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[2013] ZAFSHC 178
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De Necker v MEC for the Department of Health, Free State Province (2399/2012) [2013] ZAFSHC 178; 2014 (3) SA 49 (FB) (23 October 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2399/2012
In the matter between:-
DR
ELIZABETH JOHANNA DE NECKER
...................................
Plaintiff
and
MEC FOR THE
DEPARTMENT OF HEALTH
FREE STATE PROVINCE
.......................................................
Defendant
and
D J MOSOEU N.O.
............................................................
1
st
Third Party
M E BETULA N.O.
............................................................
2
nd
Third Party
N W SEBATLELO N.O.
....................................................
3
rd
Third Party
N J MOSOEU N.O.
............................................................
4
th
Third Party
_____________________________________________________
HEARD ON:
22 OCTOBER 2013
_____________________________________________________
DELIVERED ON:
23 OCTOBER 2013
_____________________________________________________
JUDGMENT
_____________________________________________________
MOCUMIE, J
[1] This matter was set
down for trial for three days,22 -23 October and 25 October. The
parties agreed to the determination of
the defendant’s 1st
special plea. The defendant also sought separation of issues in terms
of Rule 33 (4), i.e.in the event
that the Court should decide in
favor of the defendant, that the determination of the merits should
be proceeded with only later.
This application was based on the usual
grounds set out in R33(4) including convenience to all parties and no
prejudice suffered
by any party if the issues were separated. I held
the R33(4) over pending my decision on the defendant’s 1st
special plea
which follows. This 1st special plea had to be decided
upon urgently to pave the way forward on the merits. The judgment
given
will thus be delivered urgently to avoid any delay. I relied
substantially on the Heads of Arguments filed by both Counsels which
were helpful considering the time constraints. I am indebted to both
Counsels.
[2] For purposes of
adjudication of the MEC:Health’s (“the defendant”)1st
special plea the parties agreed on the
following:
“
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 pediatric
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
pediatric patients in the Pediatric ICU, Pediatric 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 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 an 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.”
[3] Dr de Necker (“the
plaintiff”) claims damages for the injuries when she was
assaulted and raped in the early hours
of 30 October 2010 whilst she
was on duty at Pelonomi Hospital, Bloemfontein. The defendant has
filed a special plea alleging that
she is barred by the Compensation,
Occupational and Diseases Act 130 of 1993 (COIDA) from instituting
any action against him.
[4] The defendant avers
that the incident, which forms the basis her cause of action does not
constitute an ‘accident’
as defined in COIDA.
[5] It is common cause
between the parties that:
5.1 The plaintiff is an
employee as defined in COIDA.
5.2 The defendant is an
employer as defined in COIDA.
5.3. ‘Accident’
is defined in COIDA 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.”
5.4 The word ‘accident’
per se is not specifically defined in COIDA.
[6] The only issues to be
determined are:
(a) whether the incident
in this case was an ‘accident’ as contemplated in s35 of
COIDA; and
(b) Whether the incident
arose out of and in the course of employment?
If these two issues are
decided in favour of the plaintiff it is the end of the defendant’s
special plea. If they are decided
in favour of the defendant, the
plaintiff’s claim ought to be dismissed.
THE LAW APPLICABLE
[7] Section 35 of COIDA
provides:
“
No action shall lie by an
employee or any dependent of any employee for the recovery of damages
in respect of any occupational injury
or disease resulting from 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.”
[8] In deciding whether
an incident is an ‘accident’ which ‘arose out of or
in the course of employment’
in the seminal decision of
Minister of Justice v Khoza
1966 (1) SA 410
(A) the
Appellate Division developed two tests:
8.1. The first is by the
majority concurring in the judgment of
Rumpff CJ
. It is that
an injury from an assault at work is not an accident where the motive
or reason for the assault is unrelated to the
job;
8.2. The second is by
Williamson JA
in a concurring minority judgment. It is that an
injury from an assault at work is an accident where the fact of
employment brings
the employee within the range or zone of the hazard
that gave rise to the injury.
