Kumar v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Kumar v Allianz Australia Insurance Limited [2024] NSWPICMR 73
CLAIMANT:	Ankit Kumar
INSURER:	Allianz
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	26 November 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident weekly earnings (PAWE): Schedule 1, clause 4; Schedule 1, clauses 4(2)(b), 4(2)(c) and 4(3); significant change in earning circumstances; arrangement to commence self-employment; expected earnings; earnings received after the day of the accident for work performed before the accident; Didi Vehicle Advertising Program, rideshare, Uber; GST in rideshare earnings; business expenses; motor vehicle expenses; rental income; meaning of earnings; clause 3(3)(b); Held – the reviewable decision is set aside.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 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 set aside. 2. The claimant’s pre-accident weekly earnings amount is $852.34.

STATEMENT OF REASONS

INTRODUCTION

There is a dispute between Ankit Kumar (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 (the MAI Act).
The claimant was involved in a motor accident on 14 February 2024.
On 6 March 2024 the insurer determined the claimant’s pre-accident weekly earnings (PAWE) as $1,570.11.
On 9 May 2024 the claimant requested an internal review of the 6 March 2024 decision.
On 21 May 2024 the insurer issued their internal review decision in which they varied PAWE to $415.78.
On 3 September 2024 the insurer issued a further PAWE decision in which they again varied the claimant’s PAWE to $419.69.

The claimant has requested a merit review of the insurer’s decision dated 3 September 2024 (the Application).

SUBMISSIONS

The claimant submits his PAWE amount should be at least $1,227.35 on the basis Sch 1,
cl 4(2)(b) and (3) and/or (2)(c) apply to his circumstances. The claimant submits this is because, in December 2023, he left employment with 7-Eleven and began working exclusively as a rideshare driver resulting in a significant increase in earnings. The claimant also contends there was a further change in his pre-accident earning circumstances on 12 February 2024 when he signed up to the Didi Vehicle Advertising Program from which he was to earn an extra $1,200 in $50 instalments per fortnight. The clamant says he earned $7.96 from Didi before the accident but was paid an extra $50 on 1 March 2024 by reason of the Vehicle Advertising Program.
In addition, the claimant contends rental income received from renting a vehicle he owns from 27 September 2023 should be included in PAWE. The claimant says there were no expenses arising from this business endeavour during the relevant period and that he has been unable to service or repair the vehicle as a result of the accident. The claimant also contends he is unable to pay for insurance or registration for this vehicle due to the reduction in payment of weekly benefits arising from the insurer’s revised PAWE calculation.
For the purpose of cl 4(2)(b), or in the alternative cl 4(2)(c), the claimant contends that in the 12-month period after this change in earning circumstances he could have reasonably expected to earn at least $1,227.35 gross per week, being the weekly average of his pre-accident earnings in the discreet six week period from 1 January 2024 to 14 February 2024 received from rideshare earnings and rental vehicle income.
The claimant also submits payments he received after the accident on 21 February 2024 and 1 March 2024 should be included in PAWE because these payments were for work carried out before the accident.
Should it be determined cl 4(2)(b) or (c) do not apply the claimant submits PAWE should be calculated under cl 4(1) in the sum of $960.38 being the weekly average of earnings from
7-Eleven, Uber, Didi, Coles and vehicle rental less $312.50 for rideshare expenses during the 52 weeks before the day of the accident.
The insurer submits the claimant had been receiving earnings as an Uber driver since at least 3 January 2023 and the claimant’s earnings from Uber were variable. The insurer submits as such, the claimant’s earnings did not, or would not have, significantly increased as a result of ceasing employment with 7-Eleven and/or signing up to the Didi Vehicle Advertising Program. The insurer submits there was no significant change in earning circumstances that resulted in the claimant regularly earning, or becoming entitled to regularly earn, more on a weekly basis than he was earning before the change and therefore cl 4(2)(b) does not apply.
The insurer contends cl 4(2)(c) does not apply, as there is no evidence of the claimant having entered into an agreement to undertake employment or commence business as a self-employed person on a specified date.
The insurer submits the claimant’s PAWE falls under cl 4(1), and the relevant period is the 52 week period from 14 February 2023 to 13 February 2024. In submissions for this merit review the insurer submits PAWE under cl 4(1) is $621.19 based on total earnings of $32,301.77 (after business expenses and excluding vehicle rental income).
As to rental vehicle income the insurer submits the insurance policies for the subject vehicle are not in the claimant’s name and that in any event, rental income is not income from personal exertion and is excluded from PAWE.

