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.

 

Call for Papers for a Special Edition Australian Journal of Clinical Education

The Australian Journal of Clinical Education (AJCE) is an open access double blind peer reviewed journal devoted to issues of practice and innovation in clinical education in the disciplines of Law and Health Professional Education.

SPECIAL ISSUE: TEACHING AND LEARNING OF DISPUTE RESOLUTION IN HIGHER EDUCATION

Guest editor: Dr Bobette Wolski

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Photo Credit: Russ Seidel, Colour and Shape, Creative Commons

INTRODUCTION

An understanding of dispute resolution theory and the development of dispute resolution skills are now considered to be a crucial part of a balanced education in a wide variety of disciplines and programs. It is generally accepted that learning about dispute resolution is best facilitated using simulations, roleplays and clinical experiences. It is through such learning experiences that our students gain, amongst other things, competency in communication skills, an understanding of human
emotions and needs, and an understanding of and appreciation for the variety of ways in which disputes may be resolved (or at least, managed). However, while much has been written about the teaching of dispute resolution, there are still many questions that remain unanswered, and challenges to be overcome.

CALL FOR PAPERS

The AJCE invites contributions for a special issue of the journal which will focus on the teaching and learning of dispute resolution in higher education. The issue will be edited by Dr Bobette Wolski (Guest Editor) and Dr Francina Cantatore (Editor-in-Chief).

The Editors invite submissions of articles for review and publication in Volume 4, 2018 from academics, researchers, practitioners and students on all matters relating to the learning and teaching of dispute resolution in higher education in law and health care in Australia and globally.
Submissions could address, but would not be limited to, topics such as:
1. Effective ways in which to integrate dispute resolution education in the curriculum or program of learning
2. The impact of emergent technologies on the learning and teaching of dispute resolution
3. Teaching and learning of dispute resolution to make a positive impact on student well-being
4. How to prepare students for the increasing importance of dispute resolution in the global environment
5. Innovations in teaching and learning of dispute resolution
6. Tried and true: teaching methodologies that have been effective in teaching dispute
resolution theory and practice
7. Teaching for interdisciplinary understanding and practice of dispute resolution
8. Dispute resolution and access to justice
9. Can we teach students to act ethically in dispute resolution and if so, how and why?
10. Any other topics relevant to the teaching and learning of dispute resolution.

Please submit an abstract of your paper (abstracts should be no longer than 300 words in length) by 31 May 2018. In the first instance, abstracts should be forwarded to Bobette Wolski by email addressed to: bwolski@bond.edu.au. Please include your position description, organisation and contact details in the abstracts. Authors will then be invited to submit full texts of papers to the journal website.

The submission deadline for full papers is 31 August 2018.

It is anticipated that the special issue, which will be published as Volume 4, 2018, will be published late this year or early next year.
The style guideline is available here.
For more information visit here.