Shahajada v QBE Insurance (Australia) Limited
[2025] NSWPICMR 10
•19 March 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Shahajada v QBE Insurance (Australia) Limited [2025] NSWPICMR 10 |
CLAIMANT: | Noor Shahajada |
INSURER: | QBE Insurance (Australia) Ltd |
MERIT REVIEWER: | Elizabeth Medland |
DATE OF DECISION: | 19 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review application as to amount of weekly payments of statutory benefits payable under Division 3.3; calculation of the claimant’s pre-accident weekly earnings (PAWE); claimant alleges being a taxi driver and Uber driver; claimant asserted that PAWE should be calculated based on 2024 financial year; Held – decision affirmed; accident occurred on 2 May 2024 and therefore the 2024 taxation return does not accurately cover the relevant period being 52-weeks prior to the accident (clause 4(1) of Schedule 1); evidence not sufficient to establish earnings as a taxi driver; PAWE calculated on basis of earnings as an Uber driver; claimant absent overseas for several weeks during the relevant period; Allianz Insurance Australia Limited v Shahmiri applied. |
DETERMINATIONS MADE: | CERTIFICATE Certificate issued under s7.13(4) of the Motor Accident Injuries Act 2017 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). Set aside and a decision in substitution for the reviewable decision is made as follows: (a) the reviewable decision is affirmed. |
STATEMENT OF REASONS
BACKGROUND
The determination relates to a merit review dispute between the parties, under Schedule 2, cl 1(a) of the MAI Act which deals with the amount of statutory benefits payable under Division 3.3 of the MAI Act.
Specifically, the dispute centres on the calculation of the claimant’s pre-accident weekly earnings (PAWE).
Mr Noor Shahajada (the claimant) is a 55-year-old male who alleges injury as a result of a motor accident occurring on 2 May 2024.
He subsequently lodged an Application for Personal Injury Benefits (the claim form) with QBE Insurance (Australia) Limited (the insurer) on or around 3 May 2024. The insurer admitted liability for payment of statutory benefits to the claimant.
By way of notice dated 14 October 2024, the insurer advised the claimant of their determination as to the claimant’s PAWE. The PAWE was calculated to be $246.56.
The claimant took issue with this calculation and an internal review application was made.
An internal review decision dated 22 October 2024 affirmed the original decision that calculated the PAWE at $556.65.
I have held one preliminary conference between the parties on 9 December 2024, wherein I highlighted that the claimant’s application did not include any submissions in support of the application and there was no statement of the claimant. I indicated that I required information guidance on what the claimant says is the correct PAWE, and how that calculation is arrived at.
Directions were made for the provision of submissions and any further material by the claimant, and the insurer to provide a response. The last of the parties’ further documentation was received in February 2025.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and reply and the subsequent bundles of documentation provided in response to directions made.
LEGISLATIVE FRAMEWORK
Division 3.3 of the MAI Act deals with an injured person’s entitlement to weekly payments of statutory benefits.
Sections 3.6 and 3.7 sets out an entitlement to weekly payments calculated with reference to the injured person’s “pre-accident weekly earnings”.
Schedule 1 of the MAI Act sets out the definitions relating to earnings for purposes of weekly payments of statutory benefits under Division 3.3.
Clause 4 of Schedule 1 of the MAI Act provides as follows:
“4 Meaning of ‘pre-accident weekly earnings’—general
(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;and
(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 two 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; andNote—
Examples of a change of circumstances to which this subclause would apply include a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards.
(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.”
Schedule 2, cl (1)(a) provides that a dispute as to the amount of statutory benefits that is payable under Division 3.3 (weekly payments of statutory benefits to injured persons) is a merit review matter.
Section 7.12 of the MAI Act provides that a merit review matter may be referred to the President of the Personal Injury Commission (Commission) for determination.
DOCUMENTATION
Statement
The claimant was born in Bangladesh. He states in a statement dated 16 December 2024 that he completed a bachelor of science degree and arrived in Australia in 1995 where he resides with his wife and three children.
After employment in a factory and restaurants the claimant obtained his tax licence in 1999 and has been driving taxis since 1999, and in the last five years as also started doing some Uber driving.
He states that he hires a taxi from 13 Cabs on a daily basis at a rate of $80 to $120 per day. He pays for the fuel and cleaning of the vehicle, and he keeps the rest of the money earned.
He explains that he usually drives with Uber Monday to Tuesday, and the rest of the week he is taxi driving. He states that he is charged around 27% by Uber and he retains the balance of the amounts received.
