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[2014] ZASCA 167
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MEC For The Department of Health, Free State Province v D (924/2013) [2014] ZASCA 167; 2015 (1) SA 182 (SCA); [2015] 1 All SA 20 (SCA); [2014] 12 BLLR 1155 (SCA); (2014) 35 ILJ 3301 (SCA) (8 October 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 924/2013
Reportable
In
the matter between:
MEC
FOR THE DEPARTMENT OF HEALTH, FREE STATE
PROVINCE
...............................................................................................................................
Appellant
and
DR
E[…] J[…] D[…]
N[…]
...................................................................................................
Respondent
Neutral
Citation:
MEC for the Department of
Health v D[…] N[…]
(924/2013)
[2014] ZASCA 167
(8 October 2014).
Coram:
Navsa ADP, Brand, Pillay & Mbha JJA
and Schoeman AJA
Heard:
29 August 2014
Delivered:
8 October 2014
Summary:
Whether claim for damages by a doctor against the hospital where she
was employed based on her being raped whilst on duty
was excluded by
the provisions of s 35(1) of the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 – whether
rape arose out
of her employment – held that the rape bore no relation to her
employment – was not incidental to such
employment –
egregious nature of rape discussed – policy of Act restated.
ORDER
On
appeal from
: The Free State High Court,
Bloemfontein (Mocumie J sitting as court of first instance).
The
following order is made:
1.
The appeal is dismissed with costs.
JUDGMENT
Navsa
ADP (Brand, Pillay & Mbha JJA and Schoeman AJA concurring):
[1]
The question in this appeal is whether the Department of Health, Free
State Province, represented by the appellant, the responsible
Member
of the Executive Council of the Free State Government (the MEC), is
notionally liable to the respondent, a female medical
doctor, for
damages sustained as a result of her being raped, at approximately
02h00 on 30 October 2010, by an intruder who had
gained access to the
hospital premises. Put differently, the question is whether the
respondent’s claim is precluded by s
35(1) of the Compensation
for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). The
incident occurred at a time when
the respondent was discharging her
duties as a Registrar in order to specialise as a paediatrician. I
shall for convenience refer
to the respondent as ‘the doctor’.
[2]
In 2012 the doctor instituted an action in the Free State High Court
against the MEC in his representative capacity to recover
damages she
alleged she sustained as a result of the incident referred to in the
preceding paragraph. The MEC filed a special plea
in which he
asserted that the doctor’s claim was barred by s 35(1) of
COIDA. I shall, in due course, deal with the provisions
of the
legislation. It is common cause that the doctor did not submit a
claim for compensation under COIDA.
[3]
The judgment in terms of which the special plea was decided records
the following as having been agreed by the parties for the
purposes
of the adjudication of the special plea:
‘
1.
Plaintiff was employed by defendant as a paediatric registrar.
2.
Plaintiff was on duty from 07:30 on 29 October 2010 until 13:00 on 30
October 2010 at the Pelonomi Hospital.
3.
Plaintiff was the only paediatric registrar on night duty on 30
October 2010.
4.
She was on duty with two interns who were doctors doing house jobs.
5.
Plaintiff was responsible for paediatric patients in the Paediatric
ICU, Paediatric Isolation Ward, Neonatal High-Care unit,
Ward 3A and
3B and Ward 4A.
6.
The Neonatal High Care Unit and Ward 3A are in different buildings,
but the buildings were connected by a walkway.
7.
After treating a patient in the Neonatal High Care Unit, plaintiff
took the most direct route to Ward 3A which is on the third
floor, to
treat other patients at about 02:00 on 30 October 2010.
8.
While on her way back to Ward 3A, plaintiff was attacked by being
struck with a brick, rendered unconscious and raped on the
first
floor of the same building in which Ward 3A is situated.
9.
Plaintiff’s assailant –
9.1
was a 16/17 year old man;
9.2
was not a patient or employee at the Pelonomi Hospital;
9.3
was not authorized or permitted to be within the confines of the
hospital;
9.4
was convicted of rape and sentenced to 15 years’ imprisonment.
10.
At the time –
10.1
there was building construction work being carried out at the
hospital;
10.2
the defendant admits that a portion of the parameter fencing was
under temporary repair, but not missing;
10.3
the elevator between the ground and first floor where the incident
occurred was not working.
