Du v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Du v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 38
ClaimanT:	Ke Qun Du
Insurer:	Insurance Australia Limited t/as NRMA Insurance
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	14 July 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3; meaning of earner; schedule 1 clause 2; arrangement to undertake employment at a particular time and place; clause 2(b); pre-accident weekly earnings (PAWE) under schedule 1 clause 4(c); onus of proof; Held – the reviewable decision is affirmed.
Determinations made:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 DETERMINATION The reviewable decision is about the amount of weekly benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reveiwable decision is affirmed. 2. The effective date of this decision is 21 March 2023.

STATEMENT OF REASONS

INTRODUCTION

There is a dispute between Ke Qun Du (the claimant) and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant was involved in a motor accident on 22 December 2021.

On 23 January 2023 the insurer advised the claimant that her pre-accident weekly earnings (PAWE) amount had been calculated as nil on the basis it had been determined that the claimant was not an earner within the meaning of the MAI Act.
On 16 June 2023 the claimant’s solicitors requested an internal review regarding the calculation of PAWE and alleged the claimant should be entitled to weekly benefits of $1,050.
On 19 June 2023, the insurer denied the claimant’s internal review application in accordance with Clause 7.4 of the Motor Accident Guidelines (the Guidelines) on the basis the request for an internal review was not made within 28 days of notice of the original decision.
The claimant requested a merit review of the insurer’s internal review decision dated 5 April 2023.

SUBMISSIONS

The dispute is about whether the claimant is an earner within the meaning of the MAI Act.
The claimant submits she is an earner pursuant to Schedule 1, cl 2(b) of the MAI Act on the basis she contends that before the motor accident she had entered into an arrangement to undertake employment at a particular time and place commencing on a date after the motor accident.
The insurer submits the claimant does not satisfy the definition of “earner” in the MAI Act on the basis there is no evidence demonstrating the claimant had entered into an employment arrangement prior to the accident.

REASONS
Is the claimant an earner?

The definition of “earner” is set out in Schedule 1, cl 2 of the MAI Act as follows:
“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 .
The claimant relies on Schedule 1, cl 2(b) as the basis upon which she says she is an earner for the purpose of the MAI Act. The clamant contends that before the motor accident she had “received a job offer at Ausray Construction & Decoration … to work 30 [hours per week] from 10 January 202[2] onwards, receiving a net income of $1,050”.
Schedule 1, cl 2(b) requires that before the motor accident the following had been arranged between the claimant and Ausray Construction & Decoration (Ausray):
(a) that the claimant was to undertake employment with Ausray, and
(b) that the employment would commence at a particular time and place.
The claimant relies on a letter from the alleged employer prepared after the motor accident on 4 March 2022 and signed by Mr Ru Qian Luo of Ausray (the letter) which states:
“This letter is to confirm that Ms Ke Qun Du had been hired as a part-time commercial cleaner by Aus Ray Construction & Decoration to commence employment (after Christmas) on 10 January 2022. Ms Du was to work 30 hours per week at the rate of $35.00 per hour. Her remuneration was anticipated to be $1,050.00 per week. Overtime, allowances, shift penalties were to be discussed after she commenced. Ms Du had informed she sustained injuries in a motor vehicle accident and could not start. We have found a replacement and the position is no longer available.”
Mr Luo was interviewed by the insurer’s investigator on 4 January 2023. The interview is recorded in a transcript of the interview (the transcript). Relevantly, Mr Luo provided the following additional information:
(a)   the claimant was not known to him prior to on or about 10 December 2021 when he had a telephone call with the claimant;
(b)   he “needed some staff to do work … so posted an advertisement on this website and also… asked around if friends got any people that could come and work for” him;
(c)   the advertisement was posted on a “Chinese website”;
(d)   he does know where the claimant got his contact details;
(e)   during the call on or about 10 December 2021 the claimant said “she could work” for him;
