What can I do if I've under-settled my personal injury claim?

An under-settlement of damages personal injury claim happens when a claimant accepts a offer of compensation that is less than would normally be awarded, based on their injuries.

There may be valid reasons to choose to accept less compensation (if you can afford to fund your recovery independently, for example). If success is not guaranteed, your solicitor may recommend accepting a lower offer rather than face the risk of going to court and losing.

However, in other cases, under-settlement can be the result of an error. This may be an error on the part of the medical professional who assessed your injuries, or on the part of your solicitor, who under-valued the loss and/or future losses you suffered as the result of the injury.

Reaching a settlement

Reaching a settlement with the person who caused the accident ('The defendant') avoids the need to go to court, and is the most common route for an injured party ('the claimant') to claim compensation for an injury. Some people, however, settle for considerably less than their claim is worth.

The under-settling claims is partly due to the way that the claims system works in the UK. Compensation is not paid automatically. A claim has to be made by the claimant or by someone acting on the claimant's behalf.

Making a claim does not, however, mean that a claimant will receive a specific amount of compensation.

Compensation can vary depending on a range of factors, including:

• medical and other evidence,
• the negotiation between the parties, including how soon the claimant wishes to settle, and,
• the route by which compensation is claimed

Identifying the party at fault

A claimant needs to know who is responsible for the accident, so compensation can be claimed from that person. It may not, however, always be clear who is responsible for causing an accident.

A claimant may, therefore, have to make enquiries to find out whom they should be making a claim against.

Sometimes the person responsible for causing a road traffic accident is unknown or cannot be traced. In these circumstances, a claimant will have to make a claim against the Motor Insurers Bureau ('MIB'). This is, of course, only possible if the claimant knows of his or her right to do so.

Establishing liability

Once a claimant has brought a claim, the defendant may or may not admit liability for the accident. If the defendant denies liability then the claimant will have to be prepared to prove that the defendant is liable. This may involve presenting evidence at court.

Valuing the claim

A claimant should be able to produce medical evidence of the nature, extent and effect of his or her injuries. To do this, a claimant will have to obtain one or more specialist medical reports.

A doctor examining a claimant will be asked to answer various questions in their medical report. It is therefore important to know what questions to ask the doctor.

A claimant may also have suffered financial losses as a result of an accident. These might include loss of earnings or the cost of medical treatment. A claimant needs to know what losses can be claimed for. Evidence will need to be obtained to prove the existence and value of the losses.

Negotiating

As it is normally the defendant's insurers who make payment of compensation, the insurance company will usually try to pay out less than a claim is worth.

Insurers will often try to tempt a claimant by making an offer to settle the claim quickly. This offer is often made for much less than the actual value of the claim.

A claimant must, therefore, know what his or her claim is worth and must be willing to refuse unreasonable settlement offers. This is why it is so important for a claimant to obtain proper evidence of their injuries and losses.

Settling a claim

Once a claim has been settled, it is almost impossible for a claimant to ask for the claim to be reconsidered. For that reason, it is imperative that a claimant ensures that they do not settle the claim too cheaply.

Work accidents Road accidents Public places Medical negligence Other accidents

Author:
Howard Willis, Personal injury solicitor

About the author

Howard Willis qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.