Mustafa v QBE Insurance (Australia) Limited
[2025] NSWPICMR 5
•24 February 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Mustafa v QBE Insurance (Australia) Limited [2025] NSWPICMR 5 |
CLAIMANT: | Nabard Mustafa |
INSURER: | QBE Insurance (Australia) Limited |
MERIT REVIEWER: | Katherine Ruschen |
DATE OF DECISION: | 24 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; meaning of earner; Schedule 1 clause 2; earnings through self-employment; number of weeks employed or self-employed in 12 months preceding the motor accident or two years preceding the motor accident; whether sufficient evidence to establish the claimant is an earner; whether the claimant must provide evidence of the number of weeks in which he received earnings; burden of proof; whether claimant has discharged his burden of proof; when onus of proof shifts to insurer; standard of proof; balance of probabilities; 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 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, and the following determination is made: (a) the claimant is an earner within the meaning in Schedule 1, cl 2 of the MAI Act, and (b) the matter is therefore remitted to the insurer to determine the claimant’s pre-accident weekly earnings amount. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Nabard Mustafa (the claimant) and the insurer about whether the claimant is an earner within the meaning of “earner” in Sch 1, cl 2 of the Motor Accident Injuries Act 2017 (MAI Act) for the purpose of any entitlement to payment of weekly benefits under Div 3.3 of the Act.
The claimant was involved in a motor accident on 17 April 2024.
On 13 May 2024 the claimant lodged an application for personal injury benefits in which he stated that at the time of the accident he was working as a self-employed truck driver under an Australian Business Number (ABN) earning on average $1,250 gross per week.
On 10 June 2024 the insurer issued a liability notice.
On 31 August 2024 the insurer’s forensic accountant, Procare, issued a report in which they expressed the view that there was insufficient information upon which to determine whether the claimant is an earner under Sch 1, cl 2.
On 13 September 2024 the insurer issued a dispute notice stating they were unable to calculate the claimant’s pre-accident weekly earnings (PAWE).
On 2 December 2024 the claimant requested an internal review of the decision of 13 September 2024.
On 20 December 2024 the insurer issued their internal review decision in which they determined the claimant was not an earner under Sch 1, cl 2 of the MAI Act.
The claimant has requested a merit review of the insurer’s decision dated 19 July 2024 (the Application).
SUBMISSIONS
The claimant submits by reason of being a self-employed truck driver during the 12 months prior to the accident he meets the definition of earner in the MAI Act. The claimant submits he subcontracted to a single client, Jenny & Hana Transport Pty Ltd (J&H), and that this was an unsophisticated arrangement with no formal documentation. The claimant has provided bank statements and notices of assessment as evidence of receipt of earnings from self-employment together with income statements from various employers in respect of prior employment.
The insurer submits the claimant does not satisfy the definition of “earner” in the MAI Act on the basis the claimant has not provided sufficient information to substantiate the claim that he is an earner. The insurer contends:
(a) the available information is insufficient to confirm whether income payments received by the claimant satisfy the minimum employment period in Sch 1, cl (2)(b);
(b) the claimant has not substantiated his claim that he was working as a self-employed truck driver as of the date of the accident with pay slips, invoices or time sheets;
(c) the bank statements alone do not corroborate the claimant’s contention he was a self-employed truck driver as of the date of the accident, and
(d) the claimant has therefore failed to “validate his claim, and as a result… the claimant does not satisfy the definition of ‘earner’”.
The insurer contends the following documents would assist to determine whether the claimant is an earner:
(a) particulars and/or confirmation from J&H as to the payments made to the claimant for the purposes of work performed, the hours of work performed and any invoices or records to assist with reconciling the payments received by the claimant and the exertion hours of the claimant;
(b) the claimant’s 2024 income tax return;
(c) Business Activity Statement (BAS) statements for the 13 months prior to the motor accident, and
(d) information to assist with verification of the number of weeks worked over the relevant period, and the earnings received over the relevant period.
