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A key role of the personal injury lawyer is to value the claim and negotiate a settlement.  Most cases settle so as to avoid the uncertainty and expense of going to trial, but valuation is not a perfect science. It is a question of assessing the various heads of loss and arriving at value range that a judge is likely to award at trial and at a figure that the claimant is willing to accept and the defendant to pay.

In some cases, because of the inexperience and or negligence of the law firm or claims company a claim may have been settled at a value that is too low. If you believe this may have happend in your case you may be eligible to make a claim against your professional adviser. Stuart Kightley, specialist personal injury lawyer at Osbornes explains the claims valuation process and why mistakes can be made.

Valuation

The first element in a valuation is pain and suffering  and loss of amenity, what the lawyers call ‘general damages’.  Judicial guidelines and previous cases help with this process, and as a general rule the seriousness of the initial injury and the extend of any future disability are the most important factors, but pain and disability are difficult to measure objectively and no two cases will be the same.  Other important variables include the amount of overlap between multiple injuries, the claimant’s age and personal circumstances, so for instance an amputated little finger will be a devastating injury to a concert pianist and a facial scar may destroy the earnings potential of a model.

In addition to compensation for the injuries themselves, there will usually be a claim for other losses and expenses.  The purpose of personal injury damages is to put the injured person back into the position they would have been if the accident had not happened, so far as it is possible for money to do this. So there will often be a claim for loss of earnings whilst the injured person is unable to work and perhaps an ongoing loss where they return to work but in a less well paid capacity or if they need to retrain for alternative work.

There may be a compensation claim for loss of pension, loss of profit from a self employed business, loss of earnings capacity or loss of a vocation.  In serious injury cases there will often be claims for future care and support: adaptations to the home, workplace or car, care and support or case management, future surgery or other medical treatment, aids and equipment.  Future loss claims can become very complex, with legal and medical arguments about what is needed, how long for, how much it should cost  and how it should be funded. In less serious cases there will still often be a claim for care, gardening, DIY, motoring, medical and other expenses.

The valuation of loss is only one part of the equation.  Unless liability is admitted in full then an allowance will have to be made for the litigation risk  – the chance of losing the case entirely or of losing part of the claim for ‘contributory negligence’.   Then there may be deductions to be made, for state benefits repayment or interim payments already made.

Full and final settlement

There are two key points to bear in mind with any settlement.  The first is that it is evidence based and the second is that it is full and final.  So the personal solicitor has to prove the value of the claim by expert and other evidence. This will include a medical report that gives a diagnosis and a prognosis. Other experts, medical and non-medical may also be necessary.  Once a clear prognosis is given by the expert/s the lawyers can value the case.  Secondly, any settlement is almost always once and for all, where there is no return to the court for a reassessment even if the things turn out worse than expected.

The combination of these two factors means that a lawyer should be able to produce a reliable valuation of any claim, but can never be 100% certain that it will be precisely the right amount in that particular case.  Inevitably some people will be over-compensated and some under-compensated – the only way to prevent that would be to keep a case running until the injured person has completely recovered, which in many cases is impractical and undesirable.

So there can be no guarantee that any settlement is at absolutely the correct figure. A lawyer will have done his or her job properly if they can show that have obtained all the necessary evidence, claimed for all the relevant heads of loss,  produced a reasonable valuation based on the guidelines and case law, and taken into account any other relevant factors. But sometimes mistakes are made and sometimes corners are cut.

Why are cases undersettled?

The most common problems are where the lawyer lacks the necessary skill or expertise to value and negotiate the case properly, or where the pressure of time and fees leads to short cuts being made.  Increasingly, there is pressure in the personal injury claims industry to reduce costs, with the introduction of fixed fees and the reduction in rates of pay.  This can mean junior or unqualified case handlers running claims, and being required to run them quickly and at minimal cost, and then mistakes can easily be made.  There has also evolved the practice of defendants making settlement offers before a medical report has been obtained.  This is another cost cutting measure and it threatens serious under settlement because the lawyer will be unable to value the case reliably without a medical report but the injured person may be keen to agree an early settlement.

Another problem is that very many personal injury claims are handled by claims management companies, which are not regulated in the same way as lawyers (if at all) and where the staff are not qualified to litigate.  Their business models are often geared towards claims processing rather than resolving difficult legal issues, and they may not be able to provide the quality of service necessary for personal injury clients.

Law firms are required to carry professional indemnity insurance to cover the risk of negligence claims against them, and those insurers will deal with any claim and pay out on cases where it can be shown that the lawyer failed to advise properly on settlement and that the claimant suffered a loss as a result.

How Osbornes can help

If you believe that your case has been settled at a figure that is too low, because of a lack of evidence, care or experience, or a mistake in valuing the claim, then you may have a claim in negligence against the law firm or claims company that represented you.  At Osbornes Solicitors LLP our lawyers will be happy to discuss your case with you and to advise you whether or not you have a claim.  Please contact us today for free initial advice.

Written by Stuart Kightley

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