When the CARS regime started many years ago claims were generally exemptible where claimants and witnesses resided overseas, or even just interstate. However more recently it is becoming increasingly difficult, if not impossible, to obtain exemptions for such claims.
The only reason I have been given for this change of policy and approach is the advent of Skype. Skype may be all very well in small cases, and where the time difference isn’t a factor. However conducting a CARS Assessment Conference by Skype is hopelessly inadequate where the claimant’s injuries and losses are significant, there are multiple witnesses, there are language barriers, and where the claimant lives in an inconvenient time zone.
In most of my overseas cases I don’t get to see my clients until they’ve been repatriated to their home countries. That’s because seriously injured visitors to this country are almost always swiftly repatriated to their home countries at the request of their travel insurers. Under most travel insurance policies, liability to pay medical expenses ceases on the insured arriving ‘home’.
This tyranny of distance, coupled with the fact that many of the claimants and the potential lay witnesses, and even their doctors, don’t speak English, make it inordinately difficult and expensive to obtain the requisite statements information, evidence and instructions to do the claims justice. In most cases it is absolutely necessary for me to meet the claimants and their families to conduct interviews and obtain the requisite evidence. All of this makes prosecuting such claims inordinately expensive, excluding air fares which I never charge to my clients.
One problem is that the CARS costs regulations simply don’t compensate claimants for all the extra work and expense involved in properly preparing and prosecuting their claims. This results in foreign claimants being grossly under compensated and being disadvantaged financially, or their lawyers doing the work virtually on a pro-bono basis.
Also it is often the case that proper justice can’t be done in such cases unless the hearing takes place where the claimant and the majority of the witnesses live, either by way of Examination or a Hearing by a NSW judge.
These type of cases are few and far between – currently I only have three. In my opinion, exempting what is likely to be only a handful of cases won’t disadvantage insurers. Not to have them exempted however will cause significant disadvantage to foreign claimants.
Written by Tom Goudkamp.
Tom Goudkamp is Managing Director of Stacks Goudkamp. He has over 40 years of experience of successfully bringing compensation claims for people injured in motor vehicle accidents and regularly acts for foreign visitors injured in Australia. He is also a CARS Assessor.