ISSUES
The claimant returned to full time work on 15 July 2024. Accordingly, the dispute concerns payment of weekly benefits in the closed period from 17 April 2024 to 15 July 2024.
The issue in dispute is whether the claimant is an “earner” within the meaning of Sch 1, cl 2 of the MAI Act. If the claimant is not an “earner” within the meaning in the MAI Act there is no entitlement to payment of weekly benefits under Div 3.3 of the MAI Act.
REASONS
Legislation
Pursuant to cl 2 in Sch 1 of the MAI Act “earner” means:
“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”.
[emphasis added]
The evidence
The claimant has the burden of establishing he is an earner for the purpose of the MAI Act. The standard of proof asserted by the insurer, that the claimant is required to “validate” his claim, however, is incorrect. Rather, the question to be determined is whether the claimant has established on the balance of probabilities that he meets the definition of “earner” in the MAI Act.
In determining the question of whether the claimant is an earner the decisionmaker is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the decisionmaker of the truth or probability of the facts being alleged. Evidence may be photography, documentary or testimonial, but will only succeed in persuading the Tribunal if it appears as being truthful, reliable and cogent. In civil cases such as this 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 following evidence relevant to the question of earner has been provided by the claimant:
(a) the claimant’s declaration in his application for personal injury benefits that he was working as a self-employed truck driver as at the date of the accident;
(b) the claimant’s more detailed statement dated 10 December 2024 outlining his earning circumstances immediately before the day of the accident;
(c) the claimant’s bank statements for the period 20 February 2023 to 20 May 2024 which show various deposits identified by the claimant as earnings;
(d) notices of assessment issued by the Australian Taxation Office for the 2022 and 2023 financial years;
(e) income statements for the 2022 and 2023 financial years from various employers, and
(f) a letter from the claimant’s accountant dated 18 June 2024 confirming the claimant worked as a contracted truck driver for J&H with hours and pay varying each week from $440 to $2,000 per week.
The claimant states he is not able to provide the other documents requested by the insurer. In part, there would appear to be an adequate explanation for this. However, there does not appear to be any adequate explanation for the absence of documents such as income tax returns. Income tax returns must exist given the existence of notices of assessment. They may not be in the immediate possession of the claimant, but the claimant has the power to obtain those documents from either his accountant or by downloading copies from his MyGov online account. As such, it is not clear why tax returns are not presently disclosed.
The above stated, the insurer appears to have conflated the issues of “earner” and “pre-accident weekly earnings” when forming the view there is insufficient evidence to determine whether the claimant is an earner. Further information such as income tax returns, including the supplementary sections declaring self-employed earnings may be of assistance for the purpose of calculating PAWE and I consider it reasonable for the claimant to provide tax returns for that purpose. However, I do not think such documents (or the other outstanding documents requested by the insurer) would further assist in relation to the question of earner.
By conflating the issues of earner and PAWE the insurer has preceded on an incorrect assumption that Sch 1, cl 2 requires calculation of the number of weeks in which earnings were received as distinct from the number of weeks of employment. However, unlike Sch 1, cl 4, cl 2 does not concern receipt of earnings. Instead, Sch 1, cl 2 is concerned with the number of weeks in which the injured person “was employed or self-employed”.
It is instructive to go through the list of documents requested by the insurer, as follows:
Particulars and/or confirmation from Jenny & Hana Transport Pty Ltd as to the payments made to the claimant for the purposes of work performed, the hours of work performed and any invoices or records to assist with reconciling the payments received by the claimant and the exertion hours of the claimant.
The claimant has provided bank statements in which he identifies deposits as being earnings from self-employment as a truck driver for J&H. The transactions record the surname “Hana” in the description, with two different Hanas making deposits into the claimant’s account, which is consistent with the claimant’s statement that J&H is a business owned by two brothers.
The pattern of payments and amounts appears consistent with receipt of self-employed earnings as a subcontractor.
The claimant states he did not provide written invoices to J&H, as it was an unsophisticated arrangement. The pattern of payments suggests the Hana brothers had an arrangement to make subcontractor payments by means of apportionment between them, with each brother depositing their respective portion of the weekly amount due into the claimant’s account.
The insurer has not provided any evidence to rebut the claimant’s evidence outlined above. The insurer says it would assist if it had confirmation from J&H about the work arrangement. However, it is open to the insurer to make a direct approach to J&H for such confirmation as part of their investigations. Given rebuttal evidence has not been put forward by the insurer it is inferred that the insurer has not taken any such steps.
In some cases, it might be appropriate to require the injured person to provide further or better evidence of employment by way of confirmation from their alleged employer or head contractor. This might be appropriate, for example, where an injured person alleges a cash payment employment arrangement but has not provided any documents to support their contention. In other words, if the only evidence of employment or self-employment is the injured person’s written statement or oral evidence, that evidence may not be sufficient to discharge the injured person’s onus of proof. In cases where there are inconsistencies in the injured person’s evidence that are not adequately explained it may also be reasonable for the injured person to provide further evidence in order to discharge their burden of proof.
However, the present case is not a situation where the only evidence is the claimant’s statement or where there are unexplained inconsistencies. The claimant has provided some documentary evidence in support of his contentions. When one reads the claimant’s statement in conjunction with those documents, including bank statements, the claimant’s evidence appears truthful, reliable and cogent. In the absence of rebuttal evidence, the claimant’s evidence establishes it is probable that the claimant worked as a self-employed truck driver at the time of the accident over the period stated by the claimant.
If the insurer contends there is an equal or higher probability that the claimant did not work for the minimum number of weeks, the onus shifts to the insurer to establish this. The insurer, however, has not adduced any evidence to challenge the probability established by the claimant’s evidence that the claimant meets the definition of “earner”. As the claimant has discharged his burden of proof, if the insurer has an alternative case theory (which is unclear, as the submissions appear limited to a position that the claimant has not discharged his burden of proof), the insurer has the evidential burden of adducing or pointing to evidence that supports their case theory. The insurer has not done so.
The claimant’s 2024 income tax return
If this has been prepared and lodged, I agree it should be provided by the claimant along with his 2023 income tax return for the purpose of calculating PAWE. Given the claimant can obtain copies from his accountant or MyGov online account there does not appear to be any reasonable explanation as to why tax returns were not provided.
That said, I do not consider these documents would assist to determine whether the claimant is an earner. The issue is whether the claimant was employed or self-employed for the minimum number of weeks in the relevant period so as to be considered an earner under the MAI Act. The tax returns are not likely to contain any information that would assist in determining the number of weeks over which the claimant was employed or self-employed in the financial year. The tax returns are only likely to disclose total gross earnings within the financial year.
BAS statements for the 13 months prior to the motor accident
It is unclear how these documents would assist in determining the question of earner. As with tax returns, BAS are only likely to disclose total gross income within the quarter of the financial year concerned and are not likely to contain information upon which one could calculate the number of weeks within that quarter over which income was received (or employment persisted). As such, BAS (if in existence) might have some relevance to PAWE but would not assist in resolving the present dispute about whether the claimant is an earner under the MAI Act.
The claimant’s stated earnings from self-employment (less than $60,000) fall below the goods and services tax (GST) earnings threshold. At under $75,000 the claimant is not required to register for GST. If he is not registered for GST, he would not charge GST to J&H and would not lodge BAS. Given the unsophisticated nature of the claimant’s self-employment and the stated earnings amount, it is unlikely that the claimant is registered for GST and therefore unlikely that BAS exist. The insurer is entitled to use the claimant’s authority in the application for personal injury benefits to make a direct request to the claimant’s accountant for production of BAS, if the insurer challenges the absence of BAS.
