De Gee v Transnet SOC Ltd

• Jurisdiction: South Africa
• Judge: Badenhorst AJ
• Judgment Date: 29 January 2019
• Docket Number: 30085/2015
• Hearing Date: 29 January 2019
• Counsel: BP Geach SC for the plaintiff. LT Sibeko SC for the defendant.
• Court: Gauteng Local Division, Johannesburg

Badenhorst AJ:

[1] This is another case where the question to be determined is whether an accident arose out of and in the course of an employee's employment. In terms of s 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), an employee who suffers an 'occupational injury' has no action for the recovery of damages against his/her employer. The phrase 'arising out of and in the course of an employee's employment' is common to COIDA and preceding legislation and also appears in similar legislation in foreign jurisdictions, which explains why the courts in this and other jurisdictions have frequently been required to determine the answer to the same question.

[2] The accident which caused the plaintiff's (employee's) injury occurred when the lift in which he was travelling fell about seven floors. At the time of the accident plaintiff was en route to his office in a high-rise building where he is employed by defendant, who is the owner of the building.

[3] I was informed, when this matter was called, that the parties had reached agreement on a stated case and that it would be convenient for those issues to be separated. Counsel accordingly requested the court to issue a directive in terms of rule 33(4).

[4] After considering the application for the separation of issues, I directed that the questions as set out in the stated case be separated and that all further proceedings be stayed until such questions have been disposed of.

[5] The agreed stated case reads as follows:

'1.

Introduction

The Plaintiff instituted this action against the Defendant for damages arising from personal injuries he sustained whilst travelling in a lift at the Carlton Centre. The Defendant raised a Special Plea that such claim is statutorily barred as the Defendant is indemnified by s 35 of Act 130 of 1993 (COIDA). The parties request the adjudication of this Special Plea.

2.

Facts agreed upon

2.1

The Defendant is Transnet Soc Ltd, a state owned company with limited liability duly incorporated and registered according to the laws of the Republic of South Africa with its principal place of business situated at 35th Floor, Carlton Centre, 150 Commissioner Street, Johannesburg.

2.2

The Defendant was at all relevant times an employer recognised and registered as such in terms of COIDA, neither exempt nor individually liable and not a mutual association as contemplated in COIDA, and was an employer insured in terms of COIDA.

2.3

The Plaintiff is Gareth Everiste De Gee, a major male, born on 10 December 1982.

2.4

The Plaintiff at all relevant times was an employee of the Defendant and employed by the Defendant as an Executive Support Manager at the 48th Floor of the Defendant's Carlton Centre Offices and the Plaintiff's working hours were weekdays from 07h30 am until 16h00 pm and the Plaintiff

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was accordingly an employee contemplated in section 1 of COIDA. In terms of his contract of employment, the Plaintiff could work flexi-hours and on the day in question he was required to come in early to prepare for a meeting.

2.5

The Defendant was at all relevant times the owner of the Carlton Centre.

2.6

The incident occurred whilst the Plaintiff was standing (in) a lift in the Carlton Centre (being elevator 017) travelling up to the Plaintiff's office situated on the 48th floor, when it fell about 7 floors on Monday 12 January 2015 before 06h25 am and the Plaintiff in the process sustained an injury to his lumbar spine.

2.7

The injuries suffered by the Plaintiff are the sort of injuries covered by COIDA.

2.8

As soon as the Defendant on 12 January 2015 at 06h30 am was notified of the incident, the Defendant duly and timeously complied with its obligation in terms of COIDA to report the incident within the 7-day period, more specifically did so on 14 January 2015 and thereafter received the incident report number 419273 from the Compensation Commissioner and thereafter printouts of the incident report particulars and status of the claim at the Compensation Fund. Copies of the relevant documentation completed and submitted by the Defendant as well as same received in this regard, are attached as annexures TP1, TP2, TP3 and TP4 to the Special Plea and are hereby incorporated herein.

3.

Question of law in dispute

Does section 35 of COIDA prohibit the Plaintiff's claim herein against the Defendant?

4.

