Accident Compensation Act 2001

  • Warning: Some amendments have not yet been incorporated
  • This version was replaced on 17 July 2018 to make corrections to sections 172(2)(b) and 298(3), and clauses 34(1), (2), 36(1), (2), 38(2)(a), (b), (c), 39(2)(a), (b), and (c) of Schedule 1 under section 25(1)(k) of the Legislation Act 2012.
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38 Weekly earnings if earner had earnings as self-employed person immediately before incapacity commenced: calculations

(1)

The weekly earnings of an earner who had earnings as a self-employed person immediately before the incapacity commenced are,—

(a)

for the first 4 weeks after the first week of incapacity, the greater of the relevant amount calculated under subclause (2) or the amount under subclause (3):

(b)

for any period of incapacity after the 4 weeks referred to in paragraph (a), the relevant amount calculated under subclause (2).

(2)

The amounts that apply under this subclause are,—

(a)

for claimants who first commenced receiving earnings as self-employed persons in the tax year in which the incapacity commenced, the amount calculated using the following formula:

a ÷ b

where—

a

is the total of the claimant’s earnings as an employee in the 52 weeks immediately before the incapacity commenced

b

is the number of full or part weeks during which the claimant earned those earnings as an employee:

(b)

for claimants for whom the relevant year was the first year during which they received earnings as a self-employed person, the amount calculated using the following formula:

(a + b) ÷ c

where—

a

is the claimant’s total earnings as an employee in the 52 weeks immediately before his or her incapacity commenced

b

is the claimant’s earnings as a self-employed person in the relevant year

c

is the combined number of full or part weeks during which the claimant earned those earnings as an employee and the number of weeks that the Corporation considers fairly and reasonably represents the number of weeks or part weeks during which the claimant earned those earnings as a self-employed person in the relevant year, up to a combined maximum of 52 weeks or the total number of weeks in the claimant’s relevant year if the relevant year is more than 52 weeks:

(c)

for all other claimants, the amount calculated using the following formula:

a ÷ c + b ÷ d

where—

a

is the claimant’s total earnings as an employee in the 52 weeks immediately before his or her incapacity commenced

b

is the claimant’s earnings as a self-employed person in the relevant year

c

is 52 or such smaller number, if an adjustment is required under subclause (3A)

d

is the number of weeks in the relevant year or such smaller number, if an adjustment is required under subclause (3A).

(3)

The amount that applies under this subclause is the amount of minimum weekly earnings as determined under clause 42(3), if the claimant is an earner who is liable to pay the minimum levy set out in regulations made for the purposes of section 168B.

(3A)

The numbers referred to in items c and d of the formula in subclause (2)(c) must be adjusted by deducting any period during which the claimant was within a payment period under the Compensation for Live Organ Donors Act 2016.

(4)

A claimant is eligible for the greater of—

(a)

the amount calculated under subclause (2) with the inclusion of earnings as an employee in the calculation; and

(b)

the amount calculated under subclause (2) with the exclusion of earnings as an employee from the calculation.

(5)

If the claimant’s weekly earnings are calculated under subclause (2) with the inclusion of his or her earnings as an employee, the claimant is not also eligible to have his or her weekly earnings calculated under clauses 33 to 36.

(6)

This clause applies to claims for weekly compensation made on or after 1 July 2005, whether made in respect of a period of incapacity that started before the day on which this clause comes into force or that starts on or after that day.

(7)

To avoid doubt, if a claim for weekly compensation is made in respect of a period of incapacity that commenced before 1 July 2005, this clause—

(a)

applies only to the calculation of weekly earnings for the purposes of weekly compensation that is payable for a period commencing on or after 1 July 2005; and

(b)

does not authorise an increase to the rate of weekly compensation that is payable for a period before 1 July 2005.

Schedule 1 clause 38: substituted, on 1 July 2005, by section 60(1) of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005 (2005 No 45).

Schedule 1 clause 38(2)(c) formula item c: amended, on 5 December 2017, by section 30 of the Compensation for Live Organ Donors Act 2016 (2016 No 96).

Schedule 1 clause 38(2)(c) formula item d: amended, on 5 December 2017, by section 30 of the Compensation for Live Organ Donors Act 2016 (2016 No 96).

Schedule 1 clause 38(3): amended, on 1 April 2007, by section 13(1) of the Injury Prevention, Rehabilitation, and Compensation Amendment Act 2007 (2007 No 8).

Schedule 1 clause 38(3A): inserted, on 5 December 2017, by section 30 of the Compensation for Live Organ Donors Act 2016 (2016 No 96).

Schedule 1 clause 38(5): amended, on 1 July 2010, by section 47(1) of the Accident Compensation Amendment Act 2010 (2010 No 1).

Schedule 1 clause 38(7): added, on 1 August 2008, by section 33(1) of the Injury Prevention, Rehabilitation, and Compensation Amendment Act 2008 (2008 No 46).