SIRA Logo

AGA v QBE Insurance Australia Limited [2019] NSWDRS MR 156

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Merit Review Panel
CatchwordsEarner – legal costs – Centrelink payments – carer payment – carer allowance – caring for mother – statutory weekly payments – review panel – statutory entitlements – employment – government pension – personal exertion – statutory interpretation
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 7.15(3), 7.15(4), Div 3.3, Schedule 1 clause 2 & clause 3(2)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017
Workers Compensation Act 1987 (NSW) s 33, 34
Cases cited N/A
Text citedMichael Kirby, "Statutory Interpretation: The Meaning of Meaning” [2011] MelbULawRw3
Parties AGA – Claimant
QBE Insurance Australia Limited – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Amended Merit Review Panel Certificate

Background

1.   It is uncontested that the Claimant (the respondent) was injured as a result of a motor vehicle accident on 16 June 2018.  At the time of the accident, and for some period beforehand, the Claimant’s sole source of income was receipt by her of payments from Centrelink, and in particular a carer’s payment and also a carer’s allowance for the purpose of caring for mother who required such care.

2.   The Claimant’s mother entered a nursing home on 18 January 2019, and on 18 January 2019 the Claimant ceased receiving the carer’s allowance but continued to receive however the carer’s payment until 18 April 2019.

3.   The Claimant made application to the Insurer (the applicant) for statutory weekly payments, however that application was determined by the Insurer on 10 April 2019 to the effect that the Claimant was not entitled to such weekly payments because she was not an “earner” for the purposes of Division 3.3 of the MAI Act.  That decision was confirmed by the Insurer on 10 May 2019 as a result of an internal review conducted by that Insurer.

4.   The Claimant made application to the Dispute Resolution Service for review of the Insurer’s decision and Merit Reviewer Katherine Ruschen determined on 15 July 2019 that the Claimant was an earner and entitled to receive statutory weekly payments. It is against this determination that the Insurer has sought a review. The Proper Officer on 23 August 2019 was satisfied there was reasonable cause to suspect the decision of the Merit Reviewer was incorrect in a material respect and referred the review application to the Review Panel.

Review Panel Conference

5.   An initial conference of the Review Panel was held on 27 September 2019. Merit Reviewer Colin Stoten acted as the Chairperson of the Review Panel.

Merit Review Decision under Panel Review

6.   The Merit Review decision under review by the Merit Review Panel is the decision of Merit Reviewer Katherine Ruschen dated 15 July 2019 which was referred to for determination under section 7.15(3) of the MAI Act.

Disputes identified by the Parties

7.  The Review Panel considered the Application for Review and noted that the following aspects of the single merit review decision were disputed:

  • That the Merit Reviewer’s finding as to the Claimant having been an earner for the purposes of Division 3.3 of the MAI Act was incorrect.

8.  The Review Panel considered the reply to the Application for Review and noted that:

  • The respondent opposed the application.

Summary of Documents Considered

9.  The Review Panel members confirmed that they had received and considered the following documentation:

  • The single merit review decision issued by Merit Reviewer, Katherine Ruschen on 15 July 2019.
  • Application for review.
  • Reply.
  • The Statement of Reasons issued by the Proper Officer on 23 August 2019 referring this matter to a Review Panel
  • All the documents which were provided to Merit Reviewer, Katherine Ruschen prior to the assessment under review.

Legislation and Guidelines

10.  In making our decision the Review Panel has considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017
  • Motor Accident Injuries Regulation 2017
  • The Motor Accident Guidelines 2017 (the Guidelines)
  • Interpretations Act 1987 (NSW)

Reasons

Matters Considered and Decided by the Review Panel

11.  The Review Panel considered afresh all aspects of the decision under review.

Evidence Considered

12.   The Review Panel met by way of teleconference on 27 September 2019 and discussed the issues relevant to the application for review.  As a result of those considerations the Review Panel determined that further material from the parties to the dispute were not required and that the matter could proceed to determination on the basis of the available material.

Panel Deliberations

13.   The Panel considered the arguments of both the Claimant and the Insurer and as to the appropriate approach to take in relation to the determination of the issue in dispute, namely whether the Claimant was an earner for the purposes of assessing her statutory entitlements under Division 3.3 of the MAI Act.  In the Review Panel’s view, the determination of that issue is a gateway through which the Claimant can then seek to demonstrate an entitlement to weekly payments of statutory benefits.  Although the Merit Reviewer determined that the Claimant was an earner, the Review Panel considers that this finding was erroneous.  This is because the Merit Reviewer considered the Claimant was employed, it was said, in the service of her mother, paid for by Centrelink.  The Review Panel does not consider that the Claimant was so employed within the meaning of Division 3.3 of the MAI Act, and as defined in Schedule 1 at clause 2 of MAI Act, and this is because the receipt of the payments from Centrelink in respect of the services rendered does not lead to a finding of an employer/employee relationship.

