/reinstatement (herstel) and compensation (vergoeding).[42] The purpose of repair is to bring an end to damage when it is total and to limit the extent of the damage when it is incomplete. Compensation, on the other hand, serves to leave the damage as it is and to offer something in its place; for instance, wage substitution in the case of loss of earning capacity.[43]

Clearly, money is the universal yardstick with which jurists attempt to rebalance the scales of justice. It is no different in Belgium.[44] Even in the social security system, certain benefits can only be paid in money. The most revolutionary approach to damage in Belgian law, however, is the way in which they see damage as a social phenomenon, namely that damage does not only affect a specific individual, but also those members of society who are close to the injured individual.

The following exposition sheds some light on the way in which human damage is approached in Belgium. In order to extract more meaning from this highly developed doctrine, a further investigation is necessary, something which cannot be pursued here. What follows in the next paragraph is a simplified explanation of the most important elements of the theory.

II. Schadeleer Sensu Stricto

Viane et al explain that damage is a loss of future value, which has already been incurred and which causes a negative deviation of an expected, better existence, with such a deviation causing uncertainty.[45] They identify five essential elements, namely an explicit picture of exactly what constitutes a human being, a mathematical concept, a philosophical concept, three dimensions and three types of uncertainties.[46]

On the first element — what constitutes a human being — they comment that it is evident that a human being can potentially suffer damage in one of two ways, namely through damage to his or her physical and psychological health and through damage to his or her environment.[47]

The second element, namely the mathematical concept, recognises that damage stands in a close relationship with loss and profit. Therefore, damage exists where there is a difference between a better and a worse course for the same value.[48] The writers illustrate this concept with reference to loss of income. They explain that loss of income remains the difference between what the individual would have earned but for the damage, and what he or she earns after having been injured.[49]

This aspect of the Belgian law is indeed informative. Instead of just making a before-and-after comparison, the whole procedure that is followed, although mathematical, is based on sound research and aimed at fairness. One can very well assume that the projections, or hypothetical earnings, of those affected by damage-causing events are based upon statistics and not upon the gut feeling of an administrator of the system or even a judge. Such a database is not available in South Africa. A litigant who wants to convince the court of the value of his or her hypothetical earnings must privately employ the services of a statistician. Once again, a lot of time and money are wasted, whereas a central database can remove many such difficulties.[50]

Apart from the mathematical element, there is also a third element of damage, namely the philosophical dimension. In fact, most efforts to define damage boil down to a philosophical explanation.[51] For instance, jurists debate more about the objects of damage than about damage itself. These objects are then duly divided into categories, based on the common characteristics of these objects.[52] From a philosophical perspective, damage has two meanings, namely an existential meaning (ontologische, zijnstheorie) and a value meaning (axiologische, waardetheorie). The existential meaning merely denotes the negative evolution of the real being, like loss of eyesight, whereas the value meaning refers to the loss that flows from the disturbance of that existence.[53]

The difference between the two types of damage translates into different types of restoration. The loss of wellbeing disappears when the course or path is brought back to what it was. The loss of value that was experienced in the past remains lost; it cannot be changed and should be compensated.[54]

The fourth element is the three-dimensionality of damage.[55] Viane et al argue that damage cannot exist if the dimensions of value, time and space, which are in fact essential for every science, are not present.[56] The value dimension exists in the interest (inter-esse) that a human being has in his or her world.[57]

Just as damage must have a value element, it must also essentially have a time element.[58] It is exactly this element that informs the distinction between past and future loss at any given point in time. In Belgian as well as in South African law, this time element is important as it has an influence on the way in which damage is calculated.[59]

The last dimension of damage refers to space. A human being does not suffer damage in isolation. Instead, because there are relationships between people, damage really radiates outward and affects others as well.[60] It is this aspect of damage that Belgian lawyers have come to call ‘extended damage’ and to which this paper refers as extended damage.

Therefore, value, time and space are relative occurrences and failure to take cognisance of the changing character of each dimension may result in an incomplete assessment of damage.[61]

The fifth and final element of damage is made up of the three types of uncertainties, namely the uncertainty of value (axiologische onzekerheid), uncertainty of time (temporele onzekerheden) and spatial uncertainty (spatiale onzekerheden).[62] Uncertainty of value lies in the fact that a number of aspects of a person’s existence may be damaged at once. There is no universal category that can measure the extent of the damage and money is used to repair the damage. Because money varies in value, one must constantly seek just results. Viane et al convincingly argue that if human damage can be related to a single value, that value will be to be healthy (gezond-zijn).[63] Uncertainty of time is constantly a problem as damage mostly concerns future loss. Viane et al remark that nobody can tell what the future would have been had the damage not occurred in the past.

Finally, spatial uncertainty means that it is impossible to tell how damage will influence those near the victim.[64] These uncertainties culminate in global uncertainty. The more serious the damage to the victim, the greater the uncertainty and, yet, the law requires a victim to quantify his or her damage.[65]

Viane et al use a mathematical diagram to illustrate the different elements of damage.[66] This diagram shows, among other things, that it makes no sense at all to try and deduct values mathematically when it comes to human damage. Loss of value must have more than a mathematical element in the context of human damage.[67]

At this point, one may very well ask whether there is any point in this discussion. It seems to delve into a maze and become more complex. However, the point is that human damage in the many ways it may be suffered by an individual, always extends to others. Therefore, individual damage is always part of global damage, in the same way that individual profit is part of global profit![68] The damage that is ricocheted to others causes a chain reaction of damage that feeds itself and may last several years. Eventually, one can speak of a disaster. As Viane et al explains, the more workers are simultaneously permanently incapacitated, the more partners, children, parents, friends and social security institutions will simultaneously experience extended damage.[69]

The cogency of this statement is obvious. If one acknowledges that human damage spills over into the lives of others, it is possible to take it out of the realm of private law, where the law primarily regulates the relationship between private individuals. The next step is then to design a contingency plan to protect the network of social security.[70]

This concept of extended damage is very important in South African society. There are many causes of unemployment. Disability due to a damage-causing event is just one of them. However, if the law is there to provide compensation for human damage, it is time to recognise the fact that extended damage catapults the concept of the damaged individual from the private sphere into the public sphere. Therefore, one can safely say that loss of earning capacity because of an employment injury is a social risk that needs to be addressed in a new and innovative way.