[9] The essence of the
Khoza
decision and the cases that follow it, is the
following:
9.1. An accident may be
said to arise ‘out of a workman’s employment, when, in a
broad sense, there is a causal connection
between the employment and
the accident;
9.2. As a general rule
there is a causal connection between the employment and the accident
where the accident happens at work;
9.3. It is not an injury
arising out of and in the course of employment where an employee was
is injured as a result of a criminal
conduct such as an intentional
and unlawful assault by another person that is unrelated to the job
of that employee-even if it
happens at work;
9.4. This means an injury
resulting from an assault that is unrelated to the job does not arise
‘out of or in the course of
’employment.(See
Kau v
Fourie
[1971] 4 All SA1 (T)at6-7(assault by employer on
employee);
Langeberg Foods Ltd v Tokwe
[1997] 3 All SA
43
(E) at 50 (assault by security guard employed by employer);
Twalo
v Minister of Safety and Security
at para [17]-[18] [2009]2
All SA 491 (E) at para [17]-[18] (assault by one police officer on
another police officer.)
[10] MrWessels (SC),on
behalf of the defendant, submitted with reference to
inter
alia
Nicosia v Workmen’s Compensation Commissioner
1954 (3) SA 897
(T) that ‘accident’in COIDA and even its
predecessors means
“
any unintended and unexpected
occurrence which produces hurt or loss. But it is often used to
denote any unintended and unexpected
loss or hurt from its cause; and
if the cause is not known,the loss or hurt itself would certainly be
called an accident. The word
‘accident’ is often used to
denote both the cause and the effect, and thus no attempt should be
made to discriminate
between them.”
[11] Referring to
Skorbinski v Bezuidenhout t/a DB Transport
2009 (5) SA
461
(EC) at para [14] he maintained that s35 of COIDA precluded an
employee from claiming damages from his [or her] employer in respect
of a claim for damages under the common law.
[12] Furthermore, he
contended with reference to
Jooste v Score Supermarket
1999 (2) SA 1
(CC)that the section 35 exclusion of the employee’s
common law rights against the employer has more advantages than
disadvantages.
Inter alia
COIDA provides for speedy
adjudication and for payment of the amount due out of the fund
established by the Compensation Act; payment
of compensation is not
dependent on the employer’s negligence or ability to pay; nor
is the amount susceptible to reduction
by reason of the employee’s
contributory negligence.
[13] He argued that
although the question whether the incident constituted an ‘accident’
as provided for in COIDA did
not feature and was not considered by
the court a quo and the Supreme Court of Appeal in
Crown
Chickens Pty Ltd t/a Rockland Poultry v Riek
2007 (2) SA 119
(SCA),if there was any doubt as to whether such incident constituted
an ‘accident’ as provided for in the Act, it would
have
been raised in or by the court
a quo
or the Supreme Court of
Appeal. The converse he argued was true, that there was no such
doubt.
[14] MrBruinders (SC) on
behalf of the plaintiff submitted that in the absence of a specific
definition of the word ‘accident’
in COIDA ,there was no
reason why this Court should not give the word its ordinary
grammatical meaning within the context of the
remaining provisions of
the statute and against the purpose of the statute as laid down in
S
v Makwanyane
1995(3) SA 391 (CC) at 404 para [12] -405
para[15];
Jaga v Donges No;Bhana v Donges No
1950 (4)
SA 653(A)
at 662-664. This is the most basic rule of interpretation
of statutes.
[15] He submitted further
as MrWessels that our courts have held the word ‘accident’
to mean an ‘unintended and
unexpected occurrence producing loss
or harm, but argued that such meaning should not restricted to
unintended acts only. He urged
this Court to apply this judicial
definition to ‘accident’ under COIDA and ‘accident’
in general. See
Twalo v The Minister of Safety and Security
[2009]2 All SA 491(E);
Nicosia v Workmen’s Compensation
Commissioner
1954 (3) SA 897
(T) at 901;
Minister of
Justice v Khoza
.
[16] He urged this Court
further to apply the guidelines and test set down in
Khoza
,i.e.to
determine whether the incident in this case was an ‘accident’
contemplated by s35 of COIDA and whether the incident
arose out of
and in the course of the plaintiff’s employment as a pediatric
registrar at her work place.
[17] I am inclined to
adopt the approach set out in
Khoza
not only because
the approach is objective but because this judgment has not been set
aside by any court be it the Supreme Court
of Appeal or the
Constitutional Court. The judgment is still good law.
