Will I Have to Go to Court for a Compensation Claim?

If you’ve been seriously injured and you’re weighing up a compensation claim, ‘will I have to go to court’ is often the very first worry — not the paperwork, not even the money, but the thought of standing up in a courtroom. It’s one of the most common questions we’re asked, and it’s completely understandable.

Here’s the reassuring part — most people who make a personal injury compensation claim in Victoria never go to a trial. Most claims are resolved through an informal conference, negotiation, or mediation. If a claim does reach a courtroom, it’s usually because a fair outcome couldn’t be reached any other way, and even then, you won’t face it on your own.

Below, we explain what “going to court” involves, why so few claims end in a trial, and how the answer changes depending on the type of claim you have.

Starting a Court Proceeding

A lot of the fear around court comes from a single misunderstanding, and it’s worth clearing up early.

When people picture “going to court,” they usually imagine a trial: sitting in a witness box, being cross-examined by a barrister, a judge and possibly a jury weighing up their case in public. That image is real. It’s also rare.

The court process and a trial are different things. Many claims involve some contact with a court or tribunal — lodging documents, a direction hearing where dates are set, or a court-ordered mediation — without the injured person ever giving evidence at a trial. Plenty of claims never reach a courtroom at all, because they’re resolved through the dispute-resolution steps built into Victoria’s compensation schemes.

So when we say most claims don’t “go to court,” what we really mean is this: most claims are resolved before anyone has to stand up and give evidence at a trial.

The short answer: most claims settle without a trial

Victoria’s compensation system is intentionally built to encourage resolution without a trial.

The County Court of Victoria, where many larger injury claims are run, notes that by the time a matter reaches a trial, it has usually already been through one or more mediations aimed at resolving it. The court can order mediation even if the parties don’t agree to it, and it actively encourages mediation early in a case. In other words, the system pushes hard towards settlement long before a trial is ever reached.

Why do so many claims settle?

• A trial is slow. It can take a year or more to reach a hearing, and longer again for a judgment. Most injured people can’t afford to wait that long for financial support.
• A trial is uncertain. No lawyer can guarantee what a judge or jury will decide. A negotiated settlement gives both sides a say in the outcome rather than leaving it entirely to a courtroom.
• A trial is stressful. Reliving an accident in public, under cross-examination, is hard. Where a fair result can be reached without that, it’s almost always the better path.

Insurers understand all of this too. In most claims, both sides have a strong incentive to reach a sensible agreement rather than gamble on a trial.

The ways a claim can be resolved without a trial

Before a claim ever reaches a courtroom, there are several formal ways to resolve it. These aren’t informal chats. They’re structured processes, and they’re where the vast majority of claims are settled.

Negotiation

Most claims are resolved through negotiation between your lawyer and the insurer. Your lawyer gathers the evidence — medical reports, records of your income, statements about how the injury has affected your life — and uses it to put your case for compensation. Offers and counteroffers go back and forth until an agreement is reached. This can happen in writing, over the phone, or via a videoconference. You are still involved every step of the way providing instructions to your lawyer.

Conferences and Mediation

If a dispute can’t be sorted out by negotiation alone, the next step is usually a form of alternative dispute resolution: a meeting run by an independent person whose job is to help both sides reach agreement.

Depending on your type of claim, this might be an early, informal conference, a settlement conference prior to going to trial, or a mediation. The names differ, but the idea is the same. Everyone comes together, with your lawyer beside you, to try to resolve the dispute. An independent conciliator or mediator helps the conversation along, but they don’t decide the outcome or take sides. Whatever is said is confidential and can’t be used against you later if the matter doesn’t settle.

Many claims that looked like they were heading for court are resolved at this stage.

A Medical Panel

Some disputes aren’t really about money or fault at all. They’re about a medical question, such as how much a permanent injury has affected you.

In Victoria, questions like these can be referred to an independent Medical Panel: a small group of doctors who examine you and give an opinion. It’s a medical assessment, not a courtroom, and the panel’s opinion can resolve the issue without a judge being involved.

Does it depend on the type of claim? Yes

The path your claim takes, and how likely it is to involve a court, depends a great deal on the kind of claim you have. Victoria runs several different compensation schemes, and each has its own process.

Work injuries (WorkCover)

If you’re hurt at work, your claim usually starts with statutory WorkCover benefits, such as weekly payments and medical expenses. If the insurer rejects your claim or stops a benefit and you disagree, the first step isn’t court. It’s conciliation at the Workplace Injury Commission — the independent body that was called the Accident Compensation Conciliation Service until September 2022.

Conciliation is free, informal and designed to resolve disputes without going to court. Some disputes can also be sent from here to the Medical Panel, the Workers Compensation Independent Review Service (WCIRS), or arbitration as a lower-cost alternative to the Magistrates’ Court.

If your injury is serious and was caused by negligence, you may also be able to bring a common law claim for damages, on top of your statutory entitlements. Even then, the law requires a settlement conference before court proceedings can begin. Court only becomes necessary if the insurer won’t accept that your injury meets the legal “serious injury” test, or if a fair settlement still can’t be reached despite best efforts at negotiating.

Transport accidents (TAC)

If you’re injured in a road or transport accident, the TAC provides “no-fault” benefits regardless of who caused the crash — medical treatment, income support and so on. Most disputes about these benefits are resolved through internal review, a Dispute Application, or by lodging an Application for Review with the Victorian Civil and Administrative Tribunal (VCAT).

