On 9 February 2024, the Personal Injury Commission published its decision in Kipkorir v Insurance Australia Limited t/as NRMA Insurance  NSWPICMR 3.
On or before 4 August 2023, the Claimant entered Australia on a student visa, which precluded the Claimant from working more than 48 hours in a fortnight during study terms.
The Claimant was involved in a motor vehicle accident on 25 September 2023.
On 4 August 2023, the Claimant began to receive undocumented earnings as a labourer.
On 12 September 2023, less than two weeks before the accident, the Claimant began working as a casual freight handler.
The Insurer determined the Claimant’s Pre-Accident Weekly Earnings (PAWE) in the sum of $762.21.
The Insurer calculated the Claimant’s PAWE on the basis that the Claimant had not been earning continuously before he arrived in Australia.
The Insurer’s PAWE determination was confirmed on internal review.
The Claimant requested a merit review of the Insurer’s internal review decision.
The Merit Reviewer set aside the Insurer’s PAWE determination and calculated PAWE at the lower amount of $460.60.
The Merit Reviewer reasoned as follows:
The decision in Kipkorir reiterates that Insurers should only look at income actually received by the Claimant before the relevant motor accident when calculating PAWE. Any income received post-accident should be excluded even if that income relates to work performed before the accident. This is because of the word “received” in clause 4(1)(a) of Sch 1 to MAIA.
Insurers should, however, include undocumented income in their calculations – even if untaxed – provided they are satisfied that the cash-in-hand relates to personal exertion labour.
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 Special Counsel Helen Huang today.
Additional McCabes Resources
On 19 January 2024, the Personal Injury Commission published its decision in RACQ Insurance v BRT  NSWPIC 672.