Helweh v Youi Pty Limited
[2023] NSWPICMR 42
•15 August 2023
| 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 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 also advised that he had been overpaid by an amount of $1,742.05 which would be deducted from his future payments.
The claimant disagreed with the insurer’s decision. On 6 February 2023, he sought an internal review. On 16 February 2023, the insurer issued a review decision affirming its original decision.
On 19 May 2023, the claimant made this application to the Personal Injury Commission (the Commission) seeking a merit review of the insurer’s review decision.
The application is now before me for determination.
DOCUMENTS CONSIDERED
In making my decision, I considered the documents and submissions provided to the Commission by the claimant in his application and by the insurer in its reply. I also considered additional submissions and submissions made by the claimant at my request. The insurer was given an opportunity to submit reply submissions but chose not to do so.
I am satisfied that I have sufficient information to proceed with a determination of the matter on the papers.
LEGISLATION
In making my decision, I have considered the following:
· the MAI Act;
· the Legal Profession Uniform Law (NSW) 2014 No 16a (LPUL);
· Motor Accident Guidelines 2017 (Version 9.1) (Guideline), and
· Motor Accident Injuries Regulation 2017 (Regulation).
THE CLAIMANT’S POSITION
The claimant’s submissions may be relevantly summarised as follows:
(a) Relevant background
(i)The claimant is an Australian citizen. In 2020, he met his current partner in Thailand. They eventually married in Thailand and his partner gave birth to their first child in March 2022.
(ii)In May 2022, the claimant and his family travelled to Australia. In July 2022, he commenced work as a delivery driver with Uber.
(iii)On 26 August 2022 the claimant and his family returned to Thailand upon the expiration of his partner’s 90-day visa. The claimant remained in Thailand with his family to assist with the processing of their application for permanent residency.
(iv)On 16 November 2022, the claimant returned to Australia with his family. He recommenced work as a delivery driver with Uber. In December 2022, the claimant also commenced work with Menulog.
(v)On 11 February 2023, the claimant’s partner obtained a subclass 820 visa which is the first step to the grant of a permanent partner visa (subclass 801).
(b) His PAWE should be calculated on the basis of sub-cl 4(2)(a) of Schedule 1 of the MAI Act as he has worked continuously as a delivery driver for 5.6 weeks up to the day before the accident.
(c) He has earned $6,553.56 during the 5.6-week period which equals to a PAWE of $1,170.24.
(d) In later submissions and in response to my questions issued in a Direction, the claimant acknowledged that a deduction for his business expenses should be made from his gross income of $6,553.56 before calculating his PAWE. He had the use of his mother’s vehicle to carry out his work. In the circumstances, he submits that a deduction of 17.5% based on the average of the Australian Taxation Office performance benchmarks for courier services, would be an appropriate deduction for his motor vehicle expenses.[i] The yearly fee for his phone expenses was $335, paid to Kogan Mobile. There were no other business expenses.
(e) He has also done some work with DoorDash delivery services in August 2022 and December 2022. On 4 December 2022, he earned $7.90.
(f) The claimant says that he anticipated on continuing work as a delivery driver for at least 12 months after the accident.
THE INSURER’S POSITION
I have read the insurer’s submissions. Most of the insurer’s submissions were not, in my view, relevant to the issue in dispute. I have summarised below those submissions that I considered to be relevant:
(a) The insurer maintains that the claimant’s PAWE has been correctly calculated in accordance with sub-cl 4(1) of Schedule 1 of the MAI Act in reliance on the assessment of Procare Forensic Services. The insurer has calculated the weekly average of gross earnings received by the claimant as an earner during the 12 months immediately before the day of the accident.
(b) The claimant had worked continuously for Woolworths in Malaysia for 17 years. The claimant has worked intermittently in Australia as an Uber driver in the 12 months prior to the accident. This is inconsistent with his work in the previous years, in circumstances where he had capacity to work but has chosen not to. The claimant had the capacity to work in June 2022 but chose not to. The claimant had capacity to work “in January, February and since 29 March 2023 but chose not to”.
(c) The claimant’s earnings for the five weeks prior to the accident cannot be considered “continuous” for the purposes of sub-cl 4(4) of Schedule 1of the MAI Act because those earnings were unlikely to continue “at that rate” for a period of at least six months. The claimant has not worked continuously in that capacity (since the accident as a delivery driver).