III. Preventieleer and Schadeloosstellingsleer

As was indicated above,[71] damage is a legal fact that has nothing to do with policy. Prevention and repair or compensation, on the other hand, are policy issues that draw from various institutions and disciplines in an attempt to create safety and surety about the future.[72]

IV. CONCLUSION: SCHADE AAN DE MENS IN BELGIAN LAW

The above exposition relies on sound, comprehensive research that is interdisciplinary and breaks the boundaries of the traditional approach to damage.

Viane, Van Steenberge and Lahaye use the following table to illustrate their theories:[73]

PREVENTION
HUMAN DAMAGE
INDEMNIFICATION
Objective:
Removing [threats]
Means:
-medical prevention
-situational prevention
1. Loss of earnings
Cause:
-Unemployment
-Incapacity for work
-death
-old age
-dependants
2. Loss of health
In other words the hinderer between the damaged person and his or her environment
1. Indemnification of
loss of earnings
- REPARATION
(primary):
employment policy
- COMPENSATION
(secondary):
replacement income
2. Indemnification of loss of
health
- REPARATION
(primary):
-medical treatment
-situational treatment
- COMPENSATION
(secondary)
LEGAL POLICY
REALITY
LEGAL POLICY

The table above outlines the crux of the argument about human damage. Human damage is multifaceted, it has many causes and its prevention and indemnification is a policy issue. Clearly, it is up to policy-makers to choose the best way to prevent and indemnify human damage.

D. OCCUPATIONAL INJURIES IN BELGIAN LAW

I. Introduction

Different pieces of legislation regulate the payment of compensation to an employee for loss of income because of incapacity. The system is structured in such a way as to provide separately for employees, the self-employed and government officials. This article only focuses on the system for employees. Furthermore, although this article focuses on employment injuries, a short discussion on illness and invalidity insurance is included in order to illustrate how the theories discussed in section C above manifest themselves in legislation.

II. Illness and Invalidity Insurance

Van Steenberge explains that the Belgian social security system provides extensive support to workers who can no longer work because of serious illness or injury.[74] As far as the benefit amounts are concerned, Pieters explains that during the first period of one year, the benefit normally consists of 60 per cent of the wage, which gives rise to contribution liability.[75] From the second year of incapacity for work (period of invalidity), people who are at the head of a household obtain 65 per cent.[76] Otherwise, this percentage is 45 or 40 per cent of the previously earned wage.[77] This principle seems to have equality implications, but is, in essence, a recognition of the fact that those who are the breadwinners in a family have responsibilities towards their dependants.[78] By paying an increased benefit to a breadwinner, the system recognises the fact that the breadwinner’s responsibilities extend beyond himself or herself and that his or her dependants stand to suffer a loss.

Although the injuries covered under this strand of the social security system are not work-related, it is important to remember that the Belgian social security system is made up of an effective network and that the management of all risks are subject to the main aims that underpin the system. Furthermore, there is also a link between labour legislation pertaining to incapacity and sick leave. In South African law, the different legislation pertaining to sick leave, personal injury and social security simply do not relate or interact, let alone acknowledge such a concept as extended damage.

III. Occupational Injuries

Where an employee’s incapacity to work is due to an industrial injury or an occupational disease, such an employee is entitled to receive a percentage of his or her wages from the previous year which is equal to the degree to which he or she is incapacitated.[79] Where the degree of incapacity is less than 10 per cent, the benefit is calculated on the basis of a lower percentage. Where the beneficiary needs the constant assistance of another person, the benefit is increased.[80] This is a further example of basic recognition of extended damage in Belgian law. An incapacitated individual who depends on a spouse or a caretaker for assistance receives an increased benefit to help shoulder that burden. Although it may not necessarily make a direct payment to a caretaker who happens to be a spouse, the point is that the increased compensation may alleviate the lot of a spouse who has reduced his or her own economic activities in order to take care of the incapacitated spouse.

Consequently, every employee who is, in principle, entitled to social security benefits is entitled to occupational injury benefits.[81] In order to qualify as an occupational injury (arbeidsongeval), an employee must have been the victim of a sudden incident (plotselinge gebeurtenis) which caused death or incapacity to work.[82] In other words, the victim must prove three elements. The victim must prove that he or she sustained an injury, that it was caused by a sudden incident and that it has had a negative influence on the victim’s capacity to perform his or her duties. The requirement that there must be a sudden incident is necessary to distinguish accidents from occupational diseases.[83]

Once the employee proves the three required elements, there are two presumptions that operate in his or her favour: that the injury was caused by the accident and that the employee was injured in the scope of his or her employment.[84] It is then the prerogative of the employer’s insurer to rebut those presumptions.[85]

So far, the Belgian and South African systems have a lot in common.[86] The occupational injuries systems in both countries are no-fault systems.[87] Even where an employee has been grossly negligent, the insurance fund will pay. It is only where an employee intentionally has caused the injury to themselves that he or she forfeits the right to compensation.[88] On the test for incapacity, Van Steenberge writes:

