A personal injury claims handler can be liable if careless representation demonstrably led to a worse result. Think of missing a time limit, overlooking loss of income or settling without sufficient investigation. Lengthy handling or disappointing compensation is not in itself a professional error.
Who handled your personal injury case?
First establish whether you had engaged a lawyer, an independent representative, a claims settlement agency or a legal expenses insurance provider. ‘Personal injury claims handler’ is a job description and does not say which contractual or disciplinary rules apply. The engagement letter and correspondence show who was to represent your interests.
The opposing party’s claims handler plays a different role from your own representative. The fact that an insurer makes a low offer does not automatically make its employee your adviser. So first examine who owed which duty of care to whom.
Which errors can lead to damage?
- Failing to monitor the limitation period or a procedural time limit.
- Failing to investigate loss of income, pension loss, domestic help or future care when there was reason to do so.
- Taking insufficient account of medical uncertainty in a final settlement.
- Misreading an expert report or failing to put forward relevant counter-arguments.
- Advising a settlement without adequately discussing the consequences of a full and final discharge.
Settling too early and full and final discharge
After a full and final discharge, you usually cannot easily reopen the original claim. The precise wording and any reservations are decisive. An assessment of the representative looks at what was known at the time of the advice and what should reasonably have been investigated.
A later medical deterioration is not in itself proof of an error. Was the risk foreseeable? Was it discussed? Was a postponement, an advance payment or a reservation possible? Which choice would you have made with full information? Keep the drafts of the agreement, the advice and your response.
Loss of income overlooked
For loss of income, the actual development must be compared with the probable development without the original accident. On top of that, this new case raises the question of what amount could reasonably have been recovered with careful handling. Two comparisons are therefore needed.
Employment contracts, payslips, tax records, career plans and medical capacity for work may be relevant. For business owners, annual accounts and a substantiated forecast are also important. A high desired amount without employment-expert or financial substantiation is not a reliable calculation of damage.
Loss of a chance of a better settlement
An error may have taken away a real possibility of a more favourable outcome. That possibility is not the same as certainty of full compensation. Examine the medical substantiation, the liability dispute, contributory negligence, litigation risks and recoverability in the original case. An independent assessment helps to distinguish what was lost through the error from what was already uncertain.
What steps do you take now?
- Have any time limits still running and any possibilities of putting things right assessed immediately.
- Request the complete legal and medical file.
- Make an overview of missing items of loss and risks that were not discussed.
- Gather the settlement agreement and the advice on it.
- Have it determined who was responsible for the handling and which complaint or claim route is appropriate.
Was your claims handler a lawyer? Read also about holding a lawyer liable. If a legal expenses insurance provider handled your case, see liability of the legal expenses insurer.
Frequently asked questions
Can I hold the claims handler liable after a full and final discharge?
That can be examined. The content of the arrangements, the advice, the duty of care and the resulting damage are decisive.
Is slow responding enough for a claim for damages?
Not in itself. For compensation, damage caused by the careless conduct must also be substantiated.
Can I claim the entire difference with the compensation I wanted?
No. A substantiated comparison must be made with the outcome that could have been expected without the professional error.
Time limits, costs and your next step
Report the suspected error in good time and in concrete terms. A complaint and interrupting the limitation period are different acts. For claims for damages, a period of five years after actual awareness of the damage and of the liable person often applies, but special rules and other time limits may apply. Have the time limit for your own file checked.
Responsible lawyer: Onur Arslan. Contact us with a brief description and any urgent deadline. Discuss in advance the scope and costs of the investigation, possible expert costs and litigation risks. Recovery of all costs is not guaranteed.
See also the general professional liability guide for a step-by-step plan, a file checklist and an explanation of damage, causation and complaints procedures. Legal basis: Book 7 of the Civil Code (duty of care), Book 6 of the Civil Code (compensation and the duty to complain in time) and Book 3 of the Civil Code (limitation and interruption).
