Cunha v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Cunha v QBE Insurance (Australia) Limited [2024] NSWPICMR 14
CLAIMANT:	Daniel Cunha
INSURER:	QBE Insurance (Australia) Limited
MERIT REVIEWER:	Alexander Bolton
DATE OF DECISION:	28 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; the claimant was involved in a motor vehicle accident on 19 June 2023; until 28 may 2023 the claimant’s only source of income was a carers pension with respect to care provided by him for his mother; the claimant commenced work as a delivery driver on 28 May 2023 and continued that work for 12 days until the accident on 9 June 2023; the claimant contended that the Centrelink payments were income; the claimant contended that payment for work undertaken by him between 28 May 2023 and 9 June 2023 whilst not actually received during that time should be considered as income for the determination of his pre-accident weekly earnings; the insurer disputed that payments not received could be considered as pre-accident weekly earnings within the meaning of schedule 1 clause 4; Held – the Centrelink carer payments were not income for the purposes of assessing the claimants pre-accident weekly earnings; whilst the claimant performed services in the 12 days before the accident he did not receive any payment for those services until after the accident and thus could not be taken into account for the purposes of assessing his pre-accident weekly earnings; the claimant was entitled to payment of the minimum statutory benefit.
DETERMINATIONS MADE:	CERTIFICATE Determination 1. The claimant commenced work as a delivery driver on 28 May 2023 and undertook such work until 8 June 2023, the day of the accident. 2. The claimant was a continuous earner within the definition in schedule 1, cl 4(2)(a) of the Motor Accident Injuries Act 2017 (the MAI Act). 3. Whilst the claimant did perform delivery services between 28 May 2023 to 8 June 2023, he did not receive any payment for those services until after the accident. 4. The claimant’s pre-accident weekly earnings is $0.00 under schedule 1, cl 4 of the MAI Act. 5. The claimant is entitled to payment of statutory benefits of the statutory minimum.

STATEMENT OF REASONS

INTRODUCTION

Mr Daniel Cunha (claimant) has sought a review of a decision of the insurer concerning his pre-accident weekly earnings (PAWE).
The claimant was involved in a motor vehicle accident on 9 June 2023.
The insurer says the claimant’s PAWE is nil, given his particular circumstances which will be explained later. On this basis, the insurer says that the claimant is entitled to the statutory minimum.
The claimant lodged an Application for Personal Injury Benefits against IAG Limited trading as NRMA Insurance (NRMA) on 9 June 2023, the same day as the accident.

THE LEGISLATION

Division 3.3 of the Motor Accident Injuries Act2017 (the MAI Act) deals with an injured person’s entitlement to weekly payments of statutory benefits.
Sections 3.6 and 3.7 sets out an entitlement to weekly payments calculated with reference to the “pre-accident weekly earnings”.
Schedule 1 of the MAI Act sets out the definitions relating to “earner” and “pre-accident weekly earnings” for the purposes of statutory weekly payments under Division 3.3.
Schedule 1, cl 2 of the MAI Act provides:
“Meaning of ‘earner’
A person who is injured as a result of a motor accident is an earner if the person is at least 15 years of age and who—
(a) was employed or self-employed (whether or not full-time)—
(i) at any time during the 8 weeks immediately preceding the motor accident, or
(ii) during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident, or
(iii) during a period or periods equal to at least 26 weeks during the 2 years immediately preceding the motor accident,
and, at the date of the motor accident, had not retired permanently from all employment, or
(b) before the motor accident, had entered into an arrangement (whether or not an enforceable contract)—
(i) with an employer or other person to undertake employment, or
(ii) to commence business as a self-employed person,
at a particular time and place, or
(c) was, immediately before the motor accident, receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987.”
Schedule 1, cl 4 of the MAI Act provides:
“Meaning of ‘pre-accident weekly earnings’--general
(1)     ‘Pre-accident weekly earnings’, in relation to an earner who is injured as a result of a motor accident, means the weekly average of the gross earnings received by the earner as an earner during the 12 months immediately before the day on which the motor accident occurred, unless subclause (2) applies.
(2)     In the following cases, ’pre-accident weekly earnings’, in relation to an earner who is injured as a result of a motor accident, means--
(a) if, on the day of the motor accident, the earner was earning continuously, but had not been earning continuously for at least 12 months--the weekly average of the gross earnings received by the earner as an earner during the period from when the earner started to earn continuously to immediately before the day of the motor accident,
(a1) if the earner was employed or self-employed during a period or periods equal to at least 26 weeks during the first year of the pre-accident period, but was not obtaining earnings from any source at any other time during the pre-accident period--the average weekly gross earnings received by the earner as an earner during the first year of the pre-accident period,
(b) if subclause (3) applies--the weekly average of the gross earnings the earner received as an earner, or could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred,
(c) if the earner is an earner by reason of having entered into an arrangement with an employer or other person to undertake employment or to commence business as a self-employed person--the average weekly gross earnings that the earner could reasonably have been expected to earn, but for the injury, in employment under that arrangement.
(2A) The ‘pre-accident period’, in relation to a motor accident, is the period of 2 years immediately preceding the motor accident.
(3)     This subclause applies if, during the 12 months immediately before the day of the motor accident, there was, as a result of any action taken by the earner, a significant change in his or her earnings circumstances that resulted in the earner regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred.
Note: Examples of a change of circumstances to which this subclause would apply include a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards.
(4)     For the purposes of this clause, an earner earns continuously if he or she obtains earnings from permanent employment or from a source that, on the day of the motor accident, was likely to continue for a period of at least 6 months to provide earnings to the earner on the same, or a similar, basis to the basis on which the earnings were being provided as at that day.”

