QBE Insurance (Australia) Limited v Spence - [2024] NSWPICMRP 4

DETERMINATION OF MERIT REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Spence [2024] NSWPICMRP 4
CLAIMANT:	Heydan David Spence
INSURER:	QBE Insurance Australia Limited
MERIT REVIEW PANEL MEMBERS:	Hugh Macken Terence O’Riain Susan McTegg
DATE OF DECISION:	16 May 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; review of decision of Merit Reviewer (MR) Medland in respect of the calculation of pre-accident weekly earnings (PAWE); claimant injured in motor vehicle accident on 12 August 2019; claimant asserted if uninjured he would have undertaken seasonal work for the 2019 harvest with Emerald Grain; question of whether earner under schedule 1 clause 2(a)(ii) or schedule 1 clause 2(b)(i); assessment of pre-accident weekly earnings; does schedule 1 clause 4(2)(c) require the likely weekly earnings to be averaged over 52 weeks; MR Medland certified PAWE to be $1,977.35; Held – claimant was an earner under schedule 1 clause 2(b)(i) where before the accident he had entered into an arrangement to undertake employment with Emerald Grain commencing on 21 October 2019; claimants earnings to be assessed under schedule 1 clause 4(2)(c); schedule 1 clause 4(2)(c) not require pre-accident weekly earnings to be averaged over 52 week period; obiter comment of Harrison AsJ in Allianz Insurance Australia Limited v Shamiri cited; Project Blue Sky v ABA, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, Newcastle City Council v GIO General Ltd, and R v PLV cited; certificate of MR Medland revoked only as to amount of PAWE; Panel certified PAWE to be $1,898.40.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act, 2017 The Review Panel revokes the certificate of Merit Reviewer Medland dated 30 January 2024.1. The Review Panel certifies the claimant’s pre-accident weekly earnings to be $1,898.40.2.

STATEMENT OF REASONS

INTRODUCTION

Heydan Davis Spence (the claimant) sustained injury in a motor vehicle accident on 12 August 2019 (the accident).
Mr Spence lodged an Application for Personal Injury Benefits dated 20 December 2019.
Calculation of the claimant’s pre-accident weekly earnings (PAWE) is used to determine the claimant’s entitlement to weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
In a letter dated 3 August 2019 the insurer informed Mr Spence that he was not an “earner” for the purposes of receiving statutory benefits under Schedule 1 of the MAI Act.
On 11 August 2022 the clamant sought an internal review of that decision.
On 31 August 2022 the insurer issued an internal Review Certificate affirming the original decision that Mr Spence was not an earner.
In a reviewable decision dated 30 September 2022 the insurer accepted liability for payment of statutory benefits. The insurer assessed the claimant’s PAWE at $177.75 on the basis payslips from Acar Company Pty Ltd (ACAR) for the period 3 December 2018 to 3 March 2019 indicated the claimant’s total earnings were $9,243. The insurer stated the payslips from Emerald Grain, Ramps Ridge and Bindara Management Services were outside the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPICMRP 4
Decision Date: 16 May 2024

CaseChat Overview and Summary

In the case of QBE Insurance (Australia) Limited v Spence, the dispute centred on the calculation of pre-accident weekly earnings (PAWE) under the Motor Accident Injuries Act 2017, specifically in the context of a claimant who was injured in a motor vehicle accident on 12 August 2019. The claimant argued that if uninjured, he would have undertaken seasonal work for the 2019 harvest with Emerald Grain. The legal issue before the court was whether the claimant qualified as an earner under schedule 1 clause 2(a)(ii) or schedule 1 clause 2(b)(i) and how his pre-accident weekly earnings should be assessed, particularly in relation to whether they needed to be averaged over a 52-week period as suggested by schedule 1 clause 4(2)(c).

The court was required to determine the correct classification of the claimant under the Act and the appropriate method for calculating his pre-accident weekly earnings. The Merit Reviewer (MR) Medland had previously certified the PAWE to be $1,977.35, a decision that was now under review. The court examined the relevant statutory provisions and case law, particularly referencing an obiter comment made by Harrison AsJ in Allianz Insurance Australia Limited v Shamiri. The court also cited several key precedents including Project Blue Sky v ABA, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, Newcastle City Council v GIO General Ltd, and R v PLV to assist in its analysis. The court concluded that the claimant was indeed an earner under schedule 1 clause 2(b)(i) as he had entered into an arrangement to undertake employment with Emerald Grain prior to the accident. Furthermore, the court found that schedule 1 clause 4(2)(c) did not require the pre-accident weekly earnings to be averaged over a 52-week period.

Following the court's reasoning, the certificate of MR Medland was revoked only as to the amount of PAWE. The court certified the PAWE to be $1,898.40, reflecting the correct calculation under the applicable provisions. This decision underscored the importance of accurately interpreting and applying the statutory provisions in motor accident claims and highlighted the court's role in ensuring that claimants receive appropriate compensation.

Orders