Insights

The latest industry insights into compensation law.

Whiplash Claims – What is my claim worth and do I need a lawyer?

There is a general perception which exists that whiplash injuries are generally minor or trivial injuries and compensation claims for whiplash are typically low or lower value claims.

The statistical data published by the Motor Accident Insurance Commission supports this idea or contention and that more than 70% of all CTP claims involve minor injuries which includes whiplash claims.

However, some motor vehicle accident claims which involve whiplash can result in substantial damages being recovered.  

Clients or potential clients will often ask whether their whiplash injuries are serious enough to justify making a claim and also whether they should engage or retain a lawyer.

Every year, there are some people who sustain whiplash injuries from a motor vehicle accident who do not retain a lawyer and submit their claims with the relevant CTP Insurer. 

At the present time, the CTP Insurers in the Queensland market include AAI Ltd trading as Suncorp Insurance, Allianz and QBE.  RACQ has recently left the CTP market as they were not making a profit.  The other CTP insurers do not publish their financial information regarding how much of a profit they are making from their CTP license although we think they should.

The main advantage of not retaining a lawyer or law firm to pursue claim is saving legal costs.  In some cases, this makes sense and is a good idea if the claim is a low value claim where the value of the claim might or would be eroded by legal costs, however, there are protections which exists to ensure that legal costs do not swallow up the value of personal injury claims.

What is known as the “50/50 rule” is contained in the Legal Profession Act 2007 which simply means that after the deduction of statutory refunds such as paybacks to Medicare Australia and/or Centrelink and/or WorkCover Queensland and outlays such as medical reports, court filing fees, the law firm cannot charge more than 50% of what is left in legal costs. 

Many or most law firms who practise in personal injury law offer a free or no obligation initial case assessment. This will allow the injured person to receive some preliminary advice regarding their rights and options and also the law firm with an opportunity to consider the likely quantum (or full value) of the claim and also whether liability (or negligence) will be admitted or denied and to also advise on the economic viability of the claim.

Personal injury lawyers will not want to offer to take on a case on a speculative or “No Win – No Fee” basis if the case is unlikely to win and/or if the claim will not be economically viable to pursue.  They are both critical issues to consider and for injured people/clients to receive meaningful advice about so they can make an informed decision about whether to proceed with a claim or not and also whether to retain a lawyer or not. 

Some claims involving whiplash injuries can end up being quite substantial claims for damages valued at more than $100,000 or substantially more than this.  

The quantum (or full value) of the claim really depends on the nature and extent of the injuries sustained, the impact of the injuries on the injured person’s life and also the impact of the injuries on their work and functional work capacity.  

Some of the components or heads of damage include allowances for:-

  • Pain & Suffering
  • Out of Pocket Expenses
  • Past Loss of Wages/Income
  • Future Loss of Wages/Income
  • Past Loss of Superannuation
  • Future Loss of Superannuation
  • Future Medical Treatment
  • Past Care and Assistance 
  • Future Care and Assistance

If an injured person is not legally represented, the CTP Insurers generally pay the injured person less or much less.  This is primarily because the injured person does not know what the claim is worth and does not know how to calculate the compensation or damages.

CTP insurers would prefer to deal with injured people directly because they stand to make more money or higher profits because the average payouts are so much lower when injured people are self-represented.

Historically, the data released by the Motor Accident Insurance Commission demonstrated that if an injured person dealt with the CTP insurer directly, they might receive in the order of about $10,000 but if the injured person engaged a lawyer then the outcome, on average, was more like $90,000 to $100,000.  

One CTP Insurer (Suncorp Insurance) has gone as far as advertising for injured people to claim with them directly through Google AdWords.  The difficulty with this is the CTP Insurers are not there to provide legal advice and resolving claims for as little as possible what is in their best interests.   

If an injured person with whiplash injuries retains a lawyer to act for them, it is the responsibility of the lawyer to ensure that the claim is lodged on time and to recover the maximum amount of compensation or damages possible based on all the factual and medical evidence.  The CTP Insurers have no such obligation or duty.  

We think it is important for all injured people to have the benefit of some independent legal advice before making decisions about whether to make a claim with or without legal representation.  

Greg Black from vbr Lawyers
Greg Black
Director

Author

Greg is one of the founding directors of vbr Lawyers and has been practising exclusively in personal injury law since 1997 and has been admitted as a solicitor for over 20 years.

Greg is widely regarded as one of Australia’s leading compensation law experts. Greg has a very healthy practice and enjoys providing his clients with superior personal service in every case. Greg is absolutely committed to achieving the best settlement outcomes for his clients while keeping the legal costs down.

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