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The TAC has recently amended its Serious Injury Protocols.
The Protocols have been created in conjunction with a number of parties involved in personal injury law, that being the large firms and the Law Institute of Victoria. I am told 90% of the firms involved in personal injury compensation claims against the TAC participate in the Protocols. I will not write today on my views on the Protocols, but I can say my firm is one of the 10% of firms that do not participate in the Protocols.
What I would like to comment on today is your position as a client of one of the firms who do participate in the Protocols. I have from time to time looked at the websites of these other firms, and some say that you have to make your application for a serious injury certificate under the Protocols. That is not accurate.
The Protocols are a voluntary arrangement, and as such the arrangements made by others cannot be binding on you. You, as the injured person, have to decide if you wish to partake in the Protocols and that can be a very difficult decision.
The Protocols in the current form raise a lot of questions, such as why does the TAC need a lot of information about how the accident happened and who is at fault just to decide if you are seriously injured. In fact, in some cases, the seriousness of the injury is so clear, the serious injury certificate should be given without having to even ask for one. Who can dispute that a person in a wheelchair for life is not seriously injured?
For a person seriously injured, it may be extremely difficult to first question any personal injury lawyer’s advice that you must follow the Protocols, and if you are informed enough to question that advice, to review for yourself the Protocols to decide if they would be best for your own matter. What you really need is an opportunity to have someone not committed to the Protocols give you that advice.
And that advice should be sought before the Protocol submission is made on your behalf. I make that last comment, as our firm assisted an injured person who had gone to a firm that participated in the Protocols, made a submission, was told TAC had denied the request, and that they could not do anything further for him.
When he came to me, I simply asked a number of questions, and based on his answers dealing with a reduced work capacity as a self-employed painter, I felt quite certain we could get the serious injury certificate.
I reviewed the Protocol submission made by his former lawyers and could see how easily the Protocol system would simply not do justice to his matter. It is a system that looks to process matters in a simply fashion, and his matter was not simple. It was not overly complex either, it simply needed careful preparation and perseverance.
We had to issue proceedings in the County Court, and eventually a judge of that court granted the serious injury certificate. His settlement outcome of $250,000 was a considerable difference to being told he would never receive any compensation. David is the client’s name and his testimonial is on our website.
David was lucky to go and ask for a second opinion from our firm. I suspect many others do not, and simply have been told that the risks of legal costs orders against them is too dangerous. They have been left seriously injured and with no compensation.
Anyone in that position should seek that second opinion.
I would go one step further and say anyone being told that they HAVE TO make a serious injury application under the Protocols should seek the advice of the 10% of the firms that do not participate in the Protocols.
Of course that would include our law firm, Henry Carus + Associates.
A service we would happily provide without any fee to a client.