REASONS

Issues

The issues for determination are:
(a) whether PAWE falls under cl 4(1) or one of the exceptions in cl 4(2), namely cl 4(2)(b) or 4(2)(c);
(b) whether vehicle rental income is earnings for the purpose of PAWE;
(c) whether income received after the accident is included in PAWE, and
(d) the amount of the claimant’s PAWE under the applicable subclause in cl 4.

The legislation

Pursuant to cl 4 in Schedule 1 of the MAI Act PAWE means:
“(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 the earner received as an earner, or could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred,
(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.
…
(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.”
The effect of cl 4 is that unless one of the exceptions in cl 4(2) apply the claimant’s PAWE is to be assessed under cl 4(1). The claimant contends the exception in cl 4(2(b) or alternatively, cl 4(2)(c) applies to his circumstances.

Does cl 2(b) apply?

The claimant submits his PAWE should be assessed under cl 4(2)(b) on the basis cl 4(3) applies. The claimant submits cl 4(3) is triggered on the basis there was a significant change in his earning circumstances from December 2023 when he ceased employment with
7-Eleven and began earning exclusively as a rideshare driver.
Under cl 4(3) the claimant must establish that cessation of employment with 7-Eleven resulted in a “significant” change to his earning circumstances, which resulted in him “regularly” earning more on a weekly basis than he had earned before the change occurred. Where the period in question after the change is only 6 weeks, there would need to be, for example, evidence that Uber had committed to paying, or guaranteeing work for the claimant on a regular basis at a rate significantly higher than his previous earnings.
As a rideshare driver the claimant operated as a sole trader. The work available from Uber is casual and clearly variable such that the claimant’s earnings fluctuated from month to month. It is likely that rideshare earnings depend on the time of year for example, Uber drivers might typically be busier around Christmas and New Year due to the number of Christmas parties and higher volume of airport travel. In the claimant’s circumstances, much also likely depends on the availability of his cousin’s vehicle. It can be inferred from the cousin’s statement that although he does not use the vehicle much, he does use it from time to time and accordingly, there are likely times when the vehicle is unavailable to the claimant.
A fluctuation in earnings is expected with any sole trader business. Unless they have a contract, which guarantees a minimum number of hours each week, fortnight or month there is no guarantee of work and it is expected that in some weeks a business will earn more and in others, less. That is the nature of a sole trader business, including where the business activity is rideshare.
Working as a rideshare driver is not a significant change on its own, as the evidence establishes the claimant had been carrying out this work since at least January 2023. As to whether the change resulted in the claimant earning more, a comparison of the claimant’s average weekly earnings in the period 14 February 2023 to 31 December 2023 with average weekly earnings in the period 1 January 2024 to 13 February 2024 does not demonstrate the claimant regularly earned more on a weekly basis than he had earned before ceasing employment with 7-Eleven. Rather, the evidence demonstrates the claimant earned more on a weekly basis in the preceding period from 14 February 2023 to 31 December 2023 than he did from 1 January 2024 to 13 February 2024 when the claimant says he worked exclusively as a rideshare driver.
To illustrate, from 14 February 2023 to 13 February 2024 the claimant’s gross earnings were $45,523.23 before deducting Goods and Services Tax (GST) and business expenses from Uber income (see further below). From 1 January 2024 to 13 February 2024 the claimant earned $5,153.11 inclusive of GST and business expenses. Accordingly, gross earnings from 14 February 2023 to 31 December 2023 were $40,369.91 ($45,523.23 less $5,153.11) which gives a weekly average of $880.48 over this 45.85 week period.
In comparison, the claimant’s average weekly earnings from 1 January 2024 to 13 February 2024 were less at $820.55 (also inclusive of GST and expenses) over the 6.28 week period. Accordingly, the change relied on by the clamant resulted in him earning less (around $60 per week less) than he had been earning before. A significant change resulting in the claimant regularly earning more than he had earned before is therefore not established.
As to the contention that signing up to the Didi Advertising Program is a significant change in earning circumstances, cl 4(3) requires that the change be both “significant” and one that results in the claimant “regularly” earning more. The evidence is that income from this program involved a one-off payment of $1,200 payable by instalments of $50 per fortnight. A one off promotion of this kind does not amount to an entitlement to “regularly” earn more. And in any event, even if an additional $50 per fortnight (that is, $25 per week) were allowed when comparing average weekly earnings before and after the change the outcome remains that the weekly average after the change of $845 (inclusive of an additional $25 per week/$50 per fortnight) is less than the weekly average of $880 before the change.
Accordingly, the requirements of cl 4(3) are not satisfied by either event that is, the cessation of 7-Eleven employment or the Didi Advertising program, whether viewed together or separately. Clause 4(2)(b) therefore does not apply.