FACTS

On 29 August 2023, NRMA determined that the claimant’s PAWE was -$41.95. This meant that the minimum statutory weekly rate of $111.90 was applicable.
On 9 October 2023, an internal review conducted by NRMA concluded that the claimant’s PAWE was -$389.46 and maintained that the claimant was entitled to the minimum statutory weekly rate.
Later, in October 2023, the claim was transferred to QBE Insurance (Australia) Limited (the insurer).
On 19 February 2024, the insurer relied upon the previous PAWE decision and informed the claimant that he would continue to be paid the statutory minimum rate.
An internal review decision dated 11 March 2024 affirmed the original decision that the claimant’s PAWE was nil.
The claimant disputes the internal review decision and has applied to the Personal Injury Commission (Commission) for determination of the amount of weekly payments under Division 3.3 of the MAI Act.
The claimant had been in receipt of a carers pension, looking after his infirm mother, for approximately two years before the accident. Until 12 days before the accident, the claimant had no source of other “income” and only this carers pension.
The claimant acknowledges that he is not a continuous earner in terms of schedule 1, cl 4 of the MAI Act. This is because the claimant’s employer at the time of the accident went into liquidation shortly after the accident. The claimant became a contract courier driver approximately 12 days before the accident.
In those 12 days before the accident, the claimant had undertaken three delivery jobs, having a work value of $986.10, prior to the accident but had not received payment for any of those jobs prior to the accident.
The insurer disagrees that the claimant was not a continuous earner.

