Whilst working in a provincial hospital a registrar intending to specialise as a paediatrician was raped.  Clearly the doctor has a common law claim against the Department of Health.  But then she must prove fault and the extent of her loss and claim damages.  The purpose of the Compensation for Occupational Injuries and Diseases  Act 130 of 1993 (Coida) is to protect employees when  accidents occur during the course of their employment and when they arise out of that employment.  There is no doubt that the rape occurred during employment but did it arise out of that employment?  The Supreme Court of Appeal (SCA) has today decided that Coida does not apply and the doctor may enforce her rights against her employer.

MEC for the Department of Health v D[…] N[…] (924/2013) [2014] ZASCA 167; [2014] 12 BLLR 1155; (2014) 35 ILJ 3301 (SAC) (8 October 2014) per Navsa ADP (Brand, Pillay & Mbha JJA and Schoeman AJA concurring)

Extracts without footnotes

[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.

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[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. . .  ‘important social legislation which has a significant impact on the sensitive and intricate relationship amongst employers, employees and society at large’.  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.)

. . . .

[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 . . . . (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.

. . . .

[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.  . . . .

. . . .

[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.

. . . .

[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

[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.