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c Employment — employee — injuries sustained in course of employment — action to recover damages or compensation—National Social Security Authority (Accident Prevention and Workers' Compensation Scheme) Notice, 1990 (SI 68 of 1990) — effect on right of action under common law
The plaintiff was seriously injured in an accident at the mine where he worked. The accident was caused by the negligence of the second defendant, who was a junior employee. The plaintiff sued his employer and the second defendant for damages and for pain and suffering. The amount of damages claimed constituted the difference between what he was paid under the National Social Security Authority scheme for compensation for injuries caused at work and what he said he would have earned over the same period had he not been injured.
Held, that in a case such as this the employer is liable under the common law for damages suffered by an employee due to an accident which occurs in the course of his duty. However, the legislature has introduced legislation dealing with compensation for workmen being injured on duty. Section 3 of the National Social Security Authority Act [Chapter 17:04] empowers the Minister of Labour to establish social security schemes by way of a statutory instrument. Acting in terms of that section, the Minister has made the National Social Security Authority (Accident G Prevention and Workers' Compensation Scheme) Notice, 1990 (SI 68 of 1990). The Scheme prescribes what compensation shall be payable to a worker if he has an accident which results in his death or disablement. The compensation so payable is in substitution of any other legal remedy.
Held
against the mining company were removed. The Scheme did not provide for payment for pain and suffering and precluded the worker from pursuing any such claim against his employer, save in very limited circumstances, which did not apply in this case.
Held, further, that while under the common law, the defendant could be liable for the negligence of even a very junior employee, the Scheme changed the common law. Section 9(1)(a) of the Scheme spells out the categories of employees whose negligence can be laid at the door of the employer. It must be a person who is entrusted by his employer with the management of the trade or business or any branch or department thereof, or who is appointed to be in charge thereof, or a person having the right to engage or discharge workers on behalf of the employer. The employee in question did not fall into any of these categories so the defendant could not be held liable for any damages suffered by the plaintiff.
Held, further, that the scheme specifically provided that no proceedings to recover damages from a third party may be taken by the worker until the General Manager of the Scheme has been so notified. There was nothing in the papers to show that the General Manager of the Scheme was notified of these proceedings and so the claim against the second defendant could not be recognised.
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