10.4
the lights on the first floor where the incident took place were not
working.
11.
Defendant alleged that the attack and rape were not foreseeable to
the defendant.’
[4]
The high court (Mocumie J) set out what it thought the issues were
that had to be determined:
‘
(a)
whether the incident in this case was an “accident” as
contemplated in s 35 of COIDA; and
(b)
Whether the incident arose out of and in the course of employment?’
[5]
After considering s 35 of COIDA and a host of authorities, Mocumie J
held that the incident did not arise out of and in the
course of the
doctor’s employment as a Registrar and that consequently the
rape was not an accident contemplated by s 35.
In essence, she held
that the attack on the doctor bore no relationship to her employment.
In the result, the high court dismissed
the appellant’s first
special plea with costs. The question in the present appeal that is
before us with the leave of that
court, is whether those conclusions
and order are correct.
[6]
At the outset it is necessary to consider that COIDA is, as described
by the Constitutional Court, in
Jooste
v Score Supermarket Trading (Pty) Ltd
1999 (2) SA 1
(CC); ‘important social legislation which has a
significant impact on the sensitive and intricate relationship
amongst employers,
employees and society at large’.
[1]
The purpose of COIDA was described in that judgment at para 13 as
follows:
‘
The
purpose of the Compensation Act, as appears from its long title, is
to provide compensation for disability caused by occupational
injuries or diseases sustained or contracted by employees in the
course of their employment.’
The
Constitutional Court went on to examine the difference between
compensation in terms of COIDA and at Common Law.
‘
The
Compensation Act provides for a system of compensation which differs
substantially from the rights of an employee to claim damages
at
common law. Only a brief summary of this common-law position is
necessary for the purpose of this case. In the absence of any
legislation, an employee could claim damages only if it could be
established that the employer was negligent. The worker would
also
face the prospect of a proportional reduction of damages based on
contributory negligence and would have to resort to expensive
and
time-consuming litigation to pursue a claim. In addition, there would
be no guarantee that an award would be recoverable because
there
would be no certainty that the employer would be able to pay large
amounts in damages. It must also be borne in mind that
the employee
would incur the risk of having to pay the costs of the employer if
the case were lost
. On the other hand,
an employee could, if successful, be awarded general damages,
including damages for past and future pain and
suffering, loss of
amenities of life and estimated “lump sum” awards for
future loss of earnings and future medical
expenses, apart from
special damages including loss of earnings and past medical
expenses.
’ (My emphasis.)
[7]
In Joubert (ed)
The Law of South Africa
(2ed) vol 13(3) para
114, M P Olivier stated:
‘
[COIDA]
provides a system of no-fault compensation for employees who are
injured in accidents that arise out of and in the course
of their
employment or who contract occupational diseases. However, negligence
continues to play a role since an employee is entitled
to additional
compensation if he or she can establish that the injury or disease
was caused by the negligence of the employer (or
certain categories
of managers and fellow employees). The compensation fund established
in terms of the Act requires employers
to contribute to a centralised
state fund.
.
. .
The
Act provides for benefits to be paid to employees who suffer a
temporary disablement, employees who are permanently disabled
and the
dependants of employees who die as a result of injuries
sustained in accidents at work or as a result of an occupational
disease.’
The
learned author correctly points out that courts have consistently
held that the provisions of COIDA have to be generously construed
in
favour of employees. In
Davis v Workmen’s Compensation
Commissioner
1995 (3) SA 689
(C), at 694F the following appears:
‘
The
policy of the Act is to assist workmen as far as possible. See
Williams v Workmen’s Compensation
Commissioner
1952 (3) SA 105
(C) at
109C. The Act should therefore not be interpreted restrictively so as
to prejudice a workman if it is capable of being interpreted
in a
manner more favourable to him.’
[8]
In a nutshell, the Act 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. It also has to be borne in mind that the
Act sets minimum
and maximum amounts of compensation for temporary total or partial
disablement and for permanent disablement.
For a most comprehensive
history and analysis of Workers’ Compensation Legislation in
this country, dating back to 1907,
see
Mankayi v Anglogold Ashanti
Ltd
2010 (5) SA 137
(SCA) paras 14 to 21.
[9]
That then gives some context to what is now necessary, namely, a
perusal of the relevant provision of COIDA. Section 35(1) of
COIDA,
which is at the centre of this appeal, 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.’