He states that for the three weeks prior to the accident he only drove for Uber and that between November 2023 and January 2024 he was overseas and when he returned he only drove for Uber.
He states that in accordance with his June 2024 taxation return his gross salary per annum is $44,507.
Claimant submissions
As noted above, the original application did not include any submissions or statement of the claimant. However, the application for personal injury benefits (claim form) alleges the claimant earning $1,100 per week prior to the accident, as an Uber driver. This is reiterated in a Schedule of Earnings lodged with the application.
However, in undated submissions received after holding a preliminary conference with the parties it is asserted that the PAWE should be $391.73.
The submissions are very brief, less than one half page. They simply refer to the claimant’s taxation return for the 2024 financial year that details gross income of $44,050 with a net income of $20,370.
Seemingly erroneously, the calculation has been made with reference to the claimant’s annual NET income rather than his gross income.
Insurer submissions
The insurer relies on a report of Procare Forensic Services (Procare) dated
27 September 2024.
The insurer notes the claimant’s absence overseas between 29 November 2023 to 27 January 2024 and relies on the reasoning of Harrison J in the case of Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481 (Shahmiri), that there is no provision to make an adjustment to the calculation of PAWE on account of the claimant being overseas.
The calculation of PAWE by the insurer is based upon the earnings for the 12 month period prior to the accident, divided by 52 weeks.
The insurer notes that despite repeated requests, the claimant has not provided a number of financial documents. That includes records of trips completed, earnings and cash receipts from self-employment as a tax driver. In addition, details and supporting documents for work-related expenses incurred in the relevant period has not been provided and nor has the Business Activity Statement (BAS) for the quarter ending
30 June 2024.
The insurer notes the claimant has, however, provided a log on/log off report in the application for Merit Review.
The insurer submits that the calculation of PAWE is to be made on the basis of amounts “received”, regardless of when the personal exertion occurred giving rise to such amounts.
On such basis, the insurer submits that the claimant’s supplied bank statements are the most reliable evidence as to the earnings received by the claimant in the relevant period.
Procare calculated the claimant’s income as an Uber driver during the relevant period as $30,157 inclusive of GST. However, the insurer notes an error in the report of Procare in respect of payment for the week ending 22 May 2023 is in fact $381.43 and not $371 as set out by Procare. The insurer therefore submits that the claimant’s total earnings received as an Uber driver in the relevant period is $30,167.63.
The insurer has excluded any amounts purportedly earned from 13 Cabs and Silver Service Taxis on the basis that there is a lack of documentation verifying the earnings.
The insurer submits that gross earnings for the purposes of Cl 4(1) of Schedule 1 of the MAI Act means the net profit earned by a self-employed claimant after accounting for business expenses.
The insurer notes that Procare has deducted an amount of $779.67 from the amounts received by the claimant from Uber as being toll reimbursements with reference to the claimant’s Uber statements.
Deducting $779.67 from the earnings leaves a figure of $29,387.96.
The insurer then deducts an amount of $2,671.63 representing GST amounts collected by the claimant which are not to be considered as earnings (see Ozcan v QBE Insurance (Australia) Limited [2023] NSWPICMR 54).
Lastly, the insurer submits that the claimant has failed to provide sufficient evidence to allow the insurer to calculate his business expenses for the relevant period. In this regard, the insurer relies upon the approach taken by Procare in referencing the Australian Taxation Office’s (ATO) benchmark for business-related expenses for courier drivers, which provides a range of 36-52%.
The insurer submits: “…Procare’s approach in using the ATO benchmark of 36% of the Claimant’s gross Uber income to calculate his business-related expenses appears to be in line with the claimant’s reported business expenses in the 2023 tax return.”
The insurer therefore utilises an estimated figure of $13,887 for the claimant’s business expenses over the relevant period, which leaves a figure of earnings over the relevant period of $12,829.33 leaving a PAWE figure of $246.72.
In supplementary submissions dated 3 February 2025, the insurer maintains that the claimant’s PAWE is $246.72 on the available evidence.
The insurer notes that the claimant’s reliance on the 2024 taxation return is not appropriate given that it does not represent the correct relevant period, given the motor accident occurred on 2 May 2024.
In respect of the purported outstanding evidence in respect of the claimant’s earnings from 13 Cabs, the insurer notes that they remain outstanding. Further, at the claimant’s request the insurer had emailed a representative of 13 Cabs on numerous occasions to obtain verification of earnings, with no response received.
In addition, it is noted that in an email from the claimant’s solicitor dated 19 December 2024 it was stated that he had not received any financial documentation from 13 Cabs.
