Mohit v AAI Limited t/as AAMI [2026] NSWPICMR 5; (23 February 2026)

1. The claimant disputes the insurer's method of calculating PAWE (the weekly average of gross earnings received during the 12 months before the day of the accident under Sch 1, cl 4(1) of the MAI Act with no adjustment for weeks when there were no earnings pursuant to Allianz Insurance Australia Limited v Shahmiri [2022] NSWPIC 481 (Shahmiri)).
2. The claimant submits his position is distinguishable from the injured person in Shahmiri because the claimant is a "self-employed or sole trader or student or deemed worker, whose income depends solely on active work." The claimant submits the MAI Act "expressly differentiates such cases through Schedule 1, Clause 4(2)(a1) and 4(2)(c) which require insurers to exclude any weeks in which the person did not earn income at all, regardless of ongoing employment or ABN status."
3. The claimant submits he was overseas during the periods 3 August 2023 to 31 October 2023 and 19 February 2024 to 20 March 2024 and received no earnings during these periods. The claimant refers to this as "zero-earning periods" and says this is distinguishable from "ordinary income fluctuations" addressed in Shahmiri.
4. The claimant relies on Kipkorir v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 3 (30 January 2024) (Kipkorir) for calculation of PAWE under cl 4(2)(a). The claimant submits this decision "highlights the importance of both proper enquiry into the claimant's entire earning history[1] and clear agreement as to which legislative provision governs the calculation of PAWE."
5. The claimant submits "it is also important to note that [he] was a student at the time of the accident, which further impacted [his] ability to earn income during this period."
6. The claimant submits in the alternative PAWE should be calculated under cl 4(3) on the basis of a significant change in earning circumstances when working restrictions were imposed on his student visa in July 2023. The claimant submits this change was "beyond his control", impacted his ability to work and reduced his earnings.
7. The claimant relies on cl 4(2)(a1) in the alternative on the basis he says he was employed or self-employed for at least 26 weeks in the first year of the two years before the accident on a full-time basis whereas in the year immediately preceding the accident his ability to work full-time was restricted by visa conditions. The claimant submits PAWE should be averaged over the first year of the two years before the accident because this was when he was working full-time and not over the year before the accident when his capacity to earn full-time was impeded by visa restrictions.
8. The claimant submits in the alternative PAWE should be calculated under cl 4(2)(c) by reason of his expectation that he would commence undertaking additional employment in March 2025 with Chandlor McClead Staffing (CMS).
9. A submission is also made that PAWE falls under cl 5 on the basis the claimant was a full-time student at the time of the accident. The claimant says under cl 5 his pre-accident earnings should be disregarded and instead, PAWE should be calculated on the basis of what he would be expected to earn following completion of his studies.
10. The claimant also challenges the insurer's deduction of business expenses when calculating gross earnings received in the relevant period. The claimant acknowledges caselaw determining that in the context of self-employment gross earnings for the purpose of PAWE are the net business earnings after deducting business expenses. However, the claimant says this interpretation "does not fully consider the realities faced by self-employed rideshare drivers." The claimant submits "unlike typical self-employed or business owner individuals, the "self-employed" tag is often assigned by Uber as a technical classification rather than a reflection of genuine business autonomy."
11. The claimant submits "the insurer's approach of deducting expenses and treating drivers as self-employed business owners can be inappropriate and unfair" and "overlooks the practical challenges and risks faced by gig economy workers, whose earnings and ability to recovery are directly impacted by these company policies and practices [sic]."
12. The claimant disputes deduction of vehicle payments as a business expense contending this is a "discretionary business expense". The claimant says this is an "unavoidable and ongoing" cost as the primary work tool required for his rideshare duties and a cost incurred regardless of whether he is fit to perform work duties.
13. The claimant also disputes the deduction of other vehicle expenses (for example, fuel, and car servicing/maintenance) along with mobile phone expenses. The claimant contends these costs are routine for any vehicle owner, even if the vehicle is not used for business and that overall, the difference between costs of running a car for personal use and the costs for running a vehicle for business use is not substantial and is "relatively minor in the context of running a business like ridesharing".
14. Further and in the alternative, the claimant relies on the reviewable decision in which PAWE is calculated as $1,314.40 based on the claimant's 2023/2024 tax return. The claimant says the reviewable decision should be affirmed because "there has been insufficient additional evidence provided to alter [the insurer's] calculations".

1. The insurer submits BAS/further documents provided by the claimant since the reviewable decision also put the claimant's credit in issue. In this regard, the insurer refers to and relies on submissions lodged in support of the insurer's merit review application about the claimant's obligation to co-operate. That merit review is the subject of a decision: AAI Limited t/as AAMI v Mohit [2025] NSWPICMR 38; (15 December 2025) (Mohit 1).
2. As the insurer puts the claimant's credit in issue and relies on documents in the other matter, this decision should be read in conjunction with Mohit 1.
3. The insurer submits in all the circumstances the state of the evidence is insufficient to allow proper or adequate calculation of the claimant's PAWE. The insurer seeks a direction for the claimant to provide the following:[2]

1. Clause 4(4) defines what an earner who earns continuously means and the focus is clearly on the "source" of earnings and whether that source was continuous. Clause 4(4) is not concerned with the frequency or amount of earnings that is, it is not concerned with matters such as whether earnings were received each and every week in the 12 months before the accident or whether the earnings amount was consistent each week. Clause 4(4) only requires that the claimant had a continuous "source" of earnings for him to be considered to have been earning continuously for at least 12 months.
2. There is no evidence the claimant ceased Uber driving at any relevant time before the accident. Travel overseas from 19 February 2024 to 20 March 2024 does not amount to a cessation of the claimant's self-employment, as he continued to have a source of earnings when he chose to take a break and travel overseas.
3. I am therefore not satisfied at any time in the 12 months before the accident the claimant was not "earning continuously" within the meaning of cl 4(4). The claimant may not have received earnings, or consistent earnings in each and every week. However, in the circumstances of ongoing self-employment, I agree with the decision in Wei v Allianz Australia Insurance Limited [2024] NSWPICMR 12 (Wei) at [65] that: