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.

What should I check before disputing a PAWE calculation after Shahmiri?

Ask for the insurer calculation sheet, confirm the exact Schedule 1 clause used, reconcile the 12-month earnings records, and identify whether a different statutory pathway applies before arguing the final weekly amount.

Supreme Court case note

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

Direct answer: Allianz v Shahmiri means that, if Motor Accident Injuries Act 2017 (NSW) Sch 1 cl 4(1) applies, PAWE is averaged over the whole 12 months immediately before the accident. The Court rejected a worked-weeks-only denominator for that clause.

Last reviewed: 7 May 2026

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. Start with the statutory pathway, then test the figures.

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.

For a claimant, the practical question is not simply “what did I earn while working?” It is: which Schedule 1 pathway applies to my facts, what earnings are counted under that pathway, and what period is the legally correct denominator? Shahmiri is useful because it separates the income question from the averaging-period question.

If the insurer has treated a break in work as a reason to average over 52 weeks, the first review step is to ask for the calculation sheet and identify the clause used. If the insurer relies on cl 4(1), Shahmiri is a warning that “I only worked some weeks” may not answer the statutory question by itself. A stronger dispute usually explains why a different Schedule 1 pathway applies, or why the insurer has counted or excluded particular earnings incorrectly.

Evidence checklist after Shahmiri

If an insurer has averaged PAWE across 52 weeks, collect documents that let the reviewer check the statute rather than just the final number: payslips, tax records, employment contracts, termination or start dates, Centrelink or unemployment records where relevant, and a week-by-week earnings chronology for the 12 months before the accident.

Then identify whether cl 4(1) is truly the applicable provision or whether another Schedule 1 provision may change the period, for example because of recent employment, a significant change in earning circumstances, or self-employment issues. This page should be read with the PAWE guide and internal review pathway, because a PAWE dispute usually needs both statutory submissions and reconciled figures.

Be careful not to over-read the case. Shahmiri does not say every claimant with irregular earnings must lose a PAWE dispute, and it does not replace the remaining Schedule 1 pathways. Its practical value is narrower but important: where cl 4(1) is the correct provision, the denominator is the full pre-accident year. A useful review submission should therefore show the reviewer exactly why cl 4(1) applies or does not apply, how each payslip or tax entry fits the chronology, and whether the insurer has mixed earnings-type issues with averaging-period issues.

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. For claimants, the safest next step after receiving a low PAWE figure is to preserve any review deadline, request the working calculation, and get the earnings documents into one reconciled table before making submissions.

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.
What should I check before disputing a PAWE calculation after Shahmiri?: Ask for the insurer calculation sheet, confirm the exact Schedule 1 clause used, reconcile the 12-month earnings records, and identify whether a different statutory pathway applies before arguing the final weekly amount.

Official sources

Personal Injury Commission Legal Bulletin No. 57 notes Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481.
Motor Accident Injuries Act 2017 (NSW), Schedule 1 contains the PAWE provisions that the Court was construing.