Dinkha v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMRP 3
•2 April 2024
| DETERMINATION OF MERIT REVIEW PANEL | |
| CITATION: | Dinkha v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMRP 3 |
| CLAIMANT: | Fadi Dinkha |
| INSURER: | NRMA |
| MERIT REVIEW PANEL MEMBERS: | Bridie Nolan (Chair) |
| Anthony Scarcella | |
| Shana Radnan | |
| DATE OF DECISION: | 2 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; amount of statutory benefits payable under Division 3.3; consideration of Schedule 1, clause 3(2)(a) and (c) and the expression income “received”; claimant worked during relevant 12-month period but did not receive payment for that work; Held – claimant “received” as payment for his personal exertion $1,000 a week for two continuous weeks in the twelve-month period prior to the accident; while he was paid his earnings following the expiry the relevant twelve-month period, he “received” this payment in exchange for his personal exertion within the relevant 12-month period; the amount of statutory benefits payable is $1,000 a week. |
| DETERMINATIONS MADE: | (a) CERTIFICATE
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STATEMENT OF REASONS
INTRODUCTION
Fadi Dinkha, the claimant, was injured in a motor accident on 18 October 2021. The insurer accepted the applicant’s claim, under the Motor Accident Injuries Act 2017 (the Act).
The claimant brought an application for the determination of a merit review matter under Schedule 2, clause 1 (a) of the Act.
The dispute between the parties pertains to the amount of weekly benefits payable under Division 3.3 of the Act regarding the calculation of the Claimant’s pre-accident average weekly earnings (PAWE). The amount of PAWE affects the amount of weekly payments of statutory benefits payable under Division 3.3 of the Act (weekly payments of statutory benefits for injured persons).
The issue for determination can be very shortly stated: that is, whether the claimant’s PAWE was correctly calculated by the insurer at the minimum statutory amount for the first 13 weeks or should be calculated at $1,000 gross per week as contended for by the claimant.
In a decision dated 28 June 2022, the respondent determined that the applicant’s pre-accident weekly earnings (PAWE) are nil.
The dispute was referred to the Personal Injury Commission (the Commission).
Merit Reviewer Ruschen conducted a merit review and issued a certificate dated 25 November 2022, affirming the insurer’s decision dated 28 June 2022.
The applicant sought to have the determination of Merit Reviewer Ruschen reviewed on the basis that it was incorrect in a material respect. The review application was accepted and was referred to this Review Panel as constituted under 7.15 of the Act (the Panel).
BACKGROUND
The claimant claims he was employed by La Ho Pty Ltd on a casual basis.
10.On 28 June 2022 the insurer conceded that the claimant was an earner however was not earning continuously on the day of the accident his work trial having completed on 16 October 2021.
11.As the claimant was involved in a motor vehicle accident on 18 October 2021.The relevant 12-month period was 18 October 2020 to 17 October 2021.
12.In a signed statement dated 20 December 2021, the claimant stated he was employed by Mr La Ho as a painter’s labourer/assist for two (2) weeks in October 2021 and was paid $2,000 gross. He was employed for a trial period from 4 to 16 October 2021. The claimant’s bank statement showed that he received the payment of $2,000 on 22 October 2021, said to be the payment of wages for the trial period working for Mr La Ho. This evidence has been accepted by the parties as comprising the relevant facts.
RELEVANT STATUTORY PROVISIONS
Relevantly, s 3.6 of the Act provides that “[a]n earner who was injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injuries entitled to weekly payments and statutory benefits under this section during the first entitlement period.” Subsection 3.6(2) of the Act provides that a weekly payment of statutory benefits under this section is to be at a rate of 95% of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, for the first entitlement period.
Schedule 1, clause 1 of the Act, provides that the words and expressions to find in the Schedule apply to the purposes of s 3.3 of the Act. Relevantly, clause 3 provides that “loss of earnings” means a loss incurred or likely to be incurred in a person’s income from personal exertion. A person’s income from personal exertion is defined as:
(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.
