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Guide for personal injury lawyers updated21 October, 2016
LPLC’s practice risk guide Pitfalls in personal injury litigation has been updated to assist practitioners who practise in this area avoid claims.
For many personal injury plaintiffs litigation is unfamiliar territory as well as being an emotionally-charged environment. Due to this and the complexities of personal injury legislation claims against practitioners arise for a variety of reasons including:
- poor communication with the client
- failing to manage the legal issues (typically at the front end of the retainer)
- a reactive approach to managing the engagement, which often leads to time limitations problems
- lack of continuity between operators handling a file
- oversight, sometimes underscored by resourcing or systemic failures that allow the oversight to remain undetected
- absence of contemporaneous files notes and correspondence.
From 2005 to 2015 over half of the cost of personal injury practitioner claims was attributed to workplace injury matters with most of this due to missed time limits or missed causes of action.
While personal injury litigation encompasses many different types of matters and legislative regimes the claims show there are some common kinds of mistakes that occur in all areas of personal injury litigation. These are:
- missing a potential common law claim
- strike-out of a plaintiff’s claim due to delay
- revisited settlements
- settlement on inappropriate terms.
There are also mistakes that are peculiar to or especially prevalent in a certain area, such as failure to appeal a decision of the Transport Accident Commission (TAC) where an application must be made within 12 months of becoming aware of the decision.
The guide details these pitfalls and provides examples of claims as well as recommendations on how to improve your risk management.