De arbeidsongevallenwet voorziet, naast het opvangen van de medisch kosten... ook een vergoeding voor het verlies of de vermindering van het arbeidsinkomen. De vermindering van het vermogen om met arbeid een loon te verdienen noemt men arbeidsongeschiktheid. Het begrip arbeidsvermogen wijst op een verhouding tussen twee elementen; de fijsieke toestand van de betrokkene en de arbeid die hij nog kan verrichten. Vandaar dat bij de evaluatie, naast de medische gegevens, ook socio-economische factoren een rol moeten spelen.[89]

An interesting factor in the Belgian system is the consideration of socioeconomic elements. In South Africa, this is quite different.[90] This holistic approach to incapacity is far more realistic since it ensures, by making use of one procedure, that the victim is assessed properly. He or she need not fall back on some other system merely because the initial test was inadequate or unnecessarily narrow.

As in South Africa, the Belgian system makes a distinction between temporary incapacity and permanent incapacity. When it becomes evident that a victim’s situation is not going to improve, the incapacity to work (arbeidsongeschiktheid) becomes permanent.

Medical experts determine permanent incapacity and attach a percentage to it.[91] One then uses the person’s basic wage to calculate the compensation. The percentage of the wage that is paid by way of compensation depends on whether the employee’s incapacity falls within one of the following categories: temporary total incapacity; temporary partial incapacity; permanent total incapacity; or permanent partial incapacity.

In the case of temporary total incapacity, the victim is entitled to 90 per cent of the average wage and compensation is paid per calendar day.[92] Where a victim suffers from temporary partial incapacity only, a special procedure applies. Van Steenberge explains:

Deze komt hierop neer dat, op advies van de arbeidsgeneesheer van de onderneming, een concreet voorstel wordt uitgewerkt voor (meestal gedeeltelijke) wedertewerkstelling van het slachtoffer. Aanvaardt het slachtoffer die tewerkstelling, dan ontvangt hij een uitkering gelijk aan de verschil tussen zijn vroegere loon en het loon dat hij op dat moment verdient. Weigert hij, dan ontvangt hij slechts een vergoeding overeenkomstig zijn graad van arbeids-ongeschiktheid. Wordt hem geen (gedeeltelijke) wedertewerkstelling aangeboden, dan wordt hij beschouwd als volledig tijdelijk arbeidsongeschikt.[93]

Permanent total incapacity entitles a victim to 100 per cent of his or her basic wage. This amount may be increased where the victim requires regular help from a caretaker.[94] The most difficult category is probably permanent partial incapacity. Here, compensation is calculated as a ratio of 100 per cent of the basic wage. For lower percentages the compensation is reduced by half where it is less than 5 per cent and by a quarter where it is between 5 per cent and 10 per cent.[95]

Once again, providing increased compensation to a victim who relies on the help of a caretaker takes the principle of extended damage into account and is commendable.

The basic structure of occupational disease and injury compensation is much the same in Belgium as it is in South Africa. The big difference between the two systems lies in the different ways in which incapacity or arbeidsongeschiktheid is calculated. In South Africa, this test is quite mechanical and critics refer to it as the ‘meat chart approach’.[96] This creates the impression that compensation is paid for the loss of, for instance, a limb, as opposed to providing reasonable income replacement for disability. The Belgian approach to occupational injuries is clearly more holistic than the South African one. Proper assessment ensures adequate compensation and that the victim is not left destitute. Furthermore, reintegration and rehabilitation play a much stronger role in Belgium, whereas the focus in South Africa is more on compensation and far less on rehabilitation and reintegration. Overall, the concept of extended damage is neither recognised in South Africa nor woven into the existing legislation.

E. CONCLUSION AND RECOMMENDATIONS

Extended damage, human damage, damage by any other name … the fact remains that injury to a human being has consequences which extend beyond the existence of that individual. It has a rippling effect and can be devastating to spouses and dependants who live in a sufficiently close relationship with the injured individual.

South African common law does give recognition to extended damage by appreciating the fact that the spouse of an injured individual may have a claim in his or her own name for damage. Even though this aspect has not been settled by the courts and the popular view is that an incapacitated individual has an action in his or her own name, there is, in principle, no reason why a spouse or other dependant should not be granted an action in his or her own name. The defendant would not pay a greater amount of compensation; rather, the cake would simply be sliced and distributed in a different manner. Furthermore, although occupational injuries are regulated by statute, entitlement to benefits and the recognition of classes of dependants who may claim benefits have developed from firmly embedded common law principles. It is therefore, as a matter of policy, extremely important to give basic recognition to the concept of extended damage. Furthermore, legislators should recognise that the way in which compensation is paid is primarily a policy issue. Taking a leaf from the book of the Belgians, South African policy-makers would be well advised to build on the above hypothesis about human damage. Human damage is never limited to one individual only. It is hoped that this all-important truth will, in future, be recognised by the judiciary and built into all legislation dealing with the payment of compensation and benefits. This will widen the overly narrow concept of human damage and hugely improve compensation systems, including systems which aim to provide compensation for occupational injuries.

BIBLIOGRAPHY

Books

1. Klinck, E, ‘People with Disabilities’ in Social Security: A Legal Analysis, eds Olivier, MP, Smit, N and Kalula, ER, LexisNexis Butterworths, Durban, 2003.

2. Mutual Information System on Social Protection (MISSOC), Social Protection in the Member States of the European Union: Situation on 1 July 2000 and Evolution, European Commission, 2000.

