Issa v Allianz Australia Insurance Limited
[2022] NSWPICMR 70
•29 November 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Issa v Allianz Australia Insurance Limited [2022] NSWPICMR 70 |
| ClaimanT: | Bassem Bou Issa |
| Insurer: | Allianz Australia Insurance Limited |
| Merit Reviewer: | Katherine Ruschen |
| DATE OF DECISION: | 29 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); meaning of earner under Schedule 1, clause 2 of the 2017 Act; whether the claimant is an earner; burden of proof; insufficient evidence to establish earner; section 6.24 of the 2017 Act duty to co-operate; failure to co-operate; Held – the reviewable decision is affirmed. |
| Determinations made: | CERTIFICATE OF DETERMINATION The reviewable decision is about the amount of weekly payments of statutory 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 reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Bassem Bou Issa (the claimant) and the insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the MAI Act, specifically whether the claimant is an earner and therefore entitled to weekly benefits.
The claimant was involved in a motor accident on 8 April 2022.
The claimant lodged an application for statutory benefits.
On 3 June 2022 the insurer determined that the claimant was not an earner in accordance with Schedule 1, cl 2 of the MAI Act and therefore was not entitled to weekly benefits under s 3.6 of the MAI Act.
The claimant applied for an internal review of the 3 June 2022 decision that he was not an earner.
By internal review decision dated 22 June 2022 the insurer maintained their decision that the claimant was not an earner.
The claimant has applied for a merit review of the internal review decision of
22 June 2022.
SUBMISSIONS
The claimant submits he is an earner for the purpose of the MAI Act on the basis that at the time of the accident he was employed by Lil Macchiato Pty Limited, which operated a coffee shop business, as a delivery driver earning $950 per week.
The insurer submits the nature of the dispute for the purpose of this merit review is unclear. However, the internal review decision challenged by the claimant is the insurer’s internal review decision dated 22 June 2022 which determines only the question as to whether the claimant is an earner for the purpose of the MAI Act.
Save for some exceptions which do not arise in this matter, the claimant is not entitled to request a merit review unless there has first been an internal review decision (or the insurer has refused to conduct an internal review). As the only internal review decision to hand is the 22 June 2022 decision then the only issue arising for the purpose of this merit review is whether the claimant is an earner within the meaning in the MAI Act.
In relation to whether the claimant is an earner the insurer relies on their internal review decision which determined there was insufficient evidence upon which one could be satisfied the claimant is an earner in accordance with the MAI Act.
REASONS
The definition of earner for the purpose of the MAI Act is set out in Schedule 1, cl 2 of the MAI Act as follows:
“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.”The issue for consideration is not one of statutory interpretation but whether there is sufficient evidence to establish the claimant is an earner within the meaning in Schedule 1, cl 2.
Pursuant to s 6.24 of the MAI Act the claimant has a duty to fully co-operate with the insurer. Section 6.24(1) relevantly provides:
“Duty of claimant to co-operate with other party
(1) A claimant must co-operate fully in respect of the claim with the other party to the claim (being the insurer on the claim or, if there is no insurer, the person against whom the claim is made) for the purpose of giving the other party sufficient information--
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim, may be fraudulent, and
(b) to be able to make an early assessment of liability, and
(c) to be able to make an informed offer of settlement in the case of a claim for damages.
…”
(emphasis added)
The obligation on the claimant to cooperate under s 6.24 is mandatory. Where a claimant fails to provide sufficient documents and/or fails to provide relevant documents requested by the insurer they potentially do so at their own peril given they bear the onus of establishing a valid claim for statutory benefits. As stated in
s 6.24(1)(a) the claimant must provide sufficient information to the insurer for the insurer “to be satisfied as to the validity of the claim” and to assess whether the claim may be fraudulent. In this case, the information needs to be sufficient to be satisfied the claimant is an earner for the purpose of the MAI Act.As merit reviewer my role is to determine what is the correct and preferable decision based on the material before me.
In addition to the obligation under s 6.24 the onus is on the claimant to provide sufficient evidence to establish on the balance of probabilities that he is an earner. In determining the question of whether the claimant is an earner a court, tribunal, commission or other decision maker/decision making body is informed and persuaded only by the presentation of evidence to it. Evidence is material which tends to persuade the decision maker or decision making body 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 or decision making body 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.
I have considered the available evidence and make the following observations:
(a) there is no contemporaneous evidence of employment;
(b) in his first application for statutory benefits the claimant did not state the name of his employer;
(c) in his amended application for statutory benefits the claimant stated he was employed by Night Wolves Agency Pty Limited, a company that was deregistered in 2015, seven years prior to the claimant’s motor accident;
(d) the certificate of earnings said to be completed by a person named “Afif Khowly” on behalf of the alleged employer, Lil Macchiato Pty Limited, was completed retrospectively, after the date of the motor accident;
(e) Mr Khowly is not a director, officer or shareholder of Lil Macchiato Pty Limited and there is no evidence that he has authority on behalf of Lil Macchiato Pty Limited to complete the certificate of earnings;
(f) Mr Khowly provides his personal mobile number and personal email address as his contact details and does not provide Lil Macchiato contact details, which one would expect when a person is making a statement in the capacity of employer;
(g) the sole director, secretary and shareholder of Lil Macchiato Pty Limited is Rebecca Jasmin Jamhour. There is no evidence from Ms Jamhour that she employed the claimant through her company;
(h) the information provided by Mr Khowly is inconsistent with the claimant’s evidence as follows:
(i)the claimant contends he earned $1,500 gross per week, however, Mr Khowly states the claimant only earned $950 gross per week;
(ii)the claimant states he was paid “cash in hand”, off the books/under the table and it can be inferred from the totality of the claimant’s evidence that no pay as you go tax was deduced by Lil Macchiato from the claimant’s earnings. However,
Mr Khowly states $144 was deducted each week for tax, which produced net weekly earnings of $806 for the claimant; and(iii)Mr Khowly’s evidence that pay slips were issued, albeit under the name of a different, redundant business is also inconsistent with the claimant’s evidence he was paid cash in hand, off the books/under the table.