Does cl 2(c) apply?

There is no evidence to suggest cl 4(2)(c) applies. The claimant is not an earner by reason of having, before the accident, entered into an arrangement to commence employment or to commence business after the day of the accident, as required by this clause. The claimant had already been working in self-employment as a ride share driver since 3 January 2023 so it cannot be said that before the accident, he had entered into an arrangement to commence a rideshare business as a self-employed person after the accident.
Clause 4(2)(c) is clearly prospective by looking at “expected” earnings and applies where the claimant was not yet working at the time of the accident, or had only recently commenced employment or self-employment but had not yet received any earnings (for example, because they had only commenced within the week before the accident) but is nonetheless an earner for the purpose of the MAI Act under Sch 1, cl 2(b). The claimant, however, was already in receipt of earnings from self-employment at the time of the accident and is an earner under Sch 1, cl 2(a).
Signing up to the Didi platform in addition to Uber before the accident does not amount to an arrangement to commence self-employment as the claimant was already in the same self-employment since at least January 2023 that is, operating a rideshare business. Regardless of how many rideshare platforms the claimant subscribes to he can only complete one rideshare trip at any one time.
As to the Didi Advertising Program, for the same reasons, this does not amount to an arrangement to commence employment or self-employment for the purpose of cl 4(2)(c).
I have determined above that neither cl 2(b) and (3) nor cl 2(c) apply to the claimant’s circumstances. Accordingly, the claimant’s PAWE is falls under cl 4(1).

Can vehicle rental income be included in PAWE?

