Weekly Benefits Not Allowed Where Post-Accident Earnings Exceed PAWE

In Brief

• Claims for weekly benefits must be assessed pursuant to the formula in section 3.6 and  section 3.7 of the Motor Accident Injuries Act 2017 (MAIA).
• Sections 3.6 and 3.7 require a comparison between the Claimant’s pre-accident weekly earnings (PAWE) and their post-accident earnings or their post-accident capacity “whichever is the greater”.
• The words “whichever is the greater” in sections 3.36(3) and 3.7(2) are designed to address situations where the injured person has a residual capacity but fails to exercise that capacity.
• The formula in sections 3.6 and 3.7 does not allow a Claimant to claim weekly benefits on the basis that they would have earned income in excess of the PAWE had they not been injured.

Facts

The decision in Cameron v Allianz Australia Insurance Limited [2026] NSWPICMR 15  was delivered on 29 April 2026 and published on 9 May 2026.

The Claimant was injured in a motor accident on 18 September 2025. At the time of the accident, the Claimant operated a short-term accommodation management business. She alleged that her injuries caused a reduced capacity to carry out this work, which was productive of a loss of income. She claimed weekly benefits accordingly.

The Insurer calculated the Claimant’s pre-accident weekly earnings at $703.25 gross per week. The Claimant did not dispute this assessment.

The Insurer found, however, that the Claimant was not entitled to recover any weekly benefits because her average earnings post-accident exceeded her PAWE. That decision was confirmed on Internal Review.

The Claimant sought a merit review.

The Merit Reviewer’s Decision

The Merit Reviewer agreed with the Insurer’s assessment for the following reasons:

• The claim for weekly benefits must be determined pursuant to the formula prescribed by section 3.6 and section 3.7  of MAIA.
• Schedule 1, clause 3 of MAIA merely sets out the types of income, if not received, which may be considered “loss of earnings” and types of income that are excluded.
• Schedule 1, clause 3 is not, of itself, a mechanism for calculating whether there has been a loss of earnings.
• Pursuant to schedule 1, clause 3, the proceeds received from the Claimant’s business may be taken into account when calculating whether there has been any loss of earnings under sections 3.6 and 3.7.
• The Claimant’s argument that she could have earned more, but for the accident, is not relevant to the calculation of weekly benefits because sections 3.6 and 3.7 only permit a comparison between the Claimant’s PAWE and her post-accident capacity.
• The Claimant’s argument that her injuries caused an increase in expenses is also irrelevant in circumstances where her post-accident earnings exceed her PAWE (irrespective of her increased expenses).
• The purpose of the words “whichever is the greater” in sections 3.36(3) and 3.7(2) is to address situations where the injured person has a residual capacity but fails to exercise that capacity.

Why This Case is Important

The decision in Cameron is important because it confirms two aspects relevant to the calculation of weekly benefits.

Firstly, the formula in sections 3.6 and 3.7, unlike a claim for damages, does not allow for an argument that the Claimant might have earned income greater than their PAWE had they not been injured. Based on the structure of Part 3.3 of MAIA, PAWE is a point in time calculation based on the various calculation methods in Schedule 1, clause 4. In most claims, the calculation is based strictly on historical earnings rather than potential future earnings. The exception is where the Claimant the accident has entered into an arrangement to commence new employment (self-employment) and the accident intervenes.

Secondly, the words “whichever is the greater” in sections 3.36(3) and 3.7(2) is designed to take into account circumstances where the Claimant’s actual post-accident earnings are different from their post-accident capacity.

If the Claimant’s post-accident capacity exceeds their actual post-accident earnings – for example, because they work 20 hours per week when they are certified fit to work 30 hours per week – then the dollar value of their post-accident capacity is compared to their PAWE to assess their weekly benefits.

If, however, the Claimant’s actual post-accident earnings exceed their post-accident capacity – for example, because they manage to work 30 hours per week even though they are only certified fit to work 20 hours per week – then their actual earnings are compared to their PAWE in order to calculate their weekly benefits.