Legal developments may have ripple effect 

Legal developments may have ripple effect 

Our columnists highlight some recent developments in British criminal law and workers’ compensation that raise compelling questions.  

The UK press has lately reported on some interesting criminal cases. One case involved a fatal collision between an 84-year-old pensioner motorist and a cyclist. The pensioner was driving into the setting sun when the accident occurred; the cyclist was killed. 

According to the press, the pensioner had been for an eye test some time earlier, and was advised by the optometrist that his eyesight had deteriorated to the point where it did not meet the required standard for driving. He continued to drive, however, having passed the driving test in 1958. He had no previous history of driving problems, but because of the accident was found to be criminally guilty and sentenced to 32 months of imprisonment. 

In a second case, a company installed a new robotic packing arm machine in 2015. As often happens, some safety features were disabled within weeks of its installation and the machine worked in this way for a few years. During some required maintenance work on the machine in 2017, an accident occurred that caused the death of an employee. A criminal case was opened and, in 2023, a fine of £700,000 (R14 million) was imposed on the firm, while the owner of the firm was sentenced to five years of imprisonment. 

The peculiarities of these cases

In relation to the first case, every year since cars began to be widely used, thousands of people have been killed on the roads and billions of rand in damages have been caused in accidents. It is very seldom, however, that anyone goes to jail. Some high-profile cases come to the public’s attention and in some of these cases there is a public outcry for someone to be jailed. These calls are not usually successful, but sometimes prosecutors do opt to prosecute. 

Probably the most famous example of this is the Westdene Dam tragedy. In March 1985, a bus carrying mainly school pupils left the road while crossing the Westdene Dam bridge in Johannesburg and went into the dam. Sadly, 42 passengers (mostly young pupils) drowned in this great tragedy. It was decided to charge the driver for the deaths, but the criminal prosecution failed. 

We sometimes have enthusiastic prosecutors who try to develop the law into an area where it simply does not easily fit. Therefore, in some cases, prosecutors have attempted to charge drivers with murder instead of culpable homicide. These attempts have not generally succeeded. 

The second case highlighted involved an industrial accident. Again, hundreds of thousands of occupational accidents occur every year, but few end up with people being imprisoned. This is where workers’ compensation comes into play, as it was designed for that very purpose. Where one person injures another, if the injured party has a claim it is brought in the law of torts (called “Delict” in South Africa). 

In England, the first case to deal with a claim for injuries of this nature in the course of employment occurred in 1837. This was the famous case of Priestly v Fowler, where the court ruled that there was no basis in law for the action. All other attempts to bring other cases in the law of torts failed. It was impossible to get a positive verdict and unthinkable to obtain a criminal conviction.

Eventually, the English parliament intervened to lower the legal requirement to allow delictual cases to succeed. Criminal cases were not even contemplated, but in the end, the attempt to change the law of torts was abandoned as the UK followed the German example and introduced workers’ compensation. This was based on the knowledge that each year hundreds of thousands of people were being injured, and some killed, at work. This was unavoidable even under the most stringent safety laws and standards – accidents at work will always occur.

Therefore, workers’ compensation was designed to ensure that anyone injured at work could be compensated. This compensation had nothing to do with fault, negligence, wrongfulness, or causation – it was solely about compensation. In other words, it was an insurance matter.

At this point, lawyers and jurists made a fundamental error by classifying workers’ compensation as a form of torts when it is actually a form of insurance. What is the difference, though?

If a man takes out a life policy to provide for his wife in the case of his death, and the policy pays out R2 million on his death, nobody would argue that the insurer is liable because it negligently caused the man’s death. It is a simple matter of insurance against a pre-defined possible event. By the 1900s, people realised that industrial accidents, death, and injuries were inevitable. Workers’ compensation was introduced to provide compensation, without being at all related to negligence. It was not a form of torts.

In 1914, Professor Jeremiah Smith, a US legal academic, asked what would happen if two forms of torts co-existed. If the normal law of torts and the workers’ compensation tort existed together, Smith argued that the one would corrupt the other, therefore they could not coexist.

Economists explain this in terms of Greham’s Law of Money: bad money drives out good money, until all that is left is bad money. Similarly, bad law drives out good law and all that is left is bad law. The only way to avoid this is to understand that workers’ compensation is not part of the law of torts, but is simply insurance.

So, what happened to the law of torts? In English law, it looked very much like criminal law. A series of different torts existed, laid out in a set of writs. That is why it is called the law of torts – plural.

In South Africa it is called the law of delict – singular. Although the first South African textbook was called the Law of Delicts, from the second edition onwards, it was called the Law of Delict. In the original law of delicts the plaintiff, or injured party, would have to bring their case within the four corners of the specific writ. If there was no writ, there was no remedy. This is like the criminal law: if there is no crime there is no conviction. After the writ system collapsed, a new tort emerged – the tort of negligence.

Transformation of the law of torts

At this point we can return to Smith’s analysis in the context of two people travelling in a car, involved in the same accident. If one is covered by the normal law of torts (the tort of negligence) and the other by the workers’ compensation tort, what would happen? The workers’ compensation passenger would be rushed off to hospital, admitted, get excellent treatment and paid compensation for time lost, and if they were killed their dependants would be provided for. Under normal tort, the other victim would get nothing. 

Smith argued that this would not be allowed to happen, and thus the normal law of torts would be transformed. To do this, the insured victim would have to prove the other person involved in the accident wrongfully and negligently caused the injury. To achieve this, concepts such as wrongfulness, causation, and negligence would all be changed beyond recognition. The entire legal system would be transformed to achieve this objective and the new law of torts would look increasingly like the old law of workers’ compensation.

Has this, in fact, happened? Something else to ponder, which Smith did not consider, is whether this transformation of the system would also impact on other branches of law.

Published by

Albert Mushai

Legally Speaking is a regular column by Albert Mushai from the school of Economics and Business Sciences, University of the Witwatersrand. Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining the University of the Witwatersrand as a lecturer in insurance. 
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