(My emphasis.)
‘
Occupational
injury’ is defined in s 1 of COIDA as follows:
‘“
occupational
injury”
means a personal injury
sustained as a result of an accident.’
‘
Accident’
is defined in the Act as:
‘“
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.’ (My emphasis.)
[10]
Thus, as can be seen, in order for COIDA to operate and preclude a
common law claim, the facts must show that the employee
either
contracted a disease or met with an accident arising out of and in
the course of his or her employment. This requires a
determination of
whether the respondent’s rape constituted an ‘accident’
for the purposes of COIDA and arose
out of and in the course of her
employment by the appellant. If that is answered in the affirmative,
the special plea should succeed.
[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 G.M. Co Ltd
1914 TPD
344
De Villiers JP at 347, in relation to the then 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 Bros
. (1913, 1 KBD
602), he reasoned that what fell to be decided is whether the event
is a risk which can be reasonably held to be
incidental to the
employment. On that aspect he concluded as follows at 349:
‘
If
it be such a risk, and if the injury flows from that risk, it must be
held to be an injury arising out of the employment.’
[12]
The facts in
McQueen
, discussed in the preceding paragraph
were as follows: The employee in question was a trammer in a mine in
charge of a gang of
employees who were doing shovelling work in one
of the stopes underground. He grabbed one of them by the wrist in an
attempt to
take him to a particular spot where he thought work should
be done. In retaliation, the labourer concerned struck him on the
head
with a stone. In a patronising tone and language typical of the
times, the court concluded as follows:
‘
It
seems to me that it can fairly be said that this is a special risk
which is incidental to the employment of a man in charge of
a gang of
uncivilised natives underground in a mine.’
Thus,
the court held that the said injuries were caused by an accident
which arose out of and in the course of the plaintiff’s
employment.
[13]
In
Nicosia v Workmen’s Compensation Commissioner
1954
(3) SA 897
(T) Roper J, like De Villiers JP in
McQueen
,
recorded that the origin of our then Workmen’s Compensation Act
lies in the then British Employee Compensation Act. In
Nicosia
what had to be determined was whether an employee, a fitter and
turner, required to work on a drilling machine who had hurt himself
whilst picking up an instrument to insert into the machine, was
entitled to claim compensation due to the injuries suffered by
the
slipping out of one of his intervertebral discs. Predictably, a
decision was made in favour of the workman and it was held
that the
injury the employee sustained was due to an accident within the
meaning of the legislation.
[14]
In
Langeberg Foods Limited & another v Tokwe
[1997] 3 All
SA 43
(E), the court was dealing with a labourer who had been
assaulted by a security officer because he was found smoking dagga on
his
employer’s premises. The employee, whilst fleeing, had
sustained bodily injuries when the security officer tumbled and fell
onto him. The employee instituted a claim for damages. As in the
present case, the defence was raised that the equivalent of the
legislation under consideration precluded the employee from
proceeding with the damages claim against the employer. The trial
court dismissed the defence and found the employer and the security
guard jointly and severally liable for the damages sustained
by the
employee. On appeal, the question that arose was whether the
incident, which resulted in a personal injury, was an accident
arising out of and in the course of the workman’s employment
and resulting in a personal injury. In
Langeberg
at 49 the
following appears:
‘
In
terms of section 2 of the Workmen’s Compensation Act 30 of 1941
an accident means an accident arising out of and in the
course of a
workman’s employment and resulting in a personal injury. That
second appellant’s actions were deliberate
in the sense that
they constituted an assault does not detract from the notion that
respondent was injured as a result of an accident
because “even
where the act is intentional as regards third parties, as long as it
was not intended so far as the workman
was concerned it must be taken
to be an accident
qua
the
workman” –
per
De
Villiers JP in [
McQueen
]
at 348. The question is therefore whether the accident arose out of
and in the course of respondent’s employment. The fact
that
respondent was at the time on a tea break and not actually working
does not mean that he was not injured during the course
of his
employment cf.
Beukes v Knights Deep Ltd
1917 TPD 683.
Indeed it is not in issue that respondent was injured
during the course of his employment so that the crucial question to
be answered
is whether the incident “arose out of”
respondent’s employment.’
[15]
In
Langeberg
the court, with reference to authorities, reminded itself that a
decision in each case is to be made with reference to its particular
facts.
