AAI Limited t/as GIO v Li
[2025] NSWPIC 401
•13 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Li [2025] NSWPIC 401 |
| CLAIMANT: | Zisheng Li |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 13 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 80-year-old man crossing a busy six-lane road late afternoon in the middle of winter; insurer admitted liability alleging 60% contributory negligence; claimant retired for many years at date of accident; agreed entitlement to damages for non-economic loss only; Held – settlement approved under section 6.23(2)(b); $330,000 for non-economic loss reduced by 60% to the sum of $132,000; no statutory benefit paid; within the range of damages. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $132,000. |
STATEMENT OF REASONS
INTRODUCTION
On 12 July 2023, Mr Zisheng Li (the claimant) was crossing the Princes Highway out the front of St George Leagues Club when he was struck by the insured driver.
Mr Li has made a claim against AAI Limited t/as GIO (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages and alleged 60% contributory negligence.
Mr Li is entitled to reasonable and necessary future treatment and care expenses for the rest of his life.
Mr Li and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Li is not represented by a lawyer, his settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the Act).
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer and Mr Li have agreed he is entitled to damages for non- economic loss.
THE RELEVANT LAW
Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement is just, fair, and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Mr Li, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Mr Li understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions, liability notice, investigation report, ambulance report and radiology reports, medical certificates of fitness, doctors’ reports and communications between the parties.
Recently, material was lodged by the insurer revising the percentage allegation for contributory negligence.
REVIEW OF THE EVIDENCE
Mr Li has recently turned 80 years old. He was born in China and migrated to Australia in 2014. He is married and lived in an apartment with his wife, daughter and granddaughter. He is currently confined to a nursing home.
The ambulance attended the scene of the accident and after assessing his significant injuries, conveyed Mr Li to St George Hospital where he was admitted and remained for the next two weeks.
He was diagnosed with a mildly displaced fracture of his right pedicle of C7 which was treated conservatively with a hard collar which remained in place for two months. He reported to Dr Richard Powell some intermittent discomfort accompanied by mild stiffness and restricted range of motion. He says his symptoms are aggravated by prolonged fixed gaze.
He also sustained a fracture of his left ankle which was treated surgically with an open reduction internal fixation. He was placed in a CAM boot for two months and once removed, commenced physiotherapy sessions. He reports intermittent pain particularly after periods of prolonged weightbearing.
He suffered soft tissue injury of the left shoulder which was treated conservatively.
He told me he continues to suffer pain, restriction and stiffness in the regions which were injured in the accident.
CONTRIBUTORY NEGLIGENCE
There is no dispute that Mr Li crossed over a six-lane roadway in front of the St George Leagues Club at Kogarah. He told me he had been at the club playing mahjong with his friends. He does not drink alcohol.
It was 5.30pm in the middle of winter. The investigation report commissioned by the insurer suggests the sun would have set. The area was in almost darkness with limited lighting at the time.
Although the report refers to video footage, this was not provided to me for viewing. From the footage, the investigator reports observing Mr Li walking from the driveway of the club before he crossed to the median strip which separated the south and north bound lanes.
The reporter observed the traffic was moving at a reasonable speed before Mr Li left the median strip and walked between two moving vehicles in lanes one and two. The vehicle in lane two stopped. As he entered lane three, the insured driver collided with Mr Li.
The insured driver had his headlights on and said he braked hard as he collided with Mr Li.
The insurer alleged 70% contributory negligence for failing to keep a proper lookout; failing to heed the presence of the insured driver; entering the roadway when unsafe to do so; crossing the road when unsafe to do so; failing to take care of his own safety; failing to utilise a nearby traffic light controlled pedestrian crossing; failing to heed the risk of crossing the roadway during hours of low lighting and darkness when dressed in dark clothing.
I examined the material lodged by the insurer with the application seeking approval of the proposed settlement. I noted the driver travelling in lane two had time to observe the claimant crossing the roadway and stopped, avoiding a collision.
I asked Mr Li if he had previously crossed the roadway in the same manner from the club. He said he did on many occasions as he was walking to the train station which was on the opposite side of the Princes Highway to the club.
He further confirmed, whilst living in China, a more relaxed attitude to crossing busy roads was common practice to which he was accustomed to doing without incident.
PROPOSED SETTLEMENT AND TELECONFERENCE
On receipt of the application of the proposed settlement agreement, I reviewed the documentation.
The first preliminary telephone conference was assisted with a competent interpreter. I careful explained through the interpreter to Mr Li the concept of contributory negligence. He acknowledged he understood there was a discount to the amount proposed because he had crossed a dangerous roadway at a time when it was dark, with little lighting and a crossing with controlled lights nearby.
I advised Mr Li that the amount proposed of $330,000 in my opinion, was within the range of damages. However, I indicated to both Mr Li and the insurer’s representative that I was not comfortable with the amount alleged for contributory negligence.
I asked the insurer’s representative if she would like the opportunity to seek instructions to review the percentage discount or in the alternative, that I would proceed to deal with the application as it was.
She asked for time to seek instructions. I issued directions which were complied with.
The insurer lodged a further submission revising the percentage of contributory negligence from 70% to 60% and a request to list the claim for a further teleconference which was held with a competent interpreter, the claimant, his daughter and the insurer’s representative.
Once again, the concept of contributory negligence and the revised percentage was explained to Mr Li which he confirmed he understood and confirmed he was happy with the proposed revised settlement.
I asked Mr Li if he understood the finality of the proposed settlement if approved and he confirmed he did. He also confirmed he understood he was entitled to legal representation but did not wish to engage a solicitor.
He said he was very happy with the offer of settlement. He told me he understood if approved, the amount was final and that he could not seek further damages in the future.
He confirmed he was being well cared for and that he was entitled to treatment and care for reasonable accident-related injuries for life.
Mr Li at the time of the accident, had not worked for many years. He was retired having previously worked as a factory manager. He confirmed he understood he was not entitled to damages for economic loss.
I discussed with him the meaning of non-economic loss and that the proposed offer of $330,000 was compensation for this head of damage.
He told me understood this amount was reduced by 60%, which reduced the amount to $132,000.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that I should approve the proposed settlement offer.
Mr Li confirmed he wanted his claim to be resolved. I explained to him the meaning of non-economic loss including pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. When considering his age, questions of fact and degree, and matters of opinion, impression, speculation, and estimations and after the exercise of common sense and judgment as discussed in Dell v Dalton (1991) 23 NSWLR 528, I am satisfied the amount proposed of $330,000 is within the range, and that the 60% reduction for contributory negligence was also within the range having considered the circumstances of the accident.
I am satisfied Mr Li is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied that Mr Li is aware of his rights to have his reasonable treatment and care expenses paid for the remainder of his life.
I am satisfied Mr Li is happy with the amount he will receive in his hand being the full sum of $132,000.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessment if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Mr Li.
I am satisfied Mr Li understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising from the accident. I am satisfied Mr Li is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of Mr Li’s claim for damages in the sum of $132,000.
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