Proctor v QBE Insurance (Australia) Limited

In the matter of Proctor v QBE Insurance (Australia) Limited, the applicant sought a merit review of the insurer’s decision regarding the calculation of pre-accident weekly earnings (PAWE) under the Motor Accident Injuries Act 2017. The central issue revolved around the appropriate calculation of PAWE, specifically whether the loss of earnings from a farming partnership should be taken into account in the PAWE calculation. The insurer had initially agreed to apply Schedule 1, clause 4(2)(a), but later argued that clause 4(2)(a1) was more appropriate. The dispute was resolved through a merit review process conducted on the papers, with both parties complying with the interim directions issued by the court.

The legal issues before the court included the interpretation of Schedule 1, clause 4(2) of the Motor Accident Injuries Act 2017, particularly the distinction between clause 4(2)(a) and clause 4(2)(a1) in the context of calculating PAWE. The court had to determine whether the loss of earnings from a farming partnership should be considered in the PAWE calculation, and whether the claimant’s proposed method of averaging earnings over a three to five year period was permissible under the Act. Additionally, the court needed to assess the insurer’s contention that income from cattle sales in 2025, which represented delayed income from 2024, should be included in the PAWE calculation.

The court found that the insurer’s interpretation of clause 4(2)(a1) was correct and set aside the insurer’s internal review decision. The court held that the loss of earnings from the farming partnership should not be taken into account in the PAWE calculation, as it did not align with the statutory provisions. Furthermore, the court agreed with the insurer that the claimant’s proposed method of averaging earnings over a three to five year period was not permissible under the Act. The court also rejected the claimant’s argument that income from cattle sales in 2025 should be included in the PAWE calculation, finding that it did not conform with the statutory requirements.

In light of the court’s determination, the reviewable decision issued by the insurer on 21 May 2025 was set aside. The matter was remitted to the insurer for reconsideration in accordance with the court’s findings.