SABRINA DEAN – A Bloemfontein doctor is now free to go ahead with a damages claim against the Free State Health Department related to a traumatic rape that happened while she was on duty at Pelonomi Hospital in October 2010.
This after the Supreme Court of Appeal today dismissed an appeal, with costs, brought by the department of health to try and prevent the claim.
The Health Department was appealing a decision by Free State High Court Judge J Mocumie that the doctor could proceed with a “common law” damages claim of R12.2-million, according to media reports. The department had contended that the doctor should bring the claim against the Compensation Fund under the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA).
The High Court last year ruled that the incident did not arise out of and in the course of the doctor’s employment as a Registrar and that consequently the rape was not an accident contemplated by section 35 of the COIDA.
This then cleared the way for the doctor to proceed with the common law damages claim. However, the department was granted leave to appeal the High Court ruling and the matter was heard by the SCA on 29 August.
It handed down judgment today and dismissed the appeal with costs, saying the doctor’s common law claim for damages was held not to be barred by section 35 of the COIDA. An extract from the judgment reads:
“If anything, it might rightly be said to be adverse to the interest of employees injured by rape to restrict them to COIDA. It would be sending an unacceptable message to employees, especially women, namely, that you are precluded from suing your employer for what you assert is a failure to provide reasonable protective measures against rape because rape directed against women is a risk inherent in employment in South Africa.
“This cannot be what our Constitution will countenance,” the judgement states.
It is not yet clear if, and when, the doctor’s legal representatives are expected to proceed with the damages claim. Bloemfontein Courant is waiting for a response to a query on this.
The case relates back to an incident in the early hours of the morning of 30 October 2010 when the doctor was hit over the head with a brick and raped in a passage at the hospital. She was on duty and was moving from a ward in one building to a ward in a different building.
Her assailant, who was 16 at the time the crime was committed, was not an employee of the hospital. He was subsequently arrested and found guilty of rape in 2011. He is serving a fifteen year jail sentence.