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My brain loves storytellers and I find the act of sharing a story incredibly powerful – maybe that’s why I’m drawn to personal injury law, writes Gemma Barnard.
I may be a little late to the party, but 2022 was the year of the podcast for me. This year I’ve listened to countless current affairs debates, numerous TED talks, and pop culture commentary. I listen in the car, at home, on walks on the beach, and whenever I need to squeeze ten minutes of content into the day. My favorite format this year has undoubtedly been the podcasts, which feature interviews with interesting, complex and noteworthy characters.
Just last week I was listening to an interview with a man who had miraculously survived a horrific accident. So candidly, this man described his long rehabilitation journey and the process involved in learning to adapt and live with a disability. There is a controversial chapter in their story, sharing this person’s experience navigating the compensation law space and their interactions with their legal team.
After engaging in legal representation, this individual described how their legal team began to criticize any functional achievement as being “bad for the case”. Moving away from transportation, pursuing romantic relationships and new hobbies, and any positive online presence on social media were actively discouraged, causing tremendous frustration and internal conflict for someone who was simply grateful to be alive and coming to terms with living with a disability . From the plaintiff’s point of view, the use of this type of language by their own legal team extinguished what should have been euphoria of a sense of improvement and instead tainted it with guilt.
To me, much of this is unethical at best, but we cannot ignore the wider implications and impact of our language in this regard. As compensation lawyers, our duty is to advocate and advise – never to mentor. Although I am often asked if something would be “good” or “bad” for a given situation, I will always reject this language as it does not reflect reality.
While it is true that functional gain, minimization of the need for ongoing health and community support, return to work or training in some form, and improvements in symptoms may affect how compensation is calculated, in no world can these improvements to be labeled as ‘bad’.
In Queensland, the way compensation is calculated depends largely on the permanent disability. The principle of compensation, as set out in the old case of Livingstone v Rawyards Coal Co, is that the compensation must, as far as money can do, restore the injured person to the same position in which he or she would have been if the negligence which had caused the injury, had not occurred. I advocate for the best possible outcome for my clients in all respects, not just their compensation claims. While compensation can help with some of the adjustments that an injury or disability requires, making up for the human toll is often much more difficult.
As a personal injury attorney, I see myself as part of my clients’ network of collaboration and support. I encourage my clients to follow the advice of their treating professionals and if that means they rely less on their wheelchair, take on odd jobs or get back on the bike, I think that’s cause for celebration as recovery from injury should always be optimized, whether a claim is made or not – and we, as personal injury lawyers, should encourage this.
My brain loves storytellers and I find the act of sharing a story incredibly powerful – which is perhaps why I was drawn to personal injury law. I am honored and privileged that my clients trust me to tell their stories every day. I am committed to doing this with compassion, respect and candor, never forgetting that language is extremely powerful.
Gemma Barnard is an associate at Travis Schultz & Partners.
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