Opinion
Vampire in charge of the blood bank – a CTP insurer tale
4th Jul 2024
Let me tell you a story that even Bram Stoker would find hard to believe.
Scott and his wife were heading to a house auction on Saturday afternoon. They had spent years working hard, saving money for a deposit, looking for that ideal first home and undertaking hours of research in an attempt to identify the perfect property to buy. Regrettably, Scott and his wife never made it to the auction. They were involved in a serious motor vehicle accident that resulted in hospitalisation and surgery for Scott to repair a badly fractured lower leg and ankle, which will see him out of work for approximately twelve months. He faces the prospect of further surgery and extensive rehabilitation. His partner will have to continue working to support their family. Scott’s only likely income is any savings he may have accumulated to purchase their home, any private insurance he may have held, or government benefits such as Centrelink.
All is not lost, because Scott was not at fault in the motor vehicle accident. In Queensland, as most people would be aware, there is a compulsory third party (CTP) scheme paid for as part of your motor vehicle registration costs. Scott is entitled to pursue a claim for compensation (damages) against the driver at fault, with those claims paid by the CTP insurer for the vehicle at fault. Scott, as he is entitled to do, contacts the CTP insurer for the vehicle at fault, where he has his first encounter with Bram Stoker’s ‘Night Stalker’ (aka the CTP insurer).
Our recent experience as lawyers for people just like Scott, demonstrates how the ‘Night Stalker’ behaves when a client is unrepresented:
- Assisting self-represented clients to complete their claim forms and the ‘Claimant Certificate’ (without requiring them to be compliant or even witnessed);
- Not funding the rehabilitation needs of a claimant, but rather allowing the claimant to fund this out of their own pocket;
- Making offers to claimants to resolve the entirety of their claim while they are still undergoing rehabilitation;
- Making offers to resolve a claimant’s claim without any expert (medical specialist) reports as to the seriousness of a claimant’s injuries, a determination if those injuries are even stable or even the level of impairment the claimant may have;
- Making settlement offers that are grossly inadequate given the nature of the injuries sustained and the ongoing consequences of those injuries;
- Introducing the claimant to their own preferred ‘rehabilitation program and providers’, whereby the claimant loses the ability to choose their own treatment providers;
- Making an offer to a claimant and then encouraging the claimant to ‘put their best offer back to the insurer’ so they can start negotiating;
- Making offers to the claimant after only two months despite future surgery having been flagged – as it turns out the claimant now requires a cervical discectomy and fusion;
- Ceasing to deal with/talk to a claimant (and cutting off their treatment funding) as soon they advised the CTP insurer of their intention to seek legal advice about a settlement offer made by the insurer on the claim;
- Referring a lawyer to MAIC for not providing a Legal Practice Certificate when the claimant chose to seek an independent opinion/advice about an offer made by the CTP insurer;
- Clearly stating in correspondence to a new claimant ‘you do not need legal advice – we are here to help you with your claim’;
- Failing to advise a claimant that should their damages exceed a certain threshold, it will be the CTP insurer that has to pay a sizeable portion of any legal fees the claimant incurs with his/her lawyer; and
- Directing you to self-serving websites that warn of the evil lawyer looking to grab half of your settlement, and how speedy settlements are if you don’t engage a lawyer.
Yes, you are right to be frightened by the ‘Night Stalker’. People should never forget they are dealing with an ‘insurance company’ – the blood is theirs for the keeping.
Also, let’s assume Scott had made it to his auction and purchased a house: he would have needed a mortgage. Taking out a mortgage is a significant financial decision, perhaps one of the biggest a person may have to make. Scott cannot obtain that mortgage without independent legal advice, and the bank has to both warn him about that, and ensure that he has in fact obtained legal advice. But that is not so where a CTP insurer is concerned. How does Scott know if the settlement he is about to agree to is ‘fair and reasonable’. The CTP insurer is under no legal obligation whatsoever to ensure Scott has obtained independent legal advice about his claim.
This is no small issue. About 25% of all CTP claims are by people who self-represent. What the insurers will not tell you, and what you will not find out unless you do some deep diving into the Motor Accident Insurance Commission (MAIC) annual reports, is that you are likely to receive a significantly smaller payout if you are self-represented against the ‘Night Stalkers’.
Our firm is seeing an increasing level of effort by the ‘CTP insurer’ to resolve claims quickly – and who do you think that benefits? Better still if your claimant is not required to speak to a lawyer and perhaps encouraged not to. Unfortunately for Scott, and without some sort of guardian to intervene, he is likely to fall prey to Dracula, who will add his blood to their bank before looking for its next victim. Bram Stoker would be proud.
The ALA thanks Tim McClymont for this contribution.
Tim McClymont is a Partner at Travis Schultz & Partners (TSP), specialising in personal injury law since 2006. Tim has honed his skills through a close working relationship with Travis Schultz, now excelling in the personal injury field of Motor Vehicle Accident, Workers Compensation, and Public Liability claims. Recognised by Doyle’s Guide, Tim is committed to providing exceptional client service and community involvement. He holds a Bachelor of Laws from Deakin University, a Bachelor of Arts from Monash University and multiple qualifications in law and fraud investigation. Tim is a trusted advisor and advocate for those seeking injury compensation.
Image credit: Tim Alex – Unsplash
This is an edited version of an article first published by Travis Schultz & Partners.
The views and opinions expressed in this article are the author’s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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