(d) The insurer submits that the significance of the decision of the Supreme Court of New South Wales in Allianz InsuranceAustralia Limited v Shahmiri [2022] NSWSC 481 (Shahmiri) is that in that case, the claimant was unable to work due to the Covid-19 pandemic. He had worked prior to the pandemic and after the pandemic restrictions were lifted. It was therefore a case where the claimant would have continued to work, should the circumstances have allowed him to do so. Despite this, the Court found that the claimant’s earnings should be averaged over the 12 months prior to the accident. In the present case, the claimant made and continued to make the choice not to work in circumstances where he had
the capacity to do so. It is therefore appropriate to average his earnings over 12 months.
RELEVANT LEGISLATION
Division 3.3 of the MAI Act deals with weekly payments of statutory benefits to injured persons. Sections 3.6 and 3.7 deal with the entitlement to weekly payments of an “earner” such as the claimant, during the period from the date of the accident up to 78 weeks following the accident. The first period is the first 13 weeks after the accident. The second period is from weeks 14 to 78. These sections relevantly provide:
“3.6 Weekly payments during first entitlement period (first 13 weeks after motor accident)
(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the first entitlement period.
Note — Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2) A weekly payment of statutory benefits under this section is to be at the rate of 95% of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) for the first entitlement period.
…
3.7 Weekly payments during second entitlement period (weeks 14–78 after motor accident)(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the second entitlement period.
Note — Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2) A weekly payment of statutory benefits under this section is to be at the rate of —
(a) in the case of total loss of earning capacity—80%, or
(b) in the case of partial loss of earning capacity—85%,
of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) after the first entitlement period.
…”
[Emphasis added.]PAWE is defined in cl 4(1) of Schedule 1 of the MAI Act, subject to the qualifications in sub-cls (2), (2A), (3) and (4).
Clause 4 of Schedule 1 provides:
“4 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 received by the earner as an earner during the period from when the change of circumstance referred to in that subclause occurred to immediately before the day of the motor accident,
(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.”
It is convenient for reasons that will later become apparent, to set out the definition of “earner” in the MAI Act.
Clause 2 of Schedule 1 provides:
“2 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
(ii) during a period or periods equal to at least 26 weeks during the 2 years preceding the motor accident,
and, at the date of the 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 receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987.”
CONSIDERATION
According to ss 3.6 and 3.7 of the MAI Act, the amount of weekly payments that the claimant might be eligible to receive as an “earner” in respect to loss of earnings during the first two entitlement periods is determined by calculating the difference between the injured person’s PAWE and their post-accident earning capacity.
There is no material before me to show that the insurer has accepted that the claimant is an “earner” for the purposes of ss 3.6 and 3.7, although that is likely, given that the insurer has made a determination of the claimant’s PAWE.
For the sake of completeness, I find that the claimant has satisfied the requirements of
sub-cl 2(a)(ii) of Schedule 1 to attain the status of an “earner”. He was self-employed during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident and, as at the date of the accident, he had not retired permanently from all employment.[ii]Once the claimant has achieved the status of “earner”, he is eligible to receive weekly payments of statutory benefits under ss 3.6 and 3.7 for loss of earnings.
The injured person’s PAWE is determined by cl 4 of Schedule 1 of the MAI Act. The issue in dispute is about which of the methods provided by cl 4 is to be applied to determine the claimant’s PAWE.
Clause 4 of Schedule 1 of the MAI Act provides that sub-cl 4(1) is to be applied to determine PAWE unless any of the circumstances in sub-cl 4(2) exist.
In its review decision, the insurer has applied the provision of sub-cl 4(1) to determine the claimant’s PAWE.
Having considered the whole of the evidence, I disagree. In my view, the circumstances referred to in sub-cl 4(2)(a) were applicable to the claimant’s situation as an earner. My reasons and findings follow.
Sub-clause 4(2)(a)
Sub-clause 4(2)(a) provides that if, on the day of the motor accident, the claimant as an earner was earning continuously, but had not been earning continuously for at least 12 months, the claimant’s PAWE are the weekly average gross earnings received by the claimant as an earner during the period from when the claimant started to earn continuously to the day before the motor accident.
In this case, the evidence shows that the claimant was earning continuously on the day of the accident as a delivery driver and since 19 November 2022. He had not been earning continuously for at least 12 months because he did not work from 29 August 2022 to 18 November 2022. Sub-clause 4(2)(a) is therefore satisfied.
Sub-clause 4(4) provides that for the purposes of cl 4, the claimant as an earner earns continuously if he obtains earnings 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 him on the same, or a similar basis to the basis on which the earnings were being provided as at that day.