SUBMISSIONS
Insurer’s submissions

The insurer submits the following:
(a) the claimant was earning continuously under schedule 1, cl 4(2)(a) of the MAI Act and his PAWE is $0 and the statutory minimum applies;
(b) in the alternative, the insurer submits that schedule 1, cl 4(1) applies and the claimant’s PAWE is $0, and the statutory minimum applies, and
(c) the claimant’s tax return for the financial year ending 2023 demonstrated that in the 11 months and 21 days prior to the accident, the claimant’s taxable income was $514 in carer’s allowance from Centrelink.
The insurer initially submitted that in the financial year prior to the subject accident, the claimant had no taxable income from personal exertion under schedule 1, cl 3. In support of this, the insurer relied on the decision of AAW v GIO Ltd [2021] NSWPICMR 10 which the insurer said found that ‘Centrelink payments are not income from personal exertion’. The insurer’s solicitors however, later corrected this incorrect submission and no longer rely on it.
On 28 May 2023, 12 days prior to the subject accident, the claimant commenced operating a business as a delivery driver (operating as a sole trader under ABN: 63 867 876 423).
The claimant commenced working as a delivery contractor for Delivere Group Pty Ltd. The insurer says that purchase orders from that organisation appear to have been paid by a related company called Driver Contract Management Services Pty Ltd.
The insurer has calculated that three delivery jobs undertaken before the accident amounted to payments of $986.10. The insurer has also calculated weekly average expenses of $596.46. This leaves a balance of $389.64. No payments were received by the claimant before the accident.
The insurer accepts that the claimant operated as a self-employed person/sole trader pursuant to schedule 1, cl 2(a)(i) of the MAI Act.
The insurer says that as the claimant was a continuous earner, then accordingly his PAWE should be assessed in accordance with schedule 1, cl 4(2)(a) of the MAI Act. This applies if, on the day of the motor accident, the earner was earning continuously, but had not been earning continuously for at least 12 months.
The insurer referred to cl 4(4) of schedule 1 which says:
“For the purposes of this clause, an earner earns continuously if he or she obtains earnings from permanent employment or from a source that, on the day of the motor accident, was likely to continue for a period of at least six months to provide earnings to the earner on the same, or a similar, basis to the basis on which the earnings were provided as at that day.”
The insurer says that while the claimant did not receive any money into his bank account for the accident, he had “earned” the money for the deliveries conducted before the accident because he had undertaken the agreed-upon service, in the course of his business and was owed money at the time of the accident.
The insurer submits that the clause uses the terminology ‘obtains earnings’ rather than ‘received earnings’ which is used in other parts of cl 4.
The insurer submits that there is no evidence to displace the assertion that the claimant would not have continued to undertake his business as a delivery driver for at least six months after the accident. This submission is arguable in light of the fact that the claimant was a subcontractor to a company that went into administration within six months of the accident, on 3 October 2023.
The insurer, while not agreeing that the claimant was a non-continuous earner, did make submissions in this regard, in the alternative.
Regarding a non-continuous earner, cl 4(2)(b) of the MAI Act says that it applies only if;
“… During the 12 months immediately before the day of the motor accident, there was, as a result of any action taken by the earner, a significant change in his or her earnings circumstances that resulted in the earner regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred.”
Examples are provided of a change of circumstances to which the subclause would apply including a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards.
The insurer submits that the claimant was not an earner in the 12 months prior to the accident until he started his delivery business and noting that his only other apparent income was from Centrelink. The insurer says that a significant change must have occurred after the claimant started his delivery business which would have resulted in an increase, or entitlement to an increase, in his earnings.
The insurer says that no such change occurred immediately before the accident.
I accept that in the circumstances, despite the claimant’s admission that he was a non-continuous earner, there was no significant change that occurred immediately prior to the accident which was likely to increase his income. Therefore, in my finding, the claimant was a continuous earner. In response to this, the claimant submits that the change in circumstance from no earnings to become an earner would be a significant change as contemplated by schedule 1, cl 4(2)(b). There is nothing to suggest a claimant must already be an earner for a change of circumstances to be caught by cl 4(2)(b).
The insurer has noted that in response to its position that the claimant must have a change in earning circumstances for cl 4(2)(b) to apply, the claimant has contended that his Centrelink carer payments for the care of his mother deemed him an ‘earner’ and that such income amounts to ‘income from personal exertion’.
The insurer disagrees on both counts and notes that those terms are explicitly defined by the MAI Act. The insurer says that ‘Earner’ is defined in schedule 1, cl 2 as:
“A person who is injured as a result of a motor accident is an earner if the person is at least 15 years of age and who—
(a) was employed or self-employed (whether or not full-time)—
(i) at any time during the 8 weeks immediately preceding the motor accident, or
(ii) during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident, or
(iii) during a period or periods equal to at least 26 weeks during the 2 years immediately preceding the motor accident,
and, at the date of the motor accident, had not retired permanently from all employment, or
(b) before the motor accident, had entered into an arrangement (whether or not an enforceable contract)—
(i) with an employer or other person to undertake employment, or
(ii) to commence business as a self-employed person,
at a particular time and place, or
(d) was, immediately before the motor accident, receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987.”
The insurer says that Centrelink benefits, even those received as a carer, do not constitute any form of employment, self-employment, or an intention to undertake employment or self-employment.
Accordingly, the insurer says the claimant was not an ‘earner’ until 28 May 2023 when he started operating as a delivery driver.
The insurer says that ‘Income from personal exertion’ is defined in schedule 1, cl 3(2) as:
“(2) A person’s income from personal exertion is—
(a) the amount that is the income of the person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered, and
(b) the proceeds of any business carried on by the person either alone or in partnership with any other person, and
(c) any amount received as bounty or subsidy in carrying on a business.”
The insurer submits that carer’s payment from Centrelink is classified as an ‘income support payment’ (see Howe v Secretary, Dept Of Social Services [2024] AATA 262 at [5]; and Social Security Guide 1.2.5.20). The insurer says that the claimant is a beneficiary of this entitlement which is created under the Social Security Act 1991 (Cth). It is not a result of any ‘earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities’ received in the course employment or as a service provider.
Where the claimant points to having to care for his mother to receive these income support benefits, the insurer highlights that all payments under the Social Security Act have conditions attached which would require some degree of personal exertion. For instance, family support payments, parental payments, and student payments all require some form of personal exertion.
The insurer previously referred to the Commission’s matter of AAW v GIO Ltd [2021] NSWPICMR 10 which found that ‘Centrelink payments are not income from personal exertion’ for the purpose of the MAI Act. That matter did not state that only certain type of Centrelink payments would not be counted under the MAI Act, nor would the insurer submit that to be the case under the MAI Act.

