Achieving Justice in Personal Injury Compensation: The Need to Address the Emotional Dimensions of Suffering a Wrong

Abstract

Research shows that perceived injustice is an important predictor of worse health and rehabilitation outcomes after injury. Fault-based injury compensation schemes are considered to be generally more anti-therapeutic than no-fault schemes. This chapter starts from the submission that the fault or no-fault basis of schemes is not necessarily decisive for the level of adversarialism of claims handling procedure, and that a more detailed knowledge is required of the mechanisms that lie behind the negative correlation of adversarialism with recovery and health outcomes. It recounts some findings in empirical studies on reconciliation and the elements and effects of apologies, to extrapolate these to the process of the resolution of injury claims. The emotional and moral impact of suffering harm as a result of a committed wrong as identified in these studies, is compared to the properties of the process of the out of court resolution of injury claims. After it is concluded that these properties generally do not address this impact but instead often increase it, several options are identified to tackle these anti-therapeutic effects. These options involve several aspects of the process of the resolution of injury claims, such as taking responsibility by taking and keeping the initiative, providing recovery-focussed services, promoting personal contact between the person responsible for the harm-causing event and the victim, promoting participation of the victim in the resolution process, having assessments carried out by neutral third parties, and more in general promoting the experience of procedural justice.