(f)    the claimant did not provide a resume or any references;
(g)   the claimant was to start “in January” 2022;
(h)   the 30 hours per week stated in the letter “is not a fixed hour so because I could only offer her temporary work, so its job by job, case by case so after a job maybe next time if I’ve got something else, I would ask her again”;
(i)    in relation to overtime penalty rates and allowances “because it’s a simply cleaning job so I don’t think that will be any overtime or any holidays, any extra shifts required so I don’t think that will be apply” [sic];
(j)    in relation to whether superannuation, annual leave and sick leave would be paid he was “actually wanting to see her, if she is a fit candidate before offering a permanent position” and “I need to see her to do, come to work first so that we could discuss those later…”, and
(k)   the remuneration in his letter “is not definite. It is just an estimated amount as you haven’t seen her, haven’t observed how she work so you can’t agree to pay that. It’s just an estimated amount that’s the rate, that’s the hour and yeah. She didn’t come to work”.
There are inconsistences between the transcript and the letter provided by Mr Luo, including:
(a) the letter states the rate of pay was to be $35 per hour, however, in the transcript in answer to question 57 Mr Luo states this was only an estimate and that he hadn’t yet agreed to pay this amount, and
(b) the letter states the claimant had been “hired” however, the answers given by Mr Luo in the transcript are to the effect that all that had been arranged was for the claimant to be given an opportunity to demonstrate whether she could do the job before she could be hired.
The interview was conducted with Mr Luo with the assistance of an interpreter. There is no evidence that Mr Luo was assisted by an interpreter in preparing the letter. It is also unclear whether the content of the letter was independently prepared by Mr Luo or whether it was drafted by the claimant or her solicitor or some other third party and provided to Mr Luo to adopt. The wording of the letter in contrast to the transcript gives rise to a probability that Mr Luo did not draft the letter himself. The language, use of grammar etcetera is not consistent. The probability that the letter was drafted for Mr Luo by another person might be supported by the fact that Mr Luo’s surname is recorded in the letter as “Luo” whereas he spells his surname “Lao” elsewhere in Australian Securities and Investments Commission (ASIC) and business name records. It seems odd that a person in business would spell their name one way on business records and then produce a business letter using a different spelling, if they drafted it themselves. One possible explanation is that the name is spelt differently because someone other than Mr Luo drafted it.
Schedule 1, cl 2(b) requires that the claimant and the employer had entered into an arrangement before the motor accident to commence employment at a “particular time and place”. In other words, there needs to be a sufficient degree of specificity in the arrangement made before the accident for there to be an “arrangement” to commence employment. If specifics such as time and place and/or rate of pay, for example, where yet to be agreed when the accident occurred then there is no arrangement for the purpose of Schedule 1, cl 2(b).
Where words or terms are not defined in a statute, they are to be given their ordinary meaning. The above position is consistent with the ordinary definition of “arrangement”, which is:
(a) an agreement between two people or groups about how something happens or will happen (see for example Cambridge Dictionary), or
(b) plans or preparations made so something will happen (see for example Collins dictionary).
The ordinary definition of “particular” is “specific” or “certain”. As such, the ordinary definition of “arrangement” also requires specificity. It requires sufficient certainty about how something will happen (as distinct from how something “may” or “might” happen), for example the when and where, for there to be an arrangement within the ordinary meaning of the word.
The arrangement must be one for “employment” under cl 2(b). The ordinary definition of “employment” is the state of having paid work (see for example Oxford Dictionary; Cambridge Dictionary).
Accordingly, the claimant must establish she had entered into an arrangement with the alleged employer to undertake employment at a particular (that is specific) time and place and that it had been agreed before the accident that she would be paid for this work.

