Churchill v Premier, Mpumalanga and Another

• Jurisdiction: South Africa
• Judge: Roelofse AJ
• Judgment Date: 23 May 2019
• Citation: 2020 (2) SA 309 (MN)
• Docket Number: 1991/2017
• Hearing Date: 23 May 2019
• Counsel: JL Basson for the plaintiff. H van Eden SC (with KT Mathopo) for the defendants.

Roelofse AJ:

[1] At the heart of this dispute is the well-known statutory formula that provides the basic link between injury and employment in instances where workers' statutory entitlement to compensation for injury or illness is at issue. The formula confers the right to compensation for personal injuries 'arising out of', or 'in the course of' an employee's employment.

[2] On 5 April 2017, employees of the Mpumalanga Provincial Government, who were members of NEHAWU, embarked upon a labour protest at the plaintiff's place of employment at Government Boulevard, Riverside Park, in Mbombela (the complex). The plaintiff was on duty at the building where the first defendant's office is situated, at building 2 of the complex. The plaintiff was employed by the defendants as Chief Director, Policy and Research. During the protest, the plaintiff was assaulted and forced out of the building by the protestors.

[3] The plaintiff instituted action in this court against the defendants. The plaintiff alleges that she has developed permanent acute post-traumatic stress disorder as a direct result of the incident. The plaintiff is claiming medical expenses, loss of income and general damages in an aggregate amount of R7 594 713.

[4] At the commencement of the trial, the parties requested me to only consider and pronounce on the merits, consequent to an agreement that the determination of the quantum of damages would stand over pending the determination of the defendants' delictual liability. I made an order separating merits and quantum. The matter therefore proceeded on the merits only.

[5] The plaintiff pleaded as follows: The first defendant employed the plaintiff; notwithstanding prior knowledge of the intended protest action,

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the defendants took no steps, alternatively, inadequate steps, to ensure the safety of their employees at the workplace; the defendants had a legal duty to ensure the safety of their employees and acted wrongfully in not doing so; and the defendants were negligent in a number of respects; alternatively, the defendants were vicariously liable for the protestors' conduct.

[6] The defendants delivered a special plea and a plea over. In their special plea, the defendants allege that the plaintiff's personal injury is an occupational injury as contemplated in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and that, by virtue of the provisions of s 35 of COIDA, the plaintiff's claim against the defendants is barred. I shall refer to this defence as 'the defendants' statutory defence' forthwith.

[7] In their plea over, the defendants: Deny the existence and breach of the alleged legal duty; allege that the protestors' actions were not controlled by the defendants; and allege that the defendants took reasonable steps to prevent injury to the plaintiff; alternatively, allege that the plaintiff voluntarily assumed the risk of assault by provoking or being the contributory cause of same, alternatively, allege that the plaintiff was negligent. I shall refer to this defence as 'the defendants' delictual defence' forthwith.

[8] The plaintiff delivered a replication to the special plea. In her replication, the plaintiff: Admits that she sustained a personal injury in the course of her employment; denies that her injury arose out of her employment because (1) the incident was an unlawful and intentional act perpetrated upon the plaintiff, and because (2) the incident bears no connection to the plaintiff's employment, alternatively the incident was not a risk incidental to the plaintiff's employment. As a result, the plaintiff denies that the injury that was sustained is an occupational injury as envisaged in COIDA and therefore, the plaintiff's common-law rights are not restricted by s 35 of COIDA.

[9] The pleadings properly crystallised the issues as pleadings should do. The pleadings direct that the primary issue to determine is whether the injury is an 'occupational injury' for purposes of COIDA. If the personal injury suffered by the plaintiff was an occupational injury within the meaning of COIDA, the plaintiff is barred from claiming against her employer by virtue of the provisions of s 35 of COIDA and the defendants' statutory defence succeeds and there would be no need to consider the defendants' delictual defence. Conversely, if the defendants' statutory defence fails, the defendants' delictual defence must be considered and pronounced upon.

[10] Whether an injury suffered by a workman is an 'occupational injury' for purposes of COIDA is a perplexing question. Over a century ago, in McQueen v Village Deep GM Co Ltd 1914 TPD 344, De Villiers JP had

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to consider the Workmen's Compensation Act of 1907, the then prevailing employee compensation scheme. After setting out the requirements to be met before an employee may claim compensation for a personal injury from the scheme, the learned judge proceeded to say the following (at 347):

'The most difficult question which arises in the present case is whether the facts as stated by the magistrate can be said to constitute an "accident" within the meaning of the law.'

[11] For present purposes, it is perhaps necessary to repeat what was set out by Navsa ADP (Brand JA, Pillay JA, Mbha JA and Schoeman AJA concurring) in MEC for Health, Free State v DN 2015 (1) SA 182 (SCA) para 8, over COIDA:

'In a nutshell, the Act [referring to COIDA] provides a ready source of compensation for employees who suffer employment related injuries and provides for compensation without the necessity of having to prove negligence, although negligence may result in greater compensation. It should, however, be borne in mind, that the object of the Act is to benefit employees and that their common law remedies were restricted to enable easy access to compensation. It does not necessarily mean that compensation for every kind of harm they suffer whilst at their place of employment has to be pursued through that statutory channel. However, if the injury was caused by an accident that arose out of an employee's employment, then the latter is restricted to a claim under the Act. This is referred to as the exclusivity doctrine.'

[12] '(O)ccupational injury' is defined in s 1 of COIDA. '(O)ccupational injury . . . means a personal injury sustained as a result of an accident.' '(A)ccident' is defined (also in s 1) 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'. The phrases 'arising out of' and 'in the course of' in the definition of 'accident' take centre stage in this matter.

[13] Section 35(1) of COIDA provides:

''No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee's employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.'

[14] It is common cause on the pleadings that the plaintiff was injured in the course of her employment. What is in dispute is whether the plaintiff's injury arose out of her employment. In McQueen (at 348), after finding that the workman's injury arose in the course of the workman's employment, the learned Judge President said:

'A more difficult question is whether it can also be said that the injury arose out of the workman's work.'

[15] This is the question this court must now turn to. It is a difficult question to resolve because of the multitude of employment

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circumstances that may exist. For instance, employees' duties differ, the risks associated with their duties differ, the circumstances under which they provide their labour differ and the locations where they provide their labour differ. Dixon J, in Whittingham v Commissioner of Railways [1931] HCA 49, said:

'(T)he sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of employment.'

The permutations are indeed endless. Therefore, I approach the enquiry mindful of the fact that each case must be determined upon its own facts and circumstances (see Langeberg Foods Ltd v Tokwe [1997] 3 All SA 43 (E)) while having regard to the tests that have been employed by the courts in the past.

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