CLAIMING JUSTICE IN INJURY LAW GENEVIEVE M GRANT* Contemporary personal injury law lives and breathes in the bureaucratic processing of compensation claims. Little empirical legal scholarship has explored claimant experiences in Australian compensation systems, despite their central role in access to justice for the injured. This article explores claimant experiences in compensation processes using data from a large longitudinal cohort study of patients admitted to hospital with injuries in three states (Victoria, New South Wales and South Australia). At 6 years after injury, participants (n=332) who had pursued claims in transport accident or workers’ compensation claims were interviewed about their experiences. The study highlights the diversity of claimant experiences and key themes in claimant encounters with compensation systems, including the relationship between rights information, advocacy and representation, and the inherent justice-based tensions in claims processing. The fi ndings demonstrate that analysis of claimant experiences of injury law in its primary, bureaucratic form can provide important evidence for the evaluation and development of compensation systems. I INTRODUCTION Forget judgments in courts and textbooks on torts.1 For claimants, the lived experience of personal injury law is about the bureaucratic processing of compensation claims. Transport accident and workers’ compensation schemes dominate the Australian injury law landscape. Each year, more than 300 000 * BA, LLB (Hons), PhD (Melb). Lecturer, Law Faculty, Monash University. This research was funded by the Transport Accident Commission, WorkSafe Victoria and the Institute for Safety, Compensation and Recovery Research. The author sincerely thanks her generous collaborators, Prof David Studdert, A/Prof Meaghan O’Donnell and A/Prof Matt Spittal. Thanks are also due to the Injury Vulnerability Study team, Mr Philip Marquet for valuable research assistance, Dr Michael Eager for programming expertise and to Prof Les Boden and the two anonymous reviewers for their helpful suggestions. 1 Many tort texts seem disconnected from the empirical reality of injury. There are exceptions, the standout being Harold Luntz et al, Torts: Cases and Commentary (LexisNexis, 7th ed, 2013) ch 1, as described in Reg Graycar, ‘Teaching Torts as if the World Really Existed: Refl ections on Harold Luntz’s Contribution to Australian Law School Classrooms’ (2003) 27 Melbourne University Law Review 677, 677–82. Claiming Justice in Injury Law 619 new claims are accepted in these schemes,2 where they join the existing ranks of active, unresolved claims.3 Claims managers — those tasked with determining eligibility, assessing injuries, measuring loss and calculating benefi ts — are the key facilitators of the processes in which claimant rights and insurer liabilities are negotiated.4 In the vernacular of insurers and compensation schemes, claimant experiences of these processes are described in terms of client service and satisfaction.5 It is in these interactions that the vast majority of claimants access the justice of Australian injury law. The statutory objectives of compensation schemes typically include promoting claimant rehabilitation and delivering just compensation as eff ectively and effi ciently as possible.6 There is, however, remarkably little legal scholarship exploring claimant experiences of scheme performance against these aims. This constitutes a critical knowledge gap about the operation of compensation schemes as legal institutions. Injury is both a signifi cant contributor to the burden 2 This estimate was generated by adding up data on annual new case numbers across schemes. The estimated national total of transport accident claims (n = 54 296) was derived by adding the most recent annual new claims fi gures for complete accident years contained in the annual reports of the state- based transport accident compensation authorities and regulators: Transport Accident Commission (Vic) (‘TAC’), Getting Lives Back on Track: 2013–14 Annual Reportt (2014) 4 (n = 22 012 in Victoria in 2013–14); Motor Accidents Authority of NSW, Annual Report 2013–14: the Facts, the Figures, the Future (2014) 20 (n = 14 360 in New South Wales in 2013–14); Motor Accident Insurance Commission (Qld), Statistical Information — 1 July to 31 December 2014 (2015) 5 (n = 6275 in Queensland in 2013–14); Insurance Commission of Western Australia, Annual Report 2014 (2014) 20 (n = 3561 in Western Australia in 2014); Motor Accident Commission (SA), Annual Report 2013–14 (2014) 8 (n = 4634 in South Australia in 2013–14); Motor Accidents Insurance Board (Tas), Annual Report 2013– 2014 (2014) 6 (n = 2924 in Tasmania in 2013–14); Territory Insurance Offi ce (NT), Motor Accidents Compensation