15.A person’s income from personal exertion does not include:
(a) interest, unless the person’s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to the person for goods supplied or services rendered by the person in the course of the person’s business, or
(b) rents or dividends, or
(c) any employer superannuation contributions, or
(d) the monetary amount of any annual, sick or other leave entitlement.
16.Pre-accident weekly earnings is defined by Clause 4, Schedule 1 of the Act. Sub-clauses 1 and 2. Relevantly, 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 an earner as an earner during the 12 months immediately before the day on which the motor accident occurred, unless subclause (2) applies (which does not apply here.) 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.
SUBMISSIONS
Insurer’s submissions
17.The insurer accepts that the claimant was employed as painter’s assistant in the 2 weeks immediately preceding the motor accident, on a trial basis. The $2,000 payment for the work trial was paid on 22 October 2021, which is after the date of the motor accident on 18 October 2021. It submits that as the earnings for the work trial were not received before the accident, they are to be excluded from the calculation of PAWE under Schedule 1 (4)(1). Therefore, it submits that as the claimant did not receive any earnings during the period 18 October 2020 to 17 October 2021 the claimant’s PAWE is nil in which case he is entitled to be paid the minimum weekly statutory benefits less his post-accident earning capacity (if any) under 3.6 and 3.7 of the Act.
Claimant’s submissions
18.The claimant submits that the provision, properly construed, does not require the payment and physical receipt of money by the claimant prior to the accident but rather requires an entitlement to be paid for work performed by the claimant. He relies on the approach to statutory construction as set out by Garling J in Thiering v Daly [2011] NSWSC 1345 at [50] to submit:
a) An express object of the Act is “to provide early and ongoing financial support for persons injured in motor accidents”: s1.3(b) of the Act.
b) The Act also expressly provides: “In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.”: s 1.3 (4) of the Act.
c) The construction preferred by the insurer and adopted by the Merit Reviewer renders a claimant vulnerable to factors beyond their control. For example, an employer who simply fails to pay wages as and when required, or a pay cycle imposed by an employer that may be periodic and lengthy, such as monthly or longer, or even a banking error that sees the money diverted to an unintended recipient.
d) The provision in its own terms recognises that a claimant may have been engaged in paid work for a short period prior to being injured in an accident and provides nevertheless for those earnings to inform the calculation of pre-accident weekly earnings, a purpose not achieved by the narrow, strict, and literal construction adopted by the Merit Reviewer.
e) The objects of the Act and the avoidance of patently unintended or absurd results are all achieved by the rejection of the construction adopted by the Merit Reviewer and the adoption of the construction submitted by the claimant.
REASONS
19.Properly construed, the relevant statutory provisions are focused on income earned in the relevant twelve-month period, which is any income that a person receives from personal exertion in that period. It can include wages, tips, salary, commissions, or bonuses. It is different from unearned income, which is derived from things like investments or government benefits.
20.The relevant statutory purpose of the provisions is to provide compensation payments to a person injured in a motor vehicle accident in the form of a statutory benefit on account of past economic loss occasioned by loss of earnings or deprivation or impairment of earning capacity: see s 4.5(1)(a) of the Act.
21.It is through this prism that the expression “received” is to be properly construed as the compensation afforded a person for their personal exertion. As is particularly evident from the textual meaning of the expression as conveyed by its use in of Schedule 1, clause 3(2)(a) and (c) of the Act, “received” is not intended to convey actual receipt of monies but the act of exchange of payment for an earner’s personal exertion. This construction is consistent with the objects of the Act to provide early and ongoing financial support for persons injured in motor accidents: s 1.3(2)(b) of the Act.
22.In this case the claimant “received” as payment for his personal exertion $1,000 a week for two continuous weeks in the twelve-month period prior to the accident. While he was paid his earnings following the expiry the relevant twelve-month period, he “received” this payment in exchange for his personal exertion within the relevant twelve-month period.
23.Accordingly, the Panel is satisfied that the amount of statutory benefits that is payable under Division 3.3 (Weekly payments of statutory benefits to injured persons), is $1,000 a week.
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