[2]
In considering the
facts before it, the court said the following:
‘
Respondent
in the present case was employed as a labourer. The incident giving
rise to his injuries was an assault upon him and
although this
occurred during a tea break in the course of his employment, it did
not arise out of his employment. It arose out
of the fact that
respondent was seen to be smoking dagga which had nothing whatsoever
to do with his employment. In other words
it was respondent’s
smoking of dagga and not that he was in the course of his employment
that brought respondent within the
range or zone of a possible
assault upon him. The distinction accords in my view with the
decision in
Kau v Fourie
1971 (3) SA 623
(T) and it is a distinction well illustrated in
Fried
v SA Iron Works Ltd
1919 CPD 253
where
the head note reads:
“
Where
a workman in order to perform certain work on a ship climbed up a
prop which was used to support the ship in dry dock, instead
of
proceeding along a gangway which was provided for the purpose, and
fell and was killed.
Held
,
on appeal, that the accident occurred ‘in the course of’
but did not arise ‘out of’ the employment in
terms of
section 1 of Act 25 of 1914, as it was attributable solely to an
added and unnecessary risk outside the sphere of employment
and that
the deceased’s widow was therefore not entitled to recover
compensation under Act 25 of 1914.”’
[16]
In
Minister of Justice v Khoza
1966 (1) SA 410
(A), this court
had to wrestle with the vexed question of whether an accident arose
out of an employee’s employment. That
question is at the heart
of the present case. The passage in
Khoza
in which the
relevant principles appear, bears repeating in its entirety. In the
paragraph succeeding this one, there is a summary
in English of the
relevant parts of that dictum. At 417D-H Rumpff JA said:
‘
Luidens
Wet 30 van 1941 moet die ongeval uit die werksman se diens ontstaan
en in die loop daarvan plaasvind. “In die loop
daarvan”
beteken dat die ongeval moet plaasvind terwyl die werksman besig is
met sy werksaamhede en dit onstaan “uit
sy diens” as die
ongeval in verband staan met sy werksaamhede. Die Wetgewer het
daardie verband nie omskryf nie en eis alleen
in breë sin ‘n
kousale verband tussen diens en ongeval. Wanneer hierdie onomskrewe
verband gesien word in die lig van
die doel en ingrypende omvang van
Wet 30 van 1941, moet dit m.i. bevind word dat die kousale verband
tussen ongeval en diens in
die algemeen voldoende geskep word wanneer
die ongeval plaasvind op die plek waar die werksman by die uitvoering
van sy diens is.
Omdat ‘n werksman in die uitvoering van sy
diens altyd êrens moet wees, hetsy hy staan, loop, ry of vlieg,
sal hy –
behoudens sekere uitsonderings – weens sy diens,
en dus uit sy diens, beseer word, indien hy beseer word waar hy is
wanneer
hy sy werksaamhede verrig. ‘n Fabrieksarbeider wat
beseer word omdat ‘n sterk wind ‘n sinkplaat van die dak
op
hom gooi, en ‘n werksman wat in die loop van sy diens langs
die straat wandel of in ‘n motorkar ry en beserings opdoen
weens nalatigheid van iemand anders, blote ongeluk of
weersomstandighede, doen nietemin die besering op weens sy diens en
dus
uit sy diens. Vir doeleindes van hierdie uitspraak is dit nie
nodig om die uitsonderings te probeer opspoor nie. Dis in elk geval
duidelik dat hierdie kousale verband vir doeleindes van die Wet sou
verdwyn, onder andere, indien die ongeval van so ‘n aard
is dat
die werksman die beserings sou opgedoen het al was hy op ‘n
ander plek as wat sy diens sou vereis het of wanneer die
werksman
deur sy eie handeling die plaaslike verband tussen diens en ongeval
uitskakel of wanneer die werksman opsetlik beseer
word deur ‘n
ander persoon en die motief van die aanranding geen verband hou met
die werksaamhede van die werksman nie.’
