Hearsay The Legal Podcast | Navigating Road Accident Claims: Comparing NSW and QLD Procedures

00:00:00

DT:

Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host, David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services, and Hearsay the Legal Podcast is how we’re improving the experience of CPD.

Now, personal injury is a massive part of many Australian lawyers’ practices, and a significant portion of personal injury claims are made up of motor vehicle accidents. Accidents out on the road are, unfortunately, common, impacting countless Australians every year. And whether that’s a minor collision or a catastrophic event, the aftermath can be overwhelming for anyone involved.

Now, as legal professionals, we understand the urgency of addressing these cases promptly and compassionately. And today we’re going to try and get some valuable insights on navigating the complexities of personal injury claims in general, and motor vehicle accident claims in particular, with Henry Garrett, senior associate from the compensation team at Atwood Marshall in Queensland. Henry specialises in motor vehicle accident claims, public liability claims, and work injury claims in both Queensland and in New South Wales. Henry, thanks for joining me on Hearsay the Legal Podcast.

00:01:29

HG:

Thank you very much, David. Nice to be here.

00:01:31

DT:

Now, before we get into it, tell us a bit about you and your practice, you’re practicing across both jurisdictions, Queensland and New South Wales.

00:01:37

HG:

Yep. So we’re on the border here of Queensland and New South Wales, at Coolangatta. So, it’s very difficult to avoid acting for clients in both states. Recently, we’ve branched out to Victoria, but that’s a bit of a developing practice, but look, my journey started because my old boy, Jeff Garrett, who’s the practice director here growing up, Atwood Marshall, I remember visiting the office and incoming home from work and I’m inspired by that to a degree, but I suppose that’s a cliché. But, once I finished school, I was given the opportunity to start working here at about 17. So I came in pretty fresh faced and still remember sitting down at the desk, started in the property team, and I had to Google the word conveyancing, I was that green. But look, my old man, fortunately, yeah, he gave me the opportunity to work here. But again, at that age is still trying to find your feet, figure out what you want to do But I thought, geez this looks like a pretty good opportunity to build my knowledge, help people, whilst also working in the family business, which can be really rewarding.

00:02:43

DT:

Yeah, fantastic. And did your dad also practice in personal injury, or how did you get into that area?

00:02:47

HG:

Yeah, he did. I mean, he’s got his very reasonable amount of knowledge in just about every department because we are all service here. So he’s got to keep an eye on everything, but he did spend two decades in personal injury back in the bad old days where everything went to trial and it was very much a litigated area of law. Whereas now, he’s heading up our wills and estates department, not exclusively, he still has a number of personal injury files but predominantly his practice would be wills and estates.

00:03:14

DT:

I guess that’s an interesting part of the evolution of personal services practices over the last three or four decades in Australia, right? That you have these areas of focus that are then subject to procedural regulation or some other regulation that really changes their shape and personal injury claims, and motor vehicle accident claims in particular are one of those, and I guess we’ll talk a bit about some of the procedural aspects a little bit later in the episode. But I first wanted to ask you about what it’s like practicing across two jurisdictions. Just thinking about that, I feel like most of us have it easy. We just have to know one state, you’ve got to deal with both all the time. Are there a lot of differences between the personal injury regimes in Queensland and New South Wales?

00:03:59

HG:

There are very many. It can be challenging at times. Particularly when you’re learning one area or one jurisdiction and there’s a crossover or something like that, where you’re just simply forced to learn New South Wales or Queensland, whatever it might be. But yeah, it has its challenges. It’s certainly, they are very different. The three main areas of law that build most of my practice are motor vehicle claims, public liability, and WorkCover. So, for motor vehicle, Queensland have a big focus on these pre-court procedures, which I suppose prevent people’s claims from going to court and it’s designed to lower the cost of the injured person, save the amount of time that it takes to settle their claim, and it’s relatively informal and it’s designed to avoid court because the fees, the legal fees, the evidence, and the time it takes to get there is just extraordinary. Now in New South Wales, again, you’re dealing with a different piece of legislation and a complete different set of procedural steps to get you there. Recently, in 2017, they brought in this new Act where you are on benefits for a period of time before you are allowed to make a common law claim. So, it’s like WorkCover. It’s called the statutory benefits phase. Now, that did compliment some people, because no matter whether you are at fault or not at fault, you can spend six months on these weekly benefits. Now, without getting too bogged down in all the procedural steps, that law change in New South Wales drastically changed the landscape for claims in New South Wales.

00:05:41

DT:

Well, because before that, it was the CARS process under SIRA, the State Insurance Regulatory Authority.

00:05:46

HG:

Yep, and it significantly reduced the amount of claims. For example, you used to be able to pretty much act for anyone who had been involved in an accident, and if they’d suffered an injury, you could most likely get them to some form of resolution where they receive a lump sum from the insurer, but this new law change completely wiped that out, and that’s replaced by this period of six months of weekly benefits.

