About Clare Scollay

Clare Scollay is a PhD Candidate in the Faculty of Law at Monash University. Her research, which is supported by a scholarship from the Centre of Research Excellence in Recovery Following Road Traffic Injuries (CRERTI), is an empirical study of lawyer use in injury compensation systems. Clare has a background in psychology and has worked for several years in the areas of organisational and compensation health. She is currently employed at a private psychology practice, where she coordinates alcohol and drug rehabilitation programs for individuals in the Victorian criminal justice system.

Legal Services in Road Traffic Injury Compensation Claims: Who Uses Them?

This post summarises a new study that has just been published in the University of New South Wales Law Journal that looks at the socio-demographic, crash, injury, and recovery factors that are linked to legal service use among people who claim compensation for road traffic injuries. The article is part of my PhD work at Monash University, which looks at claimant legal service use in injury compensation schemes.

This article has been published with my supervisors Drs Janneke Berecki-Gisolf, Becky Batagol, and Genevieve M Grant.

Background: Personal Injury Legal Problems

Personal injury is one of the most common types of legal problem that people experience. A legal problem is a problem that can be resolved using the law. A personal injury is a harm to a person for which compensation can be claimed; this harm can be the result of a road traffic crash, workplace injury, product fault, or other occurrence.

Research by the Law and Justice Foundation of New South Wales shows that seven per cent of Australians aged 15 and above experience a personal injury legal problem within a 12-month period. One fifth of these people sustain their injuries in road traffic crashes. Road traffic injuries are linked to a number of negative outcomes (beyond the injuries themselves) including loss of income and financial strain, stress-related illness, relationship breakdown, and moving house.

Compensation for Road Traffic Crash Injuries

In Australia, compensation for road traffic injuries can be accessed by lodging a claim through the relevant insurer. In Victoria, this insurer is the Transport Accident Commission (TAC).

People who claim compensation for road traffic injuries engage lawyers to help them to access benefits, including through navigating the claims process and resolving disputes with insurers. Because of this, lawyer use is linked to access to justice (or the extent to which claimants can enforce their rights through fair and open processes). But, surprisingly, little is known about the characteristics that are linked to lawyer use in compensation schemes. The role of injury severity and recovery outcomes is especially unclear.

New Empirical Research on Lawyer Use in Compensation Schemes

This study used TAC compensation claims and payments data to look at how much claimant lawyer use was explained by (a) injury severity, (b) individual-level socio-demographic, crash, and injury factors, and (c) short- and long-term recovery outcomes in the TAC scheme.

The study found that although injury severity and other socio-demographic, crash, and injury factors shape claimant decisions about engaging lawyers, the experience of negative recovery outcomes (such as time off work, mental health issues, and/or pain issues) plays by far the most important role.

Because information about injury severity was only available for claimants who had been hospitalised, those who had and had not been hospitalised had to be looked at separately. In the hospitalised group, claimants with more severe injuries were more likely to use lawyers. In both the hospitalised and non-hospitalised groups, the other factors that were linked to lawyer use are shown in the image below:

Scollay diagram march 2020

What Does This Mean for Access to Justice?

This study shows which claimants are likely to need and use lawyers in compensation schemes.

One interesting finding is that socio-economically disadvantaged claimants, who tend not to seek legal advice outside compensation schemes, tended to seek legal advice in the TAC scheme. That is, disadvantaged clients were more likely to seek and obtain legal advice. This finding differentiates access to justice in the compensation scheme context from the rest of the civil legal system. One possible explanation is that personal injury lawyers often provide their services on a ‘no win, no fee’ basis, which takes away cost barriers for disadvantaged claimants. Understanding what leads to better access to justice for this group in the TAC scheme could improve access to justice for this group in other settings.

The study also shows that there are opportunities to improve access to justice in the TAC scheme in some groups, for example among young claimants.

 

You can find the full advance copy of the article here (open access).

The full citation for the article is Clare E Scollay, Janneke Berecki-Gisolf, Becky Batagol and Genevieve M Grant, ‘Claimant Lawyer Use in Road Traffic Injury Compensation Claims (Advance)’ (2020) 43 University of NSW Law Journal.