3. Neethling, J, Potgieter, JM and Visser, PJ, Law of Delict, LexisNexis Butterworths, Durban, 2006.

4. Pieters, D, Introduction into the Social Security Law of the Member States of the European Community, MAKLU Uitgevers, Antwerpen, Apeldoorn, 1993.

5. Smit, N, ‘Employment Injuries and Diseases and Disability in the Workplace’ in Social Security: A Legal Analysis, eds Olivier, MP, Smit, N and Kalula, ER, LexisNexis Butterworths, Durban, 2003.

6. Van Langendonck, J, ‘Belgium’ in International Encyclopaedia of Laws, Vol 1, ed W Van Eeckhoute, Kluwer Law International, The Hague, London, Boston, 1998.

7. Van Steenberge, J, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989.

8. Van Steenberge, J and Van den Heuvel, A, Inleiding tot het Recht Inzake Arbeidsveiligheid, Die Keure, Brugge, 1988.

9. Viane, J, Van Steenberge J and Lahaye D, ‘Prevention and Related Policy Issues’ in The European Face of Social Security: Essays in Honour of Herman Deleeck, eds Berghman, J and Cantillon, B, Avebury, Aldershot, Brookfield USA, Hong Kong, Singapore, Sydney, 1993.

10. Viane, J, Lahaye, D and Van Steenberge, J, ‘Een laaste bijdrage tot de synthese van de schadeleer? Aanloop tot het opstellen van een glossarium’ in Liber Amicorum Roger Dillemans Deel II. Sociale Zekerheidsrecht, ed D Pieters, Kluwer Rechtswetenschappen, België en E. Stroy-Scientia, 1997.

Legislation

1. Apportionment of Damages Act 1956 (South Africa) No 34 of 1956.

2. Compensation for Occupational Injuries and Diseases Act 1993 (South Africa) No 130 of 1993.

3. Workmen’s Compensation Act 1941 (South Africa) No 30 of 1941.

Court Cases

1. Abbott v Bergman [1922] AD 53.

2. De Vaal v Messing [1938] TPD 34.

3. Erdmann v Santam Insurance Co Ltd [1985] 3 SA 402 C.

4. Jooste v Score Supermarket Trading (Pty) Ltd [1998] ZACC 18; [1998] 9 BCLR 1106 (E); [1999] 2 BCLR 139 (CC) [1999] 2 SA 1 (CC); [1999] 20 ILJ 525 (CC).

5. Plotkin v Western Assurance Co Ltd [1955] 2 SA 385 W 385.

6. R v Canqan [1956] 3 SA 355 (E).

7. Union Government v Warneke [1911] AD 657..

Lectures

1. Myburgh, P, ‘Occupational Health and Safety’ (Lecture delivered in LLM/M Phil in Labour Law, Rand Afrikaans University, 29 September 2004).

[∗] Daleen Millard, BIur LLB LLM (UP) LLD (UJ); Advocate of the High Court of South Africa; Associate Professor, University of Johannesburg.

[1] J Viane, J van Steenberge and D Lahaye, ‘Prevention and Related Policy Issues’ in The European Face of Social Security: Essays in Honour of Herman Deleeck, eds J Berghman and B Cantillon, Avebury, Aldershot, Brookfield USA, Hong Kong, Singapore, Sydney, 1993 at 281.

[2] See the discussion of section 28 of the Compensation for Occupational Injuries and Diseases Act, 1993 (South Africa) in section B(II) below.

[3] J Neethling, JM Potgieter and PJ Visser, Law of Delict, LexisNexis Butterworths, Durban, 2006 at 276.

[4] Abbott v. Bergman [1922] AD 53 at 56.

[5] Ibid.

[6] Union Government v. Warneke [1911] AD 657.

[7] Abbott v. Bergman [1922] AD 53 at 56.

[8] Ibid (emphasis added).

[9] Plotkin v Western Assurance Co Ltd [1955] 2 SA 385 W.

[10] Id at 394–5.

[11] Erdmann v Santam Insurance Co Ltd [1985] 3 SA 402 C.

[12] Id at 406.

[13] Id at 406, 406. See also J Neethling, JM Potgieter and PJ Visser, Law of Delict, LexisNexis Butterworths, Durban, 2006 at 262.

[14] De Vaal v Messing [1938] TPD 34.

[15] Id at 38.

[16] Abbott v. Bergman [1922] AD 53.

[17] J Neethling, JM Potgieter and PJ Visser, Law of Delict, LexisNexis Butterworths, Durban, 2006 at 277.

[18] Id at 263.

[19] Apportionment of Damages Act, 1956 (South Africa).

[20] The first system under the Workmen’s Compensation Act, 1941 came into effect during the Second World War. Although a new act, the Compensation for Occupational Injuries and Diseases Act, 1993 was introduced subsequently, this new Act retained the structure of the old Act.

[21] One of the most problematic shortcomings was the requirement that an employee had to prove fault on behalf of his or her employer in order to succeed with an action.

[22] Taken from P Myburgh, ‘Occupational Health and Safety’ (Lecture delivered in LLM/M Phil in Labour Law, Rand Afrikaans University, 29 September 2004).

[23] N Smit, ‘Employment Injuries and Diseases and Disability in the Workplace’ in Social Security: A Legal Analysis, eds MP Olivier, N Smit and ER Kalula, LexisNexis Butterworths, Durban, 2003 at 474.

[24] Sufficient medical care and rehabilitation must also be provided where an employee has been injured or the employee has contracted a disease. Only employees that fall within the definition of the Act are protected in terms of the Compensation for Occupational Injuries and Diseases Act.

