Helweh v Youi Pty Limited - [2023] NSWPICMR 42

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Helweh v Youi Pty Limited [2023] NSWPICMR 42
CLAIMANT:	Ibrahem Helweh
INSURER:	Youi Pty Limited
MERIT REVIEWER:	Maurice Castagnet
DATE OF DECISION:	15 August 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits under Division 3.3; determination of pre-accident weekly earnings (PAWE) under Clause 4 of Schedule 1; Uber delivery driver; during the 12 months prior to the accident claimant travelled overseas from 26 August 2022 to 16 November 2022; claimant was earning continuously from 19 November 2022 to the day of the accident; insurer determined claimant’s PAWE under sub-clause 4(1); whether the claimant’s PAWE should be determined under sub-clause 4(2)(a); Held – the reviewable decision is set aside; costs allowed on the basis of exceptional circumstances under section 8.10(4)(b).
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION *Issued under s 7.13(4) of the Motor Accident Injuries Act 2017* (the MAI Act)** The reviewable decision concerns the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the MAI Act, and is therefore a merit review matter under Schedule 2, cl (1)(a) of the MAI Act. 1. The reviewable decision is set aside. 2. The claimant’s pre-accident weekly earnings (PAWE) are determined to be $935.86. 3. The insurer is to apply PAWE of $935.86 when determining the claimant’s entitlements under Division 3.3 of the MAI Act from 27 December 2022. 4. Pursuant to s 8.10(4)(b) of the MAI Act, the Commission permits payment of legal costs incurred by the claimant in connection with this application. 5. Pursuant to s 7.13A of the MAI Act, the claimant’s reasonable and necessary costs are assessed in the amount of $2,025 plus GST.

STATEMENT OF REASONS

INTRODUCTION

There is a dispute between the claimant, Ibrahem Helweh and the insurer concerning the amount of weekly payments of statutory benefits that is payable to the claimant under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).

BACKGROUND

The claimant is a 38-year-old man who was injured in a motor accident on 26 December 2022.
On 29 December 2022, the claimant made a claim for personal injury benefits. The claim included an application for weekly payments for loss of earnings.
In his claim form, the claimant stated that at the time of the accident, he was working as a self-employed delivery driver with Uber and Menulog.
The insurer accepted the claim and commenced weekly payments to the claimant at the interim rate of $559.50, while awaiting a report from a forensic accountant (Procare Forensic Services) it had engaged to calculate the claimant’s pre-accident weekly earnings (PAWE).
The actual amount of the claimant’s weekly payments is based on his PAWE, subject to the usual reductions imposed by the Division 3.3 of the MAI Act.
On 3 February 2023, after receiving the report from Procare Forensic Services, the insurer notified the claimant that his PAWE had been calculated in the amount of $170.62. The claimant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPICMR 42
Decision Date: 15 August 2023

CaseChat Overview and Summary

In the matter of Helweh v Youi Pty Limited, the primary dispute before the court involved the determination of the amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017. The claimant, who was an Uber delivery driver, had been involved in a motor accident. The issue at hand was the calculation of the claimant's pre-accident weekly earnings (PAWE), as stipulated under Clause 4 of Schedule 1 of the Act. The key point of contention was whether the claimant's PAWE should be determined under sub-clause 4(1) or sub-clause 4(2)(a), considering the claimant had travelled overseas for a period of time prior to the accident.

The court was required to decide whether the insurer's determination of the claimant's PAWE under sub-clause 4(1) was appropriate, given that the claimant had been continuously earning income from 19 November 2022 until the date of the accident. Additionally, the court had to consider whether the claimant's overseas travel period, during which no income was earned, should have triggered the application of sub-clause 4(2)(a). This sub-clause provides for the calculation of PAWE where the individual has been overseas for 60 days or more during the 12 months prior to the accident and did not earn income during that period.

The court found that the insurer's determination of the claimant's PAWE under sub-clause 4(1) was incorrect, and the correct approach should have been to apply sub-clause 4(2)(a). The court held that the period of overseas travel constituted a sufficient break in employment to warrant the application of sub-clause 4(2)(a). As a result, the reviewable decision by the insurer was set aside. Furthermore, the court awarded costs to the claimant on the basis of exceptional circumstances, pursuant to section 8.10(4)(b) of the Motor Accident Injuries Act 2017.

Orders