Article 3/2023

An employee has a pre-existing injury. However, subsequently, he was involved in an accident at work which caused further injury.

Does the pre-existing injury affect compensation claimed by the employee for the latter injury?

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In Department of Labour: Compensation Commissioner v Botha (2022) 3 SALLR 17 (SCA), it is
submitted that the supreme court of appeal adopted the following correct approach:

  • the question to be determined is whether there is a causal connection between the subsequent
    accident and the disability
  • in order to determine whether or not such causal link is established, the approach adopted in
    Basson v Ongevallekommissaris [2000] 1 All SA 67 (C) is to be followed, entailing that a causal
    connection is established if the subsequent accident was a contributing factor, even if a pre-
    existing condition existed, i e the disability was exacerbated by the subsequent accident,
    rendering the employee disabled
  • once such causal link is established, that would entail the end of the ‘first enquiry’ and the
    ‘second enquiry’ is to be proceeded with in order to determine the extent that the pre-existing
    injury contributed to the disablement – in casu, the SCA found that it was impossible to establish
    such extent on the medical records before it and ordered the compensation commissioner to
    obtain such record and also provide the employee with the opportunity to obtain his own medical
    reports in this regard

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.