As to the requirement that a particular time and place had been arranged before the accident:

The alleged arrangement is distinctly lacking in detail. There is no evidence that an arrangement was in place before the accident for the claimant to commence work at a particular time on 10 January 2022. Indeed, even the date specified in the letter is not confirmed by Mr Luo in the transcript.
There is also no evidence that an arrangement had been made before the accident for the claimant to commence work at a particular place.
Schedule 1, cl 2(b) requires such specificity that is, the time and place, as a minimum in order to establish an arrangement to commence employment. It may be that details as to the time and place were yet to be arranged when the motor accident occurred. However, cl 2(b) requires that these arrangements had already been made before the accident.
Evidence that work was to commence on 10 January 2022 is not sufficient even if the letter were to be preferred over the transcript. Schedule 1 cl 2(b) requires that the arrangement made before the accident also included a specified time and place for the work to commence. In any event, the transcript of interview indicates the letter does not accurately represent the alleged employer’s intention or the “arrangement” to the extent there was any arrangement. Among other clarifications by Mr Luo in the transcript Mr Luo states only that the claimant was due to commence “in January”. He does not specify a date. Nor does he specify a start time, which cl 2(b) requires.

As to whether there was an arrangement made before the accident for the claimant to be paid:

It is clear from the transcript that the agreement was more limited than that stated in the letter. Mr Luo states in the transcript that whether the claimant would be employed, and the terms of that employment were subject to the claimant first demonstrating she was capable of performing the work. On balance the arrangement was limited to an unpaid work trial. The evidence of Mr Luo in the transcript is to the effect that whether the claimant would be given any paid work depended on her successful completion of the work trial.
The claimant has the onus of proving all requirements of Schedule 1, cl 2(b) are satisfied, including that the arrangement was for paid employment. Whilst there may be a question as to whether Mr Luo would have been lawfully required to pay the claimant for a work trial Schedule 1, cl 2(b) is concerned only with the terms of the arrangement between the claimant and Mr Luo, regardless of whether the terms complied with employment obligations at law.
The question to be determined is whether the claimant is able to establish on the balance of probabilities that before the motor accident there was already in place an arrangement for her to attend work at a particular (that is, a specified) time and place and for her to be paid on particular or specified terms (for example on the basis of a specified hourly rate). Pursuant to the ordinary definition of “arrangement” the claimant must establish that when the arrangement was made all of these things “will” happen but did not happen because of the motor accident.
A determination as to whether an arrangement was made with Mr Luo before the motor accident for the claimant to be paid for this work at $35 per hour (or at all) is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the decision maker of the truth or probability of the facts being alleged. Evidence may be photography, documentary or testimonial, but will only succeed in persuading the decision maker if it appears as being truthful, reliable and cogent. In civil cases the standard of proof depends on the balance (or preponderance) of probabilities. This simply means a party must prove their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case.
The state of the evidence informing the question of whether the arrangement made before the accident included an agreement to pay the claimant is as follows:
(a)   there is a letter signed by Mr Luo stating the rate of pay was to be $35 per hour. However, whether Mr Luo drafted this letter is in question and in oral evidence in the transcript Mr Luo disagrees with its content;
(b)   the letter from Mr Luo was written after the accident. There are no contemporaneous documents in support of any arrangement made before the accident (if the arrangement included a time and place for example one would expect at a minimum an email or text message confirming the time and location given it was to be some weeks into the future, after the arrangement was allegedly made);
(c)   the language of the letter in comparison to the transcript of the interview with Mr Luo puts into question whether Mr Luo, a non-native English speaker could have written the letter in those words. One probability is that the letter was written by a third person and the claimant then asked the employer to adopt its contents by signing it. If so, it is troublesome that there is no evidence that the content of the letter was first interpreted to Mr Luo by an accredited interpreter before Mr Luo signed the letter. In any event, in oral evidence Mr Luo does not accept the content of the letter accurately represents his intentions when he spoke with the claimant (only once) in December 2021;
(d)   there is scant detail as to how the alleged employment arrangement came about. There is no evidence of the advertisement the claimant allegedly responded to and no evidence of the claimant’s qualifications or previous work history. As noted, there are no contemporaneous documents whatsoever, and
(e)   Mr Luo clarified the “arrangement” in the transcript of interview by stating that before the motor accident there had not yet been any agreement to pay the claimant a particular hourly rate or to provide her with any work beyond the work trial.
In the following circumstances the contentions in the letter that the arrangement was for the claimant to work 30 hours per week on an ongoing basis in return for payment of earnings in the sum of $1,050 every week is not cogent:
(a)   Mr Luo had never met the claimant;
(b)   there was only one telephone interview;
(c)   the claimant provided no resume or references and did not outline whether she had any previous relevant experience in the telephone interview;
(d)   the arrangement was not documented at all, despite the letter purporting the arrangement to be for ongoing employment with consistent hours every week, and
(e)   the claimant had not provided any employment details to Mr Luo such as her tax file number or superannuation fund details.
It does not seem plausible that an employer would offer guaranteed ongoing work as a cleaner of 30 hours per week at the rate of pay said to be offered in circumstances where:
(a)   the employer is a sole trader handyman business and therefore likely has a fluctuating income and fluctuating workload;
(b)   the alleged arrangement was not documented at all;
(c)   the employer had no information about the claimant’s prior work experience, and
(d)   the employer had never met the claimant and had only one telephone call with the claimant.
Given the nature of the business and the circumstances above, Mr Luo’s evidence in the transcript as follows is far more plausible:
(a) all that had been arranged was for the claimant to have an opportunity to demonstrate whether she could do the work, and
(b) whether further work would be available after the initial trial depended on whether he had anything else come up that is, it was a “job by job, case by case” basis.
The drafter of the letter is not known, and the letter is not a contemporaneous record. However, the transcript records the employer’s direct oral evidence with the assistance of an interpreter. Accordingly, I consider the evidence in the transcript is preferable over the letter. On this basis, I am not comfortably satisfied on the balance of probabilities that any part of the arrangement made before the accident included particulars as to the basis on which the claimant would be paid, if at all. The evidence establishes on balance that this was a matter to be determined by Mr Luo after the work trial.
Regardless of whether the transcript is preferred, the evidence raises two probabilities which are equal. There is a probability based on the letter that it was arranged before the accident for the claimant to be paid $35 per hour and a probability that is at least equal based on the transcript that no arrangement had been made before the accident for the claimant to be paid. Where these probabilities are equal the claimant has failed to discharge her burden of proof and has therefore not established on balance that the alleged arrangement satisfies the requirements of Schedule 1, cl 2(b).
In any event, I have concluded on the evidence that it is more probable that prior to the accident the arrangement did not include any agreement for payment for the initial work trial.
The evidence also establishes on balance that before the accident the arrangement did not include particulars of the time the claimant was to commence the work or the place at which she was to commence the work. Accordingly, I conclude that before the accident the claimant had not entered into an arrangement to undertake employment at a particular time and place for the purpose of cl 2(b). The claimant does not meet the definition of earner in Schedule 1, cl 2 in any other respect. Accordingly, the claimant is not an earner for the purpose of the MAI Act.