Information to assist with verification of the number of weeks worked over the relevant period, and the earnings received over the relevant period
It is unclear what this further information would be having regard to the information and documents already provided by the claimant and the matters set out above.
The present dispute only concerns the question of whether the claimant is an “earner” withing the meaning in the MAI Act. More specifically, the dispute is about whether the claimant meets any of the minimum number of weeks of employment or self-employment thresholds in Sch 1, cl 2. As noted, the insurer’s request for further documents in circumstances were the claimant has provided supporting documents, which are consistent with his statement, suggests the insurer has conflated the issues of “earner” and “PAWE”.
The issue before me is limited to the issue of whether the claimant is an earner under the MAI Act. Accordingly, I will now turn to the evidence provided by the claimant for that purpose and consider whether the claimant is an earner under Sch 1, cl 2(a)(i) or cl 2(a)(ii) or cl 2(a)(iii) (other grounds on which an injured person might be considered an “earner” under Sch 1, cl 2 do not appear to have any relevance to the claimant’s circumstances).
Clause 2(a)(ii) – was the claimant employed or self-employed during a period or periods equal to at least 13 weeks in the 12 months immediately preceding the accident?
The 12 month period immediately preceding the accident is 17 April 2023 to 16 April 2024. The real issue between the parties appears to be whether there is reliable evidence that the claimant was working as a self-employed subcontractor to J&H at the time of the accident so I will put the evidence regarding that issue aside for the moment.
In relation to evidence of other earnings in this period there are income statements which show earnings in the 12 months before the accident as follows:
(a) Fedex Express Pty Ltd (Fedex): from 17 April 2023 to 8 May 2023, which equals 3.14 weeks, and
(b) Industrious People Pty Ltd (Industrious) which show earnings commencing from before 17 April 2023 to 30 June 2023.
There might be a question as to the earning period stated in the Industrious income statement given the claimant only earned $162 in this period from Industrious. That stated, the claimant was a casual employee and may have been “on the books” so to speak for the period 17 April 2023 to 30 June 2023 but, consistent with his statement, was only given one or two shifts during his period of employment with Industrious.
In any event, accepting the claimant was employed by Industrious up to 30 June 2023 (but parking the issue of self-employment with J&H for the moment) the claimant has only established employment within the 12 months before the accident from 7 April 2023 to 30 June 2023, which is 10.7 weeks. This falls short of the threshold 13 weeks required under cl 2(a)(ii).
I agree with the insurer that the notices of assessment do not assist as these documents simply show earnings over the financial years and do not include any information upon which one could assess, for example, whether earnings in the 2023 financial year were received before 17 April 2023 or the number of weeks over which the stated earnings were received. They also do not contain information upon which to determine whether any of the earnings are from another source such as rental income or other investment income.
On the present evidence, if self-employment as a subcontractor to J&H is excluded, the claimant does not meet the definition of earner under cl 2(a)(ii).
However, the claimant easily exceeds the 13 week threshold under cl 2(a)(ii) if his self-employment is included. I am comfortably satisfied on the available evidence and on the balance of probabilities that the claimant was self-employed for a period in excess of 13 weeks during the 12 months before the accident. The claimant’s statement, the accountant’s statement and the bank statements appear truthful, cogent and reliable and there is no evidence from the insurer which challenges this evidence.
There are sixty payments in this period from the Hana brothers in the bank statements (excluding payments in respect of which I consider there is insufficient evidence to establish they represent earnings) over 46 payment dates (where it appears payment is split between the two brothers with one brother paying their share on one date and the other paying one or two days later I have grouped these payments as being notionally paid on the same/one date). Payments are mostly made weekly (approximately). In my view, this demonstrates the claimant was engaged in self-employment for the period from at least 18 April 2023 (date of the first Hana payment) to at least 8 April 2024 (date of the last Hana payment before the accident), which is a period of more than 50 weeks and easily meets the threshold number of weeks in Sch 1, cl 2(a)(ii).
