Brenton James has been providing legal services to the insurance industry for over 25 years primarily representing insurers. He acts as counsel and strategic advisor and has appeared as trial counsel in a large number of litigated matters. He provides industry advice across all matters but particularly those involving high risk, policy and legislative interpretation and fraud. He also provides counsel services to the firm's commercial sector and Board and other representation for a number of not-for-profit organisations. He is Managing Principal of Jones Harley Toole.
We had the pleasure of sitting down with Brenton recently to discuss key challenges and opportunities facing the industry today.
You can find the full Q&A below.
What are some of the key trends and developments in motor vehicle injuries?
The SA CTP has obviously seen massive change in the past few years with the amendments to the Civil Liability Act in 2013, the introduction of the Lifetime Support Scheme in 2014 and the introduction of private insurers in 2016. Change breeds uncertainty and nervousness. I think we are seeing the market start to move through the initial period of shock and uncertainty and start to focus on how the legislation and scheme will actually operate. There are enough claim numbers coming through to see what is working and what isn't. How Injuries will be assessed under the ISV schedule? What factors are important to determine if an injury is to be assessed as minor or moderate? How the uplifts may apply? We are starting to seem answers to some of those questions (at least in terms of how it is working in the market).
What’s one mistake you see people make regarding post 2013 motor vehicle injury practice?
2 Mistakes if I may:
Firstly, a belief that the changes would be the end of claims. That isn’t the case and the market is just starting to realise there are opportunities within the scheme for compensation (there may be an argument about the reasonableness of that compensation) but there is still plenty of work.
Secondly, a focus on the ISV's. The assessment of the ISV is very important (especially at thresholds) but the scheme has a wide range of other issues and compelxities which can positively and negatively affect damages so it is important to stay on top of the whole scheme rather than just the pressure point of the ISV.
Is there a key takeaway you can highlight from what we've learnt so far with the amendments to the Civil Liability Act?
The key takeaway is this – there is now greater pressure upon the legal profession to understand the scheme and recognise the positive and negative aspects which affect an entitlement.
Are there an particular considerations you think people should keep in mind regarding the effective use of IMEs and ISVMAs?
There is an important distinction between the two and we should ensure that we use each of them in the correct way. For example, continue to use IME's for advice and guidance in the management of the injury and recovery and the ISVMA for the assessment of the ISV
What’s a misconception some practitioners have regarding working with multiple insurers?
That is will be harder. Although each insurer may have small differences in the way they process a claim, there is a remarkable consistency between the insurers. There is a misconception that multiple insurers will double the complexity of managing a file load whereas I think in reality it will not be much different than a single insurer (other than addressing letters to the correct entity!).
What’s one tip you can offer regarding lawyers working with medical experts in motor vehicle accident matters?
My One tip – if you are not sure ask. I do not think we tap in sufficiently to the knowledge and expertise of the medical profession either for claims management or injury assessment. Lawyers fall into the trap of sending out the standard letters and then struggle if the answers come back that don’t quite offer a solution. Whereas many/most/all of the medical profession are generally keen to assist in injury management or assessment if asked and can assist help solve difficult medical issues which lawyers often try work through themselves.
You can hear more from Brenton at the Motor Vehicle Injuries in the New Market: Lessons Learnt seminar, being held on Thursday 16 November at the Stamford Plaza Adelaide Hotel.