14.  The reasons for the Review Panel’s findings in relation to this application are set out further below.

Review Panel Decision

15.  The Review Panel has determined that the decision of the Merit Reviewer is incorrect and that the Claimant is not an earner within the meaning of that word in Division 3.3 of the MAI Act.

Issues raised by the Parties

16.   The Insurer submits that the word “employment” as contained within the MAI Act should be given its “ordinary meaning”, however it is not said what that “ordinary meaning” is other than to say that it does not include receipt of a government pension.

17.   The Claimant submits that the Review Panel ought to reaffirm the decision of the original Merit Reviewer and find that the Claimant was an earner for the purposes of Division 3.3 of the MAI Act.  It is submitted that the decision was correct because the Claimant was employed by reason of her position as a carer to her mother and received income from Centrelink in order to provide that care.  It is further said that parliament has made reference to receipt of pensions under the definition of “personal exertion” in clause 3(2) of Schedule 1 of the MAI Act.  Further, it is said that if parliament had sought to prevent Centrelink recipients being found to be earners within the meaning of the MAI Act then it would have clearly said so.

18.   The Claimant restates the decision of Merit Reviewer Ruschen who found that use of the word “employment” was not limited in any way by definition.

19.   The Claimant points to the Collins English Dictionary definition of “employment’, and that the Claimant’s position met the requirements of that definition.

20.   The Insurer further says that it is important to make reference to the type of pension that the Claimant was receiving and that carer’s payments were different to other forms of pension payments.  It is said that in receiving a carer’s payment and carer’s allowance in exchange for performing services of care to her mother, then this met the requirement of the meaning of the word “employment” and hence the word “earner”.

21.   Reference is made to paragraphs 20, 21 and 22 of the Merit Reviewer’s findings and which summarise the way in which she reached her ultimate decision.  Those paragraphs are set out below:

20.  Considering all of the above there is no doubt the Claimant was in the service of her mother and was bound to perform the services in return for the carer’s payment and allowance from Centrelink.  The Carer’s payment and allowance amounted to income or earnings the Claimant received ‘from personal exertion’ as a carer.  It is difficult to envisage another situation where a ‘pension’ might be earnings or income from ‘personal exertion’ or ‘services rendered’.  Accordingly if it does not capture a carer such as the Claimant, inclusion of ‘pensions’ probably serves little or no purpose.

21.  I consider that to deny the carer’s payment as income or earners, and in turn the Claimant as an earner, goes against the policy and purpose for the carer’s payment, including to support the private provision of care.  Whilst regard must be had to the intentions of the Act, regard must also be had to the policies and intentions underpinning commonwealth legislation.  There is nothing in the Act in my view that is inconsistent with the intention of the carer’s payment to provide income support to a person in exchange for providing services to an ill, disable or aged person.  There is nothing in the definition of employment that would exclude an arrangement whereby the Claimant rendered services to an elderly person in return for a payment from Centrelink.

22.  For all of these reasons I find the Claimant is an ‘earner’ for the purpose of Division 3.3 of the Act on the basis she provided services as a carer in exchange for income support from Centrelink.

Statutory Interpretation

22.   The basic rules of statutory interpretation that assist in understanding the meaning of words in statutes are importantly as follows:

(a)That where the applicable law is expressed in legislation, the correct starting point for the analysis is the text of the legislation and not judicial statements of common law or even judicial elaborations of the statute;

(b)That the overall objective of statutory construction is to give effect to the purpose of parliament as expressed in the text of the statutory provisions; and

(c)  That in deriving meaning from the text, so as to fulfil the purpose of parliament, it is a mistake to consider statutory words in isolation.  The proper approach demands the derivation of the meanings of words from the legislative context in which those words appear.  Specifically, it requires the interpreter to examine at the very least the sentence, often the paragraph, and preferably the immediately surrounding provisions to identify the meaning of the words in the context in which they are used.

