Joubert v Buscor Proprietary Limited (2013/13116) [2016] ZAGPPHC 1024 (9 December 2016)

Joubert v Buscor Proprietary Limited (2013/13116) [2016] ZAGPPHC 1024 (9 December 2016)

The court held that section 9(1) of the Occupational Health and Safety Act (OHSA) imposes a statutory duty of care on employers not only towards employees but also towards third parties, including subcontractors and the public. The wording of OHSA is sufficiently broad to encompass persons such as the deceased, who was an employee of a subcontractor. The court found that OHSA imposes both a duty and a standard of care in absolute terms, and that liability flows directly from a breach of this duty and standard, resulting in strict liability. The respondent's argument that negligence must be proved was rejected, as the statutory standard of care is entrenched and failure to meet it...

Citation
[2016] ZAGPPHC 1024
Parties
Applicant: Ilana Cedar Joubert; Respondent: Buscor Proprietary Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 December 2016
Case Number
2013/13116
Procedural Posture
Civil Application / Application for Leave to Amend Particulars of Claim
Outcome
Application for amendment of particulars of claim granted, except for the unopposed amendment regarding the date.
Judges
Siwendu
Legal Topics
Occupational Health and Safety Act, Strict Liability, Amendment of Pleadings, Duty of Care, Vicarious Liability, Workplace Safety
Civil Procedure Delict Labour Law Occupational Health and Safety Act Strict Liability Amendment of Pleadings Duty of Care Vicarious Liability +1 more

Case Brief

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Parties

Ilana Cedar Joubert

Applicant

Buscor Proprietary Limited

Respondent

Procedural Posture

Civil Application / Application for Leave to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the applicant may amend the particulars of claim to introduce strict liability under OHSA.
  2. 2 Whether OHSA imposes strict liability on employers for workplace injuries to non-employees.
  3. 3 Whether a claim based on breach of statutory duty under OHSA may be pleaded alongside a common law delictual claim.

Ratio Decidendi

The court held that section 9(1) of the Occupational Health and Safety Act (OHSA) imposes a statutory duty of care on employers not only towards employees but also towards third parties, including subcontractors and the public. The wording of OHSA is sufficiently broad to encompass persons such as the deceased, who was an employee of a subcontractor. The court found that OHSA imposes both a duty and a standard of care in absolute terms, and that liability flows directly from a breach of this duty and standard, resulting in strict liability. The respondent's argument that negligence must be proved was rejected, as the statutory standard of care is entrenched and failure to meet it...

Court Disposition

Application for amendment of particulars of claim granted, except for the unopposed amendment regarding the date.

Orders

  • The amendments sought in paragraphs 4.2, 4.3, and 4.4 are granted.
  • The respondent is ordered to pay the costs of the applicant, except in respect of the amendment regarding the date which was not opposed.