When the Workplace is Not Enough: Coida, Co-Employee Negligence and the Limits of the Employer’s Statutory Shield

Introduction

The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) has long been understood as a trade-off: employees receive no-fault statutory compensation for occupational injuries, and in exchange employers are shielded from common-law damages claims by section 35(1). A recent reportable judgment of the High Court, Limpopo Division, has tested the boundaries of that shield.

The plaintiff, employed as a cleaner, instituted a common-law action for damages against her employer. She alleged that while she was at work during normal business hours and performing her duties, a fellow employee, acting within the course and scope of his employment, sprayed a chemical into her face with a backpack sprayer belonging to the employer. She pleaded that the incident was caused by negligence, including the failure to keep a proper lookout and the operation of the sprayer without the required skill or certification, and that she suffered chemical burns to her eyes, impaired vision and psychological trauma. She claimed damages of R1 710 000.

The employer did not plead to the merits. Instead, it raised an exception, contending that the particulars of claim disclosed no cause of action because the incident was an “accident” under COIDA, so that the claim was statutorily barred by section 35(1).

Issues for court determination

The central question was whether, on the facts as pleaded, the plaintiff’s injury was an “occupational injury” resulting from an “accident” as defined in COIDA, namely an accident arising out of and in the course of her employment. If it was, section 35(1) would preclude her common-law claim against the employer, and the exception would have to be upheld.

Within that question lay a narrower one: whether it was sufficient that the injury occurred at the workplace while the employee was performing her duties, or whether there must also be a connection between the injury and the risks incidental to her employment. The employer argued that the incident plainly arose out of and in the course of her employment. The employee argued that, although her employment placed her within the zone of risk, the injury bore no relation to her duties and was not a risk incidental to her employment.

Findings and reasons

The court dismissed the exception with costs. Relying principally on the Supreme Court of Appeal’s decision in Churchill v Premier, Mpumalanga, the court reasoned that COIDA indemnifies the employer only where there is a nexus between the injury and the execution of the employee’s duties. Where an injury occurs at the workplace but is unrelated to the employee’s duties, the employer does not enjoy the protection of section 35(1).

Applying that approach, the court found that the spraying of the chemical bore no relation to the plaintiff’s duties as a cleaner. She was not injured because of the position she held or because of anything she had done in carrying out her duties; she was injured because a co-employee sprayed her in the face. The court expressly left it to the trial court to determine whether the spraying was negligent or a deliberate assault. It concluded that the employer was not excluded from liability by section 35(1) and ordered it to pay the costs of the exception.

The reasoning is not beyond criticism. Churchill and the earlier authorities on which it builds were assault cases, in which the motive for the attack was decisive. Here, the claim was pleaded in negligence, arising from a co-employee’s handling of the employer’s equipment on the employer’s premises, which is arguably a classic risk incidental to employment. The court’s decision to leave open whether the incident was negligent or deliberate also sits uneasily with a finding made at exception stage, where the pleaded facts must be accepted as true. Unfortunately, this was an exception hearing, and the possibility of an appeal is almost non-existent.

Conclusion

The judgment is significant because it adopts a narrow view of when an injury “arises out of” employment, and in doing so it potentially extends the circumstances in which employers can be sued at common law for workplace injuries. If followed, it suggests that injuries caused at work by a co-employee’s conduct, which are unrelated to the injured employee’s own duties, may fall outside the section 35(1) bar, exposing employers to full delictual damages, including general damages, rather than only statutory compensation.

For the insurance market, this has practical consequences. Employers have traditionally relied on COIDA as the primary response to workplace injuries, with employer’s liability or public liability cover addressing residual exposure. Should this approach gain traction, insurers may see an increase in common-law claims by employees, and should review whether existing employer’s liability, public liability and general liability wordings respond to such claims, how employee exclusions are framed, and whether limits of indemnity remain adequate. Employers, in turn, should report such incidents promptly to both the Compensation Commissioner and their liability insurers.