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X, an employee of Tick-Tock Digitals (Pty) Ltd (the employer), injured his lumbar spine when the lift he was travelling in fell approximately seven floors. He was inside the lift for the purposes of gaining access to his office which is/was situated on the 48th floor of his employer’s building. As a result of this, he instituted court proceedings in the High Court where he claimed damages he allegedly suffered as a result of the injuries he sustained from his employer. The employer opposed the aforementioned claim and raised a special plea by placing reliance on the argument that X suffered the injuries during the course and scope of his employment and thus his claim was covered by COIDA.
Do you support the employer’s view? Does X have a claim against the employer?
This matter was dealt with in Dee Gee v Transnet SOC Ltd (30085/2015)  ZAGPJHC 2 (29 January 2019). The High Court (HC) had to determine whether an accident arose out of, and in the course of, an employee’s employment. In terms of section 35 (1) of the Compensation for Occupational Injuries and Diseases Act (COIDA), an employee who suffers an ‘occupational injury’ has no action for the recovery of damages against his/her employer. In terms of the definitions in COIDA, an ‘occupational injury’ is one that is sustained as a result of an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or death of the employee. The phrase ‘arising out of and in the course of employee’s employment’ was the crux of this matter, taking into consideration that the incident occurred when the employee was en route to his office in a high rise building where he is employed, which is owned by the employer.
The employer, in an attempt to avoid liability, submitted that the incident occurred whilst the employee was at the premises owned by the employer and during the employee’s course and scope of employment. According to the employer, the employee was, at all relevant and material times, an employee and was acting within the scope of his employment with the employer. Therefore, it follows that the employee was covered by COIDA and cannot claim against the employer as is stipulated in section 35 of COIDA. The claim was statutorily barred as the employer is indemnified by section 35 of COIDA.
The employee submitted that this was not an injury on duty arising out of or in the course of the employee’s employment, and when the accident occurred, the employee was not executing his contract of employment but was merely on his way to his place of work.
In establishing whether the incident was an injury arising out of or in the course of the employee’s employment the HC considered various court decisions and/or authorities from which it derived guidelines in determining whether an employee was within the sphere or area of his employment when an accident occurred. In establishing this, the court had to answer the following questions:
(a) Was the employee doing something he was employed to do at the time when the accident occurred?
(b) In travelling on elevator number 017 of the Carlton Centre to reach his office on the 48th floor of the building, was the employee fulfilling an obligation to his employer imposed by the contract of service? In other words, in doing so was the employee ‘doing something that was part of his services to his employer’?
(c) Was elevator 017 the ‘nearest available route to the employee’s office’? Or, was elevator 017 the prescribed route or prescribed means of conveyance for the employee to reach his office?
(d) Was the duty imposed upon the employee to travel on elevator 017?
(e) Was elevator 017 a private means of access to the employee’s office which he was entitled to use by reason only of his status as an employee or was the lift accessible to the general public?
(f) In travelling on elevator 017, was the employee fulfilling an express or implied term of his contract of service?
The HC held that the employer’s observation that “the incident occurred whilst the employee was at the premises owned by the employer” is not decisive to make an accident one arising out of, and in the course of, the employee’s employment. Even if the accident occurred at a place which is not owned by the employer it could still give rise to an occupational injury. The facts provided in this case were inadequate to support a finding that, on the balance of probabilities, at the time of the accident the employee was acting within the course and scope of his employment. Seemingly, none of the essential questions could be answered in the affirmative. Therefore, the HC held that section 35 of COIDA does not prohibit the employee’s claim against the employer and thus the employer’s special plea was dismissed.
Based on the given facts, it follows that, in the absence of the employer proving that X’s injuries occurred during the course and scope of his employment, COIDA will not cover the employee’s claim and such damages can be claimed directly from the employer.