Justice, Janus-like: The future of Australian personal injury compensation

Abstract

‘Justice, Janus-like’ is a comparative assessment of the ability of the negligence system and the pure no-fault system to provide ethical, fair and adequate compensation to victims of personal accident in Australia. This paper arose from a concern that neither of these schemes fully satisfies the needs of victims and society. The comparative assessment focuses on three key goals of personal injury compensation schemes: adequate and quick compensation, deterrence potential, and the ability to achieve social justice. By evaluating the tort of negligence and a pure no-fault compensation scheme against these criteria, this essay found each system is fundamentally flawed. As such, this paper proposes that the fairest, most effective and socially useful mechanism to compensate victims of personal injury is through the implementation of a hybrid system: the tort of public liability. This alternative is capable of achieving all the key goals of personal injury compensation, while at the same time avoiding the challenges faced by both the negligence and no-fault systems. Australia is quickly moving into the future of personal injury compensation, with more jurisdictions considering the implementation of full no-fault schemes. This paper demonstrates that this approach is imperfect and, as such, an alternative scheme, such as the public liability tort, must be considered. As we move into the future, we must seriously consider the shortcomings of our current legal system, and find a way of compensating victims that achieves all three aims of compensation: deterrence, ethical justice and fair compensation.