In determining the question of “earner” the insurer appears focused on determining the number of weeks in which earnings were in fact received by the claimant. As noted above, however, Sch 1, cl 2 does not require an assessment of the number of weeks in which “earnings” were received. It requires an assessment of the number of weeks in which the claimant was “employed or self-employed”. A person may still be employed or self-employed during periods when no earnings are received, for example an employer taking leave without pay or a self-employed contractor taking a holiday or time off for illness with the consequence that their business does not earn any income during that time. The nature of self-employment is that income fluctuates on a weekly or monthly basis such that there may be weeks when no income is received for example, because a client does not pay in a timely manner or client bookings are cancelled, or business is down.
The absence of earnings will impact PAWE, as all weeks are counted in the number of weeks over which earnings are averaged even if no earnings are received in some weeks. However, the test required by Sch 1, cl 2 only concerns the number of weeks of employment or self-employment and not the number of weeks in which earnings were received.
A person remains employed or self-employed so long as they continue to have a regular source of earnings. In this case, it is clear from the claimant’s statement together with the bank statements that from at least 18 April 2023 to 8 April 2024 the claimant was self-employed, having a regular source of earnings over this period via subcontract work with J&H being available to him on a regular, ongoing basis. I am therefore satisfied on balance that the claimant was “employed or self-employed” for at least 50 weeks of the 12 month period before the accident. Accordingly, the claimant meets the definition of earner under Sch 1, cl 2(a)(ii).
Clause 2(a)(iii) – was the claimant employed or self-employed during a period or periods equal to at least 26 weeks in the two years immediately preceding the accident?
The two years preceding the accident is 17 April 2022 to 16 April 2024.
There is evidence of employment from 17 April 2023 to 30 June 2023, as set out above.
Additionally, there is evidence of employment in the following periods in the two years preceding the accident:
(a) G4S Custodial Services Pty Ltd from prior to 17 April 2022 to 30 June 2022 ($104,332.90); and 10.71 weeks, and
(b) G4S Custodial Services Pty Ltd from 1 July 2022 to 7 October 2022 ($71,428.83 inclusive of unused leave paid out on termination), which is 14.14 weeks.
Relevantly, the G4S income statements for 2021 and 2022 record that the claimant was employed by G4S from 17 April 2022 to 7 October 2022 which is 174 days or 24.85 weeks.
Additionally, even if one excludes the Industrious income statement the evidence establishes the claimant worked for Fedex in the period 17 April 2023 to at least 8 May 2023 (supported by the bank statements) which is a period of 3.14 weeks. Accordingly, employment with G4S and Fedex totals 28 weeks (27.99 rounded). This exceeds the 26 week threshold under cl 2(a)(iii) and on this basis, in the alternative to cl 2(a)(ii) the claimant satisfies the definition of earner in the cl 2(a)(iii) even if the self-employment period is excluded.
For the above reasons, I am satisfied the claimant is an earner in the alternative under cl 2(a)(ii) on the basis he was employed for periods equal to at least 26 weeks in the two years immediately preceding the accident, even if employment with Industrious and self-employment as a truck driver is excluded.
Procare expresses the following opinion about the second G4S income statement:
“…income statement for the period 1 July 2022 to 7 October 2022 includes unpaid leave on termination. That income statement does not provide details as to when the claimant ceased earning income from G4S Custodial”.
In giving this opinion, however, Procare has not provided any, or any adequate reasons as to why they do not accept the closed payment period stated in the document as the period of employment. Further, the opinion shows application of the incorrect test as to whether the number of weeks required to be an earner is satisfied. Procare state the income statement does not disclose when the claimant “ceased earning income from G4S”. However, for the reasons set out above that is not the test. Rather, Sch 1, cl 2 requires calculation of the number of weeks in which the claimant was “employed or self-employed”, not the number of weeks in which earnings were actually received.
