- Cecilia Nkwinika is claiming R1.71 million after a colleague sprayed a chemical into her face while she was at work.
- Peppadew argued that the Compensation for Occupational Injuries and Diseases Act (COIDA) barred her from claiming damages directly from the company.
- The judge found that the incident had no connection to Nkwinika’s duties as a cleaner and that COIDA did not exclude the employer from common-law liability.
A cleaner who suffered serious eye injuries after a colleague sprayed a chemical into her face at work can proceed with her R1.71 million damages claim against her employer after the High Court in Polokwane dismissed an exception challenging her action.
Cecilia Nkwinika was employed by Peppadew International as a cleaner. According to her particulars of claim, the incident happened on 23 April 2023, during normal business hours, while she was lawfully on the company’s premises performing her duties.
Another employee, identified as Senyolo in the judgment, sprayed a chemical onto her face using a backpack sprayer owned by or operated on behalf of the company. She alleged that Senyolo was acting in the course and scope of his employment when the incident occurred.
Nkwinika claimed that the chemical caused severe injuries to her eyes, including chemical burns, impaired vision, facial skin changes and swelling. She also alleged that she suffered psychological trauma and depression.
She attributed her injuries to negligent failures by the company, its employees or agents to maintain reasonable safety conditions on the premises. Among other allegations, she claimed that those operating the sprayer failed to keep a proper lookout, disregarded the presence of other employees and operated the equipment without the necessary skill, knowledge or certification.
She further argued that the company could reasonably have foreseen the risk of injury and should have taken precautions to prevent it.
Employer relies on COIDA to challenge claim
Nkwinika instituted a common-law damages action against Peppadew, claiming R1.71 million for medical and hospital expenses, future treatment, loss of earnings and earning capacity, general damages and related losses.
Her future medical expenses included possible surgery and reconstructive surgery, ophthalmological treatment, optometric therapy, spectacles and psychological consultations.
Peppadew opposed the action by filing an exception to her particulars of claim. It argued that Nkwinika was an employee, the company was her employer, and the incident constituted an accident arising out of and in the course of her employment, as contemplated by the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA).
The company relied on Sections 22(1) and 35(1) of the Act. Section 22 provides for compensation when an employee suffers an accident resulting in disablement or death, while Section 35(1) generally prevents employees from instituting common-law damages actions against their employers for occupational injuries or diseases covered by the Act.
Peppadew maintained that Nkwinika was therefore statutorily barred from claiming damages directly from the company and had no common-law claim arising from the incident.
Workplace injury must be connected to employment
Opposing the exception, Nkwinika argued that her injuries did not fall within the ambit of COIDA because the spraying incident had no connection to her duties as a cleaner.
Her argument relied on the Supreme Court of Appeal’s decision in Churchill v Premier, Mpumalanga, which considered the distinction between an injury occurring at work and one arising out of employment. The judgment explained that an accident under COIDA must involve an event arising out of and in the course of employment and resulting in personal injury, illness or death.
The court also considered MEC for Health, Free State v DN, which addressed whether the risk that caused an injury was incidental to the employee’s employment. The central question was therefore not simply whether Nkwinika was at work when she was injured, but whether the incident had the necessary connection to her employment.
Judge M Naudè-Odendaal found that the spraying of chemicals by Senyolo using a backpack sprayer bore no relation to Nkwinika’s duties as a cleaner. She had not been injured because of the position she held, anything she had done while performing her duties or any other reason connected to the execution of those duties.
The judge found that her presence at the workplace established only a temporal and geographical connection with her employment. It did not establish the necessary link between the incident and her work. Whether Senyolo sprayed her negligently or deliberately as an assault was a matter for the trial court to determine, the judge said.
Exception dismissed
Judge Naudè-Odendaal concluded that Peppadew was not excluded from common-law liability by Section 35(1) of COIDA and that Nkwinika’s damages action could proceed. The court dismissed the exception and ordered Peppadew to pay Nkwinika’s legal costs on Scale B.
The ruling does not determine whether the company was negligent or whether Nkwinika is entitled to the R1.71 million claimed. Those issues remain to be determined in the underlying damages action.
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