Dear Folks

I am starting this newsletter on a Saturday morning while watching the sun rise. So you think I’m that diligent? Wrong. My damn alarm went off again at 03h00 this morning and it makes such a racket that each time it happens I nearly soil my bajamas. So I couldn’t sleep after that – especially as I realised for the first time that I am suffering from Post Traumatic Stress Disorder which is the topic of this newsletter. Yes a few years ago that same racket saved my life after it alerted ADT (not a disorder) to the fact that I was about to be attacked in my bedroom. The skelms had borrowed a ladder from my garden and decided it was ideal to gain entry to my upstairs bedroom. They even complied with the OHS Act in that it was securely held by another skelm at the bottom and naturally I always maintain my plant and machinery. They knew I was home because my car was visible in the carport and I’m sure they weren’t coming into my bedroom to sing me a lullaby! Or for that matter to pleasure me! Anyway after that I jacked up my security at considerable cost to myself but that sound still haunts me. Perhaps I should download a different ring tone? I am still trying to figure out why the ADT security guard chased the one on the ground instead of just kicking the ladder over with the other skelm on it. He was working at an elevated position, had no Fall Protection Plan and I could have panelbeated him a little while he lay (hopefully) writhing in pain on the ground. Sadly they both got away…….. with my laptop which they removed from a downstairs office…..again. (They had visited me before). And to think how loud that siren must sound to my two girls, Thelma and Louise, since it is situated just outside their bedroom. They are both Boston terriers.

But this is my alter ego writing, you know that other devilish advocate and she suffers from periodic bouts of madness. So I have decided that I can add schizophrenia, PMS, Post Traumatic Stress Disorder, Attention Deficit Disorder and Dyslexia to my resume. We know now at least that one of the above is compensable in terms of the COID Act. Furthermore it took the courts to force the reluctant hand of the Compensation Commissioner to get there. (Should I apply to the Commissioner?).

In one of the most dramatic decisions to assist persons who suffer Post Traumatic Stress (PTS) at the workplace, a court has abandoned the archaic notion that only persons in the security industry can suffer from PTS and ruled that a newspaper photographer who was subjected to numerous stress-related occurrences, also can suffer from PTS and be entitled to compensation from the Department of Labour. In Urquhart v Compensation Commissioner [2005] (E) the Eastern Cape High Court ruled that PTS is an occupational injury and as such is compensable by the compensation commissioner. Justice D. Jones ruled that the narrow interpretation of ‘injury on duty’ which until now has been limited to physical injuries, is totally incorrect and that PTS (or psychological injuries) as with physical injuries, qualifies as ‘injuries on duty’. The man who started it all, culminating in this important decision, which impacts upon all employers, is Colin Urquhart, a former photographer at The Herald. In May 1995 he suffered a nervous breakdown and was diagnosed with PTS. His application for compensation because of his inability to work was rejected by the compensation commissioner. He then turned to the High Court where Justice Jones ripped every finding of the commissioner apart and found in favour of Urquhart. Another important finding was the incorrect perception that an injury on duty be linked to a specific incident. As in the case of Urquhart, an injury could be the result of numerous incidents over an extended period.

I was going to discuss Media 24 Ltd & another v Grobler [2005] (SCA) and pose the question whether an employer can be held liable in terms of section 8 of the OHS Act if it negligently fails to protect the mental health of an employee who was sexually harassed at the workplace? Is that employee prevented from suing the employer in terms of section 35 of the COID Act? It is well settled that an employer owes a common-law and statutory duty to its employees to take reasonable care for their physical safety. This duty cannot be confined to an obligation to take reasonable steps to protect them from physical harm caused by what may be called physical hazards. Since I know many of you also suffer from Attention Deficit Disorder, I will keep it for next time. It does tie up with Urquhart v Compensation Commissioner [2005] (E) so we will regard that newsletter as part two of the saga.

Other news. Another tragic mine accident. Another example of a reckless sub judice remark by the Minister of DME who labelled it ‘gross negligence’. I wonder what disorder she suffers from? Oops. I better be careful lest I go the David Bullard way. My friends abroad, who mistakenly think they are part of the brain drain but in reality have taken the chicken run, fear for my safety sometimes when I write these newsletters. My dwindling circle of friends here are all considering to move to that Bloemfontein-by-the-sea………Brisbane.

Then we have the Guava Commission into Pickles. What a fiasco. I think the Minister of Justice and perhaps our beloved President might find themselves in somewhat of a pikoli!

Many of you have asked when I will do another round of OHS workshops. I am hoping to tour towards the end of the year and to focus on my speciality – combating liability in terms of OHS legislation albeit the OHS Act, the MHS Act or the common law. The amendments to the construction regulations should have been passed by our lazy parliament by then and their ramifications are also quite severe. We can also take stock of the draft National Occupational Health & Safety Bill.