Need for the Churchill v Premier case to be referred to the Constitutional Court

In the most recent previous article we took a look at the case of Churchill v Premier, Mpumalanga, citation: (889/2019) [2021] ZASCA 16 (4 March 2021), in so far as it relates to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), with specific reference to Section 35 of the Act.

The case is in my view quite significant in the context of workplace law. It warrants further analysis, hence this follow-up article.

I will not go into too much detail regarding the actual occurrences that led to this case. In short, a certain Ms Catherine Churchill, sued the Premier of Mpumalanga and the Director-General for negligence, in the process submitting, via the High Court, a claim for R7,5 million for past and future medical treatment, general damages and past and future loss of income.

Ms Churchill cited an incident thay occurred on 5 April 2017, wherein, during an altercation with some of the protesting workers aligned to the union, Nehawu, was assaulted and mistreated by some of the protestors, and eventually evicted from the premises in a manner that was humiliating and degrading.

Her medical report indicated that she had, as a result of the assault, experienced physical bruises, scratches and a swollen foot.

The report further reflected that she had experienced shock, humiliation and consequently, suffered psychiatric injury which had left her PTSD (Post Traumatic Stress Disorder) of significant intensity. She tried to return to work, but alleges that she found the situation intolerable and was compelled to resign at the end of June 2017.

As stated in the previous article, the premier and the DG (hereafter referred to as the employer) challenged her claim, stating, among others, that she was not entitled to sue the department, citing Section 35 of the Compensation for Occupational Injuries and Diseases Act 130 or 1993 (Coida).

Section 35 states: ‘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.’

The employer argued that, instead of suing their office for damages, she could lodge a claim for benefits and compensation through Coida via Section 22(1) of the Act, which provides that: ‘If an employee meets with an accident resulting in his disablement or death such employee or the dependants of such employee shall, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act.’

It is at this point important to note that the Act prescribes the extent and scope of the claims lodged through it, and most notably, the quantum of the compensation would ordinarily be much lower compared to when one sues an employer directly outside the prescriptive ambits of the Act.

In essence, what the employer was saying that while action that led to the accident were unfortunate and regrettable, on merit, it could not be said that they had been negligent in ensuring the safety of the non-striking workers, such as Ms Churchill, and consequently, nor were they vicariously liable for the behaviour of the protestors.

This is where the case gets both interesting and confusing at the same time.

Interesting, because the presiding judge in the High High, upheld the employer’s special plea, which in essence directed that Ms Churchill could not claim for any benefits and compensation against the employer.

Confusing, because in the same breath, the judge, found the employer’s defence on merits, to be wanting, and accordingly rejected them. In doing so, I submit, the judge essentially left the door open for Ms Churchill to challenge the High Court special plea ruling.

In addition, and curiously so, the judge did not give reasons why he had found that the employer was both negligent and could also be vicariously held liable for the actions of the protesters.

Even more strange is that the employer, according to the Appeal Court records, did not seek to establish the rationale for the High Court dismissing their case on merits.

Their failure to not only establish the reasons behind their dismissal of the case on merit, something which, as we saw in the previous article, dealt their case a final blow.

Ms Churchill duly took up the opportunity which had been afforded to her by the High Court and took the matter up on appeal, requesting the Appeal Court to dismiss the special plea ruling.

Curiously, she further requested the Appeal Court to make a ruling in her favour in so far as the merits of the case were concerned.

I am using the word “curiously” deliberately, because, as we have already seen, the High Court had previously dismissed the employer’s defence on merits.

Ms Churchill’s approach was meant to further strengthen her case going forward. If I were in her shoes, I would have adopted the same approach.

Ms Churchill was already, to use a soccer analogy, leading against the department and all that was left for her was to have a special plea ruling overturned and it would be game over.

With the merits issue out of the way, let us now turn our attention to the remaining critical issue that the Supreme Court of Appeal (SCA) had to deal with.

The significant questions, according to Coida’s definition of an accident were the following: was there an accident? Did this accident arise out of, and in the course of Ms Churchill’s employment? Did this accident result in personal injury, illness or the death of the employee?

According to COIDA, an accident is defined 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’. (My emphasis).

As we have seen in the previous article, Ms Churchill argued that her employment had brought her within the zone of the hazard giving rise to her injuries. She further contended that her injuries arose directly out of her being in her place of employment.

It is clear, and not in dispute that, (1) there was an accident, and (2) this accident resulted in personal injuries and illness to Ms Churchill. However, what still needed to be established was whether the accident arose out of and in the course Ms Churchill’s employment? (Again my emphasis).

Once again, this case took an interesting and a confusing turn. I say this because, because while the SCA itself could not establish that the accident arose out of and in the course of Ms Churchill’s employment.

It established that, given her normal scope of work, the accident could not be said to have arisen out of, and in the course of her employment.

The SCA’s test in this case was whether the accident was so closely connected to her ordinary course of work, that it could be said to have arisen from it?

In this regard, the SCA held that the accident was unrelated to the subject matter of the protest, much less to Ms Churchill’s work.

The SCA further amplified the test by stating that there must be a causal link between the performance one’s ordinary duties and accidents which may or may not result during the course of the performance of those duties.

It held that should she be further removed from those duties, which would could trigger an accident, then the less likelihood that those duties would bring the employee into a situation where such injuries might be sustained, and less likely that they arose out of their employment.

The SCA found that this accident had no connection to Ms Churchill’s employment or scope of work at all.

Now that we have established the above, the question is: why did the SCA set aside the High Court ruling on the Special Plea by the employer and not invoke Section 22 of Coids?

Importantly, the SCA ruled that the department was liable to compensate the Ms Churchill for such damages as may be agreed or proved arising injuries suffered by her in the course of the protest at the offices of the First Defendant on 5 April 2017.

Critically, the matter is remitted to the High Court for the determination of the nature and extent of any and all such injuries and the quantum of the damages to which she is entitled in the consequence thereof.

The answer perhaps, lies in the SCA statement that: “The statutory compensation scheme was established, and employers granted immunity from claims by their employees, to provide compensation for workplace injuries and illnesses, whether due to misfortune, the fault of a co-employee, or the employer’s or employee’s fault. Compensation is payable irrespective of whether direct or vicarious liability would otherwise rest on the employer.”

That said, it is my considered opinion that, regardless of what the above paragraph states, the question still remains whether such compensation is payable by the employer or through Coida?

Furthermore, the SCA held that “That requirements that the accident occur in the course of and arise out of the injured party’s employment circumscribe the liability of the Compensation Fund.

“The purpose of the fund is to compensate for occupational injuries and disease. While long-standing authority dictates that social legislation of this type is given a generous construction, it is not directed at providing compensation and exempting employers from liability for injuries and diseases that are only tenuously and tangentially connected to the duties of the employee.

“Had that been the purpose, the legislation could simply provide for compensation for all and any injuries or illnesses sustained when at work, or when working.”

I submit that this SCA judgment, when one takes into account this last paragraph is not at all helpful, and that perhaps, it might be in the interest of all of us that this matter be decided at the Constitutional Court so that we establish certainty around this issue.

for the Churchill v Premier case to be referred to the Constitutional Court