I have no basis on the evidence before me to doubt the G4S income statements regarding the stated period of employment. Typically, the period stated in an income statement is the period of employment, with the first date being either commencement of employment or first income payment and the last date updated each time income is paid. The amount of earnings recorded in the income statements are consistent with weekly earnings averaging $1,500 to $2,000 over the stated periods.
The insurer has not provided any evidence to rebut the periods recorded in the income statements as being the period of the claimant’s employment. If the insurer challenges these business records, it is open to the insurer to seek clarification from the relevant employer(s) directly, pursuant to the claimant’s authority in the application for personal injury benefits. There is, however, no evidence before me that challenges the periods recorded in the income statements. Any suggestion by Procare that the claimant’s employment may have ceased on an earlier date remains speculation only, in the absence of evidence supporting Procare’s view.
Clause 2(a)(i) – was the claimant employed or self-employed at any time during the eight weeks immediately preceding the accident?
It follows from what I have said in relation to cl 2(a)(ii) above that I am also satisfied on balance that the claimant was employed or self-employed for a time during the eight weeks preceding the accident. Even if one applies the incorrect test of whether the claimant received earnings for a time during the eight weeks preceding the accident the result is the same, given the bank statements evidence earnings on more than one occasion in the eight weeks proceeding the accident.
Again, the claimant’s evidence of self-employment comprising his written statement, bank statements and a letter from his accountant appears truthful, reliable and cogent. There are no inconsistencies, and the bank statements reveal payer details and a pattern of payments that is consistent with the claimant engaging in self-employment. In the absence of any rebuttal evidence, I am satisfied the claimant has discharged his burden of proof by establishing on balance that he was self-employed for a time during the eight weeks preceding the accident.
PAWE
There has not been an internal review as to PAWE, a decision on PAWE not made by the insurer. Rather, this merit review only concerns the internal review decision in which the insurer determined the claimant was not an earner. Accordingly, there is no present jurisdiction to conduct a merit review as to the amount of PAWE.
I therefore simply observe that on the present evidence I would not be persuaded that those payments in the bank statements that do not record one of the two brothers’ names in the transaction description are income payments. This is because these payments are not consistent with the pattern of payments by the Hana brothers, either in relation to their frequency or amount. Further, these payments appear to come from bank accounts that differ from the Hana brothers’ bank accounts (some of the payments appear to be transfers by the claimant to himself from another account of the claimant) and the description is not consistent with the Hana brother payments. There is no evidence before me which explains these discrepancies.
In any event, I note the claimant concedes in his statement he has insufficient evidence to establish payments in his bank statements that are not recorded as payments from a Hana brother are income. The claimant therefore does not press inclusion of such payments in PAWE. On the evidence before me I consider payments described as being made by a Hana brother represent payment of income to the claimant for his services as a subcontracted truck driver to J&H.
As the claimant has been determined in this merit review to be an “earner” under the MAI Act, the insurer must now make a determination as to the amount of the claimant’s PAWE. I consider it reasonable for the insurer to require the claimant to provide his income tax returns (including supplementary sections) for 2023 and 2024 for this purpose (these may be relevant, for example, to determining whether there were any business expenses). If the claimant is not in possession of his tax returns, he should obtain copies for the insurer from his accountant or through his MyGov online account.
CONCLUSION
For the reasons set out above I conclude:
(a) the claimant meets the definition of “earner” in Sch 1, cl 2(a)(i) of the MAI Act;
(b) further and/or in the alternative, the claimant meets the definition of “earner” in Sch 1, cl 2(a)(ii), and
(c) further and/or in the alternative, the claimant meets the definition of “earner” in Sch 1, cl 2(a)(iii).
Accordingly:
(a) the claimant is an “earner” under Sch 1, cl 2 of the MAI Act, and
(b) the matter is therefore remitted to the insurer to determine the claimant’s PAWE amount.
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.
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
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