Settlement of any personal injury claim, including car accident injury claims, should never be undertaken unless and until the claimant’s injuries have reached maximum medical improvement and are therefore considered to be stable and stationary. The reason for this is that all parties need to wait and see what impact the injuries are going to have upon the claimant in the long-term.
Ordinarily, injuries sustained in a car accident will not become stable and stationary until at least 12 months after the motor vehicle accident. In cases where surgery is required or where there is prolonged recovery times or treatment required (for example, where fractures are not uniting or where there is a severe psychological injury arising out of the motor vehicle accident), it can take longer for those injuries to reach maximum medical improvement and be considered stable and stationary.
Once the injuries are considered to be stable and stationary, independent medical evidence needs to be obtained setting out the nature and extent of all injuries suffered by the claimant and the impact that those injuries are going to have upon the claimant.
Once that independent medical evidence has been received, you can then look at putting an offer of settlement together. The offer of settlement would need to cover off on all of the usual heads of damage including pain and suffering, past medical and other expenses, future medical and other expenses, past lost income and superannuation, future lost earning capacity and superannuation, past care and assistance and future care and assistance.
Ordinarily, the CTP insurer of the motor vehicle at fault for the accident will then try and negotiate a settlement informally, either by correspondence or by telephone.
If the car accident injury claim cannot be resolved by informal negotiations, then the parties must proceed to a compulsory conference (i.e. a settlement conference between the parties and their legal representatives, where applicable) where further negotiations can take place. At the compulsory conference, if the parties can still not agree on an appropriate car accident injury settlement amount, then they must exchange a Mandatory Final Offers, which are offers made in writing that must remain open for a period of 14 days.
If neither party accepts the other party’s Mandatory Final Offer, then court proceedings are commenced and there is then further opportunities to negotiate a settlement of the car accident injury claim at any stage thereafter.
Ultimately, if an informal settlement cannot be reached between the parties, then the matter will proceed to trial and a judge will ultimately decide how much the claimant should receive from the CTP insurer.