Supreme Court case note

Allianz v Shahmiri [2022] NSWSC 481: PAWE averaging runs across the full pre-accident year under cl 4(1)

This is a high-impact NSW CTP authority on PAWE method. It confirms that, where Sch 1 cl 4(1) applies, the averaging period is the whole 12 months immediately before accident, not just weeks worked.

General information only, not legal advice. This case explains statutory construction of MAIA PAWE provisions and can materially affect weekly benefits where there were earning gaps before accident.

What happened?

The claimant was injured on 24 October 2020. In the prior year, he had a period of employment followed by unemployment. A dispute arose over PAWE: should earnings be averaged over the full 52-week year, or only weeks actually worked?

The insurer used the full-year denominator. A Merit Reviewer and majority Panel adopted a worked-weeks approach. Allianz sought judicial review.

Why the case matters

Harrison AsJ held the Panel majority erred in law. The Court treated “as an earner” as limiting the kind of income counted, not the length of the averaging period. Under cl 4(1), averaging remains anchored to the full 12 months immediately before accident.

The Court also relied on statutory structure: cl 4(2)(a) exists to provide a different period in specific circumstances. That structure would be undermined if cl 4(1) could be read as “only weeks worked.”

Practical implications for NSW CTP claimants

PAWE disputes often turn on clause selection before arithmetic.
Employment gaps can reduce PAWE under cl 4(1) because non-working weeks remain in the denominator.
Arguments framed as fairness alone are usually weak against clear statutory text.
Evidence should be organised around statutory pathway + full chronology, not isolated income snapshots.

Result

The Supreme Court set aside the Merit Review Panel certificate and remitted the matter to the Commission President for determination according to law. Costs were reserved.

Frequently asked questions

What did Allianz v Shahmiri [2022] NSWSC 481 decide?: The Supreme Court held that, where Sch 1 cl 4(1) MAIA applies, PAWE is averaged across the full 12 months immediately before the accident, not only the weeks the claimant actually worked.
What does “as an earner” mean in Sch 1 cl 4(1)?: In this case it was treated as limiting what income counts as earnings, rather than changing the averaging period itself.
Why is this case important for claimants with employment gaps?: Because weeks of non-work within the pre-accident year can still be included in the averaging exercise under cl 4(1), potentially reducing PAWE unless another specific provision applies.
Did the Court recalculate PAWE itself?: No. The Court set aside the Panel decision for legal error and remitted the matter for determination according to law.

Decision source

Full judgment: Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481.