TIP: The acronym CARS stands for Claims Assessment and Resolution Service. It was a key component of the New South Wales Motor Accident Scheme, outlined in the Motor Accidents Compensation Act 1999 (NSW), and it applied to people injured in motor vehicle accidents prior to 1 December 2017. Now, CARS was designed to provide a streamlined, cost effective method for resolving motor vehicle accident claims, and a lot of claimants chose to accept the awards determined by CARS assessors and opt not to pursue more formal legal action. The process is different now. For people injured in motor accidents after 1 December 2017, their claims are determined under the Motor Accident Injuries Act 2017 (NSW), which replaces the Motor Accidents Compensation Act 1999 (NSW), and it introduces two distinct types of claims; statutory benefits claims and common law benefits claims. Each type of claim is subject to its own set of forms, processes and procedures under the Act, but basically statutory benefits are available to all people injured in a motor vehicle accident regardless of fault.

These benefits include weekly payments for loss of earning capacity, payment for medical treatment and care. While damages claims are for non-economic loss, like pain and suffering, and economic loss, like past and future loss of earnings beyond the statutory benefits period. To make a damages claim, you have to have sustained an injury that’s not what the Act describes as a minor injury, and the accident must have been caused by the fault of another driver. The Act also places a duty on an injured individual to mitigate their damage. For example, under section 4.15, the injured person’s efforts to mitigate damages and the reasonable steps they could have taken or can take to mitigate their damages should be considered. These steps not only include seeking and receiving medical treatment, but also engaging in rehabilitation activities, pursuing alternative employment, and providing early notice of their claim to a potential defendant.

But, there are a small portion of people who suffer a severe enough injury, which exceed the 10 percent threshold, where it opens up a can of worms for the amount of damages they can receive. But again, it’s a very concentrated group of people. Now that’s just motor vehicle. You’ve got public liability. In Queensland, it’s governed by PIPA, the Personal Injuries Proceedings Act 2002 (Qld). That is a pre-court procedure, which again, is designed to avoid court. Now, on the other hand, in New South Wales, it’s pretty much, it’s under the Civil Liability Act 2002 (NSW), you are building your case, you’re issuing a letter of demand, and then you’re issuing court proceedings. So, it’s chalk and cheese with the steps that someone has to take to get access to compensation.

00:08:48

DT:

I guess in one way, working across both jurisdictions, you have this common thread of dealing with these pre-court procedures or these quasi-judicial proceedings, whether that’s in the motor vehicle accident space in New South Wales, or the public liability space in Queensland. It’s funny, you’d think that working across two jurisdictions might make it more difficult to work in all of these different frameworks, but in a way, there’s some similarities between the approach to public liability in Queensland and motor vehicle accidents in New South Wales. They complement each other.

00:09:15

HG:

Yeah. No, they do. They do at times, and sometimes you’ll have the same case in New South Wales and you just be pulling your hair out because of the differences and the difference in the outcomes. Someone who have suffered a similar injury in Queensland would be a very lucrative claim, but either wiped out or restricted to that six month benefits or whatever it is in New South Wales, so it can be really frustrating as a practitioner because the law is changing and people’s entitlements are changing and people’s expectations of how much they’re getting from claims are changing. Because you always hear someone comes in for an initial consult. They’ve spoken to Bob two doors down, who injured his back ten years ago by picking up a ton of bricks or whatever and injuring his back. He may have in excess of 500, 000 or whatever it is, hypothetically speaking. And now, with the law change, could be half of that or a tenth of that. It’s changing and that impacts people’s expectations, which we have to wrangle as we go along.

00:10:21

DT:

I guess that is one of the challenges of working in an area like this, in that a lot of clients have some experience personally or through someone else in their lives of the personal injury law system, but those experiences aren’t necessarily representative of the current state of the law, and there have been recent changes in the law. You know, 2017 is not so long ago that people wouldn’t have relatively recent memories of results under the old process, and it must be challenging to tell people, well, I’m sorry you heard that from so and so in your life, but that’s completely wrong now. You did mention though, a 10 percent threshold in New South Wales for motor vehicle accident claims and how that can have some really stark differences in results across the border. Tell me a bit more about that threshold and where that comes from.

00:11:06

HG:

Yeah, I slightly misspoke, it doesn’t mean that they don’t have a claim. It means that in particular, that threshold, you must get 11%. So you must be over 10 percent to be eligible for something called pain and suffering. Or three terms, pain and suffering, non-economic loss, or commonly referred to as general damages.

TIP: So Henry’s just mentioned a 10% threshold. Let’s break that down. People who are injured in a motor vehicle accident after the 1st of December, 2017, who were not at fault, can make a claim for damages, but the extent of that claim depends on the level of impairment. Where there’s a 10% or less, permanent impairment then this is considered a minor injury and the injured party can only claim damages for economic loss. If there’s a more than 10% permanent impairment then the injured party can claim damages for both economic loss and non-economic loss for things like pain and suffering.

