Allianz Australia Insurance Limited v Jiang

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allianz Australia Insurance Limited v Jiang [2025] NSWPIC 388
CLAIMANT:	Fuying Jiang
INSURER:	Allianz Insurance Australia Limited
MEMBER:	Shana Radnan
DATE OF DECISION:	7 August 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; non-economic loss; accommodation loss; 85-year-old female; pedestrian run over; sustained multiple injuries; multiple fractures to ribs, sternum, spinal fractures (T1-T10, undisplaced C7), right shoulder, right knee, and pelvis; complications with pulmonary haemorrhage; need to relocate to family interstate; no longer living independently; Held –approved under section 6.23(2)(b); insurer conceded entitlement to non-economic loss; settlement complied with clause 7.37 of the Motor Accident Injuries Guidelines, version 9.3.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $226,300 is approved under s 6.23(2)(b) of the *Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Injuries Guidelines version 9.3.*

STATEMENT OF REASONS

INTRODUCTION

Fuying Jiang (the claimant) was a retired pensioner who a pedestrian walking in a carpark of Woolworths in Campsie, when she was struck by the insured in an accident which occurred on 29 October 2021.
The claimant was taken by ambulance to Royal Prince Alfred Hospital and admitted into intensive care due to the extent of her injuries. She remained in intensive care until
11 November 2021. She was discharged to Metro Rehab Hospital on 13 December 2021 for rehabilitation.
The claimant remained in hospital until 10 January 2022. She returned to her home but due to the need for assistance and care was relocated to Melbourne to live with her son on
22 March 2022. She remains living with her son and daughter-in-law.
The claimant brought a claim for common law damages.
Allianz Australia Insurance Limited (the insurer) admitted liability for the common law claim on 24 August 2024. There was no allegation of contributory negligence.
The insurer conceded the injuries exceeded 10% whole person impairment (WPI) and provision for non-economic loss was made in the settlement reached.
Whilst the initial application related to a settlement in the sum of $225,000, the parties have reached a further agreement to settle the claim in the intervening period in the sum of $226,300. This represents the sum of $225,000 for non-economic loss, $1,300 for travel expenses.
The claimant is currently 85 years of age and has a life expectancy of years of 6.6 years according to the Furzer Crestani Medium Life Expectancies, Australia 2024 actuarial data.
At the time of the accident the claimant was on an aged pension and there is no claim for economic loss. There are no deductions for any statutory payments.
The settlement is made in respect of non-economic loss only.

THE RELEVANT LAW

Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (MAI Act) requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Motor Accident Guidelines version 9.3 (Guidelines) commencing 4 December 2024.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“(a)    repealed;
(b)     the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement;
(c)     the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d)     the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”

DAMAGES FOR ACCOMODATION OR TRAVEL EXPENSES

Section 4.5(b) of the Motor Accident Injuries Act 2017 (NSW) entitles the claimant for damages for “costs relating to accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations”.
The Motor Accident Injuries Regulation 2017 provides, at Regulation 9:
“The kind of accommodation or travel for which damages may be awarded (subject to Division 4.2 of the Act) is any accommodation or travel for which the claimant has incurred, or is likely to incur, a cost as a result of the injury caused by the motor accident.”
The claimant claims costs of relocation to Melbourne.

Preliminary conference on 25 June 2025

The nature of the settlement proposed in the sum of $225,000 at that stage, was discussed between the parties. During the video-conference the claimant confirmed her ongoing problems and that she needed to relocate to Melbourne to be with her son following the subject accident.
I noted that no provision had been made for travel and accommodation costs and requested particulars be provided by the claimant and the insurer to seek instructions on the information handed over.
I also requested an impact statement from the claimant to provide me with sufficient information before I determined whether the sum agreed for non economic loss was appropriate.

