One of the critical questions for people injured in accidents in Queensland is, “Do I need a lawyer?”. That question usually promotes feelings of anxiety over having to go and see a professional person (which people tend to avoid) and of course, the cost. What is not front of mind, but that which should be, is the question of “value”.
Currently in Queensland, we have a prominent CTP insurer waging a PR battle via print media espousing an idea that lawyers should be either restricted or even excluded from the motor vehicle accident claims process.
The assertion is that too much of claim amounts paid from the CTP scheme are paid to lawyers for legal fees rather than to injured claimants.
Putting aside that this ignores the scheme Regulator’s (MAIC) own data as set out in the MAIC Annual Report 2018-2019 and the stringent protections already in place in respect to legal costs under the Legal Profession Act 2007, there is still the question to be asked, “is there value in a lawyer?”.
In an injury claim sense, the primary role of a plaintiff lawyer is to advise and then advocate on behalf of the injured person. That is, to use their education, experience and ability to ensure an injured person is not disadvantaged in a claims process of which an average person has no knowledge or experience.
This role is critical due to the power imbalance that exists between large corporate insurers and ordinary everyday people.
There can be no clearer evidence of this imbalance than the findings of the Royal Commission into misconduct in the Banking, Superannuation and Financial Services Industry. The Commission’s findings uncovered systemic and, until that point of time, unashamed deliberate conduct on behalf of such organisations with the primary objective to deprive individuals of their legal entitlements and, of course, hard-earned money.
History is littered with incidences of people not armed with sufficient knowledge being deceived or taken advantage of by large corporate entities. It is the very heart of the legal profession to level that imbalance. To be armed with the knowledge and experience to “level the playing field” so to speak.
So does this passion and expertise convert to value to an injured person in a claims process?
In the close to 20 years that I have been representing injured people in accident claims, I have witnessed on countless occasions the difference in behaviour of insurers and claim outcomes achieved between those legally represented in their claims and those who are not. The major CTP Insurers in Queensland have specific claims departments to handle claims by unrepresented persons. Why would that be necessary if those people and their claims were treated the same as those represented by lawyers?
It has been a common occurrence in my career for people to seek their first consultation and advice at a time when the insurer has sought to negotiate with them a final payout, that if accepted, would end their legal rights. On every occasion that a person has first seen me at that point in their claim, the “best and last offer” being made to them by the insurer is an amount which is far less than an assessment of damages in accordance with legal principles would dictate. Sometimes between 10 to 20 times less than it should be. After all, there is no requirement of an insurer in such circumstances to fully inform the injured person of their entitlements and to do the bidding against themselves to ensure a just outcome.
The MAIC 2018-2019 Annual Report identified that the rate of legal representation with claimants sits at 81.5%. A very general averaging of the legal representation rates within the scheme over the past 5 years would indicate an average rate of 80%. While this sounds like a commendable representation rate, the annual report illustrates that 5,502 claims were lodged within the period from 1 July 2018 to 30 June 2019. As such more than 1,000 claimants lodging claims within that time are self-represented. A power imbalance over that many scheme users is of a great concern.
Engaging a lawyer to assist in the claims process does come at a cost. You are engaging a person who charges a fee to utilise their experience and ability to ensure a just result. However, the value provided by an experienced lawyer in attaining a full and just outcome will, in almost all cases, far out way the cost.