Pursuant to cl 4(1) PAWE relevantly means “the weekly average of the gross earnings received by the earner as an earner…”.
“Gross earnings” is not defined in the MAI Act. “Earnings” is also not defined. However, “loss of earnings” is defined in Sch 1, cl 3(1) of the MAI Act to mean “a loss incurred or likely to be incurred in a person's income from personal exertion”. It is clear from this definition that the word “earnings” is intended to mean “income from personal exertion”.
The meaning of “income from personal exertion” is contained in cl 3(2) as follows:
“|A person's ‘income from personal exertion’ is--
(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.”
Clause 3(3) goes on to expressly exclude certain kinds of income as follows:
“(3)    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.”
As such, income in the form of rent is expressly excluded as income from personal exertion under cl 3(3)(b).
The principles of statutory interpretation are set out by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 72 ALJR 841; 153 ALR 490 and relevantly require:
(a)    the words in the statute must be interpreted in a way that is consistent with the language used in that statute;
(b)    words of a statutory provision are given the meaning that the legislature is taken to have intended them to have, and
(c)    the same wording used throughout the statute carries the same meaning.
Whilst the word “earnings” does not have a specified definition in isolation to the definition of the phrase “loss of earnings” it is a word used throughout the MAI Act. Pursuant to principles of statutory interpretation it must be taken to have the same meaning throughout the MAI Act. Accordingly, “earnings” should be given the same meaning when used in phrases such as “gross earnings” and “earnings as an earner” as it is given by the definition of “loss of earnings” in Schedule 1, cl 3 of the MAI Act.
Under cl 3 “loss of earnings” means a loss of “income from personal exertion” and income from rent is specifically excluded. It follows from this that the word “earnings” is intended to mean “income from personal exertion” excluding rental income wherever the word “earnings” appears in the MAI Act.
Clause 3(3)(b) does not distinguish between different kinds of rental income. Nor does it make allowance for rental income that might involve some form of personal exertion by a claimant in order to maintain the rented asset. For example, the clause does not distinguish rental income from an investment property from rental income received via rental of a vehicle or equipment. It also does not distinguish between rented assets maintained through direct labour by the asset owner and rented assets where maintenance is outsourced for example, to a handyman in the case of an investment property and to a mechanic in the case of a motor vehicle.
Most, if not all rented assets require some form of maintenance. The fact that the owner may choose to carry out maintenance through their own labour rather than a third party service provider does not convert rental income generated by the asset to earnings for the purpose of PAWE. Clause 3(3) is a blanket exclusion on rent as income from personal exertion.

The claimant contends he has been unable to service or repair the vehicle he rents or pay insurance on that vehicle because of the accident. However, there is no evidence that the claimant has the skills to service and repair the vehicle himself and no evidence that he did personally carry out that work before the accident as opposed to taking the vehicle to a mechanic for service and repairs, including there is no statement from the claimant.
The claimant contends he had no business expenses arising from the vehicle rental but even if the claimant carried out services and repairs himself, he would presumably have expenses such as purchase of oil (which is typically changed as part of any routine vehicle service), brake and other fluids that are replaced or topped up during services and purchase of parts for any repairs or replacement of wear and tear items on the vehicle. The inference from the contention there were no expenses at all is that the claimant did not perform any labour on the vehicle as part of its rental.
If the claimant wished to continue earning income from vehicle rental there would be no reason why he could not do so by outsourcing service and repairs to a mechanic (as the ordinary person would do) using the rental income to pay these expenses. The vehicle is said to be rented consistently on a long term basis at $150 per week, which would provide sufficient funds to pay for a typical 6 month/10,000 km service whilst still leaving a profit.
Typically, a person who generates rental income by renting out a vehicle, an investment property or some form of equipment, would be able to continue that venture post-accident, even if they are no longer able to physically maintain the vehicle, property or equipment, by outsourcing maintenance to a handyman, mechanic or other trade as applicable to the nature of the rented asset, using the rental income to pay such expenses. This is consistent with the exclusion of rent income from earnings in the MAI Act under cl 3(3). In the claimant’s case, the inference is that if PAWE were higher by including vehicle rental income he would be able to insure the vehicle and continue that business. If so, the claimant would be double dipping by receiving weekly benefits calculated on PAWE which includes rental income and continuing to generate rental income after the accident. This is not consistent with the principles of a statutory benefits scheme and likely one rationale for the exclusion of rent from earnings under the MAI Act.
As to insurance payments for the rental vehicle there is no evidence that the claimant pays any insurance. The insurance certificates and invoices for the vehicle are in the name of, and addressed to, third parties, including that at least one appears to be paid by monthly direct debit from the third party’s bank account. The claimant’s contention he cannot pay the insurance due to insufficient weekly benefits is also inconsistent with his contention there were no business expenses associated with the rental vehicle. If the claimant had been paying insurance on a vehicle he rented for exclusive, long term use by the renter, as contended, that would be an expense of the business.
Presumably, if the claimant were responsible for insurance he could make those payments from the vehicle rental income in the same way he could pay a mechanic to service the vehicle using the ongoing rental income.
In any event, regardless of what the pre-accident arrangement was in respect of the rental vehicle for payment of insurance and routine services and repairs, income in the form of rent of any kind is excluded from “earnings” for the purpose of the MAI Act for the reasons set out above.