The evidence shows that the claimant was working as a delivery driver on the day of the accident. He says that he was likely to have continued to work as a delivery driver for a period of at least 12 months. The claimant’s evidence is that he returned to Australia with his family in November 2022. He is an Australian citizen. He intended to reside in Australia. His partner had applied for permanent residency. In the circumstances, there is no reason for me not to accept the claimant’s evidence that he was likely to have continued to work as a delivery driver in Australia for a period of at least six months after the accident.
For the above reasons, I find that the claimant’s circumstances satisfy the provision of
sub-cl 4(2)(a) for Schedule 1 of the MAI Act and that subclause should be applied to determine the claimant’s PAWE.
The insurer’s reliance on Shahmiri
In maintaining that the provision of sub-cl 4(1) applies to the claimant’s circumstances instead of sub-cl 4(2)(a) to determine the claimant’s PAWE, the insurer has relied on the decision of Shahmiri. In my view that was misguided.
Contrary to the insurer’s submission (noted in paragraph 15(b) of these reasons), Harrison As J in Shahmiri made the following observations about sub-cl 4(2)(a) at [68]:
“Turning specifically to subclause 4(2)(a). This subclause applies to claimants who were earning continuously at the date of their accident but not for at least 12 months and specifies that the period over which their earnings are to be averaged is only that from when they began to earn continuously until the date of the accident. It is unclear what reason there would be for including this subclause if the majority’s[iii] interpretation of the statute is correct. If where a claimant falls within clause 4(1) the period over which they were earning, there would be no reason to specify in subclause 4(2)(a) that the relevant period to be considered is ‘… from when the earner stated [sic] to earn continuously to immediately before the day of the motor accident’.”
Unlike the claimant in the present case, sub-cl 4(2)(a) did not apply to the claimant’s circumstances in Shahmiri because the claimant in that case was not employed at the time of the accident and was therefore not earning continuously on the day of the accident.
Determination of the claimant’s PAWE
The claimant started earning continuously from 19 November 2022 to immediately before the day of the accident. I calculate that period to be five weeks and three days (the relevant period).
In his submissions, the claimant said that he also began working for Menulog “on the day of the accident”. The receipt from Menulog shows payments of $347.65 for the period from “26 December 2022 to 1 January 2023”. I accept that this is a monthly statement and that the claimant did not work in the days after the accident. However, I do not accept the payments as earnings received for work on the day before the accident.
The evidence shows that during the relevant period, the claimant received payments of $6,205.91 from Uber and $7.90 from DoorDash. The total payments received during the relevant period were $6,213.81.
I accept the claimant’s submission that a deduction of 17.5% (based on the average of the Australian Taxation Office performance benchmarks for courier services), is an appropriate deduction for his motor vehicle expenses in the circumstances of this case. That comes to an amount of $1,087.43. I accept the insurer’s calculation of the claimant’s business phone expenses apportioned in the amount of $46. The total of the claimant’s business expenses during the relevant period were therefore $1,133.43.
The claimant’s gross earnings during the relevant period were therefore $5,080.38 ($6,213.81 minus $1,133.43).
I therefore determine the claimant’s PAWE to be $935.86 ($5,080.38 divided by five weeks and three days or 38 days = $935.86 average gross per week).
In conformity with s 7.13(1) of the MAI Act, my role is to decide what the correct and preferable decision is, having regard to the material before me and any applicable written or unwritten law. I have made my determination based on the material before me and having considered the facts and circumstances of the matter.
COSTS
Costs on the basis of exceptional circumstances
The claimant seeks an allowance for legal costs on the basis of “exceptional circumstances” under s 8.10(4)(b) of the MAI Act. The exceptional circumstances are said to include:
(a) The claimant has suffered significant physical and psychological injuries which will likely have an effect on the remainder of his life and has been unable to meaningfully return to work since the accident. The matter is of sufficient importance and complexity.
(b) The Independent Review Office (IRO) became involved following complaints lodged against the insurer.
(c) The insurer reduced the claimant’s weekly payments to unliveable standards and wilfully ignored relevant evidence confirming the claimant’s plan to be a continuous earner.
(d) The matter required lengthy submissions addressing issues that arose in connection with decisions of the Commission and the Supreme Court.
The insurer did not make any submissions on the issue.
I have determined this dispute in my capacity as a merit reviewer pursuant to 2 cl 1(a) of Schedule 2 of the MAI Act. The Regulation does not allow for legal costs to be paid in a merit review matter that is dealt with under this clause.
Legal costs under sub-s 8.10(4)(b) of the MAI Act may be permitted by the Commission if the Commission is satisfied that exceptional circumstances exist justifying payment of legal costs incurred by the claimant.
