Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 4

The Personal Injury Commission (the Commission) commenced on 1 March 2021, an independent statutory tribunal formed in NSW to resolve disputes between people injured in motor accidents and workplaces, employers and insurers.

To help you navigate the myriad of recent decisions of the Commission, and easily locate those specific to the Motor Accidents Division, each week we are actively reviewing, sourcing from, and providing links to, the case notes on the Australasian Legal Information Institute (AustLII) website. 

All legislative provisions are from the Motor Accident Injuries Act 2017 unless otherwise noted.

Merit review

AAK v AAMI Limited [2021] NSWPICMR 5

MOTOR ACCIDENTS – Merit Review – claimant was self-employed and had taken time out of work prior to the accident following the birth of her son – insurer accepted that she was an “earner” for the purpose of entitlement to weekly statutory benefits – insurer calculated PAWE on gross earnings received prior to accident – claimant had made arrangements with other persons before the accident to undertake employment – insurer did not calculate PAWE for the average weekly earnings the claimant expected to earn by reason of those arrangements – past gross earnings and earnings expected to be earned can be combined for purpose PAW calculations – exceptional circumstances justify payment of claimant’s costs beyond the regulated fees.

The claimant was a freelance concert soprano singer. In the five years prior to the accident she had engaged in various forms of employment. The claimant’s son was born six months prior to the accident. The claimant performed only limited work during this period but provided evidence that she was preparing to return to further work. The insurer calculated PAWE based upon gross earnings received prior to the accident. The claimant asserted that the insurer should have included in their calculations evidence of arrangements she had made at the time of accident to undertake employment as a singer and voice teacher.

Finding: The Commission found that when determining whether a person is an “earner” and therefore entitled to weekly payments, the phrase “entered into an arrangement” (Schedule 1, clause 2 of the Motor Accident Injuries Act 2017) should be interpreted broadly. The Commission found that the PAWE calculations should incorporate evidence of the gross weekly earnings the claimant could reasonably have been expected to earn but for the accident.

View decision

Personal Injury Commission News

Edition No. 3 of the Personal Injury Commission News was released recently.

It includes an important reminder that there is currently no provision in the Commission’s framework for extensions of time to be granted for the making of applications for reviews and appeals.

The News also includes details of new appointments to the Medical Assessor Reference Group. The Commission’s premises at 1 Oxford Street, Darlinghurst, are to undergo refurbishments, which will include the addition of medical suites to allow for medical assessments to be performed in-house.

View Edition No. 3