So that is designed to award someone more compensation for the severity of their injury. And the cap changes every year, but it can be up to $450,000. But it’s a starting price of sometimes anywhere between $100,000 to $300,000 as a starting price. If you’re over 10%, irrespective of whatever income that you’ve lost, which is what those claims are restricted to now, someone can still be entitled to that general damages or non-economic loss, irrespective of them being unemployed or whatever at the time of the accident. So, yeah, that’s a big thing in New South Wales to wrangle.

00:12:40

DT:

It’s almost a bit of a continuation of the tort reform of years past where we had a cap on general damages, which as you say, it’s subject to indexation every year, but it’s around $450,000 at the moment. And that covered your general damages or your non-economic loss, pain and suffering, those three terms you described, which are awarded in addition to your actual economic losses, your loss of income, your loss of both actual income and future income, your loss of earning potential and medical expenses and the like. Am I right in thinking, in terms of how you were describing those weekly benefits for people who fall below that threshold, that that economic loss is compensated on an ongoing basis rather than on a lump sum? Is that how it works?

00:13:18

HG:

Yeah, so there is a six month time frame. So if someone is at fault, they have six months on the benefit scheme. Now, if they are not at fault, which is usually the most common when they’re coming to us, they can spend as long as they need on that system, so long as they have something called a certificate of capacity, verifying that they can no longer work. So, yes, it can benefit the injured claimants because they are incapacitated and they need benefits. But, a lot of them are having to deal with this new system where a number of claims or the severity of injuries are so scrutinised that if they just fall below that threshold, it doesn’t mean that they don’t have a serious injury. It just means, again, it’s an independent decision from a doctor and it’s nothing that they can control. But that’s, of course, a good segue into the implications from the Personal Injury Commission, PIC, where they have an independent assessment that takes place when two parties are in dispute over the level of the whole person impairment of the injured person. But again, it’s a flip of a coin. There’s good doctors and there’s some bad doctors on the PIC assessing panels. Not to talk out of school, but that’s the reality of the system at the moment. You don’t know what outcome you’re going to get. It’s only so much you can do to control it.

00:14:40

DT:

And I suppose in a way that’s the case for any litigation, right? Although, here you’re talking less about the inherent uncertainty of a judgment, more about the inherent uncertainty of the decision of an expert, which is quite difficult to challenge.

00:14:52

HG:

Yeah, there’s plenty of curly decisions, but also they get it right a lot of the time as well, and people are entitled to a significant sum of compensation as a result of that opinion.
So can’t knock them too much. They have a pretty difficult job.

00:15:06

DT:

This is something that’s interesting to me because when you think of those three areas that you described that make up the core of your practice, being workers compensation, public liability, and motor vehicle accidents, two of those, motor vehicle accidents and workers compensation, have been at one time or another in Australia’s legal history, very large, extremely busy lists in our courts, running as you described the Queensland system to sort of run with some of these claims, but have been subject to regulation to bring them into these pre court or quasi-judicial processes. And these busy areas of practice move in cycles in the same way that family provisions and Succession Act claims are now that extremely busy area in the Supreme Court of New South Wales. How do you find working across the jurisdictions and having some claims that are highly formal commenced in a court at a very early stage of the proceedings are subject to that process that you described of pleading your case, building your case, collecting that evidence and presenting it in that formal way and then having other very similar claims subject to that highly informal process…  How does your process with the client change and how do you see your role as an advisor and an advocate for the client differ when you have, on the one hand, a claim that’s going through that, as you described it, quite an informal process of assessment and on the other hand, a very formal, highly procedurally complex approach of going through the courts?

00:16:35

HG:

Yeah, well, the pre court procedures and the steps that they’ve taken in both states are working because there isn’t that issue of the courts being clogged up with personal injury claims out the door. My father, Jeff, explained to me very early on when I started in personal injury that they used to have up to 25 hearings in one list of their own…

00:16:59

DT:

Wow.

00:16:59

HG:

And that would be, probably now, I mean hundreds of cases all to be heard in a running list within a two week period.

00:17:09

DT:

That’s crazy.

00:17:10

HG:

Now, to give you the juxtaposition, I turned up to Lismore in the February sittings two months ago, and the matter list was about 10 strong.

00:17:22

DT:

Wow.

00:17:23

HG:

And the matter list was so small that the judge just stayed in Sydney and didn’t come to Lismore.

00:17:30

DT:

Yeah, right.