Report of Procare
The insurer has obtained a report of Procare dated 27 September 2024.
The report notes that the claimant alleges earnings in addition to Uber driving, as a self employed taxi driver with 13 Cabs and Silver Service Taxis. The claimant purportedly advised that he earned those earnings in cash.
The author of the report notes that in his experience in calculating PAWE for taxi drivers, the taxi company’s systems record the details of all trips completed and payments received by the driver, including trips that are paid in cash.
Further, certain tax companies permit their drivers to make cash withdrawals of their taxi earnings. To make a cash withdrawal the driver must first log their daily earnings.
The author has referenced the claimant’s BAS statements for the three quarters ended 31 March 2024 which includes purported earnings. After examining the claimant’s provided bank statements that include cash deposits and deposits from different parties. The author states that there is nothing in the statements regarding deposits that gives them a reasonable basis on which to assume that cash deposits received in the relevant period may relate to cash earnings from the claimant’s taxi services, and identify the name of the party making the deposits or the source of the funds deposited.
The report also states that cash earnings for taxi driving are not included in the calculation of PAWE on the basis that save for a photo of the claimant’s tax licence there is no evidence of his self-employment as a taxi driver for 13 cabs and Silver Service Taxis, and rented or owned a taxi during the relevant period.
In calculating business expenses, Procare notes the claimant stated that he paid his expenses, primarily phone and fuel costs, in cash. It was considered by the author that the bank statements did not provide a reasonable and comprehensive record of total expenses necessarily incurred.
FINDINGS AND REASONS
In calculating PAWE, the insurer has utilised Schedule 1, cl (4)(1).
By inference, the claimant, perhaps effectively submits that Schedule 1, cl 4(3) applies to his situation. That is, the claimant states that prior to his overseas trip he was working as both an Uber driver and for 13 cabs, but after returning from overseas he was only driving for Uber.
However, I do not consider the claimant has provided sufficient evidence to establish such a change in circumstances other than a mere assertion of fact. For reasons expressed further below, I do not consider the claimant has provided sufficient documentary evidence that satisfies me to a sufficient degree, that on the balance of probabilities he was deriving an income through 13 cabs or Silver Service as a taxi driver.
Essentially, I agree with the findings and conclusions of Procare that it would be expected that if the claimant received earnings as a taxi driver with either
13 cabs or Silver Service there would be documentary evidence derived from such company that sets out the the trips made and the payments to the driver.
I acknowledge that I have been provided with a log on/log off sheet of 13 cabs, however, that in itself is not sufficient evidence, in my view for me to find that he was deriving an income from taxi driving.
I have considered the bank statements provided that cover the relevant period, and note that the vast majority of deposits are made in respect of earnings as an Uber driver.
Unlike with the purported earnings as a taxi driver, the claimant has provided various “tax summaries” from Uber that document his earnings over the relevant period and correspond with bank statements.
I also agree that it is not appropriate to consider the purported earnings in the BAS statements without verification from primary source material such as statements summarising earnings from 13 cabs and/or Silver Service.
In the absence of such primary source material, I agree with the insurer’s submission that the claimant has failed to establish any earnings from his purported earnings as a taxi driver (as opposed to earnings as an Uber driver).
If it is the case that claimant is able to source that documentation, he should submit same to the insurer with a request for reconsideration of the calculation of PAWE. But, in the absence of same, the allegations of earnings as a taxi driver over the relevant period, are not sufficiently supported with objective evidence, such that they should be included in the calculation of PAWE.
I also agree with the insurer’s submission that the claimant’s recent submission that the 2024 taxation return does not represent earnings over the precise relevant period and therefore should not form the basis of the calculation.
Essentially, based upon the documentation provided by the claimant to date, I agree with the insurer’s calculation of the claimant’s PAWE.
I agree that appropriate basis upon which to calculate PAWE is the amounts actually “received” by the claimant, (see: Kipkorir v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 3).
In addition, I agree that in the case of a self-employed claimant, business expenses is to be deducted from the business earnings before the calculation of PAWE (see Iskandar v Insurance Australia Limited t/as NRMA [2024] NSWPICMR 11).
In respect of the estimate of expenses, I note that the claimant has not provided sufficient evidence that documents the expenses he incurred, which appear to entail mainly fuel and phone expenses.
In the absence of evidence of the actual expenses incurred, I accept that the method adopted by Procare in applying the ATO Benchmark is the best available method, particularly when it roughly accords with the 2023 taxation return declared expenses.
CONCLUSION
On the basis of the above the reviewable decision is affirmed.
0
4
0