‘Received’ earnings

The claimant has submitted that in the event that the claimant was a continuous earner, that earnings ‘received’ should be read down to include pre-accident earnings.
The insurer says that if as noted in its previous submissions, the meaning of the word ‘received’ under the MAI Act has been explicitly addressed by the Commission’s matter of Merzeo v Allianz Australia Insurance [2023] NSWPICMR 33, in which Member Ruschen clarified that ‘received’ earnings does not include work carried out prior to the accident for which earnings were received after the accident (at [15]):
“Clause 4(1) provides that the claimant’s PAWE is “the weekly average of the gross earnings received by” the claimant in this 12-month period. Accordingly, only earnings received by the claimant in the period 26 January 2022 to 25 January 2023 are included in PAWE. Earnings received before or after this period are excluded, including earnings received after 25 January 2023 even if they represent work carried out prior to this date.”
The insurer says that the claimant has suggested that this interpretation is in conflict with the intention and operation of the MAI Act. The insurer disagrees.
The insurer says that cl 4(2)(a) is clearly articulated and uses the word ‘received’.
The insurer submits that the use of the word ‘received’ was purposeful and its meaning cannot be nullified. In the insurer’s view, the likely intention of the word was to exclude earnings received after a motor accident which either could not be guaranteed as realised income, or which would result in delay and uncertainty in the calculation of PAWE.
In a decision of a Merit Review Panel of Kipkorir v Insurance Australia Limited trading as NRMA Insurance [2024] NSWPICMRP 4, the Panel discussed the interpretation of the words “the weekly average of the gross earnings received by the earner as an earner during the period from when the earner started to earn continuously to immediately before the day of the motor accident” as they appear in schedule 1, cl 4(2)(a) of the MAI Act.

In Kipkorir the Review Panel said:
“The Review Panel is satisfied it was the intention of the legislature to limit the calculation of the PAWE to gross earnings received to a period which ceases immediately before the day of the accident. The text is clear. If the intention had been to include payment for work undertaken during the relevant period but not received during the period ending immediately before the day of the accident the legislature could have readily done so.
The Review Panel is satisfied this interpretation satisfies the objects of the MAI Act in promoting the recovery and return to work of those injured in accidents whilst keeping in mind the overall aim of keeping scheme premiums affordable.
Accordingly, the Review Panel does not propose to take into consideration the sum of $776.20 received on 27 September 2023 where it was not received before the day of the accident.”
The insurer maintains that the claimant was a continuous earner for the purpose of schedule 1, cl 4(2)(a) from 28 May 2023 - 8 June 2023 and the earnings ‘received’ during that period was nil.

Claimant’s submissions

In response, the claimant submitted the following:
“The claimant does not accept that the Centrelink payments are not income from personal exertion, having regard to the fact that the Claimant's Centrelink payments are taxable and were paid because of his role as a carer as set out in his supplementary statement.”
Concerning the claimant’s delivery work, the insurer had highlighted that the claimant did not 'receive' the payments in his bank account until after the date of accident. The insurer submitted that those payments should not be considered as part of the claimant's PAWE.
The claimant referred to the majority decision in Project Blue Sky v ABA [1988] 194 CLR 355, in which it was held that:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole.”
The claimant submitted that there is an obvious inconsistency in looking to the date a payment was received in calculating PAWE, as defined by Schedule 1, cl 4 of the MAI Act. The claimant says that the interpretation contended for by the insurer leads to an absurd outcome contrary to the objects of the MAI Act.
The claimant says that consistent with the abovementioned authority, reconciling conflicting provisions requires consideration as to the leading provision and subordinate provision.
The claimant submits that this inconsistency can be resolved by looking to the objects of the MAI Act which amongst other things, look to “provide early and ongoing financial support for persons injured in motor accidents” (s 1.3).
In the claimant's submission, the term "received" should be read down, having regard to the ordinary meanings of 'pre-accident' and 'earnings'. In the claimant's submission, where income derived from personal exertion occurred before the accident, the fruits of that personal exertion must be included in the calculation of PAWE, on the basis that it was earned pre-accident.