00:17:31

HG:

So, I mean, that’s just the evolution of law. Everything’s becoming AVL. No one wants to go to Lismore. You go to Sydney and it’s a much more streamlined process. But there are still plenty of practitioners who, you know, have successful practices in northern New South Wales. To circle back to your question about advising a client, it works to our benefit that they’ve brought in these pre-court procedures and the evolution of the law because we’re saving them so much money on not only legal fees, but the evidence and the court fees and everything that goes into preparing for a hearing is 10 times what you need at the first conference for a personal injury claim. So, it terrifies people when we show them the estimated amount of work to get to a hearing when compared to preparing for the informal pre-court conference. So, it works to their benefit because they’re getting more out of the claim than they would ordinarily get if they went all the way to court. So, it’s changing the relationship between you and your client. There’s a level of mistrust with injured claimants and lawyers because, you know, it’s unfortunately not the industry standard, but there are law practices out there that are still ripping people off and getting unfavourable outcomes for their clients where they’re designed to make money out of the claim and not help them.

00:18:58

DT:

Well, I was going to say, does this process change some of the business model or the economics of a personal injury practice? Because in the past you had these very large whip balances work in progress where you’d have a lot of claims entirely on spec or entirely no win, no fee, a high degree of risk for the ones that were defended, and there was an incentive for some practices to settle those claims on terms that would trigger some recovery for the firm, even if that maybe wasn’t the best result for the client. So have some of these informal processes changed the way practices are remunerated and change some of their incentives?

00:19:35

HG:

Yeah. Well, in Queensland, they brought in something called the 50/50 rule. The 50/50 rule protects an injured person in circumstances where their legal bill exceeds or is equal to the amount of compensation that they get from their claim. So a law practice is required to reduce their legal bill by the 50/50 rule, based on the amount of money that the claimant will receive in their pocket at the end of the claim.

TIP: Henry referred to the 50/50 rule. This is a reference to the charging of professional fees in speculative personal injury matters in Queensland and specifically the provisions of sections 345, 346 and 347 of the Legal Profession Act 2007 (Qld). Under those rules, a law practice that’s entitled to charge a client in a speculative personal injury matter can’t charge them more than half the amount to which the client is entitled under a judgment or settlement, after deducting any refunds the client’s required to pay and the total amount of disbursements which the client’s liable. There is an exception under section 347(2)-(3), where a law practice can seek the Law Society’s approval to charge more than the 50% amount but generally speaking, that 50% is the limit for fees in Queensland.

So, as an example, I give people, if the claim is worth $50,000 and a law practice estimates their fees to be $50,000 at the conference, then they must reduce their legal fees down to $25,000 and the client gets the $25,000. That’s one example, but the way in which people are bound by these cost regulations, it’s extremely serious. They are heavily scrutinised at the time of settling a claim, particularly in circumstances where the claim could be worth not that much. In New South Wales, they’ve got SIRA who contact you at the end of a motor vehicle claim to submit your costs to an online database. Now, that’s to track how much you’re charging a client and how much they’re getting in their pocket and what are the refunds. In the bad old days, they’d laugh at that thought of submitting your costs or being in any way scrutinised for the amount of fees that you charge a client. God forbid, that they charged more than the person got in their pocket.

00:21:55

DT:

That’s interesting. I thought that the change in the procedural approach might result in almost a natural evening out of the way lawyers in this space charge, but it sounds like the regulatory step of that 50/50 rule has made a big impact as has the oversight of costs in New South Wales with SIRA. Something I wanted to ask you about today and we’ll focus on it for the next little while is road accidents involving a fatality as an interesting subset of motor vehicle accident claims. Fatal road accidents have been increasing in Australia over the last couple of years, despite government programs designed to prevent them. In your experience and working on some of these cases, what are the factors that are leading to increased fatalities on our roads?

00:22:37

HG:

Well, not much has changed in terms of how these accidents are occurring. The main three that I could think of off the top of my head would be speed, drugs and alcohol, and mobile phones. Speed plays a huge factor in anyone’s accident, that’s self explanatory. But when you combine that with alcohol, mobile phone, and/or drugs, it’s a recipe for disaster. But look, I think the problem is, is that you don’t have any way of, well, as far as I’m concerned, verifying whether or not that person was on their mobile phone at the time of the accident. I mean, there are certain indicators that you get as a solicitor of when that occurs because number one, they don’t break and they don’t take any evasive action. So they’ve just hit someone as fast as what they were traveling moments before the collision. But then, fortunately, our technology with police and drug and alcohol scannings and things like that have improved drastically over the last 10 or 20 years, whereby people are charged and processed accordingly when they have any kind of substance or alcohol on their breath or in their blood. But the difference in all of those things contributing, impact that collision and the speed of that collision and the seriousness of it, which unfortunately leads to fatalities.

TIP: The Department of Infrastructure, Transport, Regional Development, Communications and the Arts publishes data on road crashes in Australia, and the most recent report released on the 10th of May, 2023 found that in 2022, there were nearly 1,200 road crash deaths, 1,194 to be precise, which was an increase of 5.8% from the previous year. It also reported that about two thirds of road deaths occur in regional remote areas, with the remaining one third, of course, occurring in major cities.