23.   The Honourable Michael Kirby refers to such in a paper titled “Statutory Interpretation: The Meaning of Meaning” [2011] MelbULawRw3.  His Honour then proceeds to make the following observations:

“These and other explanations of the contemporary understanding of statutory interpretation have increasingly taken courts in Australia away from the previous ‘literal’, or so-called ‘objective’ or ‘plain meaning’, approach to interpretation. The notion that a word of the English language has a single, objective and scientific meaning that has only to be discovered has gradually given way to a more candid recognition of the choices that face those who interpret the written law and the way in which values and policy considerations can influence the making of those choices… Today, that task requires a combined exercise involving analysis of the text, context and purpose (or policy) of the statute in question.”

24.    The approach referred to by His Honour is reflected in the statutory context by the Interpretation Act 1987 where Sections 33 and 34 provide for a number of considerations to be taken into account in interpreting the provision of an Act.

25.    Section 33 essentially says that in interpreting the provision of an Act, a construction that would promote the purpose of object underlying the Act is to be preferred to a construction that would not promote that purpose or object.

26.    Section 34 refers to the use of extrinsic material in the interpretation of Acts and lays down a series of rules for use of extrinsic material which includes reports of parliamentary committees, reading speeches, and other matters.

The Review Panel in its determination of this review applies the above principles of interpretation as set out above.

Determination

27.    The Act makes provision for payment of statutory benefits in Division 3.3. of the MAI Act, and in particular weekly statutory benefits to an injured person who is “an earner who is injured as a result of the motor accident and suffers a total or partial loss of earnings as a result of the injury…”.

28.    The Act clearly therefore establishes that in order to receive such benefits the injured Claimant must first be found to be “an earner”.  Those words are defined in Schedule 1 of the Act at paragraph 2 in the following way:

A person who is injured as a result of a motor accident is “an earner” if the person is at least 15 years of age and who:
(a)  was employed or self-employed…;

(b)  had entered into an arrangement to undertake employment…; or

(c)   was receiving weekly payments or other payments in respect of loss of earnings under this Act or the Workers Compensation Act 1987.

29.  Subclauses (b) and (c) have no relevance to the argument, however subclause (a) is relevant in that in order to qualify for benefits as “an earner” it is necessary for the injured Claimant to establish that such Claimant was employed or self-employed subject to further qualifications which are not relevant for the present purposes.

30.  The payments made by Centrelink in the form of carer payments and allowances are in the form of a social service which is heavily restricted by the Federal government. There are many restrictions on whom and in which circumstances the payments can be made. For example both the carer and the person to whom such payments are made must meet the assets and income tests set down, and the payments do not reflect the proper market value of the services provided but rather what the government considers it can afford to pay.

31.  Furthermore it is relevant that the Claimant continued to receive the payments even after the subject accident, despite the Claimant’s injuries and were only terminated when the person to whom the Claimant provided the care was placed into a care facility due to dementia. The continuation of the payments therefore did not cease because the Claimant lacked the capacity to provide the service.

32.  To the extent that reliance is placed on the reference to receipt by the Claimant of a “pension” as set out in the definition of income from personal exertion in clause 3(2)(a) of schedule 1 of the MAI Act, it is the review panel’s view that such reference is not one which can properly be construed as similar to a carer’s payment or allowance. This is because the payments received by the Claimant are not designated as a pension.

33.  Lastly the Review Panel notes that the Claimant is not “employed”  by the Commonwealth and has none of the usual entitlements which flow to employees under the workers compensation, or the various state and federal employment legislation.

34.  The MAI Act is designed, as indicated, to provide statutory weekly payments to persons who are unable either wholly or partly, to exercise their earning capacity as a result of accident related injuries. Here the Claimant’s loss was due to her mother being required to move to a full time care facility, and otherwise the Claimant fails to meet the requirements of an earner as set out in clause 2. This does of course not mean the Claimant is forever disentitled to recover for her loss of capacity which could be pursued in a claim for damages if otherwise entitled.

Costs

35.  Although the Claimant has been unsuccessful in this application the panel consider that the Claimant is entitled to her legal costs of the application because she was required to have representation in order to assist her in the proceedings before the Review Panel.

36.  Those costs are assessed in the sum of $1,660 plus GST noting that further detailed submissions were provided by the Claimant’s solicitors.

Effective Date:

Noting the Claimant will need to give notice to Centrelink and reapply for her benefit the Panel considers that the effective date should reflect this and the Review Panel consider in the circumstances that  the effective date ought be 28 days hence which will give an effective date of 5 November 2019.

Review Panel Certification

This certificate has been viewed by Merit Reviewer Leigh Davidson, who has confirmed that he is in agreement.

Colin Stoten
Merit Reviewer
Dispute Resolution Service