On 18 October 2023 the NSW Personal Injury Commission released its decision in Alzate v Insurance Australia Limited t/as NRMA  NSWPICMR 51. The Claimant in this matter was unemployed on the date of her motor accident and was receiving parenting benefits through Centrelink.
The Claimant alleged that she had been taking steps to start her own business in the weeks leading up to the accident and that she had work “lined up” for the post-accident period. She provided documents showing that a company had been registered 10 days before the accident and that the company had a:
The Claimant claimed that the injuries she sustained in the motor accident prevented her from pursuing the business.
The Insurer determined that there was insufficient information to assess whether the Claimant was “an earner” as defined by clause 2 of Schedule 1 of MAIA and, even if she was, there was insufficient information to assess her pre-accident weekly earnings (PAWE). As such, the Insurer paid the Claimant an interim benefit pursuant to s 3.6(5) of MAIA, which ceased after the first entitlement period.
The Claimant sought merit review.
A Claimant is only entitled to weekly benefits for the first two entitlement periods – pursuant to ss 3.6 and 3.7 of MAIA – if they meet the statutory definition of “an earner” in clause 2 of Schedule 1 of MAIA.
Clause 2(b) of Schedule 1 of MAIA provides that a Claimant is “an earner” if they had, before the accident, entered into any arrangement to either:
The Merit Reviewer found that the Claimant was not “an earner” for the following reasons:
The Merit Reviewer also agreed with the Insurer that even if the Claimant was “an earner”, there was insufficient information to calculate her PAWE given that no information had been provided regarding what revenue the company would generate, or how the Claimant would be paid.
The Merit Reviewer therefore affirmed the decision under review.
The decision in Alzate v Insurance Australia Limited t/as NRMA  NSWPICMR 51 reminds us that a Claimant is not “an earner” unless the statutory definition outlined in clause 2 of Schedule 1 of MAIA is strictly met.
The decision also acts as a useful reminder more generally that a company is a separate legal entity to a Claimant.
If the Claimant is setting up a company when an accident intervenes, the onus is on the Claimant to demonstrate both:
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Principal Peter Hunt today.
Pursuant to section 131 of the Motor Accidents Compensation Act (NSW), a Claimant is only entitled to damages for non-economic loss where the permanent impairment is greater than 10% and results from an injury caused by a motor vehicle accident.
The decision in Aleksic v AAI Limited t/as GIO  NSWPICMP 466 acts as a reminder that in threshold injury disputes, a motor accident does not need to be the sole cause – or even the predominant cause – of the relevant medical condition.