MUSIYIWA v SHOMET INDUSTRY DEVELOPMENT (PVT) LTD 2014 (2) ZLR 437 (H)

Flynote

Employment — employee — injuries sustained during the course of employment — action to recover damages — claim may only be brought in terms of the National Social Security Authority (Accident Prevention and Workers Compensation) Scheme — no claim may be brought against employer unless employer is "individually liable" — meaning of — exemption from participation in the scheme — employer having established his own approved scheme — where employer is exempted, employee has a common law right to sue employer for damages

Headnote

The plaintiff had been injured during the course of his employment. He brought a claim against the defendant, his employer, for damages, although he had already received compensation in terms of the National Social Security Authority (Accident Prevention and Workers Compensation Scheme) Notice (SI 68 of 1990). The defendant filed a special plea in bar, to the effect that, as a result of the introduction of the Scheme, no damages could be awarded against the employer.

Held, that the Scheme, which was established in terms of s 2 of the National Social Security Authority Act [Chapter 17:04], provides that no action at common law shall lie by a worker or any dependent of a worker against such worker's employer to recover any damages in respect of an injury resulting in the disablement or death of such worker arising out of and in the course of his employment. The only liability for compensation arises under the Scheme. However, in respect of acts of negligence by the employer himself or by other specified employees, the worker may recover from the employer, if the employer is one who is individually liable. Such an employer is one to whom exemption has been granted in terms of s 76 of the Scheme because he has established his own compensation fund to insure against liability in respect of his employees. In this situation, the employee may proceed against his employer. The defendant had not been granted exemption and thus could not be sued for additional compensation.