Preliminary conference on 16 July 2025

During the video preliminary conference I confirmed the receipt of the impact statement and the updated submissions of the insurer in support of the amended sum.
The explanation as to the claimed care costs and why certain expenses were not part of the common law claim but were to be referred to the statutory benefits claim.
The insurer provided the following:
“The claim for the loss of wages for the family members is not an expense that is covered under the Act given the wording of Section 4.5. The Insurer has advised the claimant of this.
The Insurer has informed the claimant that the claims for the foot spa and shower renovations would be considered as part of the statutory benefits claim and will be reviewed based on the requirements of the Act, the Regulations and the Motor Accident Guidelines. This claim does not impact the Common Law
The final submissions confirmed the terms of agreement as:
“The claimant has accepted the offer of $225,000 for non-economic loss. However, noting the above, the Insurer has offered an additional $1,300 to cover the expense of the moving and transportation costs of the claimant. The claimant, via her son Mr He has confirmed confirm the acceptance of the offer, subject to approval by the Personal Injury Commission. The break down for this settlement is as follows:
Non-Economic Loss – $225,000
We refer to the initial submissions that were attached to the Damages Settlement Approval Application, for the basis for the allowance made for this head of damage.
Travel and Accommodation Loss – $1,300
The claimant was retired at the time of this accident. However, this allowance covers the costs of the claimant relocating to Melbourne, to reside with her son and daughter in law, shortly after discharge from hospital.”
I was able to ask the claimant through her daughter-in-law Yan Huang, translating English to Mandarin and Mandarin to English. I asked whether the claimant understood the finality of the settlement and was accepting the terms of her own free will. I was informed that “she is happy with the settlement and wants to accept it.”
I further asked the claimant if she would like to obtain legal advice on the settlement and she responded “ there is no need, I am happy with the settlement, I don’t want to seek any legal advice”.
I advised the parties that upon the uploading of the amended terms of settlement and deed of release a determination would follow.

DOCUMENTS CONSIDERED

I have regard to the following relevant documents contained in evidence bundle in excess of 1279 pages of records:
Liability:
(a)    application for personal injury benefits dated 24 November 2021
(b)    application for common law damages dated 30 May 2024;
(c)    liability notice dated 27 August 2024;
(d)    police report dated 30 November 2021
(e)    statement of Sergeant Marwan dated 13 August 2024
(f)    submissions of the insurer dated 22 May 2025 and 14 July 2025.
(g)    WPI concession entitlement to non-economic loss dated 4 December 2024
Medical records:
(a)    ambulance report dated 29 October 2021;
(b)    Royal Prince Alfred Hospital – discharged summary;
(c)    Metro Rehab Discharge summary
(d)    Clinical records Clandra Medical Centre
Medico-legal:
(a)    report of Dr Frank Machart dated 22 October 2024

Claimant’s information:
(a)    provided in video-link preliminary conferences, and
(b)    statement dated 3 July 2025.
Settlement documents:
(a)    amended settlement offer and agreement of release dated 14 July 2025.

The accident

The NSW Police report provided the circumstances of the accident:
“The accused travelled 40 metres west through the carpark. He then attempted to conduct a U turn in order to park in the allocated slots for those with a disability parking permit. The victim, Fuying Jiang, date of birth, 26/04/40, was walking through the Campsie Woolworths carpark. The accused has been observed by witness Jiayi Shen, to conduct the U-turn, requiring him to reverse in order to create enough space between his vehicle and the wall to complete his U-turn. As this was happening, the victim was walking through the carpark. The accused reversed his vehicle with the rear of the vehicle colliding into the victim, knocking her to the ground.
Whilst the victim was on the ground, the accused person has reversed over the victim with the front and rear tyres driving over her. The accused person has paused then moved forward, driving over the victim with both his front and rear tyres. The accused person's vehicle paused and reversed backwards, causing the rear and front tyres to drive over the victim again. The accused person has paused then moved forward, driving over the victim with both his front and rear tyres.”

