The recent Supreme Court of Appeal (the “SCA”) judgement MEC for The Department of Health, Free State Province v D (924/2013) [2014] ZASCA 167 (8 October 2014), delivered on 08 October 2014 (“The SCA Case”), provides for an employee to sue their employer for damages sustained outside of the boundaries contemplated by the Compensation for Occupational Injuries and Diseases Act, 130 of 1993 (“COIDA”).

In this particular case, the employee was raped, while on duty, and it was found that the employer had not taken sufficient measures to protect the employee to prevent such an event from occurring.

What this means, as a precedent, is that if the court decides that COIDA does not apply, the employee will still have the right to pursue the option to sue the employer for damages sustained while on duty, but outside of the boundaries contemplated by COIDA.

Application of COIDA

COIDA provides compensation for employees that have suffered injuries in the course of their employment. COIDA does not require the employee to prove negligence on the part of the employer, which would be a prerequisite in a common law claim against an employer. Therefore, if the employee suffered an occupational injury or disease, caused by an accident, resulting in disablement or death, while acting in the course of his/ her employment, the employee is restricted to claim under COIDA, and not from the employer.

Facts of The SCA case

The appeal from the Free Sate High Court (the “High Court”) to the SCA was brought by the MEC for the Department of Health, Free State as to whether he, as the employer, was liable to the employee, a female doctor, for damages sustained as a result of her being raped, on 30 October 2010, by an intruder who had gained access to the hospital premises. The employee brought a civil claim against the employer, electing not to seek compensation under COIDA.

The employer’s case

The employer relied on section 35(1) of COIDA, which exempts the employer from compensating the employee (or dependant of employee) for the recovery of damages in respect of any “occupational injury or disease resulting in the disablement or death of such employee” except under the provisions of COIDA.

Section 1 of the COIDA defines “occupational injury” as “a personal injury sustained as a result of an accident”. An “accident” is defined in COIDA as meaning “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”.

The employer stated that it couldn’t be held liable, as the employee should have brought the claim under COIDA and that COIDA limits the employee’s common law right to sue the employer.

High Court Judgment

In 2012 the employee instituted action in the Free State High Court against the employer for damages suffered as a result of the incident that occurred on the employer’s premises.

The High Court considered section 35 of COIDA, and held that the incident (rape) did not arise in the course of the doctor’s employment, and was not an accident contemplated by section 35 of COIDA.

Therefore, the attack on the doctor had no relationship to her employment and the employer was therefore liable to compensate the employee in terms of her common law right to claim. The employer appealed against this decision to the SCA.

The SCA Judgment

The SCA had to determine whether the “employee’s rape constituted an ‘accident’ for the purposes of COIDA and arose out of and in the course of her employment by the employer”.

The SCA made reference to various South African and international case law and emphasised that “there is no bright-line test”, and that each case must be dealt with on its own facts”.

The SCA acknowledged that employees should, as far as possible, claim compensation that is due under COIDA, and which flows from incidents and risks connected to their employment. It held however, that it couldn’t conceive the risk of rape being incidental to the employment of the employee, or the employment of any employee for that matter.

The SCA held that in terms of this case, compensation was not restricted to a claim in terms of COIDA, and that it would be unacceptable to send a message to employees, especially women, that they are precluded from suing their employer for what they assert is a failure to provide reasonable protective measures against rape, as rape directed against women is a risk inherent in employment in South Africa. The Court concluded by stating that this is not what the South African Constitution envisaged.

The appeal by the MEC for the Department of Health, Free State Province, was dismissed with costs.

What this means for employers

This judgment sends a strong message to employers that they will be liable if reasonable measures are not taken to prevent negligent actions causing harm to employees while on duty. In regard to the above-mentioned employer, building work was being carried out on the employer’s premises at the time of the incident.

As a result, parameter fencing was under temporary repair (allowing an intruder to access the premises), an elevator was not operational and lights were not working, all of which created a dangerous environment for the employee.

It is thus advised that employers implement all reasonable measures to ensure the safety of its employees, especially women.

Measures such as maintaining visibility on site, access control and parameter security will help in creating a safe environment for employees.