REASONS
Is the claimant an earner?

Summarising schedule 1, cl 2 of the MAI Act, in the circumstances of the claimant, a person is an “earner” if he was at least 15 years of age and was;
(a) employed or self-employed
(i)at any time during the 8 weeks immediately preceding the accident or
(ii)during a period equal to at least 13 weeks during the year immediately preceding the accident and had not retired and
(b) before the accident had entered into an agreement to commence business as self-employed person
The claimant was in receipt of two forms of income prior to the accident.
Firstly, he was in receipt of a carers pension arising from care provided by him to his mother. For consideration, however, is whether this pension can be regarded as “income”.
Secondly, he was in receipt potentially of income from personal exertion derived from being a delivery driver. This was as a result of a new business he had commenced operating, 12 days prior to the accident.

Has there been a loss of earnings?

A loss of earnings, defined under the MAI Act, means a loss incurred or likely to be incurred in a person’s income from personal exertion.
Income from personal exertion is defined under the MAI Act to include pensions and earnings in relation to services rendered and the proceeds of any business carried on by the person.
The claimant was in receipt of a carers pension. However, whilst this might be a pension to be included in the claimant’s assessment of taxable income, it is not my finding something that represents income derived from personal exertion. The claimant said in his statement of 24 April 2024 that he had been the carer for his mother since around two years pre-accident. The extent of his care, he said, was supervisory in nature and he did not have to exert himself physically.
Not all pensions are derived from personal exertion and even though the amount of income from the pension might form taxable income, it is not income, on my assessment, under the MAI Act, that can be considered in this question of whether the claimant is an earner. In my finding, any payments received by the claimant for his supervisory role as a carer of his mother is not something falling within the definition of an “earner” under the Act. It does not derive from personal exertion.
Centrelink cannot be regarded as an employer of the claimant such that carer payments to the claimant would be regarded as income for services rendered. I note also that the income derived in the 2023 income tax year from his carers pension was $515.
However, it is my finding that the work undertaken by the claimant as a delivery driver does fall within the definition of an earner the MAI Act. The claimant was self employed at a time during the eight weeks immediately preceding the accident. He had not retired from employment and had commenced business as a self-employed person.
Under cl 2(a) a person does not need to be in receipt of earnings from employment or self-employment at the time of the accident to meet the definition of "earner". However, they "must be an earner when injured to be entitled to statutory benefits". It follows from this that once a person meets the definition of "earner" under cl 2(a) they are then an "earner" at all material times under the MAI Act, including for each and every week of the relevant 12-month period under cl 4(1), including any period within the 12 months where there were no earnings.
I have concluded that the carers pension cannot be included as part of the claimant’s income for the purposes of calculation of his weekly benefits as it was not a form of income derived from personal exertion but only supervisory in nature, according to the claimant.
In Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481, Harrison AsJ said that:
“with respect to the wording in schedule 1 cl 2 of the Act, once it is established that a claimant fits within the definition of an earner, they are to be considered an earner at all material times during the pre-accident period, even if they are not earning for the entirety of that period. Her Honour said that as was pointed out by the dissenting member in the decision below ( [2021] NSWPICMRP 2), this interpretation is supported by consideration of ss 3.6 and 3.7 of the MAIA. The dissenting member said at [16] of her reasons:
[16] The fixed status of ‘earner’ is apparent when one considers the use of the word ‘earner’ in sections 3.6 and 3.7. If an ‘earner’ is only an ‘earner’ at a point in time when they are actually in receipt of earnings a literal reading of sections 3.6 and 3.7, which require Mr Shahmiri to be an earner on the date of the accident, would result in Mr Shahmiri, who was not working on the date of the accident, having no entitlement to weekly benefits under section 3.6 or 3.7.”

Was the claimant a continuous or non-continuous earner?

I am satisfied that at the time of the accident, the insurer was over 15 years of age, was self employed as a delivery driver (having commenced this business on 28 May 2023 and continuing this until the day of the accident on 9 June 2023) for a period within eight weeks immediately preceding the accident. He had not retired and he had entered into an agreement to commence business as a self-employed person before the accident. The claimant was therefore on my finding a continuous earner at the time of the accident.