Year in Review 2012–13 (2013), 14 (n = 530 in the Northern Territory in 2013). Data was not available for new claims in the Australian Capital Territory so the total estimate for the annual number of claims reported here is an underestimate. In the case of workers’ compensation, to enable cross-scheme comparison, Safe Work Australia has long had a practice of only reporting the incidence of ‘serious claims’, being those involving claims for one or more weeks of work absence, permanent incapacity or death. The total number of new claims (serious and non-serious) appears to have last been reported in 2005–06, when a total of 255 300 claims were lodged with state and territory workers’ compensation authorities (Safe Work Australia, Work-Related Injuries in Australia, 2005–06: Comparison of Compensation Data with all Incurred Work-Related Injuries (2009) 1). 3 Inconsistent reporting practices across schemes make it diffi cult to establish the number of active claims in any given year. In a rare exception, the Transport Accident Commission in Victoria reported delivering benefi ts to 47 115 claimants in 2013–14, compared to its new claim tally of 22 012 for the same period: TAC, above n 2, 4. Workers’ compensation schemes around Australia tend to report only new claims and claims rates: see, eg, Victorian WorkCover Authority, Annual Report 2014 (2014) 20. 4 As Halliday, Ilan and Scott note, ‘it is well established that the vast majority of decisions concerning legal rights are made by bureaucrats in both public and private organisations’, rather than courts: Simon Halliday, Jonathan Ilan and Colin Scott, ‘Street-Level Tort Law: The Bureaucratic Justice of Liability Decision-Making’ (2012) 75 Modern Law Review 347, 347. 5 See, eg, the client service key performance indicators and charters adopted by a number of schemes, such as the customer service charter of the New South Wales Safety, Return to Work and Support division (which encompasses that state’s Dust Diseases Board, the Motor Accidents Authority, the Lifetime Care and Support Authority and WorkCover NSW): NSW Safety, Return to Work and Support, Safety, Return to Work & Support Customer Service Charterr <http://www.maa.nsw.gov. au/__data/assets/pdf_fi le/0008/26954/SRWS-Customer-service-charter.pdf>. 6 See, eg, Workplace Injury Management and Workers Compensation Act 1988 (NSW) s 3; Motor Accidents Compensation Act 1999 (NSW) s 5; Transport Accident Act 1986 (Vic) s 8; Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 10. 620 Monash University Law Review (Vol 41, No 3) of disease7 and one of the more common kinds of justiciable problems aff ecting the community.8 Though law has been slow to embrace the value of empirical data and evaluation in the development of justice policy,9 analyses of the public’s experiences of everyday legal problems have emerged as an important source of insight into the extent to which people are able to access justice.10 The broader review of compensation systems brought on by the National Disability Insurance Scheme,11 the mooted National Injury Insurance Scheme12 and other high-profi le reform projects13 intensify our need to better understand claimant experiences of injury law. This article argues that the bureaucratic processing of compensation claims is a neglected but signifi cant setting for the delivery of justice. It investigates claimant experiences of claims processing through a large empirical study involving transport accident and workers’ compensation claimants in three Australian states, and explores the nature of injury compensation systems as justice- dispensing institutions. The article begins by laying out the neglectful treatment of injury compensation schemes in Australian legal scholarship, and situating the research in the existing (predominantly international and interdisciplinary) evidence based on claimant experiences. It then introduces the empirical study, and presents two sets of fi ndings — fi rst, quantitative evidence of claimants’ broad experiences of claims processes, and second, more in-depth qualitative evidence of claimants’ refl ections and suggestions for change to improve practice. 7 Rafael Lozano et al, ‘Global and Regional Mortality from 235 Causes of Death for 20 Age Groups in 1990 and 2010: A Systematic Analysis for the Global Burden of Disease Study 2010’ (2012) 380 Lancett 2095; Christopher J L Murray et al, ‘Disability-Adjusted Life Years (DALYs) for 291 Diseases and Injuries in 21 Regions, 1990–2010: A Systematic Analysis for the Global Burden of Disease Study 2010’ (2012) 380 Lancett 2197; Marisol Concha-Barrientos et al, ‘The Global Burden Due to Occupational Injury’ (2005) 48 American Journal of Industrial Medicine 470. 8 Christine Coumarelos et al, Law and Justice Foundation of