[17]
In order for a common law claim against an employer to be precluded,
the accident must have occurred during the course of an
employee’s
employment and it must also arise out of that employment. In
Khoza
this court considered the sole difficulty in that case to be
whether the accident it was considering arose out of the respondent’s
employment. That is also the sole problem present in this case. In
Khoza
, the respondent was injured as a result of a
fellow-policeman discharging his firearm whilst playfully waving it
about at a time
when they were transporting arrested persons in the
back of a police van. In the passage set out in the preceding
paragraph, this
court noted that the then prevailing Employee
Compensation legislation did not circumscribe the expression ‘arising
out of
an employee’s employment’. Rumpff JA stated that
what was required in the broad sense was a causal connection between
employment and the accident. He went on to state that, in general,
the causal connection between the accident and employment is
met when
the accident occurs at the place where the employee works. The
learned judge of appeal took into account that an employee,
in the
execution of his duties may be at various locations but that an
accident could notionally be said
to arise out of an employee’s
employment
if it occurred and the workman was injured whilst he
was busy executing his duties. As examples he considered the position
of a
labourer at a factory who is injured when a gust of wind
dislodged a sheet of roof iron which strikes him, whilst he is
walking
in the street or riding in a motor vehicle going about his
duties as an employee. Rumpff JA went on to consider instances in
which
the causal connection for the purposes of the Act could be said
to have been severed. He held that it was clear that the causal
connection would be extinguished if the accident was of such a kind
that the employee would have sustained the injuries even if
he had
been at a place other than where he was executing his duties as an
employee or when, through his own act, he caused the
causal
connection to be extinguished. More significantly, for the purposes
of the present case, he considered the causal connection
to be
severed when the employee was intentionally injured by a stranger and
the motive for the assault bore no connection to the
injured person’s
employment. I shall, in due course, return to this important aspect.
[18]
In
Van De Venter v MEC of Education: Free State Province
(3545/2010)
[2012] ZAFSHC 185
(4 October 2012), the Free State High
Court, without reference to
Khoza,
said the following
concerning an injury that an employee sustained during the course of
a robbery:
‘
The
injury which the applicant sustained during the course of the robbery
was and remains an occupational injury. It seemed to be
of little
moment whether a particular injury was causatively brought about by a
criminal act or not . . . .
It
follows, therefore, that any personal injury sustained by an employee
caused by any criminal act arising out of and during the
course of an
employee’s employment amounts to an accident as defined in
section 1 [of the COIDA] . . . .
In
our law, therefore, an employee who sustains a compensatable injury
or personal injury or occupational injury as envisaged in
s 3(1) of
[the COIDA] is legislatively barred from claiming further
compensation in delict, by way of common law action, from her
employer, on the ground that her employer had breached a duty to
provide her with a safe working environment and on the ground
that
her employer had breached a duty to provide her with a safe working
environment and on the ground that her criminal assault
rendered her
personal injury so unique that it fell outside the cadre of
occupational injury . . . .
.
. . .
The
fact that the applicant was injured by criminal outsiders and not by
fellow employees made no difference.’
[19]
In
Ex Parte Workmen’s Compensation Commissioner: In Re
Manthe
[1979] 4 All SA 885
(E), the court was dealing with an
assault on an employee and the question it was called upon to
determine was whether the assault
was an ‘accident’ as
defined by s 2 of the Workmen’s Compensation Act 30
of 1941. The Commissioner
had decided that compensation was not
payable on the basis that although the employee was injured in the
course of his employment,
the injuries did not arise out of his
employment and consequently it was not an accident as defined. That
decision led to the litigation
before the Eastern Cape High Court. In
determining whether there was a causal connection between the
accident and the respondent’s
employment, the high court said
the following:
‘
In
a consideration as to whether or not that causal connection exists, a
number of factors, variable in each case, must play a part.
It seems
to have been accepted in past decisions that the Act, as remedial
legislation, should be given a broad and commonsense
interpretation
on this issue. That approach appears in such diverse authorities as
Beukes’
case
supra
at
690 – 691 where reference is made to a risk “inherent or
incidental to the employment”; [
McQueen
];
and in the abovementioned
dicta
of
RUMPFF and WILLIAMSON JJA in
Khoza’s
case. Thus, factors such as time, place and circumstances of the
accident must all be given due weight in determining whether it
can
reasonably be said that,
“
it
was the actual fact that he was in the course of his employment that
brought the workman within the range or zone of the hazard
. . .”’
[20]
Addleson J, in
Manthe
held that the passage from
Khoza
quoted above was obiter and doubted that Rumpff JA intended to
‘lay down’ any principle of invariable application to
all
possible combinations of circumstances. That would have been in
conflict with his own earlier statement that the facts must
rule the
decision in each case; and that the Act has not circumscribed the
causal relationship between the employment and the accident
‘en
eis alleen in breë sin ‘n kousale verband’.
