The scope and application of section 35(1) has been well ventilated in the courts. For an employer to be absolved of liability in terms of section 35(1) of COIDA, it is required that there must be an accident, which arose out of and in the course of the employee’s employment which caused personal injury, illness or death of an employee. There is no bright-line test to determine whether an injury or disease arose out of a person’s employment and thus each case must be determined on its own merits.

The Supreme Court of Appeal was recently required to determine the applicability of section 35(1) of COIDA in Churchill v Premier, Mpumalanga (899/2019) [2021] ZASCA 16 (4 March 2021). In this matter, the appellant, Ms Catherine Churchill (“the Employee”), was at the Premier of Mpumalanga’s (“the Premier”) offices on 5 April 2017 when members of the National Education, Health and Allied Workers’ Union (“NEHAWU”) were engaged in protest action outside the offices. Initially, the protesters protested outside but eventually made their way into the premises by using their access cards. In the foyer of the building, the Employee passed the protestors with no incident occurring. While in her office, she went across the corridor to the office of Ms Mabaso, her colleague. While in Ms Mabaso’s office three protesters passed and sought entrance to Ms Mabaso’s office. After not receiving a response the protestors left.

Upon returning to her office, the Employee noticed that her office door was locked and swore in frustration. One of the protestors heard her swear and assumed that the expletive was addressed to him. After engaging in a brief argument, the protestor stated to the Employee “We’re coming for you!”. Shortly thereafter Mr Bellim, another colleague, advised the Employee and Ms Mabaso that approximately 15 to 20 protestors were on their way to the Employee’s office. Once they arrived, three protestors picked the Employee up and carried her above their heads. The Employee was placed outside at the centre of the protesting employees and was assaulted and berated.

The Employee alleged that she was suffering from PTSD as a result of this incident. She tried to resume her employment but found it to be intolerable and resigned at the end of June 2017. She claimed that the Premier was negligent by not creating a safe working environment and thus was liable for her damages amounting to R7,5 Million for medical expenses, general damages and loss of income. In the High Court, the Premier raised a special plea that it could not be held liable for the damages as a result of section 35(1) of COIDA. The High Court upheld the special plea and dismissed the Employee’s claim. The Employee then appealed to the Supreme Court of Appeal.

The Supreme Court of Appeal surveyed the law on what constitutes an ‘accident’. In conclusion, the Court found that almost anything which unexpectedly causes injury to, or illness or death, of an employee, falls within the concept of an ‘accident’. It was common cause that the Employee’s injuries arose in the course of her employment. Accordingly, the only issue to be decided was whether the injuries arose out of the Employee’s employment.

The Court stated that the test to be used to determine whether the injury arose out of the Employee’s employment was whether it was sufficiently closely connected to her employment. The Supreme Court of Appeal found that although the injuries took place at the Premier’s premises, this was not determinative of whether the injuries arose out of the Employee’s employment but is one factor that must be considered. The Court relied on the judgment of Minister of Justice v Khosa (1996) 1 SA 410 (A) where the Appellate Division found that injuries will not arise out of the Employee’s employment if they are not connected to the duties of the injured employee.

In this matter, the Court found that the only causal connection between the Employee’s injuries and her employment was that the injuries happened to occur at the place of her employment. The Court further found that the purpose of COIDA is not to provide compensation and create an exemption of liability where injuries and diseases are only tenuously and tangentially connected to the duties of employment. In conclusion, the Supreme Court of Appeal found that all of the Employee’s injuries occurred as a result of her swearing in the presence of a protestor. Accordingly, the Supreme Court of Appeal upheld the Employee’s appeal and found that section 35(1) was not applicable in the circumstances. Therefore, the Premier was held liable for the Employee’s damages.

The judgment of the Supreme Court of Appeal is important as the exemption from liability created by COIDA is often misunderstood and erroneously relied on in certain cases. COIDA does not absolve employers of any and all liability for injuries, diseases and death of its employees. Proper legal advice should be sought in order to deal with such claims.