And look, fortunately, they are rare to a degree. Of my file list, only five to 10 percent of them may be fatal accidents. But they make up a number of different claims within that one accident. So if someone is fatally injured in an accident, you can have multiple claims come out of that one accident. You’ve got the nervous shock claim, which is a psychiatric claim made on behalf of a loved one of the person who is deceased from the accident. You’ve got dependency, or in New South Wales it’s called compensation to relatives, where they make a claim against the at fault driver’s insurance company for the loss of income or services which ought to have been provided by the person who was fatally injured in the accident. And then on top of that, you’ve just got, if there is a passenger in any of those vehicles, they would have a regular motor vehicle claim under the provisions. So, it can get extremely complicated.

00:25:39

DT:

Yeah, I imagine there’s some pretty unique issues dealing with claims by dependents who’ve lost a loved one. Thank you for laying out the causes of action that might be brought. It’s interesting that you’ve got that common law nervous shock claim, and then you’ve also got the statutory claim that dependents can bring. I suppose one of the challenges that you have in bringing one of these claims is, if the deceased person’s driving was affected by one of those factors you described that are contributing to fatal accidents on our roads, drugs and alcohol, distraction by a device or speeding, then you’ve instantly got to deal with an issue of contributory negligence, I suppose. What are some of the issues that dependents bringing that sort of claim in the circumstance of a fatal accident have to deal with?

00:26:23

HG:

Not only have they lost a loved one, but they’ve also got all of these legal hurdles to get over with multiple claims dealing with lawyers. Now, there is a misconception when a person is fatally injured in an accident, that there’s something called a wrongful death claim. Now in America, there is a wrongful death claim where people can seek damages in excess of millions of dollars for the loss of a loved one under circumstances where they shouldn’t have, or at the hands of someone’s negligence. Now, in Australia, that’s not the case. Their damages are strictly calculated based on what that person ought to have provided to the family, whether that’s through income or through raising their children as supervision and mowing the lawns and all the things that someone would do had they survived the accident or not been in the accident at all. So that’s something that’s extremely difficult for loved ones to accept when their loved ones are fatally injured in an accident, is that the compensation never really feels like enough. There still are extremely great outcomes, and I’d like to think we’ve done that at Atwood Marshall, but all they beg for is just their loved one to come back, which can be extremely difficult as the practitioner, to deal with some of those emotions.
And look, it can be extremely rewarding because they come to you with a life changing problem and it’s your job to step up and help them, but the biggest hurdle for them is the emotion. I mean, I couldn’t fathom losing a loved one in an accident, let alone having to relive that time and time again when explaining it to lawyers and doctors and going through the rigorous claims process. So that’s certainly something that sprung to mind.

00:28:04

DT:

Yeah, I bet there’s a lot of that vicarious trauma, probably in the same way that you have where you’re advising dependents on death benefits in work, health and safety claims as well. There’s a similar sort of statutory regime in place. It’s an interesting point you make about the misconception around wrongful death claims, because am I right in thinking, because this isn’t my area, the cause of action there is actually just a cause of action in negligence? It’s just that the dependent has themselves suffered some reasonably foreseeable harm arising out of the accident. It’s not a special secondary cause of action, is it?

00:28:41

HG:

No, no, it’s just negligence.

00:28:43

DT:

There are firms that advertise themselves as offering wrongful death services, right?
I wonder if there’s a perpetuation of this misconception in the public where there is a service being offered out in the market where we can bring wrongful death claims when the expectations of what that means based on what it means in the US might be completely different here.

00:29:07

HG:

Yeah. Well, I mean, it’s manipulating the type of claim to, I suppose, market it, in a way. It’s all digital marketing now. Someone wouldn’t Google when someone passes away in an accident ‘dependency claim in Queensland’, they’ll search ‘wrongful death’.

00:29:26

DT:

That’s a good point.

00:29:27

HG:

So not to impugn any of those law practices that are advertising like that. It’s simply not the case. But again, it is a manipulation of the legal term dependency and fatal accident claims that arise out of that. So no, it is not a wrongful death claim, but in a way making a claim as a result of a wrongful death, but by way of negligence.

00:29:52

DT:

Yeah. Look, it’s a good point you make that you’ve got to meet the client where they are. That’s probably what the person is looking for when they’re in this situation, not as you say, claiming negligence in respect of secondary loss suffered by a dependent. It makes sense. So returning to kind of road accident claims in general, whether they’re resulting in a fatal accident or not, what are some effective strategies for building a strong road accident claim, whether that’s one going through the pretrial processes or one that’s going to court?