[21]
The court in
Manthe
doubted the wisdom of the commissioner’s
conclusion set out at the end of para 20 on the following basis:
‘
If
the commissioner’s contention is correct, the situation must
then be formulated as follows: It is admitted that the workman
was on
his employer’s premises, at a place where a robbery could
occur, carrying out his employer’s instructions, in
the course
of his employment, during working hours, when he was injured; but he
is not entitled to compensation solely because
the attack which
caused his injury was not aimed directly at him
as
a workman
, but simply at a member of
the public who could also have been at that place. The permutations
of such an argument by the applicant
are interesting and
illustrative. For example, a workman employed to deliver money to a
bank (a so-called “security guard”)
would presumably be
entitled to compensation if he were robbed in the street and injured
by a person who knew he was a security
guard; but he would receive no
compensation if his assailant did not know the nature of his
employment. A workman instructed to
deliver money to the bank would
apparently be entitled to compensation if we were robbed and injured
by a person with the specific
intention of robbery but he would
receive no compensation once he stepped outside his employer’s
gate and was robbed in the
public street.’
[22]
However, in
Twalo v The Minister of Safety and Security &
another
[2009] 2 All SA 491
(E), Y Ebrahim J, appears to have
adopted in some measure the reasoning set out in the dictum from
Khoza
which is set out earlier in this judgment. In
Twalo
the employee was a policeman who had been shot and killed at a
police station by a fellow officer. The plaintiff, in that case, in
her personal capacity and in her capacity as the mother and natural
guardian of the deceased employee’s three minor children,
sued
the Minister of Safety and Security and the policeman who had shot
the employee, for loss of support. In a special plea, the
Minister
sought refuge in s 35(1) of COIDA. Y Ebrahim J said at paras 18, 19
and 21:
‘
.
. . The second defendant’s actions in shooting the deceased
were premeditated and carried out with the intention to kill
him. The
second defendant was motivated by personal malice towards the
deceased who had taunted him about the relationship the
deceased had
with his wife.
In
addition to the fact that the intentional shooting of the deceased
was not an accident he was not, as said by Zulman AJ in
ABSA Bank
Ltd v Bond Equipment (Pretoria) (Pty) Ltd
, “about affairs,
or business, or doing the work of, the employer” namely the
first defendant. The sole reason for the
second defendant shooting
the deceased was the existence of a private dispute between them. The
fact that it took place while both
of them were on duty as policemen
and at their workplace was entirely coincidental. The shooting could
have occurred, for that
matter, at any other place entirely unrelated
to their work environment as the motive for the shooting bore no
causal relationship
with their work.
.
. .
I
am accordingly satisfied on the facts, as presented, that the
intentional shooting of the deceased was not an accident and that
the
deceased did not sustain an occupational injury that resulted in his
death. The provisions of section 35 of COIDA are accordingly
not
applicable and the plaintiff is not precluded from claiming damages
from the first defendant.’
[23]
South African courts have not been a model of consistency in their
approach to the determination of whether an accident arose
out of an
individual’s employment. Internationally the position is often
dependant on prevailing Employee Compensation Legislation.
In New
Zealand, the compensation scheme that came into effect in 1974 was
one of the most comprehensive schemes at that time.
[3]
Section 25 of the Injury Prevention, Rehabilitation and Compensation
Act 2001 contains an extensive definition of ‘accident’
which outlines both those circumstances that are encompassed therein
as well as certain exclusions. Oliphant
[4]
notes ‘[I]t has always been the case . . . that intentional
acts like battery and rape are covered [by New Zealand’s
personal injury scheme], being an “accident” to the
victim’. See also
G
v Auckland Hospital Board
[1976]
1 NZLR 638
(SC).
[24]
Markesinis and Unberath
[5]
explore the nature of Germany’s ‘gesetzliche
Unfallversicherung’ (statutory accident insurance), and note
that
‘[a] basic assumption of the system is that if an employee
is entitled to compensation under [the German code] (for an accident
suffered at work),
save
in cases of intentionally inflicted injury
,
the injured victim cannot claim any further compensation by relying
on the ordinary tort rules of the [code]: the
employer
. . . enjoy[s] an immunity . . . .’ (My emphasis.)
