New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 3.5 (2))
The words and expressions defined in this Schedule apply for the purposes of Division 3.3.
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 (whether or not full-time)--(i) at any time during the 8 weeks immediately preceding the motor accident, or(ii) during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident, or(iii) during a period or periods equal to at least 26 weeks during the 2 years immediately preceding the motor accident,and, at the date of the motor accident, had not retired permanently from all employment, or
(b) before the motor accident, had entered into an arrangement (whether or not an enforceable contract)--(i) with an employer or other person to undertake employment, or(ii) to commence business as a self-employed person,at a particular time and place, or
(c) was, immediately before the motor accident, receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987 .
(1)
"Loss of earnings" means a loss incurred or likely to be incurred in a person's income from personal exertion.
(2) A person's
"income from personal exertion" is--(a) the amount that is the income of the person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered, and(b) the proceeds of any business carried on by the person either alone or in partnership with any other person, and(c) any amount received as bounty or subsidy in carrying on a business.
(3) A person's
"income from personal exertion" does not include--(a) interest, unless the person's principal business consists of the lending of money, or unless the interest is received in respect of a debt due to the person for goods supplied or services rendered by the person in the course of the person's business, or(b) rents or dividends, or(c) any employer superannuation contributions, or(d) the monetary amount of any annual, sick or other leave entitlement.
(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 when 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 period,(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) If a person injured as a result of a motor accident was at the time of the accident a full-time student--(a) the person is taken to be an earner on and from the time the person would have completed the course of studies in which the person was a full-time student and has attained the age of at least 15 years, and(b) the person's pre-accident weekly earnings from that time are to be calculated on the basis of the weekly earnings that the person would have received upon being employed on the completion of the course of studies in which the person was a full-time student.
(2) For the purposes of this clause, if at the time of the motor accident the person is a full-time student at a secondary school, the weekly earnings that the person would have received upon being employed on the completion of the course of studies are to be calculated on the basis that the person will successfully complete the final year of secondary school.
(3) The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the weekly earnings that the person would have received upon being employed on the completion of the course of studies in which the person was a full-time student.
(1) This clause applies if, at the time an earner was injured in a motor accident, he or she was--(a) under the age of 21 years, or(b) an apprentice, or(c) employed under a contract of service under which he or she was expressly required to undergo any training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related,and, under the terms of his or her employment, he or she was entitled to increments in earnings as the employment continued.
(2) In respect of any week after the motor accident in which the earner is entitled to a weekly payment under Division 3.3 the calculation of which depends on the amount of the earner's pre-accident weekly earnings, the payment is to be calculated on the basis that the earner's pre-accident weekly earnings are the weekly earnings that it is likely that he or she would have been entitled to in that week had the accident not occurred and had he or she continued in the employment.
(3) The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the weekly earnings that it is likely that an earner would have been entitled to in a week had the accident not occurred and had he or she continued in the employment concerned.
(1)
"Pre-accident earning capacity" of an injured person means the weekly amount a person had the capacity to earn before the motor accident concerned in employment reasonably available to the person in view of the person's training, skills and experience.
(2) If the amount of an injured person's pre-accident earning capacity cannot be determined, the amount is deemed to be the amount that is equal to 80% of the average weekly total earnings of adults in full-time employment in New South Wales last published by the Australian Statistician.
(1)
"Post-accident earning capacity" of an injured person means--(a) for the first and second entitlement periods--the weekly amount that the person has the capacity to earn in the employment in which the person was engaged immediately before the motor accident, determined on the basis of the person's fitness for work in that employment, or(b) for any period after the second entitlement period--the weekly amount the person has the capacity to earn in any employment reasonably available to the person, determined on the basis of the person's fitness for work in any such employment.
(2) A person's fitness for work during the first and second entitlement periods is to be determined having regard to the following--(a) the nature of the injury and the likely process of recovery,(b) treatment and rehabilitation needs, including the likelihood that treatment or rehabilitation will enhance earning capacity and any temporary incapacity that may result from treatment,(c) any earnings of the person in any employment engaged in by the person after the motor accident,(d) any medical certificate provided by the injured person as to the person's fitness for work.
(3) A person's fitness for work after the second entitlement period is to be determined having regard to the following--(a) the nature of the injury and the likely process of recovery,(b) treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation,(c) the person's training, skills and experience,(d) the age of the person,(e) any medical certificate provided by the injured person as to the person's fitness for work.
(4) The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the employment reasonably available to a person in any period after the second entitlement period.