Limpopo cleaner claims R1.71m after colleague allegedly sprays chemical in her face

Limpopo cleaner’s R1.71m damages claim against employer survives COIDA challenge.

A Limpopo cleaner is suing her employer for R1.71 million after a colleague allegedly sprayed a chemical into her face, leaving her with severe eye injuries, pain, and psychological trauma.

The Limpopo High Court in Polokwane dismissed an attempt by Peppadew International (Pty) Ltd to block Cecilia Nkwinika's damages claim, ruling that the company cannot rely on the Compensation for Occupational Injuries and Diseases Act (COIDA) to escape potential liability.

Judge Marisa Naudé-Odendaal found that the incident, which occurred while Nkwinika was working as a cleaner at the company's premises, had no connection to the duties she was performing.

According to Nkwinika's particulars of claim, the incident occurred on April 23, 2023, during normal business hours.

She was allegedly performing her cleaning duties when another employee, identified as Senyolo, sprayed a chemical onto her face using a backpack sprayer owned by, or operated on behalf of, the company.

Nkwinika alleged that the chemical caused severe injuries to her eyes, resulting in excruciating pain and a sudden loss of vision, leaving her unable to see anything.

She claimed that the company and its employees negligently failed to take reasonable steps to ensure her safety at the workplace.

Among the alleged failures were not keeping a proper lookout, negligently operating the backpack sprayer, failing to consider the presence of other workers, and failing to take adequate precautions to prevent the chemical from spraying onto her face.

She also alleged that the employee operated the equipment without the necessary skill, knowledge, or certification.

Nkwinika listed her injuries as conjunctivitis, facial skin changes, swelling, an inability to count fingers with her right eye, chemical burns to her eyes, and psychological trauma and depression.

She is claiming R1.71 million in damages, covering past and future medical expenses, loss of earnings or earning capacity, pain and suffering, emotional trauma, and loss of amenities of life.

She also anticipates further medical treatment, including surgery and reconstructive surgery, ophthalmological treatment, optometric therapy, glasses, and psychological consultations.

The company, however, argued that her claim was barred by Section 35(1) of COIDA, which generally prevents employees from suing their employers for damages arising from occupational injuries covered by the Act.

Peppadew International argued that Nkwinika was injured in an accident arising out of and in the course of her employment and was therefore prohibited from pursuing a common-law damages claim against the company.

Nkwinika opposed the exception, arguing that although the incident happened at work, it was unrelated to her cleaning duties and did not constitute an occupational injury covered by COIDA.

Judge Naude-Oden­daal referred to the Supreme Court of Appeal's judgment in Churchill v Premier of Mpumalanga, which established that an injury occurring at the workplace does not automatically mean that it arose out of an employee's employment.

The court said there needed to be a direct connection between the injury and the execution of the employee's duties.

In Nkwinika's case, the judge found that the spraying of chemicals by Senyolo bore no relation to her duties as a cleaner.

“She did not sustain the injuries because of the position she held, or because of anything she had done in carrying out her duties.” 

The judge said Nkwinika was injured because Senyolo sprayed her in the face with a chemical using a backpack sprayer.

Whether the spraying was negligent or deliberate and constituted an assault would be determined by the trial court.

The court consequently ruled that Peppadew International was not excluded from liability and dismissed the company's exception.

The ruling does not determine whether the company is ultimately liable for the damages claimed or the amount Nkwinika may receive. Those issues remain to be determined in the main action.