Calculation of pre-accident weekly earnings

The insurer submits that the criteria in cl 4 (2)(a) applies because:
(a)     the claimant had ‘obtained earnings’ in the 12 days before the accident;
(b)     those earnings were likely to continue similarly for at least another six months, and
(c)     those earnings had not been continuous for at least 12 months.
The insurer submits that the effect of cl 4 (2)(a) is that the claimant’s PAWE is assessed as:
“the weekly average of the gross earnings received by the earner as an earner during the period from when the earner started to earn continuously to immediately before the day of the motor accident.”
The insurer says that therefore, the applicable method for determining the claimant’s PAWE under cl 4(2)(a) is to average the weekly earnings ‘received’ by the claimant from 28 May 2023 – 8 June 2023.
The insurer refers to and relies on the decision of Merzeo v Allianz Australia Insurance [2023] NSWPICMR 33, Member Ruschen clarified that ‘received’ earnings does not include work carried out prior to the accident for which earnings were received after the accident (at [15]):
“Clause 4(1) provides that the claimant’s PAWE is ‘the weekly average of the gross earnings received by’ the claimant in this 12-month period. Accordingly, only earnings received by the claimant in the period 26 January 2022 to 25 January 2023 are included in PAWE. Earnings received before or after this period are excluded, including earnings received after 25 January 2023 even if they represent work carried out prior to this date.”
In Shamiri, Harrison AsJ considered the construction of schedule 1, cl 4(1) of the MAI Act.[1] The claimant had been employed for 29 weeks in the 12 months prior to the accident and the question was whether the earnings should be averaged over 29 weeks or 52 weeks. Harrison AsJ concluded the words “earnings as an earner” are intended to exclude earnings earned by the earner that do not fall within the ambit of cl 2(a) because they are not earnings from employment and not to define the period over which the earner’s gross earnings are to be averaged. In Shamiri, Harrison AsJ found the PAWE should have been calculated by taking the earnings over the whole of the
[1] Allianz Insurance Australia Limited v Sharmiri [2022] NSWSC 481.
12-month period immediately before the date of the accident and dividing it by 52 to reflect the number of weeks during that 12-month period.
In relation to the sub-cls (2)(a) -(c) of schedule 1, cl 4 of the MAI Act, Harrison AsJ stated:
“For completeness’ sake, regard should also be had to the other subclauses in sch1 cl4 of the MAIA. None of the subclauses 4(2)(a)-(c) suggest there should be an adjustment made to the period specified within those clauses to accommodate periods where the claimant was not earning.”
The claimant received no income from his business in the applicable period between 28 May 2023 – 8 June 2023.
Accordingly, the insurer submits that the claimant’s PAWE is $0.00 under cl 4.

Period for calculation

In calculating the relevant period over which the weekly average of the gross earnings is calculated, I refer to the wording in schedule 1, cl 4(2)(a) which provides that the period for calculation is the day that the claimant commenced to “earn continuously” rather than the date when he commenced to “receive” earnings.
This means the time over which the calculation is required to be averaged commences on the date the claimant started to earn continuously whilst the amount is determined by the gross earnings received during the relevant period. I note that this methodology was approved in a Merit Review Panel determination of Kipkorir.
The issue of whether the PAWE calculation should be over 52 weeks or 4 weeks is to some degree academic in this claim. The claimant, whilst he had been working as a delivery driver, and had undertaken several jobs between 28 May 2023 and
9 June 2023, had not received any payments for those jobs until after the accident.
As I have said, I do not consider the claimant’s carers pension allowance as income for the purposes of calculating his PAWE. Thereafter, as I have found that the claimant did not receive any payment for services rendered by him in the twelve days he operated a business a courier driver, then he has no income averaged over 12 months.
Given my findings, it is also not necessary for me to consider any calculations going to the claimant’s gross income.

CONCLUSION

The claimant was a continuous earner, coming within the terms of schedule 1, cl 4(2)(a).
As I have found that the claimant was a continuous earner within the definition of cl 4 (2)(a), I am not satisfied that the terms of cl 4(2)(c) apply.
The claimant received no income from his business in the applicable period between 28 May 2023 to 8 June 2023. Accordingly, the claimant’s PAWE is $0.00 under cl 4.
The claimant is entitled to payment of the statutory minimum.

DETERMINATION

The claimant commenced work as a delivery driver on 28 May 2023 and undertook such work until 8 June 2023, the day of the accident.
The claimant was a continuous earner within the definition in schedule 1, cl 4(2)(a) of the MAI Act.
Whilst the claimant did perform delivery services between 28 May 2023 to
8 June 2023, he did not receive any payment for those services until after the accident.
The claimant’s PAWE is $0.00 under schedule 1, cl 4 of the MAI Act.
The claimant is entitled to payment of statutory benefits of the statutory minimum.

[2024] NSWPICMR 14

28 June 2024