PAWE

Pursuant to Schedule 1, cl 4(2)(c) of the MAI Act:
“…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.”
Accordingly, even if the claimant were an earner under Schedule 1, cl 2(b) the claimant must establish the “average weekly gross earnings” she could “reasonably have been expected to earn … in employment under that arrangement” but for the motor accident.
The claimant contends she could have expected to earn $1,050 per week based on ongoing work consisting of 30 hours per week at $35 per hour. However, the use of the word “reasonably” in cl 2(c) means the test as to expected earnings is an objective test.
Given Mr Luo was interviewed about the letter, was assisted by an interpreter when interviewed and the transcript records his direct verbal responses I am of the view that more weight is to be given to the transcript than the letter particularly having regard to the fact the drafter of the letter is unknown and it is also not known whether the letter was prepared with the assistance of an interpreter or whether its contents were read to Mr Luo by a qualified interpreter before he signed same.
In the transcript Mr Luo clarifies the “arrangement”. Mr Luo’s evidence is that the arrangement was in fact as follows:
(a)   no fixed hours had been agreed;
(b)   the position was a “temporary” position and whether the claimant obtained any further work after the first day was on a “job by job, case by case” basis. That is, “if” Mr Lua had “something else” then “maybe next time” he would ask the claimant to work again;
(c)   the rate of $35 per hour was “just an estimate” and no hourly rate had been agreed, and
(d)   the claimant needed to first demonstrate she was capable of carrying out the work before the employer would agree any rate of pay.
It is clear from the above that in so far as it could be said there was an “arrangement” for employment the arrangement was one of considerable uncertainty including that there was no guarantee of further work beyond the initial work trial. The rate of pay had not yet been negotiated and even if the initial work trial were successful, there was no guarantee of any further work as the initial arrangement was “temporary”. Whether there was any further work available to the claimant depended on whether Mr Luo had any further work to offer. This would vary “job by job, case by case”.
Given the uncertainties about the arrangement, I cannot be comfortably satisfied that the claimant could reasonably have expected to earn anything other than perhaps payment for an initial day’s work (if at all), even if I were to accept the claimant is an earner pursuant to Schedule 1, cl 2(b).
The evidence establishes on balance that the “arrangement” was a trial arrangement being an arrangement under which the claimant was invited to demonstrate whether she was capable of carrying out the work. Mr Luo had not yet agreed to pay the claimant for any work, had reserved his position as to whether the claimant would be offered any further work and if so, the amount he would pay, pending an opportunity to observe the claimant’s work performance.
Even if the work trial were successful, the claimant would only be offered further work “if” Mr Luo had “something else” that is, in the event he required a cleaner for another job in the future. There is therefore significant uncertainty about whether any further work would be made available to the claimant or whether the initial “arrangement” would be a one off.
Accordingly, the claimant could not reasonably have expected to receive earnings from the alleged employment arrangement each and every week. Nor could she reasonably have expected to receive any earnings from the alleged employment on any regular or frequent basis. There was clearly no guarantee of ongoing work, regardless of whether the work trial was successful.
Mr Luo states the position was intended as a temporary, casual position. It is inherent in the nature of temporary work that the arrangement is for a limited, closed period. It is also inherent in casual employment that there is no guarantee of ongoing work. The nature of casual employment is such that earnings typically fluctuate week to week. Accordingly, the claimant could not reasonably expect to be in receipt of consistent earnings of $1,050 each and every week from the alleged arrangement, even if ongoing work were available.
The claimant has the onus of proof in establishing the average weekly gross earnings she could reasonably have been expected to earn from the arrangement, but for the motor accident. Having regard to the evidence of Mr Luo in the transcript I am not comfortably satisfied the claimant could reasonably have been expected to earn $1,050 per week from the arrangement. Nor am I comfortably satisfied the claimant could reasonably have been expected to earn any amount after the first attendance said to have been arranged for 10 January 2022, or any amount at all.
Accordingly, even if it were accepted that the claimant met the definition of earner for the purpose of the MAI Act the evidence establishes on balance that PAWE under cl 4(2)(c) is nil.

CONCLUSION

For the reasons set out above I have determined that the claimant is not an earner within the meaning of Schedule 1, cl 2 of the MAI Act and therefore is not entitled to payment of weekly benefits under Division 3.3.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· the MAI Act;

· the Guidelines, and
· Motor Accident Injuries Regulation 2017.

[2023] NSWPICMR 38

14 July 2023