Treating medical evidence

The discharge summary of both Royal Prince Alfred Hospital and from Metro Rehab Hospital confirmed the claimant sustained the following injuries:
(a)    bilateral comminuted rib fractures and a sternal fracture
(b)    right T 1-10 transverse process fracture and undisplaced C7 fracture
(c)    right adrenal haematoma
(d)    segment 2 liver laceration
(e)    bilateral inferior rami fractures
(f)    right clavicular and scapular fractures
(g)    right patella fracture
(h)    right tibial plateau fracture
(i)    left knee complete medial tear
(j)    surgical scarring
(k)    multiple surgeries at initial admission.
(l)    Psychological injury
Clinical records also reveal the claimant suffered a deep vein thrombosis and pneumonia during her hospitalisation.
Her general medical conditions included hypertension. Osteoporosis, hypercholesterolaemia, gasto-osophageal reflux disease, and vitamin D deficiency
Radiological investigation confirmed there was no acute intracranial adnormality or cervical vertebral body fractures.
Rehabilitation:
(a)    records of Metro rehabilitation confirmed that the claimant required extensive treatment to increase lower limb strength, mobility and negotiate stairs.
(b)    She attended between 13 December 2021 to 10 January 2022 for rehabilitation.
(c)    Upon completion of her treatment the claimant was discharged with the ability to:
(i)mobilise independently with a walking stick
(i)ability to negotiate stairs independently
(ii)independent in many aspects of daily living
(iii)would require assistance with shopping, meal preparation.
(iv)Aged Care Assessment Team certified no additional outside care was needed beyond “family support”.
Clinical records of Dr Shi of Clarinda Medical Centre (Victoria) note a history of osteoporosis and hypertension which has been managed with conservative treatment.
By 22 August 2022 Dr Shi recorded regular supervision by her medical practitioner, with no deterioration and her general well-being had been preserved.
Whilst there is a report of loss of confidence and lowered social activity, the claimant has not required or undertaken any psychological treatment. The medical records do not reveal any referral for psychological treatment.

Medico-legal opinion

The insurer has obtained a report from Dr Frank Machart dated 22 October 2024. He considered the assessment task being difficult.
The claimant reported symptoms of pain and stiffness to both shoulders, left more than right, both knees also painful left more than right, chest tightness, lower back pain and posterior pelvic pain.
He opined whole person impairment of 32% entitling the claimant to non economic loss. Each knee 10%, lumbar spine 5%, thoracic spine 5%, right shoulder 5% and scarring 1%.
Dr Machart considered the claimant appeared to exhibit some cognitive decline and opined that the claimant’s age “may be contributing towards her general incapacity and cognitive functioning which he believed not related to the orthopaedic injuries sustained”.
Checked against the Retro Rehabilitation records, there did not appear to be any changes to her cognitive functionality.
In Dr Machart’s report dated 22 October 2024 at page 4, who opined;
“The orthopaedic injuries were fractures in the right shoulder, pelvic pubic rami, injury to thoracic and lumbar spine, injury to each knee, fracture patella, tibial plateau fracture and ligaments in both knees.”
“Additionally, there appeared to be a cognitive element to her presentation, hypersensitivity, unsteady on her feet, ataxic gait. From an orthopaedic viewpoint, I am unable to link this to bony injury.”
“disability is essentially loss of independence” ( page 39 bundle ).
He also commented:
“Difficult assessment in the presence of cognitive dysfunction, hypersensitivity and poor match between the pathology of injury and the displayed clinical signs, especially the range of movement model” (page 41 bundle)
“Difficult examination. Pain was reported when gently toughing skin in all area examined. It was difficult to conduct range of movement. All movements were reported to be painful in all directions, driven by hypersensitivity. Passive movement was difficult because of fear of causing undue pain”.

