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In Australia, most personal injury claimed are settled without the need for a court. The legislation even encourages this, by requiring parties to attend a ‘compulsory conference’ to try to agree on a settlement before starting court proceedings.

Is this the best way to get the compensation your deserve if you’ve suffered a personal injury? In this article, we’ll look at why settle a personal injury claim rather than go through the courts.

What is a personal injury claim?

A personal injury is physical or psychological harm caused by someone else’s actions (or sometimes inaction). This can include motor vehicle accidents, medical negligence, workplace accidents and injuries in a public place, like a shopping centre or public transport.

If you’ve suffered a personal injury, you may be eligible to receive damages (compensation) from the responsible party by making a personal injury claim. For serious injuries, like permanent injury, you might be eligible for a lump sum payout.

To get everything you’re entitled to, you must prove that the other party directly caused your injury and that you’ve suffered a loss as a result. So you need enough evidence to support this claim, such as medical reports, photos and video, witness statements, and other documentation.

The first step is finding the right compensation lawyer to help you navigate your claim. Many people believe the next step is going to court to prove your case – but that’s not usually necessary in personal injury cases. Most cases settle out of court. But what is ‘settling’ and why settle a personal injury claim rather than going to court.

What is ‘settling’ in a legal case?

Personal injury laws encourage people who’ve suffered a personal injury to negotiate a fair settlement informally before starting formal proceedings. To start negotiations, you (or your lawyer) will provide a notice of claim to the party you believe caused your injury. You will then attempt to negotiate a settlement with that party and their insurer.

We strongly recommend engaging an experienced personal injury lawyer to negotiate on your behalf. Insurers will generally try to minimise your claim or find reasons to pay nothing at all. Proving negligence in a personal injury case is often the first hurdle that occurs when starting a claim.

Lachlan Main from Main Lawyers

How do you negotiate a Personal Injury settlement?

In personal injury settlement negotiations, the legal representatives for you and the party you believe responsible will exchange offers of settlement back and forth until you both agree. This is called a ‘compulsory conference’.

You are required by law to attend this conference before considering legal proceedings. It’s usually held in a solicitor’s office and takes a couple of hours.

Nothing discussed in this setting can be used against you or the other party later if the case does go to court.

The negotiations focus on 2 issues:

  • whether the other party was liable (and, if so, how much)
  • how much money you should receive based on your loss and the injury.

By the end of the conference, you should hopefully agree on an amount. But, if you can’t agree, you’ll both exchange ‘final written offers’ to consider. After 2 weeks, if neither party has accepted the other’s final offer, you can start legal proceedings through the court.

Why would someone settle their case quickly?

The personal injury claim process can be time-consuming and complex. There is no set timeline for how long a personal injury settlement will take. However, A typical claim can take anywhere from 3 months to several years to settle. This timeframe depends on:

  • the severity of your injury
  • how many parties were involved
  • the type of accident
  • your level of responsibility for what happened.

Insurers can also drag out cases and be unwilling to offer a fair settlement. Also, in the case of severe injury, it can take time for injuries to settle and for medical experts to determine the full extent of your injury and how it will affect your life.

Adding a court case to this complexity only extends how long it will take you to get the compensation you need to fully recover and pay bills while you’re unable to work.

There are other risks with going to court:

  • The outcome can be uncertain. You might end up with less than if you’d agreed on a settlement with the other party.
  • It can be more expensive as you may end up paying legal fees.
  • Court processes can take a long time – even years.
  • It can be invasive or stressful.

Will you get more money if you settle early or if you go to court?

It’s usually faster to negotiate a settlement than go to court – and it can cost far less.

If your injury was minor or your case is very simple, the settlement should cover what need and you may not get any more by going through the courts. Legal costs could just eat into your compensation.

There’s also something called ‘cost consequences’ which could be relevant. Earlier we discussed mandatory final offers, which each party can consider and accept within 2 weeks. If that doesn’t occur, you can pursue court action.

In court, a judge may review these offers. If the quantum (or value of the claim) is higher than your final offer, the other party may be penalised for not taking it – and vice versa (you may be penalised for not taking the offer if the claim value is less than what was offered. The penalty may involve paying the other party’s legal costs.

However, it’s not a simple decision. If you and the other party do reach agreement, then the claim is considered resolved and you have way to return later and proceed through the court if necessary. The settlement is final.

If you do have to go to court?

If you do need to go to court, it’s essential to have an expert lawyer with years of experience in these types of cases. They will only proceed to court if you advise them you want to do so. But they will ensure you know all the risks and have all the information to make an informed decision.

And if you do go to court, your personal injury lawyer will represent you to ensure that your rights are protected. Contact us today to learn how we can help inform you on your options.

Medical negligence lawyers Gold Coast

How Main Lawyers help

Now that you know why settle a personal injury claim rather than going to court it’s important you get the right help to ensure you claim goes smoothly. 

At Main Lawyers, we have provided information & help on many personal injury cases. If you’re in need of some advice get in touch to book your free consultation with us, where we can discuss your situation and answer all your questions. Contact us today to find out more!