Finalising motor vehicle cases in New South Wales is either by the case being settled or decided by a Member of the Personal Injury Commission – PIC, rather than judges.
Indeed, the only motor vehicle compensation cases which these days are decided by judges are those where an insurer has totally denied liability on behalf of its insured driver, where the injured person lacks “legal capacity” because of brain injury, if the injured person is a minor, if the insurer has alleged that the claim is a fraudulent one, if the claim is too complex and ‘not suitable’ to be assessed by a Member of the Personal Injury Commission or possibly where the injured person lives overseas.
The system of finalising a motor vehicle case and deciding what compensation ought to be paid to injured road accident victims, whilst not perfect, is extremely efficient and considerably less stressful than having such cases decided in a court of law. For example:
- Members generally have more experience in assessing motor vehicle compensation claims than judges.
- The assessment hearings conducted by Members of the Personal Injury Commission are less stressful than court hearings. That is because Members read all the material, including medical reports, statements and written submissions well before the hearing commences. Therefore the Member hearing your claim already knows what the case is all about before the hearing even starts. Judges on the other hand often have no idea what a case is about until the court hearing is underway.
- The normal rules of evidence do not apply at an assessment hearing, unlike a court hearing. Cross-examination of claimants is generally kept to a minimum. In some instances the Member hearing the claim actually asks the majority of the questions instead of the barristers.
- Doctors are not required to attend to be cross-examined on their opinions.
- The claimant does not have to give evidence under oath although Members generally warn the claimant at the beginning of a hearing to be truthful at all times.
- Assessment hearings tend to be relatively short. The average time for an assessment hearing is two to three hours, including time spent on submissions made at the assessment hearing. Court hearings on the other hand can take days or even weeks.
- The decision of a Member is generally binding on the insurer, with no right of appeal. The claimant on the other hand retains the option of taking the case to the District Court (in practice this rarely happens because the District Court judge who ultimately hears the case will not be allowed to know the outcome of the assessment hearing. Furthermore, if the judge awards compensation which is not at least 20% higher than what the Member awarded, the claimant will be ordered to pay the insurer’s legal costs).
One downside of this system is that the claimants often have to pay a higher proportion of the legal costs than would be the case if the claim was decided by a court. This is because the costs payable by insurers to claimants in cases before the Personal Injury Commission are regulated and depend on the size of the compensation award. The lower the award the lower the costs the insurer has to pay. The gap between what the insurer has to pay for costs and the costs payable to the claimant’s solicitors can be significant.
HOW CAN STACKS GOUDKAMP HELP?
By choosing Stacks Goudkamp to represent you for your motor vehicle accident claim, you will be in the best of hands. You can be confident that your lawyer will have the knowledge and the experience and the personality and character to do his or her very best for you to ensure that your claim is successful and that the compensation process is as stress free for you as possible.
We will act for you on a no win, no fee basis. We will gather evidence from various medical experts, the police and other experts. We will also examine how your injuries have impacted your ability to participate in the activities you enjoyed prior to the accident and your ability to continue working. When finalising motor vehicle cases we conduct thorough negotiations with at-fault parties and insurers in order to obtain the maximum amount of compensation you are entitled to. In many cases, we are able to do this successfully without the need of going to court.
Written by Karina Goodall