[25] N Smit, ‘Employment Injuries and Diseases and Disability in the Workplace’ in Social Security: A Legal Analysis, eds MP Olivier, N Smit and ER Kalula, LexisNexis Butterworths, Durban, 2003 at 474.

[26] Compensation for Occupational Injuries and Diseases Act, 1993 (South Africa) section 35. See also R v Canqan [1956] 3 SA 355 (E) 357-358, where the court pointed out that social labour legislation is designed to ‘[p]rotect the interests of employees and to safeguard their rights, and its effect is to limit the common-law rights of the employers and to enlarge the common-law rights of employees. The history of social legislation discloses that for a considerable number of years there has been progressive encroachment on the rights of employers in the interests of workmen and all employees. So much has this been the purpose of social legislation that employees have been prevented from contracting to their detriment. They have been prohibited from consenting to accept conditions of employment which the legislature has considered are too onerous and burdensome from their point of view.’ See also Jooste v Score Supermarket Trading (Pty) Ltd [1998] ZACC 18; [1998] 9 BCLR 1106 (E); [1999] 2 BCLR 139 (CC); [1999] 2 SA 1 (CC); [1999] 20 ILJ 525 (CC), where the Constitutional Court found that section 35 of COIDA does not violate the right to equal protection and benefit of the law in section 9 of the Constitution, nor any other right of the Constitution.

[27] However, employees are entitled to increased compensation if negligence on the part of the employer can be established. See N Smit, ‘Employment Injuries and Diseases and Disability in the Workplace’ in Social Security: A Legal Analysis, eds MP Olivier, N Smit and ER Kalula, LexisNexis Butterworths, Durban, 2003 at 336.

[28] Compensation for Occupational Injuries and Diseases Act, 1993 (South Africa) section 1. The current definition of employee includes a casual employee employed for the purpose of the employer’s business, a director or member of a body corporate who has entered into a contract of service or of apprenticeship or learnership with the body corporate, in so far as he or she acts within the scope of his or her employment in terms of such contract, a person provided by a labour broker against payment to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker, in the case of a deceased employee, his or her dependants and in the case of an employee who is a person under disability, a curator acting on behalf of that person. Although the protection afforded in terms of the Compensation for Occupational Injuries and Diseases Act for total disablement definitely plays a very important role, it does not mean that the whole workforce enjoys protection in terms of the Compensation for Occupational Injuries and Diseases Act. Members of the security forces, independent contractors and domestic employees in private households fall outside the ambit of the Compensation for Occupational Injuries and Diseases Act.

[29] N Smit, ‘Employment Injuries and Diseases and Disability in the Workplace’ in Social Security: A Legal Analysis, eds MP Olivier, N Smit and ER Kalula, LexisNexis Butterworths, Durban, 2003 at 474.

[30] Id at 477.

[31] Id at 480–1.

[32] Ibid. Where disablement is less than 30 per cent, the lump sum is calculated proportionally.

[33] Id at 481.

[34] Id at 480: see footnote 178. For instance, E Klinck, ‘People with Disabilities’ in Social Security: A Legal Analysis, eds MP Olivier, N Smit and ER Kalula, LexisNexis Butterworths, Durban, 2003 at 326, states: ‘It is doubtful whether the existing legislation is sufficient in assisting government to comply with its constitutional duties vis-á-vis people living with disabilities which arose from employment or road accidents. In particular, when deciding on an appropriate response — in a social security sense — to the needs related to occupational injuries, deaths and disease, a policy decision has to be made as to the nature of the provision for such needs... [T]he so-called ‘meat chart approach’ (fixed levels of compensation) has been criticised as creating the impression that this is compensation for loss of a limb rather than for the achievement of adequate or reasonable income replacement (social security as a (temporary) bypass until reintegration occurs).’

[35] General criticism can be summarised in three points. Firstly, only those in formal employment who qualify as employees enjoy coverage. This exclusion may probably be justified because the objective of the Act is to cover employment injuries, and only employees whose employers contribute to the system enjoy coverage. However, this does not mean that the self-employed and atypically employed should forever remain excluded from a system under the Compensation for Occupational Injuries and Diseases Act. Secondly, little is done about the prevention of accidents and rehabilitation and re-integration. Finally, even those employees who do receive lump sums or monthly pensions merely receive defined benefits and will most likely not be in a position to maintain the same standard of living that they enjoyed prior to the employment accident.

[36] J Viane, D Lahaye and J van Steenberge, ‘Een laaste Bijdrage tot de Synthese van de Schadeleer? Aanloop tot het Opstellen van een Glossarium’ in Liber Amicorum Roger Dillemans Deel II. Sociale Zekerheidsrecht, ed D Pieters, Kluwer Rechtswetenschappen, België en E. Stroy-Scientia, 1997 at 470.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] J Viane, D Lahaye and J van Steenberge, ‘Een laaste bijdrage tot de synthese van de schadeleer? Aanloop tot het opstellen van een glossarium’ in Liber Amicorum Roger Dillemans Deel II. Sociale Zekerheidsrecht, ed D Pieters, Kluwer Rechtswetenschappen, België en E. Stroy-Scientia, 1997 at 471 correctly state: ‘Een goed preventiebeleid vergt gewoonlijk de inzet van vele middelen tegelijk: organisatorische, juridische, medische, informatieve, technische, financiële, pedagogische en andersoortige acties, die steeds op een gecoördineerde wijze moeten aangewend worden. Een gebrek aan samenwerking loopt zeer vlug uit op tegenwerking en op de verkommering van de preventie.’

[42] Id at 471.

[43] Ibid.