It
is thus clear that intentional acts, which of necessity include
sexual harassment and rape, would not constitute an accident
for the
purposes of German workmen’s compensation law, and thus claims
arising from such acts are pursuable under tort law.
[25]
In England the system of non-tort compensation is separated by way of
various statutes, two of which are relevant. The first,
the
Industrial Injuries Scheme,
[6]
provides for compensation for injuries and certain prescribed
diseases where such were caused by an accident arising out of and
in
the course of employment. Second, the Criminal Injuries Compensation
Scheme provides for compensation for personal injury ‘caused
by
a crime of violence broadly in line with common law damages for
tort’,
[7]
and thus does
not govern accidents.
[26]
There does not appear to be a case in which a rape or sexual
harassment gave rise to a claim under the Industrial Injuries
Scheme,
which appears to be a direct consequence of this clear separation and
the provision for such claims under the criminal
scheme.
[8]
[27]
American courts have largely held that claims arising from rape
and/or sexual assault fall within the definition of an ‘accident’
in the governing workmens’ compensation scheme and are thus
barred at common law by way of application of the exclusivity
doctrine.
[9]
However, and
importantly for our purposes, the judgment of the Supreme Court of
Arizona in
Ford
v Revlon Inc.
153 Ariz. 38
(1987) 734 P.2d 580
, is instructive. In that case the
employee worked for Revlon and was subjected to continued sexual
harassment by a supervisor.
Her repeated complaints over several
months to Revlon went unheeded. As a result of the supervisor’s
behaviour, she developed
symptoms of emotional stress. A year and one
month after the first act of sexual harassment, the supervisor was
issued with a letter
of censure. Shortly thereafter the employee
attempted suicide. Later she sued Revlon and the supervisor for
assault and battery,
and for intentional infliction of emotional
distress. A jury found the supervisor liable for assault and battery
but not for the
intentional infliction of emotional distress. It
found Revlon liable for intentional infliction of emotional distress.
Only Revlon
appealed. The only issue on appeal was whether Revlon was
liable for intentional infliction of emotional distress. The court of
appeals reversed the judgment of the trial court, holding that, since
the supervisor was not found guilty of the intentional infliction
of
emotional distress, Revlon as principal could not be found guilty.
The Arizona Supreme Court granted a review because it disagreed
with
that limitation of liability of Revlon. Although not considered by
the court of appeals, the parties raised the question whether
the
matter was controlled by Arizona’s Worker’s Compensation
Act and it was considered by the Supreme Court. It disagreed
with the
contention on behalf of Revlon that the matter was controlled by the
legislation. The Supreme Court held that since the
jury found the
severe emotional distress to be essentially non-physical in nature,
it fell outside the legislation which regulated
claims for physical
injuries. The Supreme Court, considered the original purpose of
workmen’s compensation was, namely, to
compensate workers for
injury which had its origins in a risk ‘connected with the
employment’.
[28]
In
Revlon
, The Arizona Supreme Court noted that some courts
have provided a tort remedy instead of workers’ compensation to
employees
injured by wrongs that are not ‘a necessary risk or
danger’ of their employment. Other courts have invoked the bar
of exclusivity and have refused to recognise a tort remedy. The same
could be said of our courts. Importantly, in
Revlon
the
Supreme Court said the following:
‘
By
law, exposure to sexual harassment is not an inherent or necessary
risk of employment, even though it may be or may have been
endemic.
The cost of such conduct ought not to be included in the cost of the
product and passed to the consumer. If my employer
invades my right
to privacy by tapping my telephone, it is my employer who should pay
the piper for such wrong, not his compensation
carrier.
Given
the substantive nature of the wrong committed here, I believe that
this form of the action falls outside the compensation
system. The
action for outrage, now called infliction of emotional distress, was
first recognized as a remedy for emotional injury
caused by
outrageous conduct and as a response to the doctrine that,
unaccompanied by preceding physical harm, such injury was
noncompensable.’