Parties' contentions

4.1

Defendant: The incident occurred whilst the Plaintiff was at the premises owned by the Defendant and during the course and scope of employment of the Plaintiff. The Plaintiff thus was at the relevant and material times an employee and was acting within the course and scope of his employment with the Defendant. For the injuries suffered by the Plaintiff no claim lies against the Defendant either in terms of section 35(1) or section 56 of COIDA. In the premises, the Plaintiff was an employee covered in terms of COIDA and cannot thus claim against the Defendant as is stipulated in section 35 of COIDA. Therefore the Plaintiff's claim against the Defendant in this matter is either misdirected or ill-conceived, but definitely statutorily barred as the Defendant is indemnified by section 35 of COIDA.

4.2

Plaintiff: This was not an injury on duty arising out of or in the course of Plaintiff's employment and when the incident occurred Plaintiff was not executing his contract of employment but was on his way to his place of work.'

[6] Section 35(1) of COIDA provides as follows, in relevant part:

'Substitution of compensation for other legal remedies

(1) No action shall lie by an employee . . . for the recovery of damages in respect of any occupational injury . . . resulting in the disablement . . . of such employee against such employee's employer,

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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 . . . .'

[7] The following definitions in s 1 of COIDA are applicable —

[7.1]

'occupational injury' is defined as 'a personal injury sustained as a result of an accident'; and 'accident' 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';

[7.2]

'disablement' means 'temporary partial disablement, temporary total disablement, permanent disablement or serious disfigurement, as the case may be'.

[8] An action against an employer is accordingly excluded by s 35(1) of COIDA under the following circumstances relevant in the present case (which must all be established on the facts for the defendant's special plea to succeed) —

[8.1]

the plaintiff is an employee of the defendant (or a dependant of such employee);

[8.2]

the plaintiff is claiming damages in respect of an 'occupational injury', which means a personal injury sustained as a result of an accident arising out of and in the course of an employee's employment.

[9] It is common cause that the first requirement for exclusion under s 35(1) is satisfied on the basis of the agreed facts, in that plaintiff was 'at all relevant times . . . an employee of the [d]efendant' — see para 2.4 of the stated case.

[10] The contentious issue is whether the accident arose out of and in the course of plaintiff's employment.

[11] In MEC for Health, Free State v DN 2015 (1) SA 182 (SCA), the case of a state-employed paediatrician who was raped by an intruder while she was on duty at the Pelonomi Hospital, the SCA proposed in para 31 of its judgment that the relevant question to be asked when applying s 35(1) of COIDA was —

'whether the wrong causing the injury bears a connection to the employee's employment. Put differently, the question that might rightly be asked is whether the act causing the injury was a risk incidental to the employment.'

But the SCA pointed out in the same paragraph that '(t)here is of course, as pointed out in numerous authorities, no bright-line test. Each case must be dealt with on its own facts.'

[12] In the same judgment the SCA remarked that:

'[11] Courts in this country and elsewhere have over decades grappled with the enduring difficulty of determining, for the purposes of similar preceding and present legislation, whether an incident constitutes an accident and arose out of and in the course of employment of an employee. They also discussed the policy behind employee-compensation legislation and the approach to be adopted in interpreting the legislation. In McQueen v Village Deep GM Co Ltd 1914 TPD 344 De

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Villiers JP at 347, in relation to the prevailing employee-compensation scheme, said the following at the commencement of the judgment:

"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."

De Villiers JP took the view that it was perfectly plain that an "accident" in the legislative context was not an accident in the ordinary acceptance of the word, which, in general terms, is "an effect which was not intended". He had regard to developments in English law in which an "accident" for the purposes of the legislation there in force had been given an extended meaning beyond an "unlooked for mishap" and an untoward event which is not expected or "designed". He recorded in his judgment that our then Workmen's Compensation Act derived directly from the English Act and, as discussed above, considered that it ought to be interpreted beneficially for an employee. De Villiers JP went on to the next critical question: whether it could be said that the injury arose out of the employee's work? With reference to Mitchinson v Day Brothers [1913] KB 603 (CA), he reasoned that what fell to be decided is whether the event is a...