00:30:22

HG:

Well, first of all, when they come in the door, you’re immediately trying to work out how soon after the accident they’ve come to you or how long from the accident they’ve come to you. Because particularly if they’ve got issues with liability as to whether or not they succeed, you’ve got a pretty short window to obtain evidence about how it occurred, who was involved, and when to lodge your claim. To give you a Queensland example, Gold Coast City Council only hold their CCTV footage for 28 days, and from that point, you cannot obtain it. So if someone’s involved in a hit and run or a claim against the nominal defendant by the person is either unregistered or unidentified. You have 28 days to obtain council CCTV footage, which is always the most useful. You’ve got 28 days to hustle around and get your evidence that you need to figure out who was involved.

00:31:17

DT:

That’s not a long time. How many clients are coming to you within that 28 days? I imagine it’s a minority.

00:31:23

HG:

It’s a very small percentage. I mean, we’ve had clients turn up in the office the afternoon of their accident, so there are exceptions. But look, people don’t want to think about a claim if it’s serious enough, they could spend up to a month in hospital or longer. So that 28 day period is obscene, but again, they cover an extraordinary amount of Queensland or in particular the Gold Coast for that City Council. So there’s no way that they can hold onto those records for that long, which I understand.
There are obviously other ways to obtain a version of the accident or witnesses, but people can fall short in that first 28 days of not being able to identify even just the colour of the car or the make.

00:32:05

DT:

I imagine that means that sometimes you’ve got to be a bit creative about where you find this evidence. I’m just thinking about an episode in our last season, Mark was on the show to talk about a significant case he worked on in his career as a Crown Prosecutor and mentioned finding CCTV footage, not from the City Council, not from public road safety cameras, but from an ATM that was facing out onto the street. Do you ever have to think a bit laterally about where you’re going to find some of this information?

00:32:34

HG:

Oh yeah, absolutely and unfortunately, you come to the same roadblock as the City Council, where they don’t hold onto the footage for a very long time at all. We had an accident here recently where it was just along the esplanade here of Coolangatta, which was a hit and run, and we had to pretty much approach those small businesses straddle the roadway and figure out whether or not they still had footage, whether or not they saw this person, whether they came into the store that afternoon. And again, it can be something to get you out of the office and get you thinking a bit more creatively about your job, but it’s disheartening when it doesn’t pay off, you’re trying to help someone and you’re trying to get evidence that you need but it’s either been deleted or removed or there’s nothing they can do to help you.

00:33:23

DT:

In the circumstances of a hit and run, where you might not be able to find that information, you mentioned before the Nominal Defendant, for some of our listeners who might not be familiar with the role of the statutory Nominal Defendant, could you tell us a little bit about that? Because that exists in both New South Wales and Queensland.

00:33:36

HG:

Yeah, the Nominal Defendant is a government owned insurance company that covers an injured person who’s been involved in an accident where the vehicle is either unregistered or has been unidentified, so they fled the scene. Now, in both states, I won’t go through the jurisdictional differences, but it at least allows people to have a chance of making a claim in circumstances where they ordinarily can’t. But they’re going too far into it. There’s something called proper search and inquiry, where there is a lot of onus on the injured person to identify the vehicle when they’ve been involved in an accident. So, there is a significant responsibility of the injured person maintaining some level of awareness about who they were hit by, what their number plate is, and what they could have done at the time to identify the vehicle, because it’s a problematic area where they are expected to have been able to obtain that information about the identity of the vehicle and they failed to do so. That can be fatal to someone’s claim.

00:34:52

DT:

I guess that’s where you’ve got to exercise some of those investigative skills that we were talking about earlier to do whatever you can to, if not find the driver, at least produce the evidence to show you’ve done everything you possibly could have. Now, we love stories on Hearsay the Legal Podcast. We love to draw some things out with some examples. Can you share a recent case or a notable case from your road accident practice that might draw out some of the things we’ve been talking about today?

00:35:20

HG:

Yeah, we’ve got unfortunately a long list of horror stories. This is mainly for the younger practitioners. One of the most memorable outcomes for me was very early on in my career, where I acted for an elderly lady who was injured in a relatively minor motor vehicle accident. And it really highlighted how important helping someone can be in those circumstances. She had relatively minor injuries. At that time, I was learning my craft and taking on a lot smaller claims, but she got a result, and her reaction is beyond the reaction that I’ve ever experienced since. So it really gave me a sense of perspective about how important, depending on the amount of money that someone gets, how important these claims can be. Her remarks to me were, “oh look, I can take this unidentified amount down to the pokies at Twin Towns and have a good afternoon with my husband”, and that was enough for her. And then you’ve got the other side of the fence where people are catastrophically injured in a motorcycle accident or lose a loved one. But that case will always stick with me as something that really sparked my interest in personal injury because of just the sheer elation that she felt when her claim had settled and she found out that she got this amount of money, which wasn’t much at all. But on the other hand, you have fatal accidents. We had a gentleman who lost his family in a flood. Now, what happened was his family was traveling besides a waterway in a car, and through one way or another, the vehicle ended up in the water, and of the four occupants of that vehicle, three of them passed away, two of them children and one of them an adult. And it’s an exceptional story of a young girl being able to escape and seek help, but the devastating impact that had on both her father and herself is unimaginable. Now, that’s one of those scenarios where no matter how much compensation that person is awarded, it never really reaches the level of their grief or their loss. But in the same breath, they can be extremely rewarding when they settle and you’re changing that person’s life from what it was had they not have made a claim. That was very heavily litigated. It was an extremely long, drawn out process through the litigated phase. But they got a really good outcome and we’re still in contact with that family to this day, and knowing that a young child has a significant amount of money sitting on trust until she turns 18 is certainly something that softens the blow when you’re acting in circumstances like that.