[18] Applying the
guidelines set out in
Khoza
, in answering the question
whether the incident in this case was an ‘accident’ as
contemplated by section 35 of COIDA,I
agree with MrBruinders that the
incidence was not an accident. Althoughassault/incident was
unexpected it was also intentional
and deliberate which cannot be an
‘accident’ in the ordinary and grammatical sense and as
courts have interpreted it
to mean. See
Twalo
above at
para [17]. In relation to the second question whether the incident
arose out of and in the course of the plaintiff’s
employment as
a pediatric registrar, again I have to agree with MrBruinders that
there was no causal connection between the plaintiff’s
employment and the incident because she was deliberately injured by
another person who was not supposed to be or authorised to
be on the
employer’s premises “
and the motive for the attack
bears no relationship to the duties of the workman…”
(See
RumpffJA’s qualified proposition in
Khoza
.).In
any event the risk resulting in the injury (i.e the assault and the
rape) was not a risk that is a usual natural incidence
of the job or
which came with the territory of the job.
[19] I have not been
persuaded by the defendant’s reliance on two judgments, one of
the Eastern Cape and another of the Free
State for the following
reasons.
19.1. In
Ex Parte
Workmen’s Compensation :In re Mathe
[1979] 4All SA 885
at 890 an employee who was a supervisor was instructed by his
employer to fetch his subordinates’ pay cards. Whilst he was
on
duty but outside his place of employment but carrying out these
instructions, he was robbed.
Addleson, J
held that it was the
actual fact that the employee was on duty that exposed him to the
risk of robbery. This judgment can surely
not be correct on two legs.
First, robbery is not an accident but a deliberate and criminal act.
Second, even if it were, it is
not one that was related to the job of
the employee. By its very nature ,the job of a supervisor at a school
cannot entail being
exposed to such a risk . In principle this
judgment is wrong and cannot be followed.
19.2. In the unreported
judgment of
Van de Venter v The MEC of Education:Free State
Case
no 3545/2010 delivered October 2012 an employee was robbed on school
premises by persons unemployed by the school. The court
held that an
injury sustained by an employee under such circumstances was an
‘accident’ as contemplated by s35.
[20] This judgment cannot
be correct for the following reasons:
18.1 At para[37] the
court stated
“
In the instant matter the
factual complex,though not identical with that in Strauss-case
supra
,it
was nonetheless pretty much the same.The question of law was more or
less the same here as it was there [with reference to
MEC
For Education,WCP v Strauss
2008 (2) SA 366
(SCA)].
The
conclusion therefore, has to be the same now as then.
In
that case the court held that an injury sustained by an educator
during the course of an educational activity fell under an
occupational injury. Accordingly the injured educator’s
delictual claim against the defending organ of state was dismissed
on
appeal
.
”
(Own
emphasis)
[21] From this paragraph
and para [38] of the same judgment and a reading of the whole
judgment it is clear that the remark the
court made was obiter
because the judgment was about the condonation of the failure to
comply with the requirement to give notice
to the state before
instituting any claim against it. The underlying reason for such
obiter remark was that any personal injury
suffered by an employee
while at work is an ‘accident’ as contemplated by section
35 of COIDA because it is an injury
suffered at work, which is not
the requirement of COIDA.COIDA requires that the injury must ‘arise
out of and in the course
of employment.’ The interpretation
given in
Van de Venter
is too restrictive to an
employee in similar but not the same circumstances. Each case has its
own peculiar circumstances and can
under no circumstances be
determined as was done in
Van der Venter
as set out in
paras [47] and [48].As the court in
Khoza
correctly
stated
“
On every set of facts the
question to be answered is the same but it is seldom that facts are
identical. The decision in essence
in each case is one of fact
related only to the particular facts in issue. The enquiry on the
particular issue is whether it was
the actual fact that [s]he was in
the course of employment… ”
Moreover, the reasoning
in
Van der Venter
does not and did not apply the clear
guidelines and test set out in
Khoza
which is still
good law and has not been set aside on appeal. There is therefore no
reason for this Court to follow it as it is,
in principle, premised
on a wrong legal basis.
[22] I am accordingly
satisfied on the facts, as presented, that the intentional criminal
act of the perpetrator of the incident
was not an ‘accident’
as contemplated by s35 of COIDA and that the plaintiff did not
sustain an occupational injury
that resulted in her injuries and
damages. The provisions of section 35 of COIDA are accordingly not
applicable and the plaintiff
is not precluded from claiming damages
from the defendant.
[23] In the result I make
the following order.
ORDER
The defendant’s
1
st
special plea is dismissed with costs.
_______________
B.C. MOCUMIE, J
On behalf of plaintiff:
Adv Bruinders SC
Instructed by:
BLOEMFONTEIN
On behalf of defendant:
Adv M H Wessels SC
Instructed by:
BLOEMFONTEIN
BCM/sp