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

In: Prue Vines and Arno Akkermans (eds.), Unexpected Consequences of Compensation Law, Oxford, Hart Publishing, 2020 (pp 15-37)

24 Pages Posted: 21 May 2020 Last revised: 17 Sep 2020

See all articles by Arno Akkermans

Arno Akkermans

Amsterdam Law and Behavior Insitute (A-LAB); Amsterdam Centre for Comprehensive Law; Vrije Universiteit Amsterdam - Faculty of Law

Date Written: April 25, 2020

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 adversarial-ism 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-focused 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.

Keywords: Tort, Personal Injury, Compensation, Claims Resolution, Therapeutic Jurisprudence, Reform of Settlement Process, Victim Recovery, Non-Pecuniary Needs, Secondary Victimization, Perceived Injustice, Apologies, Acknowledgment, Reconciliation, Non-Adversarial Justice

Suggested Citation

Akkermans, Arno, Achieving Justice in Personal Injury Compensation: The Need to Address the Emotional Dimensions of Suffering a Wrong (April 25, 2020). In: Prue Vines and Arno Akkermans (eds.), Unexpected Consequences of Compensation Law, Oxford, Hart Publishing, 2020 (pp 15-37), Available at SSRN: https://ssrn.com/abstract=3585083 or http://dx.doi.org/10.2139/ssrn.3585083

Arno Akkermans (Contact Author)

Amsterdam Law and Behavior Insitute (A-LAB) ( email )

De Boelelaan 1105
Amsterdam, 1081HV
Netherlands

HOME PAGE: http://https://research.vu.nl/en/persons/arno-j-akkermans

Amsterdam Centre for Comprehensive Law ( email )

Faculty of Law, Initium Building
De Boelelaan 1077
Amsterdam, 1081HV
Netherlands

HOME PAGE: http://https://research.vu.nl/en/persons/arno-j-akkermans

Vrije Universiteit Amsterdam - Faculty of Law ( email )

Amsterdam, 1081 HV
Netherlands
+31205986286 (Phone)
+31205986280 (Fax)

HOME PAGE: http://https://research.vu.nl/en/persons/arno-j-akkermans

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