[44] On the role of currency in the process of compensation, J Viane, D Lahaye and J van Steenberge, ‘Een laaste bijdrage tot de synthese van de schadeleer? Aanloop tot het opstellen van een glossarium’ in Liber Amicorum Roger Dillemans Deel II. Sociale Zekerheidsrecht, ed D Pieters, Kluwer Rechtswetenschappen, België en E. Stroy-Scientia, 1997 at 471, make the following important remark: ‘Het vergoedingsbeleid darentegen kan in beperkte mate de standaard geld gebruiken om, met het oog op het uitkeren van een kompensatie, een waardeverlies rechtstreeks te kwantificeren. Dit is enkel het geval wanneer het om een verlies van arbeidsinkomen gaat. Voor de kwantificatie van de menselijk nutswaarde is een geldelijk standaard immers bruikbaar. Elk andersoortig waardeverlies echter valt op zulke rechtstreekse wijze onmogelijk te evalueren. In dergelijk geval moet opnieuw de omweg gemaakt over de kostprijs van de vervangingsmiddelen die kunnen aangeboden worden om de aangerichte schade te kompenseren. In de praktijk ziet het rechtsbeleid evenwel op tegen een beoordeling van de nodige vervangingsmiddelen. Het kent liever in den blinde geldelijke bedragen toe, om daarna kritiek uit te brengen over de wijze waarop het geld gebruikt wordt.’

[45] Ibid.

[46] Id at 472.

[47] Ibid 472: the authors state: ‘Om de mens te definiëren sluiten we aan op wat in de actuele stand van de wetenschap zo goed als algemeen aanvaard wordt. De individuele mens is niet een gesloten systeem, dat enkel beïnvloed wordt door wat er binnen de grenzen van zijn huid voorvalt, maar een open systeem, dat in grote mate bepaald wordt door zijn omgeving (synoniem: milieu, wereld, Umwelt, situatie) waarin het leeft. Een omgeving waarop het trouwens op zijn beurt grote invloed uitoefent.’

[48] Id at 473.

[49] Id at 474. The writers, assisted by a team of economists, statisticians and information technologists, put this theory to the test. Their efforts culminated in the HARVART-project. The purpose of this project was to see to what extent the mathematical calculation of loss of income could be achieved uniformly in social insurance. The result is explained as follows: ‘[V]ertrekkend van de schadeleer en gebruikmakend van die nieuwe loon- en arbeidstijdendatabank waarover de R.S.Z. [Rijksdienst voor Sociale Zekerheid] sinds 1990 beschikt, bleek het inderdaad mogelijk te zijn het loonverlies op een juristische wijze te berekenen, zodat een einde kan komen aan de versplinterde, ondoorzichtelijke en wanordelijke aanpak die tot op heden schering en inslag is. Ingevolge het bestaan van het K.S.Z. [Kruispuntbank der Soziale Zekerheid]-netwerk is een directe en vlugge opvraging van de nodige gegevens bij de R.S.Z ook geen probleem meer. Komt het ooit zover dan kunnen de werkgevers ontlast worden van de enorme rompslomp die de mededeling van de refertelonen bij ieder geval van verlies van arbeidsinkomen meebrengt.’

[50] Although this method broadly echoes the sum-formula approach that is used in South Africa in the calculation of future damage, the availability of a database makes future predictions more accurate.

[51] J Viane, D Lahaye and J van Steenberge, ‘Een laaste bijdrage tot de synthese van de schadeleer? Aanloop tot het opstellen van een glossarium’ in Liber Amicorum Roger Dillemans Deel II. Sociale Zekerheidsrecht, ed D Pieters, Kluwer Rechtswetenschappen, België en E. Stroy-Scientia, 1997 at 474.

[52] Ibid.

[53] Id at 475. To summarise, the authors argue: ‘Met het begrip schade kan men daarom zowel de negatiewe (ontologische) verandering bedoelen die de realiteit ondergaat als het (axiologische) irreële waardeverlies dat daaruit voortvloeit.’

[54] Ibid.

[55] Id at 476.

[56] Ibid.

[57] Ibid. The authors note in this regard: ‘Daarom ook bestaat er uiteindelijk alleen maar ‘menselijke’ schade. Een zaak kan maar schade oplopen, wanneer ze voor een menselijk wezen enige waarde bezit. Een res nullius, waarin niemand belang stelt, kan alleen maar ‘veranderen’, nooit schade lijden. Zakenschade op zichtzelf, geisoleerd van de menselijke belangstelling, bestaat niet.’

[58] Ibid. The authors state: ‘Tijd is de tweede dimensie van schade, even essentieel als de waarde. Tijdeloze schade bestaat op deze wereld niet. Ingevolge de onverbiddelijke vooruitgang van de tijd wordt schade, zolang ze bestaat, voortdurend groter. Schade is van bij haar begin steeds een verlies van toekomst. Ondermeer daardoor is en blift opgelopen schade altijd onzeker.’

[59] For instance, in South African law the ‘once and for all’ rule dictates that a plaintiff should claim his or her damage ‘once and for all’, which means that both past and future damage should be included in the claim. See J Neethling, JM Potgieter and PJ Visser, Law of Delict, LexisNexis Butterworths, Durban, 2006 at 208.

[60] J Viane, D Lahaye and J van Steenberge, ‘Een laaste bijdrage tot de synthese van de schadeleer? Aanloop tot het opstellen van een glossarium’ in Liber Amicorum Roger Dillemans Deel II. Sociale Zekerheidsrecht, ed D Pieters, Kluwer Rechtswetenschappen, België en E. Stroy-Scientia, 1997 at 476.

[61] Id at 476–7.

[62] Id at 477–8.