Summary of injuries and their impact

Physical

The claimant sustained significant orthopaedic injuries which initially required her to remain in intensive care from 29 October 2021 to 13 December 2021.
The extent of pain and suffering initially suffered was extensive and debilitating.
At the time of determination of the application much of the orthopaedic fractures have healed and the claimant has made considerable recovery albeit that assessment of ongoing injury was hampered by hypersensitivity to all areas of the body.
The discharge summary of Metro hospital discharge summary listed the injuries and treatment as:
“ Chest: Bilateral comminuted rib fractures, flail chest bilaterally requiring bilateral ICC/ l&V/ HFNP;
Sternal fracture
Spinal: Right T1-10 Transverse process fracture
Abdomen: Right adrenal hematoma; Segment 2 liver laceration; Abdominal wall bum
Orthopedic injuries
Pelvic fractures-bilateral inferior pubic rami fractures; Left pelvic sidewall
Right clavicular fractures mid 1/3- sling for6w
Right scapula fracture- sling for 6w
Right patella fracture- Zimmer splint, ROM brace commenced at 6w
Right tibial plateau fracture with associated meniscal and ligamentous injury- ORM brace
Left knee complete MCL tear, ROM brace now removed
Other issues including ventilator associated pneumonia, pain, constipation, delirium, bilateral DVTs”.
At the determination of this application the claimant’s ongoing treatment is over the counter pain relief using Panadol as required. Her orthopaedic fractures have healed and her scarring has “healed reasonably well” according to Dr Machart “ (p 40 of bundle).

Claimant’s impact statement

The claimant’s son and daughter-in-law prepared a statement on behalf of the claimant:
“Before the accident, my mother lived independently in Sydney. She was in excellent
physical health and fully capable of managing her daily life. She actively participated
in social activities, taking public transport each day to various mahjong clubs where
she played, dined, and socialized with friends.
She was also able to travel alone to China to visit friends and family, demonstrating a
high level of independence and self-care ability. Physically, she was strong enough to
carry a 15 kg bag of rice from the supermarket and practiced tai chi daily, performing
many advanced movements with ease.
After the accident, although she miraculously survived thanks to Australia’s world-class medical system and her strong constitution, her physical and psychological condition has changed profoundly.
Psychological Trauma:
She now has an intense fear of vehicles and is unable to go out alone. Any activity outside the home - such as medical appointments or shopping - requires accompaniment. She is also very fearful of interacting with strangers and displays signs of social anxiety and isolation.
Restricted Mobility:
Due to impaired balance after the accident, she is prone to falling and cannot stand up without assistance. She requires constant supervision and care throughout the day.
Limited Functionality:
Her legs are no longer agile. She is unable to practice tai chi and even walking has become very slow, sometimes requiring support. Routine activities such as using the toilet, bathing, getting dressed, and getting out of bed now take significantly more time, and she often needs assistance.
Physical Injuries:
She suffered multiple broken ribs, shoulder injuries, and a fractured pelvis. She wakes frequently during the night due to pain from remaining in one position too long. She requires regular pain medication and the use of heat patches for relief. Her pelvis, legs, and knees are particularly sensitive to cold; exposure significantly worsens her pain. These long-term injuries are irreversible and cannot be cured through surgery or other treatments.”

Future surgery and treatment

From review of the medical evidence before me I am satisfied that the claimant will not require any further surgical intervention.
Support for this is contained in the general practitioner’s clinical records and the opinion of Dr Machart.
There is no indication from the clinical records of Dr Yajun Shi, that the claimant’s ongoing treatment is anything other than regular reviews by her general practitioner for a person of stated age and ingestion of Panadol when required. As such, conservative treatment is ongoing.

Psychological

I accept the evidence of the claimant’s son and daughter-in-law that the claimant is fearful and more anxious about social activities and has become more reclusive as a result of her injuries. She has not required any psychological treatment as none are recorded in treating records.

Non-economic loss

The claimant provided a detailed statement dated 4 July 2025 and reading the contents of the medical records, it is accepted that the claimant sustained horrific injuries initially.
She has made considerable recovery to date considering her advance age.
She is never pain free and the ongoing impact of her injuries have limited her ability to undertake her pre-accident social, recreational and household activities.
She is now heavily reliant upon her son and daughter-in-law for assistance in performing activities of daily living.

