Lessons for SA from the UK – occupational diseases compensation

Compensation for occupational diseases should, in general, be handled the same way as worker’s compensation. One system should exist for occupational accidents and diseases, covering all employees – irrespective of the industry in which they work

Worker’s compensation itself is merely a statutory form of personal accident insurance. The compensation’s cost has taken the form of a levy based on the exposure of firms. Claims should be dealt with administratively and any disputes should then be resolved via the normal courts of the land.

In South Africa, a fragmented system has evolved over the years, with occupational diseases in the mining industry being treated differently from other sectors of the economy. To make matters worse, more recently, compensation for diseases in mines is now funded through private trusts, instead of a government scheme, such as the worker’s compensation fund.

This has led to a proliferation of schemes and systems, which is reminiscent of early England where different laws and courts existed, including ecclesiastical courts, manor courts, the Star Chamber, courts of equity and courts of law.

For each of these courts, different laws existed and usually there was no proper appeal system. The great triumph was the English Common Law; a law common to the entire realm, and a Supreme Court – the House of Lords (at the time), an apex court, which had final jurisdiction over all legal disputes.
More recently, the apex court was removed from the House of Lords and, in its place, a Supreme Court was established. Disputes are settled before ordinary courts presided over by judges who, ordinarily, apply the Common Law. Increasingly the Common Law is being encroached upon by statute, however.

This great triumph of the Common Law and Supreme Court is tending to be undone with the rise of the administrative state. Increasingly administrative bodies are being formed, such as administrative tribunals and even upper tribunals.

The establishment of administrative bodies is the route the United Kingdom (UK) appears to be following with respect to occupational diseases. In order to understand the contextual background to the development of administrative systems, for occupational diseases in the UK, it is helpful to examine DP v Topmark Claims Management Ltd Reference 2020 UKUT 0106 ACC.

This case came before the Upper Tribunal Administrative Appeals Chamber. It was an appeal from the First-Tier Tribunal (Social Entitlement Chamber). From the description of these “courts”, some idea of the complex nature of this system can be gauged. Courts within courts.

Clearly, we are no longer concerned with the ordinary courts of the land applying the English Common Law. The UK has a long history of dealing with asbestosis cases that it found could not be resolved in terms of the existing Common Law. This is a point we have often made, arguing that the very nature of diseases like asbestosis, especially their long latency nature, makes the common law an inappropriate mechanism for determining compensation payable.

In the DP v Topmark case, the claimant was DP. His wife was JP. She worked in a residential care home and became ill. In March 2014, she was diagnosed to be suffering from mesothelioma – a lethal condition that usually gives the sufferer very little time to live.

JP died in September 2014 aged 37. She was one of the youngest persons to die from mesothelioma. Shortly after her death solicitors were consulted, probably with the view of determining if someone could be civilly sued for her death. It took the solicitors two years to arrive at a decision and when they did, they advised that in their opinion insufficient evidence existed to bring a civil claim.

In the UK, the Mesothelioma Act 2014 was passed especially to deal with some of these claims through an administrative process. Essentially, if a person cannot bring an action for damages in respect of the disease in terms of some or other recognised grounds (such as the Fatal Accidents Act), they can bring a claim in terms of the Mesothelioma Act of 2014.

Clearly if the claim succeeds and payment is made, a cost to pay the claim in terms of the Act is incurred. Therefore, not only did Parliament pass the Act, it also made provision for payments. This is thus a special Act making special provisions creating special processes involving special tribunals.
This Act established the Diffuse Mesothelioma Payment Scheme (DMPS) responsible for paying compensation to claimants who are unable to claim civil damages. At this point, if DP had a valid claim, it had not prescribed and he could still have approached another firm of solicitors for a different opinion on his claim.

Instead, DP decided to bring a claim in terms of the DMPS system for payment. That claim was rejected. It is important to bear in mind that the DMPS scheme was set up to make payment where it is not possible for whatever reason to bring claims in terms of the civil legal system.

Since DP’s claim had not prescribed, he still had an option to pursue compensation through the civil legal system. Accordingly, DP was referred to another set of solicitors who were unable to act in the limited amount of time that was left over before prescription had run.

At the same time, DP decided to appeal the decision made by the DMPS to a tribunal dealing with these claims, called the First Tier Tribunal. This tribunal upheld the decision and refused the appeal on the basis that he could still bring a civil claim.

Presumably, the prescription period still had not yet been reached at that time. DP then decided to appeal to the Upper Tribunal against the decision of the First Tier Tribunal, using the services provided in terms of the Free Representation Unit.

As indicated, the provision (s.3) in the Act that set up these administrative systems concluded with a short phrase “… any other reasons”. The argument presented on behalf of DP was that this phrase was wide enough to allow the First Tier Tribunal to find in DP’s favour and should have done so.

Accordingly, the appeal tribunal was asked to overturn the decision of the First Tier Tribunal. Clearly, a phrase stated as widely as this can allow anything!
The Upper Tribunal had to decide what, in the context of a claim, the phrase meant. (As always with statute, there is the problem of interpretation.)

For example, it is plausible to argue that it was only a matter of time before DP would be time-barred from bringing an action in which case that avenue was closed and the avenue opened by the Mesothelioma Act would be opened. The Upper Tribunal dismissed DP’s appeal.

Prescription had run by September 2017. The appeal was concluded in April 2020 – nearly three years after prescription itself had run. It is unclear if DP would now be able to apply for payment.

This case illustrates the problems and confusion that can arise if a compensation system is fragmented with a multiplicity of compensation channels existing alongside each other.

South Africa would do well by learning from this. It is a question of time before the fragmentation existing in the area of compensation for occupational diseases starts to create practical problems.