(i) the claimant has not provided any tax returns to confirm earnings from Lil Macchiato, despite Mr Khowly’s evidence that tax was deducted;
(j) the claimant stated he has been in receipt of a disability support pension from Centrelink since around 2018/2019 and he has not declared any of his earnings to Centrelink so as not to have his pension reduced or cancelled. Accordingly, the claimant has admitted to potentially fraudulent conduct in breach of his obligations under social services legislation;
(k) the claimant also admits he has not declared any of his earnings to the Australian Taxation Office, which puts him in breach of his obligations under tax legislation;
(l) given the claimant has admitted to deceptive conduct with Centrelink and the ATO, the veracity of his evidence is in question and as such, caution should be exercised when considering whether to accept the claimant’s contentions at face value;
(m) the claimant’s bank records do not show any deposits for wages;
(n) the claimant provided pay slips, which he contends were issued by Lil Macchiato but show a different company, Night Wolves Agency Pty Limited. However, the ABN for that company was cancelled in 2013 and the company was deregistered in 2015;
(o) Mr Khowly’s suggestion that the pay slips were generated from an old format by the accountant by mistake is not plausible in circumstances where:
(i)Night Wolves Agency Pty Limited had been deregistered for seven years by the time the alleged pay slips were created;
(ii)there is no evidence that Mr Khowly had any control over Night Wolves Agency Pty Limited. The company search shows the sole director was Pauline Farid and the sole shareholder was Oram Fox; and
(iii)it would be extraordinary for a professional accountant to produce pay slips under a business name and company that had not been in operation for seven years, particularly in circumstances where the company searches show no link between Night Wolves Agency Pty Limited and Lil Macchiato, Mr Khowly is not the owner of either company and there is no evidence that Mr Khowly is authorised by either company to instruct the company accountant.
(p) neither Mr Khowly nor the claimant provide an address for the claimant’s alleged place of employment with Lil Macchiato Pty Limited. It is simply stated that the business is located at or operates out of the suburb of Clyde. However, the principal place of business for Lil Macchiato, as recorded in the ASIC company extract, is North Granville, not Clyde;
(q) Mr Khowly contends in the certificate of earnings that he purportedly completed on behalf of the claimant that the claimant was employed by Lil Macchiato under the Passenger Vehicle Transportation Award. However, that Award applies to employers in the passenger vehicle transportation industry defined as transport of passengers by motor vehicle, limousine, hire car, bus, coach, electric tramway, monorail or light rail (see clause 4 of the Award), which is inconsistent with Mr Khowly’s statement in the same document that Lil Macchiato is a “coffee shop” and therefore in the hospitality industry, not the passenger vehicle transportation industry; and
(r) Lil Macchiato Pty Limited is not registered for GST. A business must register for GST if it has a turnover that exceeds the GST threshold of $75,000. The non-GST registered status of Lil Macchiato is inconsistent with the claimant’s contention he earned $1,500 per week and Mr Khowly’s contention the claimant was paid $950 gross per week. These figures would amount to an annual equivalent wage expense for the business of $78,000 on the claimant’s evidence of $1,500 per week and $49,400 on
Mr Khowly’s evidence of $950 per week. If a business is able to pay wages of between $49,400 and $78,000 to a part time driver it employs, in addition to wages for café staff and all other expenses that are incurred in the business of a coffee shop it would be expected to have an annual turnover that exceeds $75,000 by a not insignificant sum and would therefore be registered for GST.Given the above observations the evidence of both the claimant and Mr Khowly should be scrutinised. Their evidence appears as neither cogent nor reliable. It is riddled with inconsistencies and is not supported by any reliable contemporaneous documentary evidence. The veracity of the claimant’s evidence is also in question having regard to his ready admission of deceptive conduct in relation to Centrelink and the ATO.
The claimant must establish on the balance of probabilities that he was an earner within the meaning of earner in Schedule 1, cl 2 of the MAI Act. Having regard to the above consideration and my conclusion that the claimant’s evidence is inconsistent, incoherent and unreliable, it is not persuasive. I therefore cannot be comfortably satisfied on the material before me that the claimant was employed by Lil Macchiato Pty Limited or any other employer at any relevant time prior to the motor accident for the purpose of Schedule 1, cl 2 of the MAI Act. Accordingly, the claimant has failed to discharge his burden of proof.
CONCLUSION
For the above reasons, I am not satisfied on the balance of probabilities that the claimant is an earner within the meaning of the MAI Act. Accordingly, the reviewable decision is affirmed.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· The application, reply and supporting documentation;
· the MAI Act;
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.
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