[63] Id at 478. The authors state: ‘Een van de belangrijkste onderdelen van het gezond-zijn is nuttig-zijn. Voor het axiologisch onderzoek is het van uitzonderlijk belang omdat het zich leent tot kwantificatie. Bovendien is het nuttig-zijn, samen met het gezond-zijn, steeds de hoofbekommernis geweest van de sociale zekerheid.’ They also remark that loss of menselijke nutswaarde had always been included in their analysis.

[64] Ibid.

[65] Id at 510. The authors remark in this regard: ‘Wanneer, bijvoorbeeld, de zeer onzekere schade door een onrechtmatige daad aangericht werd, kan de dader redelijkerwijze niet eisen dat het schlachtoffer met zekerheid de aard en de omvang van zijn schade zou bewijzen. Toch steld de rechtsspraak en rechtsleer dit beginsels voorop. Wij zijn het daar in gene mate mee eens. Aangezien de dader zelf de onzekerheid schept, dient hij ook zelf voor het goedmaken van dit wesenlijke onderdeel van de schade in te staan, zodat de bewijslast moet omgekeerd worden.’

[66] Ibid.

[67] Id at 484. The writers note in this regard: ‘Appels van peren aftrekken mag niet, leren onze kinderen als ze voor de eerste maal naar school gaan. Toch begaan de grote mensen herhaaldelijk deze fout wanneer het om de becijfering van de menselijke schade gaat. Een referteloon wordt vaak genoeg met een medische restwaarde verminderd, om het verschil een ‘verloren loon’ te noemen!’

[68] Id at 485-486.

[69] Id at 489 (emphasis in original).

[70] Ibid.

[71] See Section B(I).

[72] J Viane, D Lahaye and J van Steenberge, ‘Een laaste bijdrage tot de synthese van de schadeleer? Aanloop tot het opstellen van een glossarium’ in Liber Amicorum Roger Dillemans Deel II. Sociale Zekerheidsrecht, ed D Pieters, Kluwer Rechtswetenschappen, België en E. Stroy-Scientia, 1997 at 489.

[73] J Viane, J van Steenberge and D Lahaye, ‘Prevention and Related Policy Issues’ in The European Face of Social Security: Essays in Honour of Herman Deleeck, eds J Berghman and B Cantillon, Avebury, Aldershot, Brookfield USA, Hong Kong, Singapore, Sydney, 1993 at 283.

[74] J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 19. He states: ‘Werknemers die, ingevolge ziekte of ongeval niet meer in staat zijn om te werken, kunnen van het ziekenfonds een vervangingsinkomen ontvangen. daarvoor moeten ze uiteraard onder deze wetgeving vallen en aan een reeks voorwaarden voldoen. De uitkering zal afhankelijk zijn van de duur van de arbeidsongeschiktheid en van de familiale situatie waarin de betrokkene zich bevindt.’ For a concise (but rather cryptic) discussion of this system, see also Mutual Information System on Social Protection (MISSOC), Social Protection in the Member States of the European Union: Situation on 1 July 2000 and Evolution, European Commission, 2000; J Van Langendonck, ‘Belgium’ in International Encyclopaedia of Laws, Vol 1, ed W Van Eeckhoute, Kluwer Law International, The Hague, London, Boston, 1998 at 105, states: ‘The basic rule is found in Art. 100, par. 1 of the Act as coordinated on 14 July 1994, according to which a worker is incapacitated to work, if he ‘has stopped all occupational activity, and if his injuries or disorders are recognised to reduce his earning capacity to one third or less of what a person of the same social condition and with the same training can earn in the category of jobs to which the occupation of the worker before his incapacity belongs, or in all occupations he could be employed in, considering his training’.’

[75] D Pieters, Introduction into the Social Security Law of the Member States of the European Community, MAKLU Uitgevers, Antwerpen, Apeldoorn, 1993 at 28

[76] Ibid.

[77] Ibid.

[78] Ibid.

[79] Ibid.

[80] Id at 29.

[81] J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 32. The writer also comments: ‘Het toepassingsgebied van die arbeidsongevallenwet werd darenboven nog uitgebreid tot bepaalde groepen van werknemers die in feite onttrokken zijn aan de werkingssfeer van de sociale sekerheid voor werknemers, bijvoorbeeld wegens de geringe duur van hun prestasies. Uitgesloten uit deze regeling zijn het overheidspersoneel en de militairen: voor deze categorieën van personen is een afzonderlijke regeling van toepassing.’

[82] J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 33 states: ‘In de arbeidsongevallenwet wordt het arbeidsongeval omschreven als: ‘het ongeval dat de werknemer tijdens en door het feit van de uitvoering van de arbeidsovereenkomst overkomt en dat een letsel veroorzaakt’. Het was niet de bedoeling van de wetgever een volledige begripsomschrijving te geven, maar wel de elementen aan te geven die door het slachtoffer moeten bewezen worden.’ J Van Langendonck, ‘Belgium’ in International Encyclopaedia of Laws, Vol 1, ed W Van Eeckhoute, Kluwer Law International, The Hague, London, Boston, 1998 at 118 illuminates this further: ‘The classical definition of the accident that is given by the Cour de Cassation on 26 May 1967: the accident is a sudden occurrence causing an injury. Previous to this decision the courts required that the sudden occurrence should be of an abnormal nature, and caused by an external force. The many disputes on these elements caused the judges to drop them.’ As far as prevention is concerned, see Van Steenberge J and Van den Heuvel A, Inleiding tot het Recht Inzake Arbeidsveiligheid, Die Keure, Brugge, 1988 at 68.