[29]
In England, in
Nisbet v Rayne & Burn
[1910] 2 KBD 689 the
court considered the question whether the murder of a cashier while
traveling in a railway carriage to a colliery
with a large sum of
money for the payment of his employers’ workmen, was an
accident within the meaning of that expression
in the Workers’
Compensation Legislation. Farwell LJ in considering whether the
accident arose out of the cashiers employment
said the following:
‘
It
is plain that it arose in the course of his employment; it was part
of his regular duty to take the money required for the wages
on pay
day by train to the colliery; it was his duty to carry it safely and
to protect it from thieves and robbery . . . I have
come to the
conclusion that there is a distinct and well-known risk run by
cashiers and the like who are known to carry considerable
sums in
cash on regular days by the same route to the same place, of being
robbed and, if they do their duty by defending their
charge,
murdered, and that such a risk is as incidental to their employment
as the risk from missiles from bridges is to the employment
of
engine-drivers or the risk of injury by poachers to that of
gamekeepers.’
[30]
By employing terms such as ‘necessary risk of employment’
or ‘risk incidental to employment’, courts
have attempted
to determine whether the cause of injuries sustained by employees was
related to the employee’s employment.
The latter part of the
quote from
Khoza
set
out in para 17 and summarised in English in para 18, in similar
fashion,
sought to provide some guidance in
determining whether an accident ‘arose out of employment’.
[31]
Counsel on behalf of the MEC did not go so far as to suggest that the
dictum in
Khoza
referred to in the preceding paragraph was
clearly wrong and that we should depart from it, but pointed out that
relating the causal
connection, as Rumpff JA did, to the motive of
the perpetrator of the wrong that caused the injury was problematic
and would lead
to uncertainty. I agree. However, it appears to me
that the problem can be resolved by a slight adjustment, namely to
ask the question
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. There is of course,
as pointed
out in numerous authorities, no bright-line test. Each
case must be dealt with on its own facts.
[32]
I am unable to see how a rape perpetrated by an outsider on a doctor
– a paediatrician in training – on duty at
a hospital
arises out of the doctor’s employment. I cannot conceive of the
risk of rape being incidental to such employment.
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.
[33]
I can understand that courts have strained to come to the rescue of
particularly impecunious individuals and have held them
entitled to
claim compensation from a fund established for that purpose. I also
understand that courts have done this by adopting
a position in line
with the policy behind the Workers’ Compensation Legislation,
namely, that workers should as far as possible
be assisted to claim
compensation that is their due under the Act and which flow from
incidents connected to their employment and
which can rightly be said
to be a risk attendant upon or inherent to the employment. 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.
[34]
For the reasons stated above, the following order is made:
1
The appeal is dismissed with costs.
________________________
MS
NAVSA
ACTING
DEPUTY PRESIDENT
APPEARANCES:
FOR
FIRST APPELLANT: Adv A Cockrell S.C.
Instructed
by:
Office
of the State Attorney, Bloemfontein
FOR
RESPONDENT: Adv. T J Bruinders S.C.
Instructed
by
Webbers
Attorneys, Bloemfontein
[1]
Para
9.
[2]
Langeberg
supra
at 50d to f.
[3]
B
Atkin, K Evans, G McLay, S Petersson and D Carter
Torts
in New Zealand
3ed(2003) at 143.
[4]
K
Oliphant
Private
and Social Insurance
in C Sappideen & P Vines (eds
)
Fleming’s The Law of Torts
10ed (2011) at 481-482.
[5]
B
S Markesinis and H Unberath
The
German Law of Torts: A Comparative Treatise
4 ed (2002) at 725-726.
[6]
Which
has nevertheless been referred to as a ‘misnormer since there
is no separate fund nor even, now, a separate Act’.
See W V H
Rogers
Winfield
& Jolowicz on Tort
17
ed
(2002) at 26.
[7]
WVH
Rogers
Winfield
& Jolowicz on Tort
17 ed (2002) at 37.
[8]
W
V H Rogers
Winfield
& Jolowicz on Tort
17 ed (2002) at 39 notes that
‘
Because
injury arising from an intentional act is “accidental”
as far as the victim is concerned, there is no need
for a separate
criminal injuries compensation scheme in New Zealand.;
See
also A J Rycroft and D Perumal ‘Compensating the Sexually
Harassed Employee’ (2004) 25
ILJ
1153 at 1168.
[9]
In
addition to those cases discussed above, see
Driscoll
v. Gen. Nutrition Corp
.,
752 A.2d 1069
, 1076 (Conn. 2000);
Rogers
v. Burger King Corporation
,
82 P.3d 116, 121 (Okla. 2003).