Conde v Insurance Australia Limited t/as NRMA Insurance

The case of Conde v Insurance Australia Limited t/as NRMA Insurance involves a claim for compensation under the Motor Accident Injuries Act 2017 (the Act). The dispute concerns the interpretation and application of the pre-accident weekly earnings (PAWE) for the purpose of calculating the weekly benefit payable to the claimant following a motor accident. The claimant, Conde, sought a review of the insurer's decision which had excluded certain earnings during the lockdown period due to the COVID-19 pandemic. The case was heard in the Civil and Administrative Tribunal of New South Wales.

The central legal issue before the tribunal was whether the PAWE could be adjusted to account for the economic impact of the COVID-19 pandemic lockdown, particularly in relation to the effect on the claimant's earnings. The tribunal needed to consider if the lockdown period should be treated as a 'change of earnings circumstance' under Schedule 1(4)(2)(b) of the Act, and if disaster payments received during the lockdown period could be included in the PAWE calculation. The claimant argued that the lockdown circumstances warranted an adjustment to the PAWE to reflect the true economic impact on the claimant’s income.

The tribunal found that the lockdown period constituted a change of earnings circumstance and that it was appropriate to adjust the PAWE to reflect the economic impact of the lockdown. The tribunal held that the disaster payments received by the claimant during the lockdown should be included in the PAWE calculation as they represented a form of earnings. The tribunal set aside the insurer's decision and remitted the matter back to the insurer for recalculation of the weekly benefit payable to the claimant. The tribunal’s decision emphasised the importance of considering the actual economic circumstances of the claimant in the period leading up to the accident.

The tribunal's final order was that the reviewable decision of the insurer be set aside and that the matter be remitted back to the insurer for recalculation of the weekly benefit payable to the claimant, taking into account the adjusted PAWE as determined by the tribunal.