The agreed damages for non-economic loss

The parties have reached an agreement in the sum of $225,000 for damages for non-economic loss.
The insurer made further submissions:
“The insurer has conceded the claimant’s injuries exceed the threshold therefore she is entitled to an allowance for this head of damage. The claimant was living independently at the time of the accident and was in relatively good health. This was confirmed in a letter to Metro Rehab dated 30 November 2021, in that she was living solo in a rental room in a single storey shared house.
Since the accident she has moved in with her son and daughter in law in Melbourne. She is receiving assistance as the claimant’s ability to live independently has been impacted because of this accident.”

The claimant initially made an offer to settle in the sum of $148,490 which was less than the final amount agreed. The insurer counter- offered with an increase to amount to $225,000 as the injuries sustained and their impact was considerable and having regard to the claimant’s age. The sum was increased to reflect a sum more in line with common law claims noting the age of the claimant.
The insurer submitted that the proposed allowance for non-economic loss in this case is within the range of likely potential damages assessments having regard to particular facts of this claim.
I find upon review of the evidence before me that the proposed sum for non-economic loss is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant and the age of the claimant now and advanced age of 85 years.

Travel and Accommodation Losses

The claimant produced invoices relating to the relocation from Sydney to Melbourne. I am satisfied that the sum of $1,300 was incurred due to the necessity to relocate and the sum accords with claimable losses for airfares vehicle rental and moving costs.
Whilst additional costs were claimed for the claimant’s son and daughter-in-law’s accommodation costs whilst assisting the claimant, this is not compensable under the Act as confirmed by Ali v AAI Limited trading as NRMA Insurance [2022] NSW PICMR 56. The losses claimed have been referred to the statutory benefits claim as part of care claim by the insurer. Claimed costs for a foot spa have also been referred to the statutory benefits claim.

Insurer’s submission

It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 7.37 of the Guidelines, in that it is:
“…just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
Accordingly, the insurer recommended the proposed settlement figure of $226,300 be approved.

Claimant’s submission

The settlement sum is accepted by the claimant and the claimant seeks it be approved.

SHOULD I APPROVE THE SETTLEMENT

Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a)    The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the MAI Act or the Motor Accident Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b)    The insurer to include in its application details of the following:
(i)the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage. The amount for non-economic loss is $225,000. The amount for accomodat and travel loss is $1,300;
(ii)the amount of any deductions in the proposed settlement.
There are no deductions. The claimant will received full proceeds of settlement;
(iii)the amount of any advanced payments made be specified. There had not been any advanced payments made, and
(iv)the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the clinical and medical records effectively convering the period of injury and the relevant period to date of assessment. I note the medical records accord with the claimant’s reported symptoms, level of improvement and ongoing incapacity. The information produced by the insurer has given me a good indication of the injuries, treatment and prognosis.
(c)    Clause 7.37 of the Guidelines, requires me to consider the following:
(i)the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, and the evidence of the claimant during the videolink conferences, I am satisfied that the claimant has ongoing symptoms which impacts upon her daily life, she now required assistance from her family due to her advanced age and the loss of confidence and independence. She requires little ongoing treatment apart from occasional pain relief. The amount of damages for non-economic loss, and accomodation loss agreed to is within the range of of likely range of damages had the matter been assessed by a member of the Commission.
I find the proposed settlement in the sum of $226,300 is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and the claimant’s advanced age.
(ii)the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware during the preliminary conferences that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses.
The claimant is aware she will receive net proceeds of $226,300 with no further deductions.
I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.

CONCLUSION

The proposed settlement in the sum of $226,300 is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and the claimant’s advanced age.
I am satisfied the claimant was aware she could seek legal advice, and that she declined seeking legal advice.
I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
I am satisfied the claimant is aware that there are no deductions from the proceeds of settlement and that she will receive $226,300 in final settlement of her claim.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the sum of $226,300.
The proposed settlement complies with cl 7.37 of the Guidelines version 9.3.

Legislation

In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines version 9.3 / Personal Injury Commission Rules 2021.

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Citations

Allianz Australia Insurance Limited v Jiang [2025] NSWPIC 388

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[2025] NSWPIC 388

7 August 2025