Merit reviewers are not members of the Commission, and accordingly, do not have the power to permit legal costs under this provision of the MAI Act.[iv] However, I have the power to do so in my capacity as a member of the Commission. I propose to invoke the discretionary power vested in the Commission to permit the payment of legal costs in this case for the reasons that follow.
In AAI Ltd trading as GIO v Moon [2020] NSWSC 714 Wright J observed that s 8.10(4) can be seen as designed to deal with particular, unusual situations where the maximum costs fixed by the regulations may not be adequate.[v] Some cases can be envisaged as exceptional and thus fall under the provision of s 8.10(4) because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant.[vi]
The circumstances of this case in my view, do not involve any unusual degree of factual or legal complexity. In this case, it was ‘some other reason’ that required the claimant to incur substantial legal costs. I shall explain.
From the material before me, it is apparent that as early as 5 January 2023, the claimant had provided the insurer with sufficient information to determine that the circumstances of
sub-cl 4(2)(a) were applicable to the claimant. It was clear from that evidence that the claimant had not worked for the whole 12 months prior to the accident. It was also clear that he had worked continuously from 19 November 2022 to the day of the accident. Determining the claimant’s PAWE under sub-cl 4(2)(a) should have involved a simple mathematic calculation based on the receipts of the claimant’s work as an Uber delivery driver for that period.The insurer chose instead to engage a forensic accountant (Mr Paul Croft of Procare Forensic Services) to “assist” the insurer with “the analysis of the financial information” to calculate the claimant’s PAWE.
Mr Croft considered that the claimant’s PAWE fell to be calculated under sub-cl 4(1) by averaging the claimant’s gross earnings over the 12 months prior to the date of the accident on the basis that it was always open to the claimant to work in the 52 weeks prior to the accident but “he chose instead to travel overseas”.
Such advice was misguided on the facts and the law.
The insurer subsequently received a complaint from the claimant through the IRO. The IRO wrote to the insurer pointing out that, in its view, the insurer had based its decision on irrelevant considerations. IRO urged the insurer to reconsider its position.
The insurer confirmed its original decision on 16 February 2023, persisting in its reliance upon Mr Croft’s misguided advice.
That reliance was unreasonable in view of the following matters:
(a) The advice was outside Mr Croft’s area of expertise.
(b) The advice concerned the application of the law to the facts and was essentially legal advice.
(c) Mr Croft’s advice was wrong, as had been pointed out to the insurer by the IRO.
The acceptance by the insurer of Mr Croft’s advice resulted in the claimant making a merit review application for which he required legal representation.
It is these exceptional circumstances that justify an order that the insurer pay the claimant’s costs.
Assessment of reasonable and necessary legal costs
According to s 7.13A (1) of the MAI Act, a merit reviewer may include in the certificate of determination of a merit review, an assessment of the claimant’s legal costs.
In making the assessment, s 7.13A (3) provides that the merit reviewer must give effect to the requirements of the Regulation under Part 8 of the MAI Act and have regard to the principles referred to in s 200 of the LPUL.
Section 200 of the LPUL provides that in considering whether legal costs are fair and reasonable, the costs assessor must apply the principles of s 172 of the LPUL as far as they are applicable.
In this matter, I considered that the relevant s 172 factors to be taken into account were the level of skill and experience of the lawyers who carried out the work, the time spent to do the work and the number and importance of the documents involved.
I considered that the work required in this matter would be appropriately carried out by a junior lawyer. I have taken into account the extent and importance of the material that was submitted in the application and the extent of the submissions that were made.
Schedule 1, Part 1, cl 4 of the Regulation provides an hourly rate based on 3 monetary units for certain work carried out by a lawyer in a claims assessment matter. I consider that a lawyer of similar level of skill and experience would carry out the work in the present matter. At the present time, the monetary unit equates to $112.53. The hourly rate concerned would therefore be $337.59.
Taking into account the relevant s 172 factors and applying the hourly rate $337.59 to the work carried out, I have assessed the reasonable and necessary legal costs incurred by the claimant in the order of six hours plus GST. That comes to a total of $2,025 plus GST.
CONCLUSION
The reviewable decision is set aside.
The claimant’s PAWE are determined to be $935.86.
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.
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.
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.
[i]
[ii] See Uber income receipts for July, August, November and December 2022 and Doordash receipts for August and December 2022.
[iii] The reference is to the majority decision of the Merit Review Panel in the Commission.
[iv] See ss 8, 31, 32 and 34 Personal Injury Commission Act 2020
[v] At [97].
[vi] At [99].
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