Can earnings received on or after the date of the accident be included in PAWE?

The claimant seeks to have earnings received after the accident included in PAWE on the basis these earnings were generated by work carried out before the accident. However,
cl 4(1) is only concerned with earnings that were in fact “received” by the claimant in the relevant 12 month period and not when the personal exertion that generated the earnings was carried out. Accordingly, earnings received by the claimant on 21 February 2024 and 1 March 2024 are excluded from PAWE as these earnings were not received before the day of the motor accident that is, on or before 13 February 2024.

What is the claimant’s PAWE under cl 4(1)?

As it has been determined above that the exceptions to cl 4(1) in cl 4(2)(b) and (c) do not apply to the claimant’s circumstances the claimant’s PAWE falls under cl 4(1).
Under Sch 1, cl 4(1) the claimant’s PAWE is the “weekly average of the gross earnings received” (emphasis added) by the claimant in the 12 month period before the day of the motor accident.
The motor accident occurred on 14 February 2024. Accordingly, under cl 4(1) the pre-accident period is 14 February 2023 to 13 February 2024.

Uber

Bank records, Uber and Didi tax summaries show total payments received by the claimant as a rideshare driver in the period 14 February 2023 to 13 February 2024 in the sum of $9,774.95 ($6,584.24 in the period 14 February 2023 to 31 May 2023 as shown in the bank statements, supported by tax summaries and $3,190.70 in the period 1 June 2023 to 13 February 2024 based on tax summaries).
There is no evidence of any earnings in the 12 months before the accident from Didi. The payment relied on by the claimant was received after the accident and for the reasons set out above, is excluded from PAWE.
Unlike earnings from Coles and 7-Eleven, Uber does not withhold income tax before making payment to the claimant. Accordingly, the amounts shown in both the tax summaries and the claimant’s bank statements are gross earnings, not net.
Further, GST is automatically charged to riders on rideshare trips through rideshare platforms including Uber and Didi. As a rideshare driver the Australian Taxation Office (ATO) requires the claimant to have an Australian Business Number (ABN) and be registered for GST from the day of commencement as a rideshare driver, regardless of how much he earns or expects to earn.
As a rideshare driver the claimant is not an employee of Uber or Didi and is responsible for reporting and paying GST earned on rideshare trips to the ATO. The claimant is required to lodge business activity statements (BAS) and pay GST on the full fare. The fare calculated by the digital platform such as Uber or Didi is the full fare, including GST. The amount subsequently paid to the claimant is the full fare, including GST, less fees or commission.[1]
[1] >
In accordance with ATO requirements the claimant has had an ABN since 25 January 2022 and has been registered for GST since 30 August 2023, although he ought to have been registered for GST from the time he first commenced as a rideshare driver (at least January 2023).
The Federal Court also made clear in Uber B.V. v Commissioner of Taxation [2017] FCA 110 that Uber drivers must register for GST. Presumably the claimant did not remit the GST he received from rideshare earnings before becoming registered for GST on 30 August 2023. However, the claimant’s failure to register for GST prior to 30 August 2024 and/or remit GST to the ATO does not in turn characterise GST as earnings, given the legal obligation to register for GST and remit GST to the ATO. Even without the Federal Court decision, GST is not income where it has been received by the claimant. This is because as a matter of law, a business not registered for GST is not permitted to charge or receive GST. Such businesses are required to render services at a cost that is exclusive of GST (which is not the case for rideshare drivers where the services always include GST). The act of receiving tax monies and any unlawful withholding of those monies instead of remitting the monies to the ATO does not convert the tax component into earnings.
As noted above, pursuant to Sch 1, cl 3(1) of the MAI “loss of earnings” means a loss incurred or likely to be incurred in a person's “income from personal exertion” and therefore “earnings” means “income from personal exertion”. Pursuant to cl 3(2)(a) “income from personal exertion” relevantly means, in the claimant’s circumstances of self-employment (in so far as rideshare earnings are concerned), the “proceeds of any business carried out” by the claimant. As a matter of law GST is not “proceeds” of a business which the business owner is entitled to enjoy as their personal earnings. GST is a tax collected by the business owner on behalf of the government and then passed onto the government. If the claimant does not comply with his legal obligations in this regard, GST is not converted into earnings. The GST remains at all times, by law, a tax amount payable by the claimant to the government regardless of whether the claimant has complied with his legal obligation in this regard. If the GST is not remitted to the government, the claimant simply continues to hold the GST monies on behalf of the ATO. Accordingly, GST is excluded from PAWE.