00:38:10

DT:

Those two stories really demonstrate the sheer range of cases that you can work on in a practice like this, but also how impactful the results that you can achieve are in either situation. That the impact in that relatively small case for that relatively small amount of money was something that stuck with you since your early days in practice, as much as something that profoundly changed someone’s life, both the accident, unquestionably for the worst, but the result you’re able to achieve unquestionably for the better. It’s, I think, a really interesting illustration of just how broad this area of practice is and how no two cases can really be alike, but also the level of, I suppose, emotional agility, I guess, that you need to be addressing both those extremely serious cases that can have that level of vicarious trauma on you as a practitioner to the ones that your client has a very different attitude and outlook on the case and its result.

00:39:10

HG:

Definitely, and people notice as a practitioner, and I’ve been working at Atwood Marshall for 11 years now, eight of them in personal injury, people know when you don’t take them seriously or if you’re not engaged. So it can be a difficult thing to sympathise when you may be working on a catastrophic case, 10 minutes before someone walks in with a simple fender bender, and you’ve got to be able to put that aside and give these people the time of day, because no matter how big or small the claim is, a claim worth $20,000 could be just as important to someone worth 2 million.

00:39:49

DT:

It’s a good point. It’s trite, but we say in any field of legal practice that we might be helping a client through one of the toughest times in their life, although it’s not significant or even memorable to us. It can be easy to remember how significant it is to the client when it is a fatal accident, when it is a catastrophic injury, but it is harder in the context of those cases to be reminded of how significant the $20,000 claim is for that client, and it’s important to be able to have that perspective that for your client, their case is incredibly important and one of the most important things that they’ll go through, one of the most difficult things that they’ll go through, even if it’s not the fatal accident, even if it’s not the catastrophic injury.

00:40:32

HG:

Yeah, that claim that I provided an example of earlier, earlier in my career, I’ll refer to it as the smaller claim, that’s the most amount of money she’s ever seen. People have very different perspectives on what value money is to them, and again, the reactions are the same. Someone It hugs me and brings me in and celebrates when they get a million dollars, but I can get the exact same reaction for someone who gets $5,000.

00:41:01

DT:

It’s interesting, isn’t it? And I suppose we talked a little bit before about some of the misconceptions about this area of practice, especially amongst the public who might’ve had a family member or a friend go through the process recently or not so recently and have certain expectations about how it’s all supposed to work. What are some other misconceptions? And these might be misconceptions that the public has, or it might even be misconceptions that other practitioners outside the area have that you’d like to debunk.

00:41:29

HG:

Well, look, you’ve got the ambulance chaser misconception. That’s something that my mates throw around facetiously. But look, I mean, to debunk the ambulance chasers, particularly here at Atwood Marshall, I can’t speak for the whole profession, but our intent and our objective is to help the person and yes, people are involved in accidents and yes, we must charge for the amount of work that’s needed to be done to get them to a resolution, but in no way do we look for accidents or chase ambulances or, do whatever misconceptions that people may have about personal injury lawyers. But at the end of the day, those remarks are very quickly silenced when someone is affected by an accident because I’m the first person they call. So despite some personal injury law firms reputations, particularly here at Atwood Marshall, I mean, we have a very strong focus on getting good outcomes and making sure that that person leaves and comes back for anything that they need. We’re all service, so quite often when someone’s personal injury claim settles, they’re getting their will done, they’re buying a house or whatever they’re doing. But second of all, personal injury claim isn’t just a lottery ticket. I’ve explained some of the evolutions of personal injury earlier in the podcast, and that intertwines into this notion of, it may have been a lottery ticket back in the day, both for the lawyers and the client, but it’s certainly not the case anymore.
You are extremely restricted to the amount of damages that you can receive from a claim and it’s purely based on what the medical evidence says and what the circumstances of that person has gone through. So people think that they can come into a law firm, they can lodge a claim and not answer a phone call for 12 months and get 100 grand in their pocket. It’s just not the case. It takes an enormous amount of legal work to build a claim, and the input and the dedication from your client. If you fall off the face of the earth, you’re not likely to get much at all. If you participate in the claim and follow advice, then you can be in that realm of getting a significant amount of compensation if it warrants.

