Churchill v Premier, Mpumalanga and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ponnan JA, Wallis JA, Saldulker JA, Carelse AJA and Kgoele AJA
• Judgment Date: 04 March 2021
• Court: Supreme Court of Appeal
• Hearing Date: 04 March 2021
• Counsel: TJ Bruinders SC (with JL Basson) for the appellant. H van Eeden SC (with T Mathopo and B Manning) for the respondents.
• Docket Number: 889/2019 [2021] ZASCA 16

Wallis JA (Ponnan JA, Saldulker JA, Carelse AJA and Kgoele AJA concurring):

[1] On 5 April 2017 the appellant, Ms Catherine Churchill, went to work as usual at the offices of the first respondent, the Premier of Mpumalanga (the Premier), where she was employed as the Chief Director: Policy and Research. During the morning, 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 she worked. She became caught up with the protestors, was assaulted and mistreated by them and eventually evicted from the premises in a manner that was humiliating and degrading. An agreed medical report reflects that she suffered some physical injuries, in the form of bruises, scratches and a swollen foot. More importantly, she was shocked and humiliated and suffered psychiatric injury [1] that has left her with PTSD (Post Traumatic Stress Disorder) of significant intensity. She tried to return to work, but alleges that she found the situation intolerable and was compelled to resign at the end of June 2017.

[2] Ms Churchill sued the Premier and the Director-General in the office of the Premier (the D-G), the first and second respondents, respectively, alleging that her treatment by the protestors, including the assaults, was occasioned by their negligence. She contended that they took no steps, or alternatively inadequate steps, to ensure the safety of their employees in the workplace. Had they taken reasonable or adequate steps to do so she claimed that the assault on her would have been avoided. Her claim amounts to nearly R7,5 million for past and future medical treatment, general damages and past and future loss of income. The bulk of this is compensation for loss of income calculated up to her date of retirement on the basis that she will be unable to work again.

Wallis JA (Ponnan JA, Saldulker JA, Carelse AJA and Kgoele AJA concurring)

[3] The Premier and the D-G raised a special plea, contending that her claim constituted an occupational injury for which she was entitled to compensation in terms of the Compensation for Occupational Injuries and Diseases Act 130 or 1993 (COIDA) and was therefore excluded by s 35(1) of COIDA. On the merits they denied the existence of any legal duty and the fact of negligence. They denied that they were vicariously liable for the behaviour of the protestors. At the trial the parties agreed that the judge (Roelofse AJ) should determine the merits of her claim, leaving the quantum to be dealt with separately. He upheld the special plea and concluded that there was no need to consider the remaining defences on the merits, whilst saying that he would have rejected them. The appeal is with his leave.

The ambit of the appeal

[4] The heads of argument before this court dealt only with the special plea and not negligence or vicarious liability. We asked appellant's counsel at the outset what order should be made if the appeal succeeded. It emerged from the discussion that there was confusion about the ambit of the appeal. Appellant's counsel took the view that the High Court's judgment disposed of all issues of liability other than the special plea and therefore, if the appeal succeeded, a suitable declaratory order should be made in regard to liability. Respondents' counsel contended that the appeal was limited to the special plea and indicated that if it was upheld the case should be remitted to the High Court to determine the issues of negligence and vicarious liability.

[5] An examination of the record showed the respondents' approach to be incorrect. Before the trial started the judge noted that the parties had agreed to separate the merits from issues of quantum and enquired whether the special plea could be determined on the basis of the agreed facts. Counsel for the respondents, who was counsel before us, said this was not possible, because if the court rejected the special plea the remainder of the merits would need to be determined. He added that whether the plaintiff's injuries arose out of her employment could best be determined in the context of all the happenings on the day in question. The judge then made an order that the case would proceed on the merits, with the issue of damages and quantum to stand over until there had been a final resolution of the merits.

[6] The confusion over the ambit of the appeal appears to have arisen because the judgment does not deal in any detail with the issues of negligence and vicarious liability arising if the special plea was dismissed. After upholding the special plea, the judge said:

'There is accordingly no need to consider the defendants' other defences. However, I need to say this and no more. Having regard to the evidential material before me as set out earlier in this judgment, the defendants' delictual defence would have come to naught.'

This was an undesirable way in which to dispose of these matters, given the distinct possibility that the decision on the special plea would prompt an appeal to this court. But it is clear that, had he taken a different view

Wallis JA (Ponnan JA, Saldulker JA, Carelse AJA and Kgoele AJA concurring)

of the special plea, the plaintiff's claim would have succeeded. He should have given his reasons for that conclusion, notwithstanding his view on the merits of the special plea.

[7] Thus all the issues in respect of the merits were resolved. The parties had closed their cases on the merits and the trial on those issues was finished. No further evidence could be led on the merits unless the trial was reopened. The plaintiff's claim was dismissed without qualification. Leave to appeal was sought and granted against the whole order. The notice of appeal asked not only that the special plea be dismissed, but that judgment on the merits be granted in favour of the plaintiff. The judge had expressed his view on the remaining issues, albeit without reasons. The respondents were entitled to resist the appeal by arguing that whatever the fate of the special plea, neither negligence nor vicarious liability for the actions of the protestors had been established. They did not do so and counsel did not seek an opportunity to supplement his argument in this regard.

[8] In the circumstances the appeal proceeded on the basis that, if the appeal in relation to the special plea succeeded, a suitable declaration should be made in regard to the liability of the Premier to compensate Ms Churchill for her damages and remitting the matter to the High Court for the determination of the quantum of such damages if the amount thereof cannot be settled by agreement.

The law on the application of COIDA

[9] There is little point in yet again traversing the background and history of workmen's compensation statutes leading up to COIDA. Statutes, predating the Union of South Africa in 1910, derived from English statutes, provided for workers to be compensated for injuries or illness suffered in the course of their work. The history was traced by the Constitutional Court in Mankayi. [2] The language of the relevant sections has remained largely unaltered over time and there are numerous cases dealing with whether particular injuries or illnesses fell within or outside the scope of the statute. Where an employee is entitled to compensation under COIDA any right of action against their employer is excluded by s 35(1). The constitutionality of that provision has been upheld. [3]

[10] The right to compensation is established under s 22(1) of the Act, which provides that:

'If an employee meets with an accident resulting in his disablement or death such employee or the dependants of such employee shall, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act.'

The key word is 'accident', which is defined as meaning —

Wallis JA (Ponnan JA, Saldulker JA, Carelse AJA and Kgoele AJA concurring)

'. . . (a)n 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 exclusionary provision in s 35(1), which is headed 'Substitution of compensation for other legal remedies', reads as follows:

'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.'

[11] The fact that there are separate definitions of 'occupational disease' and 'occupational injury' shows that the word 'occupational' qualifies both injury and disease in s 35. Occupational illnesses are specified in some detail in sch 3 of COIDA. [4] An occupational injury is defined as —

'(a)

personal injury sustained as a result of an accident'.

An occupational injury is therefore directly connected to the accident in which it was sustained. Presumably it was thought that 'disease' and 'illness' were equivalent, so that in the case of an occupational illness the requirement that it arise from an accident is maintained. Fortunately, that is not a drafting puzzle that needs to be solved in this case.

[12] Were Ms Churchill's injuries sustained in an accident as defined in COIDA? There are three elements to the definition of an accident, namely (a) an accident; (b) arising out of and in the course of an employee's employment; and (c) resulting in a personal injury, illness or the death of the employee. The duplication of the word 'accident' derives from historical usage in earlier statutes, both here and overseas. Long-standing authority shows that in...