If your injury is serious and someone else was at fault, you may be able to bring a common law claim for additional compensation. To do that, the Transport Accident Act 1986 requires either a whole person impairment of 30% or more, or a Serious Injury Certificate from the TAC. Once you’re eligible, the TAC’s own process involves an informal settlement conference to try to resolve the claim. As the TAC itself describes it, this conference happens much earlier, and is far less daunting, than a court hearing. If the TAC won’t accept that your injury is serious, you can ask the County Court for permission to bring the claim, but that’s a threshold step, not a full trial.

Public liability

Public liability claims — a slip in a shopping centre, a fall on a poorly maintained footpath, an injury at a venue — are governed by Victoria’s Wrongs Act 1958. There’s no special tribunal for these.

It is possible to request an early settlement conference before Court proceedings are even issued. If you do end up having to start your Court case, you are still able to potentially resolve your case through negotiation or mediation. In practice, most public liability claims settle before a final hearing.

Medical negligence

Medical negligence claims follow a similar path to public liability claims, with one important difference: they turn on expert medical evidence.

A poor outcome, or a known complication, in the context of medical treatment does not on its own mean negligence. Medical treatment always carries some risk, and not every disappointing result is someone’s fault. A medical negligence claim generally requires evidence that the care fell below the standard reasonably expected of the profession, and that this failure caused or contributed to your injury.

Because of that, these claims involve careful investigation and independent expert reports before anything is issued in court. Most resolve through negotiation or mediation once the evidence is in.

If you start Court proceedings, what happens?

Sometimes court can’t be avoided, usually because the other side won’t accept responsibility, disputes how serious your injury is, or offers far less than the claim is reasonably worth. If that happens, a few things are worth knowing.

Issuing court proceedings doesn’t make a trial inevitable. Once a claim is “in court,” it moves through a series of pre-trial steps, which are all designed to narrow the issues in dispute, have both sides gather and confront the key evidence in the case, and encourage cases to settle. This is also why Victorian courts require mediation along the way. A great many claims settle at that mediation, even after proceedings have started. Only a small proportion run all the way to a trial and a judgment.

If your matter is one of the few that does reach a trial, you may be asked to give evidence about the accident and how the injury has affected you. That’s the part people dread most. It’s also the part your lawyer prepares you for thoroughly, explaining what will happen, what you’ll be asked, and what to expect, so that you walk in understanding the process rather than facing the unknown. You won’t be sent in on your own.

What makes a trial more likely?

No one can tell you at the very start exactly how your claim will end. But some things make a trial more likely:

• Liability is genuinely disputed — the other side denies they were at fault.
• A threshold is disputed — for example, the insurer doesn’t accept that your injury meets the “serious injury” test.
• The gap is too wide — the offer on the table is a long way from what the claim is reasonably worth.

Even in these situations, a trial is usually a last resort, reached only after negotiation and mediation have been tried.

What should you do if you’re worried about court?

If the fear of court is what’s holding you back from getting advice, it shouldn’t be. A few practical things help:

• Get advice early. Understanding your options tends to make the whole process feel far less frightening than the imagined version.
• Ask questions. An experienced personal injury lawyer will explain, in plain language, what your claim is likely to involve and how often matters like yours actually reach a trial.
• Keep your records. Medical records, receipts and a simple note of how the injury affects your daily life all help a claim resolve sooner.

Frequently Asked Questions

Do most personal injury claims in Victoria go to court?

No. Most personal injury claims in Victoria are resolved through negotiation, or mediation, without a trial. Victoria’s compensation schemes and courts are designed to encourage settlement, and the courts require or encourage mediation before a matter reaches a hearing.

Will I have to give evidence or be cross-examined?

In most claims, no, because most claims settle before a trial. You would generally only give evidence if your matter proceeded all the way to a trial, which is uncommon. If that does happen, your lawyer prepares you thoroughly beforehand, so you know what to expect.

Can I be forced to go to court?

You can’t be forced to accept a settlement you’re not happy with, and no one can force you to sue. If your claim is disputed and you want to pursue it, a court may ultimately need to decide it — but that’s a decision you make with your lawyer’s advice, and only after other options have been explored.

How long does a claim take if it doesn’t go to court?

It varies with the type and complexity of the claim, and with how long your injuries take to stabilise. Many claims resolve within roughly a year or two of your condition becoming stable, though some take longer. Your lawyer can give you a realistic estimate for your circumstances.

What happens at a mediation or settlement conference?

Both sides meet, usually with their lawyers, to try to resolve the claim. An independent mediator helps the discussion but does not decide the outcome. Often the parties sit in separate rooms while the mediator moves between them. What’s said is confidential. If an agreement is reached, it’s usually final.

If my claim settles, is it made public?

Generally, no. Settlements reached through negotiation or mediation are usually private, and often confidential. A public hearing only arises if a matter proceeds to a trial.

How Henry Carus + Associates can help

The prospect of court stops many injured people from taking the first step. It shouldn’t. For most of our clients, a claim is resolved without ever seeing the inside of a courtroom and where court does become necessary, we make sure you understand every step and never face it alone.

Our expert team of lawyers take the time to understand your injury, your circumstances and what matters to you, and we explain your options in plain language so you can make decisions with confidence. That’s the standard of care we believe every injured person deserves.

We act on a no-win, no-fee basis, which means you pay nothing unless we win. Furthermore, we offer a unique 90-day satisfaction guarantee so if you are unhappy, you can walk away, no string attached.

If you’d like to understand where you stand, contact our team for a confidential, no-obligation discussion about your options.