For these reasons, GST needs to be deducted from gross Uber earnings received by the claimant. A 10% GST charge is included on all rideshare trips and accordingly, I consider $888.63 of the total earnings represent GST. This reduces gross earnings, exclusive of GST, received by the claimant from Uber in the relevant period to $8,886.32.
Both parties agree business expenses are to be deducted from Uber earnings. However, they disagree on the amount and how it should be calculated.
The insurer says expenses should be calculated as follows for each month worked:
(a)    mobile phone – $10 per month;
(b)    petrol – $200 per month, and
(c)    vehicle expenses – $500 per month.
The insurer’s mobile phone and petrol amounts are stated in the internal review to be “estimates” only and do not appear to be based on any specific information. The vehicle expenses appear to be loosely based on an estimate of payments made by the claimant from his bank account for “car rent”, which the insurer says vary between $43 and $240. The monthly estimate appears to be based on what the insurer says is the most “consistent” payment of $150 per week. However, within this methodology the insurer appears to have confused weekly rental income received by the claimant for his vehicle with payments made by the claimant to a hire car company. The debit transactions indicate the claimant hired a vehicle briefly himself (as distinct from renting out a vehicle) in January/February 2023 and then again from on or about 19 June 2023 to on or about 6 September 2023.
The claimant says his expenses in the relevant period were $312.50 on the basis he drove 3,756 kilometres as a rideshare driver and the average fuel consumption of a hybrid vehicle is 0.04 litres per kilometre (assuming a petrol cost of $1.88 per litre) according to the Australian Institute of Petroleum. The claimant makes no allowance for mobile phone (as he used his personal phone) or vehicle expenses other than fuel and says that the vehicle he hired in June to September 2023 was not used in his business (the earlier payments by the claimant for a rental vehicle in January and February 2023 pre-date 12 month pre-accident period under cl 4(1).
The claimant has not provided any records of expenses. It appears in his 2023 tax return he adopted the cents per kilometre approach as a means of calculating vehicle running costs as part of his business expenses, although this is not permitted by the ATO where the claimant is not the owner of the vehicle (the claimant says he borrowed his cousin’s vehicle and if so, the claimant must keep records of expenses and can only claim actual expenses incurred[2]).
[2] >
In relation to the vehicle rental paid by the claimant from June to September 2024 Uber tax summaries show the claimant did not work or any work was negligible. This is consistent with the claimant’s contention he did not use the vehicle he hired for use as a rideshare driver. Accordingly, I do not think there should be any allowance for use of a rental vehicle in the claimant’s rideshare business.
In relation to mobile phone expenses, I accept in some circumstances of rideshare driving that this might be a sunk cost that is, one that the claimant would pay anyway, even if he were not driving for Uber at all. Given the claimant’s Uber earnings varied significantly during the 12 months before the accident, including that there were many months where he earned little or no income from Uber, I accept any mobile phone expense is likely a sunk cost not to be taken into account when calculating gross earnings from Uber.
The claimant says he used a hybrid vehicle for much of his rideshare business. Whilst the insurer contends there is no evidence the vehicle was a hybrid vehicle the insurer has not called for such evidence.
The claimant contends he travelled 3,756 kilometres as a rideshare driver in the relevant period and calculates fuel costs of $312.50 based on average fuel consumption for two different vehicles used and a fuel cost of $1.88 per litre. There may have been charging costs for the period in which a hybrid vehicle but having regard to fuel consumption this likely would be negligible, so I do not consider it necessary to make allowance for charging costs.
Absent any rebuttal evidence from the insurer, I accept the claimant’s position that his fuel costs were $312.50 based on average fuel consumption figures.
Accordingly, I conclude on balance that likely business expenses in the relevant period were $312.50.
On the basis of the above I am satisfied on balance that the claimant’s earnings received from Uber from 14 February 2023 to 13 February 2023 were $6,497.34, calculated as follows:
(a)    gross earnings inclusive of GST: $9,774.95;
(b)    less $888.63. (10% GST) = $8,886.32, and
(c)    less business expenses of $312.50 = $8,573.82 in gross earnings received by the claimant from Uber.