[83] J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 33 explains:’De grens hiertussen is echter soms moeilijk te trekken, en daarom hanteert men steeds het volgende criterium: het letsel mag niet het eindpunt zijn van een langzame ‘aftakeling’ van de gezondheidstoestand, maar moet het gevolg zijn van een tijd en ruimte lokaliseerbare gebeurtenis, inspanning, handeling of emotie. Slechts in dit laaste geval is er sprake van een arbeidsongeval.’

[84] Id at 34.

[85] J Van Langendonck, ‘Belgium’ in International Encyclopaedia of Laws, Vol 1, ed W Van Eeckhoute, Kluwer Law International, The Hague, London, Boston, 1998 at 118 states: ‘The Act helps the victim with a legal presumption, that an injury is caused by an accident, if the victim can prove the existence of a sudden occurrence and of an injury (Art. 9, Act of 10 April 1971). But this has not put an end to all litigation on the nature of the accident. The courts still have to decide every day on the nature of the ‘sudden occurrence’ which will be deemed to be an accident. It has been decided that this occurrence must be different from the injury itself, since the act requires a sudden occurrence and an injury. So a heart attack cannot be deemed to be an accident all by itself, the victim — or his survivors — will have to show the existence of some other ‘sudden occurrence’, such as a special effort, or an exceptional stress. The occurrence can be considered as ‘sudden’ also when it lasts for a specific period of time. It is sufficient that it can be situated in time and space. It doesn’t have to be different from the normal performance of the work, but it has to be of a nature to cause such injury as was sustained by the victim.’

[86] However, note that there are huge differences between the two systems as far as commuting injuries are concerned. In Belgium, accidents that occur while an insured travelling on the normal route to and from work are equated with occupational injuries. The risk of accidents on the way to and from work was added to the Act during the Second World War for practical reasons. On determining the normal route, J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 states: ‘Over de normale weg geeft de wet de volgende bepaling: ‘onder de weg naar en van het werk wordt verstaan het normale traject dat de werknemer moet afleggen om zich van zijn verblijfplaats te begeven naar de plaats waar hij werkt en omgekeerd.’ De normale weg is niet noodzakelijk de kortste of de vlugste en ook niet de weg die men iedere dag volgt. Beide elementen spelen uiteraard een rol.’ The residence of the employee is that place where the employee usually resides, while the workplace is that place where the employee executes his or her duties in terms of his or her employment contract. Although this system seems to be ideal, especially in an industrialised country where commuters have to use roads in order to reach their places of work and to contribute to the economy, the labour courts hear many cases on commuting injuries. Where someone used a detour, for instance, one may ask whether he or she was in fact forced to do so, or where there is a time discrepancy, one may ask why an employee for instance stopped to buy cigarettes on the way to work. Thus, the merits of a claim like this may be difficult to prove. If it is difficult to define an industrial accident, it is even more difficult to describe the way to and from work! Many court decisions revolve around the starting point and the end of the journey.

[87] J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 36. J Van Langendonck, ‘Belgium’ in International Encyclopaedia of Laws, Vol 1, ed W Van Eeckhoute, Kluwer Law International, The Hague, London, Boston, 1998 at 126–7 states the matter as follows: ‘The basic principle of the industrial accidents act is that the own fault of the employer or of the worker plays no role whatsoever. The worker doesn’t have to prove that the employer was at fault in the causing of the accident, and the employer (or his insurer) cannot escape his responsibility by showing that the worker was himself at fault. The responsibility of the employer will be covered by a compulsory insurance, to be paid by the employer himself. It is felt that the insurance premiums will have some preventive effect. They will go up if the employer causes too many accidents in his enterprise.’

[88] J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 36.

[89] Id at 37.

[90] On the considerations that need to be taken into account, Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 37–8 notes: ‘De vraag is hier in welke mate het slachtoffer ten gevolge van het ongeval minder kansen heeft om arbeid te verrichten en daarmee een loon te verdienen. De ongeschiktheid wordt dus niet meer beoordeeld ten opzichte van het oorpronkelijke beroep van de werknemer, maar ten opzichte van alle beroepen die hij zou kunnen uitoefen, gelet op zijn leeftijd, beroepsopleiding, herscholings-kansen, e.d.m.’

[91] Id at 38.

[92] Id at 39. See also J Van Langendonck, ‘Belgium’ in International Encyclopaedia of Laws, Vol 1, ed W Van Eeckhoute, Kluwer Law International, The Hague, London, Boston, 1998 at 122.

[93] J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 39. See also J Van Langendonck, ‘Belgium’ in International Encyclopaedia of Laws, Vol 1, ed W Van Eeckhoute, Kluwer Law International, The Hague, London, Boston, 1998 at 122: ‘Under industrial accident rules, when the incapacity is no longer complete, the victim continues to be entitled to full benefits, but a procedure of reinstatement to work will be initiated.’

[94] J Van Steenberge, Onze Sociale Zekerheid 4: Loon naar Werken, Die Keue, Brugge, 1989 at 40.

[95] Ibid. Also Van J Van Langendonck, ‘Belgium’ in International Encyclopaedia of Laws, Vol 1, ed W Van Eeckhoute, Kluwer Law International, The Hague, London, Boston, 1998 at 123 states: ‘In this agreement or decision the degree of permanent incapacity will be expressed by a percentage figure between 0 and 100. The benefit will consist of multiplication of this percentage and the basic wage. This basic wage is the normal wage of the victim in the year preceding the accident, with a statutory minimum and maximum limit. Special rules are applied when the victim has not worked regularly for a full year, or when he worked for more than one employer.’

[96] E Klinck, ‘People with Disabilities’ in Social Security: A Legal Analysis eds MP Olivier, N Smit and ER Kalula, LexisNexis Butterworths, Durban, 2003 at 326.

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