Claimant fails to discharge onus of proof that they were an earner

In Brief

• A claimant is not entitled to weekly benefits, pursuant to Part 3.3 of the Motor Accidents Injuries Act 2017 (MAIA) unless they are "an earner".
• Sch 1, cl 2(a)(i) of MAIA sets out the statutory definition of what constitutes "an earner".
• The onus of proof is on the Claimant to establish that they are "an earner".

Facts

The Personal Injury Commission (PIC) published its decision in Cisera v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMR 4 on 27 February 2026.

The Insurer denied the Claimant's application for weekly benefits on the grounds that he was not an "earner" within the meaning of Sch 1, cl 2(a)(i) of MAIA.

The Claimant alleged that he was self-employed as a building consultant and that he was engaged to work in his father's business for the eight-week period before his motor accident. He relied upon two invoices, this tax records for the relevant period, an affidavit sworn by his father and an eleven-page scope of works document.

The Insurer argued that:

• The Claimant had been totally unfit for work for more than six years prior to the accident.
• At the time he was allegedly self-employed, the Claimant was awaiting further spinal implant surgery.
• The Claimant did not inform any of his doctors that he had returned to work.
• The Claimant's contractor licence was inactive at the time he provided the alleged services.
• The invoices relied upon by the Claimant were prepared post-accident and lacked detail.
• The income the Claimant chose to declare to the ATO, post-accident, was part of a longstanding pattern of income support payments he received from his family.

Following an Internal Review Certificate which affirmed the original decision, the Claimant lodged an Application for Merit Review.

The Merit Reviewer's Decision

The Merit Reviewer affirmed the Insurer's decision that the Claimant was not an earner, for the following reasons:

• The onus is on the Claimant to demonstrate that he meets the definition of "earner" in Sch 1, cl 2(a)(i) of MAIA.
• The inconsistencies in the evidence relied upon by the Claimant were such that his claims were not truthful, reliable or cogent and should be rejected out of hand.
• The evidence, therefore, failed to establish, on the balance of probabilities, that the Claimant was self-employed in the eight-week period before the accident.
• Indeed, the evidence established, on the balance of probabilities, that income was mispresented and that documents came into existence, post-accident, with the intention of giving credence to a misrepresentation that the Claimant was self-employed before the accident.

Furthermore, the Merit Reviewer rejected the Claimant's argument that a "promissory estoppel" arose because a Claims Manager had alleged acceptedly, during a telephone conversation, that the Claimant was self-employed. Given that the Insurer had formally asserted, in numerous documents, that the Claimant was not an earner, a reasonable person in the Claimant's position would have understood that this was the Insurer's correct position.

Why This Case is Important

The decision in Ciseraprovides a useful case study of how a Merit Reviewer will evaluate the evidence presented by the parties in order to assess whether a claimant has discharged the onus on them to establish that they are an earner.

In this particular case, the Insurer highlighted the inconsistencies in the evidence presented by the Claimant and successfully argued that they had failed to discharge the onus.

If you would like to discuss this case note, please don't hesitate to get in touch with CTP Practice Group Leader Peter Hunt today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner

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