It was an Accident, But Who is Liable?
The Compensation for Occupational Injuries and Diseases Act, 1993 (“COIDA”) provides for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries.
In this regard, section 22(1) of COIDA provides that if an employee has an accident resulting in their disablement or death, such employee or the dependants of such employee will, subject to the provisions of COIDA, be entitled to the benefits provided for and prescribed in COIDA.
An “accident” for the purposes of COIDA is defined as “an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee”.
Section 35(1) of COIDA protects an employer against liability for damages in respect of occupational injuries and diseases to which COIDA applies. The Supreme Court of Appeal of South Africa (“SCA”) in Churchill v Premier, Mpumalanga recently had to determine whether the Premier of Mpumalanga’s liability was excluded by section 35(1) of COIDA. In this case, Ms Catherine Churchill sued the Premier and the Director General in the office of the Premier (“DG”), alleging that an injury she had sustained was occasioned by their negligence. Ms Churchill claimed approximately ZAR7.5-million for past and future medical treatment, general damages and past and future loss of income. The Premier and the DG raised a special plea contending that Ms Churchill’s claim constituted an occupational injury for which she was entitled to compensation in terms of COIDA, section 35(1) of which protected the Premier and the DG against any liability in the circumstances.
Ms Churchill’s claim arose from the following set of facts:
- She was employed by the Premier as its Chief Director: Policy and Research.
- During the morning of 5 April 2017, protest action over labour issues, organised by a trade union, the National Education, Health and Allied Workers' Union (“NEHAWU”), occurred at the premises and in the building where Ms Churchill worked. The demonstration was meant to take place outside the premises, however certain employees used their access cards to enter the premises.
- While Ms Churchill was in a colleague’s office, three demonstrators entered the office, asked who was there, and left without an answer. Ms Churchill followed them to return to her office and discovered that it was locked. In frustration she swore and a man in the passage asked her what she had said. She apologised and tried to explain, but this individual regarded the expletive as being directed at the demonstrators and shouted at her demanding to know why she had sworn at them. Ms Churchill was shouted at repeatedly and the man followed and shouted at her: “We're coming for you!”
- About 20 protestors then marched towards the office. Ms Churchill tried to hide behind the door and telephoned her husband asking him to come and fetch her. The protestors found her behind the door and one of them tried to take her cell phone. He also tried to pick her up with his arms around her. Ms Churchill’s colleague attempted to phone the DG’s office and the security office for help, but no assistance was forthcoming.
- Ms Churchill was carried her out of the office and up two flights of stairs by the protestors and she was called: “a piece of white s**t”.
- Once Ms Churchill had been carried to the foyer she was put down in the middle of the crowd of protestors and her shoes removed. People in the crowd pushed, shoved and punched her, while jeering and shouting “Voetsek” and “Get out”. One of her shoes was thrown at her and she was chased out of the building and left to make her way to the entrance where her husband had arrived to collect her. Ms Churchill’s husband had heard everything, because she had kept her cell phone on throughout the incident. The entire ordeal lasted 45 minutes.
- Ms Churchill suffered physical injuries, in the form of bruises, scratches and a swollen foot. As a result of being shocked and humiliated, she also suffered psychiatric injury that has left her with PTSD (post-traumatic stress disorder).
- Ms Churchill alleged that she found the situation intolerable and was compelled to resign at the end of June 2017.
In determining whether the Premier and DG were protected from liability in the circumstances, the SCA considered the following key issues:
“Did this incident arise out of Ms Churchill's employment so that her injuries, both physical and psychiatric, were sustained in an accident for the purposes of COIDA? It was accepted that because it happened at her place of employment and while she was going about her duties it arose in the course of her employment. Did it arise out of her employment? In other words, was it sufficiently closely connected to her employment to have arisen from it? The fact that it occurred in her workplace when she was going about her duties is undoubtedly a factor that connected it to her employment. In that sense her employment brought her within the zone of risk, but that is merely where the enquiry commences. Was the risk also incidental to her employment?”
The SCA found that the purpose of COIDA is to compensate for occupational injuries and disease. While long-standing authority dictates that social legislation of this type is given a generous construction, it is not directed at providing compensation and exempting employers from liability for injuries and diseases that are only tenuously and tangentially connected to the duties of the employee. Had this been the case, COIDA could simply provide for compensation for all and any injuries or illnesses sustained when at work, or when working.
The SCA confirmed that in cases of this nature there is no bright line test and the enquiry is always whether the statutory requirement that the accident arose out of the person's employment, as well as in the course of that employment, is satisfied. A court must accordingly analyse the facts of a matter closely to determine whether an accident arose out of a person’s employment. The SCA ultimately concluded with reference to these facts that the only connection between the incident and Ms Churchill’s employment was that she was at work at the time. The incident did not relate to her duties and she was not assaulted because of the position she held, or because of anything she had done in carrying out her duties, or for any reason related to the protest action that took place that day. Her injuries therefore did not arise out of her employment, section 35(1) of COIDA did not apply and the Premier was accordingly liable to compensate her for damages; the matter was remitted to the High Court to determine the quantum of the damages.
Lesson to be learnt for employers
This case illustrates that employers will not always be shielded from liability in terms of section 35(1) of COIDA, particularly within the context of workplace demonstrations and industrial action, and steps should therefore be taken to protect employees in such circumstances. A blanket reliance on section 35(1) of COIDA by employers is not an approach that our courts will easily accept. In this case, the SCA found that an assault in the workplace is not something that ordinarily arises and/or is incidental to an individual’s employment and to use the words of the SCA (and Judge Wallis in particular), “In simple language, they are not things that ‘go with the job’”.
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