Churchill v The Premier of Mpumalanga

On 5 April 2017, the appellant, Catherine Churchill, was employed as Chief Director: Policy and Research in the office of the Premier of Mpumalanga. That day, NEHAWU (National Education, Health and Allied Workers' Union) organized a protest at the Premier's office building over labour-related issues. About twenty to thirty protestors, who were employees with access cards, gained access to the building. While Churchill was returning to her office, she found it locked and swore in frustration. A protestor misconstrued this as being directed at the demonstrators and became aggressive, shouting at her. A group of protestors then pursued her into a colleague's office, forcibly lifted her above their heads, carried her up two flights of stairs while she pleaded to be released, subjected her to racial abuse (calling her "a piece of white s**t" and "mlungu"), removed her shoes, pushed, shoved and punched her in a crowd, and chased her out of the building while shouting "Voetsek" and "Get out". The incident lasted about 45 minutes. Churchill suffered physical injuries (bruises, scratches, swollen foot) and significant psychiatric injury (PTSD), eventually leading to her resignation in June 2017. She sued the Premier and Director-General for approximately R7.5 million in damages, alleging negligence in failing to ensure workplace safety. The defendants raised a special plea that her claim was excluded by section 35(1) of COIDA as it constituted an occupational injury.

• Whether the injuries sustained by the appellant constituted an 'accident' as defined in section 1 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)
• Whether the accident arose 'out of and in the course of' the appellant's employment
• Whether section 35(1) of COIDA excluded the employer's liability for damages
• Whether the assault on the appellant was a risk incidental to her employment
• Whether the employer's negligence and vicarious liability were established (subsidiary issue)

1. The appeal was upheld with costs, including costs for two counsel. 2. The high court order was set aside and replaced with: (a) Dismissal of the special plea; (b) A declaration that the First Defendant (Premier) is liable to compensate the plaintiff for damages arising from injuries suffered during the protest on 5 April 2017; (c) The matter was remitted to the high court for determination of the nature, extent and quantum of damages; (d) The First Defendant was ordered to pay costs of the action up to 23 May 2019 (the date of the high court judgment).

For an accident to arise 'out of' an employee's employment under COIDA, there must be a causal connection between the accident and the employee's service, and the risk must be incidental to the employment. While there is no bright-line test and each case depends on its own facts, the closer the link between the injury sustained and the performance of the ordinary duties of the employee, the more likely it will be that injuries arose out of employment. Conversely, the further removed from those duties, and the less the likelihood that those duties will bring the employee into a situation where such injuries might be sustained, the less likely that they arose out of employment. An assault on an employee at the workplace does not automatically arise out of employment merely because it occurred at the workplace or was perpetrated by co-employees. Where an assault occurs as a result of something external to the workplace and unrelated to the duties of the person assaulted, it cannot be said to arise out of their employment. The employer bears the onus of satisfying the court that the accident arose out of the claimant's employment for section 35(1) of COIDA to apply.

The Court made several non-binding observations: (1) It commented that while foreseeability of risk is a factor, even entirely unforeseen events may arise out of employment, so foreseeability is not definitive. (2) The Court observed that jobs such as security personnel inherently involve risks of assault arising from ordinary duties, distinguishing such employment from office positions. (3) The Court noted that assault on co-workers is treated in most workplaces as serious misconduct warranting dismissal, indicating it is not ordinarily something that arises from employment. (4) The judgment observed that attacks on a person's dignity and bodily integrity are not generally things that 'go with the job' as a matter of general proposition. (5) The Court commented that the motive of the perpetrator cannot be used to establish the requisite connection between an incident and the duties of the injured party. (6) The Court expressed the view that had the special plea been dismissed in the high court, the plaintiff's claim would have succeeded on the merits (negligence and vicarious liability), though the trial judge should have provided detailed reasons for this conclusion. (7) The Court noted that psychiatric injuries are legally equivalent to physical injuries with outward manifestations.

This judgment provides important clarification on the interpretation of 'arising out of and in the course of employment' under COIDA. It establishes that mere presence at the workplace when an incident occurs is insufficient to trigger COIDA's exclusionary provisions. The case clarifies that there must be a meaningful causal connection between the employee's duties and the accident, and the risk must be incidental to the employment itself. The judgment is significant for distinguishing between incidents that occur at work (in the course of employment) versus incidents that arise from work (out of employment). It protects employees from having their common law remedies excluded where workplace violence or assaults have no genuine connection to their employment duties, even where such incidents occur during labour protests. The case also demonstrates that the benevolent approach to interpreting COIDA has limits - not every workplace injury falls within the compensation scheme. This has implications for both employee rights and employer liability in contexts of workplace protests, violence, and assaults by co-employees.