7-Eleven

Both parties appear to have overlooked calculating PAWE based on “gross” earnings, as required by cl 4(1) and rely on net (that is, after tax) earnings using the salary deposit amounts recorded in the bank statements. However, it is clear from a review of corresponding payslips that the amounts in the bank statements are net, after the employer has withheld income tax.
I have reviewed the payslips from 7-Eleven together with the bank statements and I am satisfied there is a corresponding net payment to the claimant for each payslip, which shows gross earnings and the net amount paid to the claimant after withholding tax. I am also satisfied the claimant did not receive any other payments from 7-Eleven in the 12 months before the accident other than as recorded in the payslips provided by the claimant. Accordingly, I am satisfied the payslips are a complete record of earnings received by the claimant from 7-Eleven from 14 February 2023 to 13 February 2024.
The evidence establishes all earnings received by the claimant from 7-Eleven fell entirely within this pre-accident period, with the first payment received on 21 February 2023 and the last payment received on 12 December 2023. As it is clear the bank statements show net earnings, I have disregarded the parties’ calculation of earnings from 7-Eleven based on bank statements.
The last payslip in the year ending 30 June 2023 shows gross year to date earnings from 21 February 2023 in the sum of $19,496.57. The final payslip dated 12 December 2023 records gross year to date earnings from 1 July 2023 in the sum of $11,839.61. Accordingly, gross earnings received by the claimant from 7-Eleven in the 12 months before the accident total $31,336.18.

Coles

The parties also appear to have erroneously calculated earnings from Coles based on net earnings instead of gross earnings.
The claimant has provided an Earning History schedule for Coles’ earnings. I have cross-referenced this with the bank statements, and I am satisfied there is a corresponding net amount paid into the claimant’s bank account for each entry in this document. I am also satisfied there is no evidence of any other earnings received from Coles in the relevant period.
The Earning History records the amounts for both gross and net earnings. As cl 4(1) provides that PAWE is based on “gross” earnings I have adopted the gross figures in the Earning History which show total gross earnings from 14 February 2023 to 15 August 23 in the sum of $4,411.89.

PAWE calculation

Accordingly, gross earnings in the period 14 February 2023 to 13 February 2024 are $44,321.89 being the total sum of:
(a)    gross Uber earnings (excluding GST and expenses): $8,573.82;
(b)    gross 7-Eleven earnings: $31,336.18, and
(c)    gross Coles earnings $4,411.89.
The claimant’s PAWE amount is therefore $852.34.

CONCLUSION

For the reasons set out above I conclude none of the exceptions under Sch 1, cl 4(2) apply to the claimant and the claimant’s PAWE assessment therefore falls under cl 4(1). On balance, I conclude the claimant’s PAWE amount under cl 4(1) of the MAI Act is $852.34.
Accordingly:
(a) the reviewable decision is set aside, and
(b) the claimant’s PAWE amount is $852.34.

LEGISLATION AND GUIDELINES

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

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

[2024] NSWPICMR 73

26 November 2024