The SCA recently dismissed an appeal brought by the MEC for the Department of Health, Free State Province (“MEC”) who is seeking to escape liability for damages by relying on Section 35(1) of the Compensation for Occupational Injuries and Diseases Act (“COIDA”) (See: MEC for the Department of Health v De Necker (924/2013) [2014] ZASCA 167 (8 October 2014)).

Briefly, the facts were as follows: A female medical doctor (“employee”) employed by the MEC sued her employer for damages sustained as a result of her being raped by an intruder who had gained access to the hospital premises. The unfortunate incident occurred at approximately 02h00 on 30 October 2010 whilst she was discharging her duties as a Registrar in order to specialise as a paediatrician.

The SCA were called upon to determine whether the Free State High Court had correctly dismissed the special plea filed by the MEC in which it sought to bar the employee’s claim by relying on the provisions of Section 35(1).

In doing so, the Court considered that the purpose of COIDA is to provide “... a ready source of compensation for employees who suffer employment related injuries and provides for compensation without the necessity of having to prove negligence. … 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.”, such as temporary total or partial disablement and permanent disablement.

COIDA thus limits an employee’s common law rights to sue the employer if the facts show that the employee either contracted a disease or met with an accident arising out of and in the course of his/her employment.
Having said that, it now becomes necessary to contextualise the provisions of Section 35(1) of COIDA which 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.”

According to the definitions as stipulated in the Act, “occupational injury” means a personal injury sustained as a result of an accident and “accident” means 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.

Thus, for the special plea to succeed, it would require the Court to determine that the employee’s rape constituted an “accident” for purposes of COIDA and arose out of and in the course of her employment. After analysing both local and international case law the Court approached the matter with reference to terms such as “necessary risks of employment” or “risks incidental to employment” as the test for determining whether a causal connection had been established between employment and the accident. Put differently, is the act causing the injury a risk incidental or necessary to the employment, if so, then the causal connection has not been severed and COIDA would apply. Each case must however be determined in the context of its own facts.

Against this reasoning the SCA in considering whether the rape (injury) suffered by the employee held that the risk of rape is not incidental to employment and that given that “There is no more egregious invasion of a woman’s physical integrity and indeed of her mental well-being than rape. As a matter of policy alone an action based on rape should not, except in circumstances in which the risk is inherent, and I have difficulty conceiving of such circumstances, be excluded and compensation then be restricted to a claim for compensation in terms of COIDA.”

The SCA’s concluding paragraph bears repetition because of the strong message being sent to employers in failing to provide reasonable measures to protect their employees from harm whilst on duty. In this regard, Navsa ADP states as follows: “Dealing with a vulnerable class within our society and contemplating that rape is a scourge of South African society, I have difficulty contemplating that employees would be assisted if their common law rights were to be restricted as proposed on behalf of the MEC. If anything, it might rightly be said to be adverse to the interest of employees injured by rape to restrict them to COIDA. It would be sending an unacceptable message to employees, especially women, namely, that you are precluded from suing your employer for what you assert is a failure to provide reasonable protective measures against rape because rape directed against women is a risk inherent in employment in South Africa. This cannot be what our Constitution will countenance.” after which, the appeal was dismissed with costs.

Written by Manisha Maganbhai-Mooloo and Khanyisile Khanyile, Adams & Adams