Prevention Is Better Than Cure

The Ongoing Debate

The question whether the Compensation Commissioner should be paying for prophylactic treatment in cases such as needle prick injuries is an ongoing debate. I know from experience that this is an emotional debate and the problem even caused politicians to have a fall out. The proponents for the preventative treatment are convinced that in the case of work related needle prick injuries the Compensation Commissioner must pay for the testing of the affected person and for the prophylactic medication as well. This is to attempt to prevent the transmission of the Human Immunodeficiency Virus (HIV). They argue that the Compensation Commissioner pays for prophylactic medication such as anti-biotic medication where badly injured persons need to undergo an operation. That is why they find it difficult to understand why the Compensation Commissioner does not pay for the prophylactic procedures when needle prick injuries occur.

The answer to that is really a simple one in that so far as the person undergoing surgery is concerned he or she has already sustained a personal injury as contemplated in the definition of an “accident” in the COID Act and the prophylactic medication is part and parcel of the treatment to restore the person to good health. In the case of needle prick injuries there is no personal injury until such time as the person becomes HIV-positive and in some cases even contracts Acquired Immune Deficiency Syndrome (AIDS). Only then will the Compensation Commissioner accept liability and compensate the unfortunate person.

I will under no circumstance attempt to explain the question of medical testing as provided for in the Employment Equity Act, 1998, and the subsequent case law.1  It is not relevant to our present discussion and apart from that I can only quote the words of Landman, J that section 7(2) of the Employment Equity Act 1998, “…is not happily worded” (Joy case).

Statutory Jurisdiction

What was the legislator’s intention when workers’ compensation was introduced in the RSA? According to the heading to the present COID Act, it was to provide for compensation for disablement caused by occupational injuries and diseases including death. Please note, it is not the prevention of possible disablement but disability that has already occurred whether temporary or permanent. The legislation thus means it is dealing with a certainty, an event that has already caused disablement. The compensation mentioned above includes the providing of medical care to assist the injured or the person with the disease. Prophylactic treatment according to the Oxford dictionary means amongst others “servicing or tending to protect from a disease such as malaria, preventative treatment of a disease”. The purpose of workers’ compensation legislation in South Africa is and never was to introduce “preventative measures”. Acts such as the Occupational health and Safety Act, 1993, (OHSA) was specifically introduced to “….provide for health and safety of persons at work…” Paging through this Act and reading the numerous safety regulations, all for the purpose of prevention and controlling the inherent risks of different industries, confirms this. I cannot find any regulation controlling the workplace as far as the inherent risk of needle prick injuries is concerned, wonder why?

The Practice

Allow me to quote a few examples in an attempt to clear the air:

  • Various Safety Acts prescribe to employers the procedures how to deal with a workplace where excessive dust or silica is a definite inherent risk of their industry. Matters such as wearing of masks, regular medical tests and related matters are prescribed. The cost for adhering to these prescriptions is all carried by the employer. There is no claim against the Compensation Commissioner and thus the Compensation Fund.  Not a single person ever thought that it should be paid by the latter;
  • The metal industry is well known for the high noise levels and it is, therefore, that an Act such as OSHA including a wide range of Regulations not only monitoring the workplace but also prescribing preventative measures such as ear plugs and regular medical testing. The cost for both the medical testing and the preventative measures are not for the Compensation Commissioner’s account. Only after disablement such as when the loss of hearing has set in, will the Compensation Commissioner award compensation:
  • When employers temporarily transfer employees to areas where malaria is endemic, medication as a prophylactic measure is usually supplied to prevent contracting malaria, this can as above not be claimed from the Compensation Commissioner; and
  • A farm worker bitten by a meerkat whilst attending cattle. The employee will be referred for tests and prophylactic medical treatment will be administered which will be payable by someone other than the Compensation Commissioner.

Insurance, including State insurance such as workers’ compensation, covers damages emanating from a specific occurrence such as an injury on duty. It pays after the fact, that is when there are damages as can be established through medical evidence. The question is why the Compensation Commissioner should be held responsible for the controlling of an industry, in this case the health care industry, for the prevention of HIV infection and AIDS?  Why can OHSA or a health care Act not be used to deal with the regulation thereof?  Should all employers who contribute to the Compensation Fund be penalised for the enormous amounts that will be spent to test and provide prophylactic medication over a long period of time in cases where there is absolutely no proof that the patient will eventually become HIV positive? I am not forgetting the fact that without an amendment of the COID Act such payments will in any case be ultra vires the Act. Also consider the numerous other conditions that will require control and prophylactic treatment, a few of which was mentioned above.


I know this problem is an emotional one but are we not over estimating the extent thereof?  I do not know of any reliable statistics in this regard but feel free to supply it or the source of it should you disagree. I just ask myself the question about the number of needle prick injuries that eventually lead to a positive HIV-status or AIDS.  Someone can perhaps assist with the figure. I say this because as a principle you do not create legislation if there is no real problem, then the legislation becomes the problem. The second and last point, never blur the borders of statutory jurisdiction for the sake solving a problem, rather after research create proper regulations to cope with a problem, big or small.

1. For those of you who want to know more about the subject you can read the cases of Irvin & Johnson v Trawler &Line Fishing Union & Others (2002) LC 1.16.1 Joy Mining Machinery, a Division of Harnischfeger (SA) (Pty ) Ltd v National Union of Metal Workers of SA and Others (2002) 23 ILJ 391 (LC) 

Till next month