Court dismisses teacher’s loss-of-earnings claim over 2021 accident - TimesLIVE

The Mbombela high court has dismissed a former Mpumalanga teacher’s claim for past and future loss of earnings arising from injuries she sustained in a 2021 road accident.

In a judgment handed down by acting judge Maboku Mangena on Tuesday, the court found that Zenzile Lubisi voluntarily retired in 2024 because she had reached pensionable age, rather than because of her injuries.

Lubisi was a passenger in a vehicle involved in an accident on January 15 2021. She suffered a fractured right wrist, a soft-tissue injury to her right shoulder and a fractured rib.

Though the Road Accident Fund (RAF) accepted liability for the accident, with an agreement that a general damages claim would be adjudicated separately on receipt of the decision from the Health Professions Council of South Africa, the parties disagreed over whether Lubisi had suffered a loss of earnings as a result of her injuries.

The contention by the RAF was that Lubisi had not suffered any such loss because she resigned from her employment voluntarily. Lubisi’s contention was that she resigned due to accident-related injuries.

She argued that her injuries made it difficult for her to continue working.

Mangena assessed Lubisi’s claim. Lubisi submitted a report from an orthopaedic surgeon who, after assessing the severity of the injuries, concluded that they were not of such a serious nature that they would affect her ability to perform her duties as a teacher.

“The expert further stated ‘there will not be early retirement due to the orthopaedic injuries sustained in the accident’.”

Mangena said the expert added the report represented “my independent evaluation, prepared solely for the court’s assistance”.

“This was a refreshing input which I find redemptive of the medical profession’s practice and application of their ethical standards at a time when some among them have forsaken their independence and duty to the court in pursuit, or rather prosecution, of their client’s case,” Mangena said.

Mangena said an occupational therapist stated that Lubisi reported feeling bodily pain whenever she bent, stood for long periods or lifted heavy objects.

“All of these were reported to the orthopaedic surgeon, and they defer to her opinion in this regard. Notwithstanding the pain experienced, the occupational therapist concluded that (Lubisi) meets most of the physical demands of her pre-accident occupation, with the exception of lifting heavy objects.”

Mangena said the undisputed record on file revealed that the employer, the department of education, had accommodated Lubisi during the three-year period that she was at work after the accident.

Lubisi was allocated an assistant teacher to help her in areas she was not able to work. Mangena said Lubisi was able to cope with her work and perform her duties until she resigned in 2024.

He said in the letter by the education department informing Lubisi of the approval of her resignation, the subject heading was “Resignation due to Age”.

This meant Lubisi resigned not due to the injuries sustained in the accident but due to reaching a pensionable age.

“There is no evidence on record suggesting that the employer ever entertained the thought of ‘laying her off’ due to incapacity.”

Mangena said Lubisi’s version, that she resigned from her work due to the accident, as she suffered physical pain in the morning on waking, was not supported by her own expert witnesses and the documents from her employer.

“She resigned due to her having reached a pensionable age. This, in my view, renders her resignation a voluntary retirement,” Mangena said.

He said her resignation could not be attributed to the accident.

It was a deliberate and voluntary act motivated by considerations other than the accident, as evinced by the resignation letter.

“If she was resigning due to the accident, she would have said so in her application letter, and the heading would not have made reference to her reaching pensionable age.”