Is there a role for restorative justice in personal injury?
Restorative justice is a theory and practice that has increasingly found its place in criminal matters. It is founded on the principle of bringing an offender and a victim together, so that the offender can apologise for their wrongdoing and the victim can explain how the event has affected them – which is often in infinitely more ways than the offender has ever contemplated.
Restorative justice aims to provide closure for both parties and is being rolled out by police in criminal proceedings as a voluntary option, post-sentencing. It is used in conjunction with victim support initiatives and also to try to stem the growth of crime and repeat offending.
Restorative practice, however, is applicable in most situations where a conflict arises. It is championed in New Zealand, where it first developed from Maori culture and where it was used to settle tribal disputes. It is now commonplace in the country’s justice system, as well as in schools and workplaces.
Personal injury claims
It is interesting, then, to consider whether restorative justice could be applied to personal injury claims. In most cases, following an accident, the defendant and the claimant will never come into close contact again, even at trial. The distance put between the two parties in a claim is necessary but can also be damaging. As lawyers dealing directly with claimants, we know the psychological impact even a seemingly straightforward accident can have: the claimant’s feelings of vulnerability and frustration can lead them to holding onto a lot of resentment, which is usually directed towards the defendant.
However, the claimant may not have considered that the defendant actually feels great remorse themselves, that they have also been left with injuries or that the claim against them has caused unknown problems. Either way, a restorative approach to helping both parties move on would allow them to express their issues to each other and decide on a change of behaviour for the future. For example, the defendant could take a driving refresher course, put better systems in place or donate to a relevant charity.
Obviously, the cost considerations around restorative justice are a significant concern. Its support in the criminal justice system is based on the reduced costs attributed to repeat offending, along with the volunteers who facilitate it. However, with increasing support and positive results, the practice could spill over into other areas, perhaps as a form of rehabilitation. Monetary compensation in personal injury will always have its place but, if you consider the basis of compensation in tort and putting the claimant back into the position they were in prior to the accident, restorative justice could certainly be applicable when considering overall well-being and the ability to move forward.
Posted on Nov 16th, 2016 by Lyons Davidson