00:43:45

DT:

Yeah, I think that’s a misconception that we see in a lot of areas of personal services law, that it’s a collaborative process. Your lawyer is there to help you through the process, but there is a lot of work expected from the client as well that they’re maybe not prepared for. Henry, we’re nearly out of time. Before we go, I wanted to ask you. As we said at the top of the show, this is an area that’s constantly changing, those changes can have some really significant impacts on the expectations of not only clients, but practitioners on how the process will work procedurally and some of the results that clients might be able to achieve. Are there any recent developments or trends either in New South Wales or Queensland and either in road accidents in particular, or personal injury in general that you wanted to share with our listeners?

00:44:33

HG:

Yeah, purely from a personal injury perspective, in New South Wales and again, motor vehicle claims, there’s that issue of the 10 percent threshold or exceeding that 10 percent threshold. What the New South Wales insurance companies have noticed is the amount of time that it’s taking for someone to get to the point where the PIC is determining their impairment. Now, what I’ve noticed recently is that they are wanting to settle the claim before they even get to that personal injury commission determination. So, I mean, if you are working in New South Wales and you’ve got motor vehicle claims, might be a good idea to pick up the phone and call the insurance company and try and scratch a deal. Because they’ve identified the protracted process that they have in place. And look, you’re not going to get the same amount that you get two years after the fact, or whatever it is. But, they are settling claims. So, that’s a benefit from New South Wales at the moment, in trends, in terms of personal injury. Now, I’m a Queenslander, so I don’t like to disparage my own state.

00:45:41

DT:

But you’re about to do that.

00:45:42

HG:

But I’ve noticed a trend in WorkCover claims, and I’ve spoken pretty openly about this in a few blogs, where they’re really taking advantage of the power imbalance between the injured person and WorkCover, which is extremely frustrating for a practitioner, particularly for plaintiffs, because what I’m finding is that the, I suppose you can call it red tape, that’s in the way of an injured person having access to compensation and having their injuries accepted onto WorkCover is becoming more and more difficult, particularly in circumstances where you’ve got independent WorkCover doctors, which are striking out those injuries and them having to come to us to undo that damage, which can be extremely costly and complete waste of time for a better term, for the injured person, of course. But yeah, it’s a real problem in WorkCover. I think there needs to be some reform in that regard to stop people from having to spend up to, you 18 months to two years of peer learning decisions from WorkCover to have access to their compensation.

00:46:47

DT:

Great practical tips there for practitioners in this space in New South Wales or in Queensland dealing with the regulators in both states. Last question before we go, Henry. You already shared some stories from early on in your practice and how they’ve shaped you into the personal injury lawyer that you’ve become. If you had any advice that you wanted to give to young professionals to starting out in the profession interested in pursuing a career in personal injury law, what advice would that be?

00:47:12

HG:

I’ve thought about this a little bit. You’ve got to take risks, you know, you’ve got to obviously work within your knowledge and your understanding of the law. But you’ve got to take some risks and make your job more exhilarating than it can be. But also, whilst you can gain knowledge from senior solicitors and senior barristers, you’ve got to maintain your own identity in the way that you practice. I found that senior lawyers will impose themselves on how they want you to practice, how they want you to write, how they want you to negotiate. But I think as a young practitioner, I tried to kick that trend a little bit and try and keep my own spin on the way I negotiate, the way I interact with my clients. Because at the end of the day, your practice is a representation of your personality and people pick up on that. If you’re sitting there robotic, explaining to someone how the Personal Injury Commission works, it’s not going to sink in. So, in a long-winded way, keep your identity in your practice because that makes you a lot more genuine than another practitioner.

00:48:25

DT:

Yeah, I couldn’t agree more, and I think that’s probably advice that applies in any field of law for a young practitioner. You’ll get lots of advice from your mentors, and your more senior practitioners, and your peers, and take the parts you like and discard the parts you don’t and develop your own personal style. Because as you say, not only are you going to be most comfortable and most happy practicing that way, but I think clients notice it helps with that bedside manner. Henry Garrett, thank you so much for joining me today on Hearsay.

00:48:53

HG:

Thanks very much, David. I’ll see you next time.

00:49:05

DT:

As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank my guest today, Henry Garrett, for coming on the show. Now, if you’re looking for more personal injury law related content, check out my interview with Clare Eves from Shine Lawyers about medical negligence cases, or for something different, listen to one of my favourite episodes from our last season with Mark Tedeschi on the power of a strong circumstantial case in a criminal law matter and his work on the Bruce Burrell case.

Now if you’re an Australian legal practitioner, as you know, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law point. For more information on claiming and tracking your points on Hearsay, check out the Hearsay website.

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