Some of the first few questions employers ask after being served with a damages claim is “What do we do now?“, ”How long will this take?”, and “Do we have to go to Court?“
Fortunately, there are many opportunities to resolve a damages claim.
informal negotiation
A claim might settle as early as a few weeks after service, provided the parties properly understand the claim and can advise their clients on the likely result at trial. If the competing parties have a similar understanding, it may be possible to reach a reasonable settlement.Â
Resolving a claim early may not only save all parties time and money, it may accelerate return to work and recovery from injury.
Informal negotiations can occur via telephone conversations between the solicitors, written correspondence or face to face.
compulsory conference
The parties have a statutory obligation under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) to attempt resolution of the matter at a ”compulsory conference” before the Claimant starts a Court proceeding. The parties are required to negotiate reasonably and productively at the conference and make their best offers which a Court may later consider when awarding costs.
after compulsory conference but before trial
Even after the Claimant has commenced litigation, the parties can continue negotiating and attempt to resolve the matter.Â
Sometimes if further assistance is necessary, the parties may engage a Mediator to find common ground and assist resolution.
Less rarely, if parties want certainty without the cost of a trial, they can engage in Case Appraisal, to have the matter determined by a qualified independent expert, although the decision is not as binding as a Court judgment.Â
trial
After a trial, a Court will give its judgment on all contested issues. However, it is worth pointing out that it is not uncommon for claims to settle ”on the steps of Court” immediately before trial or even after trial or after judgment has been handed down to avoid an appeal by another party.Â
As long as the risks are properly weighed and understood by everyone, destiny is in the parties’ hands to resolve a claim, or part of a claim, at any stage during the claim, to avoid incurring further costs or risks of an adverse trial outcome. This is a sensible consideration especially in low value claims where legal costs may outweigh damages.
There may be times when informal resolution is not possible despite the parties’ genuine attempts. This can happen when there are differences of opinion that cannot be overcome, or a matter is complex due to the involvement of several parties.
It is worth noting the importance of having the terms of settlement properly recorded. The terms of settlement must be reflected and documented in a properly executed “Release & Discharge” to avoid further dispute and complication down the track.
Consideration of a sincere expression of regret or apology before or at the time of settlement may also go a long way to repairing any rifts and make the process more beneficial for all parties.
