This Supreme Court of Appeal judgment http://www.saflii.org/za/cases/ZASCA/2021/16.pdf dealt with the case of the plaintiff who was mistreated and injured in the course of a protest by trade union members on premises where she was employed. The question was whether her injuries constituted an ‘accident’ as defined under section 1 of the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA) and whether the liability of her employer was excluded by Section 35 of COIDA. The question was whether the accident arose out of and in the course of her employment.
The court confirmed that an employer seeking to rely on Section 35 to avoid liability bears onus of satisfying the court that the accident arose out of the claimant’s employment.
On the facts of the case the only connection between the incident and the employment was that the employee was at work at the time. The incident bore no relation to her duties and was the result of misplaced anger directed at her because of a misunderstanding. She was not assaulted because of the position she held or because of anything she had done in carrying out her duties or for any reason related to the protest action that took place that day.
The court in reviewing the purposes for which the statutory compensation scheme was established, and previous judgments, held that while long-standing authority dictates that while social legislation of the nature of COIDA 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 employee. If that had been the purpose, the legislation could simply provide for compensation for all and any injuries or illnesses sustained when at work, or in working. COIDA does not do that.
Liability insurers, including employer’s liability insurers, excluding claims properly made under COIDA should not forget the circumstances in which their insured employer may well have a liability.