Issued under s 7.13(4) of the Motor Accident Injuries Act 2017

The reviewable decision concerns the calculation of the claimant's pre-accident weekly earnings (PAWE) which is a factor relevant to the amount of statutory benefits 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) of the MAI Act.

1. The reviewable decision of the insurer dated 27 February 2025 which calculated the claimant's PAWE as $270.31 is:

(a) set aside, and

(b) the claimant's PAWE figure is $1,085.

1. A brief statement setting out my reasons for the decision is set out below.

1. There is a dispute between Meilan Yan (the claimant) and NRMA (the insurer) 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).
2. The claimant was injured in a motor accident on 5 July 2024.
3. The claimant made an application for personal injury benefits under the MAI Act.
4. At first instance, the insurer determined the claimant's pre-accident weekly earnings (PAWE) as $691.15.
5. The claimant requested an internal review of the initial PAWE decision.
6. On 27 February 2025, the insurer issued their internal review decision in which it substituted the initial PAWE decision with a new decision which calculated the claimant's PAWE as $270.31.

1. The claimant says that her PAWE should be calculated under Schedule 1, cl 4(2)(b) of the MAI Act because there was a change in earning circumstances when the claimant found her second employer, John Lau.
2. The insurer says Schedule 1, cl 4(1) applies with the relevant period being 5 July 2023 to 4 July 2024. The insurer says the claimant submitted invoices for the household work she completed for Tao Liu and John Lau and received cash payments. However, the insurer says the claimant did not provide any bank statements to verify these payments.
3. The insurer further submits that there is no evidence of any receipts from Tao Liu and John Lau to verify the amounts that have been paid for the work undertaken by the claimant. The insurer says the provided bank statement dated 1 July 2024 until

30 September 2024 does not show any bank deposits made during the relevant period. 4. The insurer submits there are no change of circumstances. 5. The insurer says the claimant's 2024 tax return specifies that the total earnings from self-employment is $14,056 and averaged over the relevant period, being 52 weeks, is $270.31.

1. There is no dispute that the claimant is a self-employed earner and that she has suffered a total or partial loss of earnings as a result of the injury. Her income from personal exertion is the proceeds of her business carried on by the claimant for doing household work for her clients Ms Tao Liu and Mr John Lau.
2. Under Schedule 1, cl 4(1), PAWE means:

"(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 which 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 periods,

(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,

(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 2 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.

Note - 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.

1. The above underlined provisions are those the claimant relies upon as the basis upon which her PAWE should be calculated.

Was there a significant change in the claimant's earning circumstances?

1. The claimant's evidence is that from February 2021 to the end of 2023, she stayed with her daughter's family and helped with domestic and child-minding duties on a gratuitous basis. At around the end of 2023, her grandchild started going to childcare and her daughter no longer required the claimant's help.
2. After a brief visit to China, the claimant returned to Sydney on 28 February 2024 and started working as a part-time self-employed Domestic Helper.
3. For the financial period ending 30 June 2024, the claimant worked as a Domestic Helper for the following people for the following periods:

1. There are signed "To Whom It May Concern" letters from both Tao Liu and John Lau indicating their engagement with the claimant on the above basis.
2. Invoices issued by the claimant for the above persons:

1. The claimant was injured in a motor vehicle accident on 5 July 2024 and ceased working from that date. Twelve months immediately preceding this day is 5 July 2023. The claimant had no earnings from July 2023 up until she started her self-employed domestic helper business in February/March 2024.
2. As illustrated in the above tables, following the establishment of her business, there was a significant change in the claimant's earnings circumstances that resulted in the claimant regularly earning, or becoming entitled to earn, more on a weekly basis than she was earning before the change occurred (which was effectively zero).
3. The first significant change occurred when the claimant's services were engaged by Tao Liu in March 2024 with the second being the addition of John Lau in May 2024.
4. The claimant's 2024 tax return indicates her business total income as $14,056 which is largely consistent with the claimant's invoiced amounts minus a small amount declared as business expenses ($294).
5. The claimant therefore satisfies sub-clause (3).
6. At the preliminary conference, it was discussed whether the claimant's PAWE could be calculated under sub-clause (2)(a). In my view, sub-clause 2(a) cannot apply because the evidence before me indicates that the claimant did not receive earnings from John Lau until August 2024, when funds were deposited into her CBA account, which was after the day of the motor accident. Thus, the earnings cannot be said to be "received by the earner" as is the requirement under sub-clause 2(a) and, indeed, under sub-clause (1).

Are the payments received by the claimant verified?

1. A central argument from the insurer is that there was no evidence in the form of receipts or bank statements to verify the payments of $800 net per week from Tao Liu and $450 net per week from John Lau.
2. I note that the provided CBA account statement indicates that the claimant received payment for the two invoices issued to John Lau.
3. The payments from Tao Liu were said to be cash payments made to the claimant in person following completion of the work or, if Tao Liu was not present, the cash was left on a table. Subsequent statements from Tao Liu indicate that she was extremely happy with the services provided by the claimant and payment was $800 per week.
4. As indicated above, the claimant also issued invoices for the amounts for the work completed.
5. Moreover, the declared business income in the claimant's 2024 tax return is consistent with the total amounts the claimant received from both Tao Liu and John Lau.
6. On balance, I am satisfied that the claimant received the cash payments as detailed in her invoices to Tao Liu.

What is the claimant's pre-accident weekly earnings?

1. The key question is what is the weekly average gross earnings the claimant "could reasonably have been expected to receive", during the 12 months after the change of circumstance referred to in sub-clause (3).
2. Subsequent statements from both Tao Liu and John Tao indicate that but for the motor accident, they were prepared to engage the claimant on a similar basis for at least six months.
3. There are fluctuating amounts detailed in the monthly invoices issued by the claimant. For example, for Tao Liu, invoices ranged from $800, $3,200 and $4,000. There were only two invoices issued to John Tao and these differed significantly at $1,000 and $2,150.
4. The calculation of the claimant's PAWE concerns the weekly average during the 12 months after the change of circumstance. I am not satisfied, on balance, that I should only take the invoice issued for the month (30 June 2024) as being representative of the amount the claimant could reasonably have been expected to receive. Rather, the change in circumstances occurred when the claimant engaged both clients for the four invoices (and covering eight weeks) issued on 31 May 2024 (x2) and 30 June 2024 (x2).
5. The claimant's PAWE is calculated as follows:

1. As the claimant's business is not registered for GST but her invoices include a sum of GST, the GST amount should total $868.18. This amount is deducted as follows: