INTRODUCTION

A no-fault comprehensive compensation fund is a significant part of a jurisdiction’s legal framework. In the four jurisdictions that are studied here, the fund framework affects the way that individuals access justice for specific types of injury-related harms. Most specifically, it restricts access to the courts and an individual’s choice about whether to pursue potential defendants.

However there has been little or no analysis of how no-fault comprehensive compensation funds intersect with human rights and access to justice issues. There is a current knowledge gap about the intersection between human rights and no-fault compensation funds generally. This chapter, however, focuses on the impact of comprehensive no-fault funds on human rights and access to justice issues, as a discrete sub-field. Large funds pose slightly different issues in the realm of human rights, compared with their smaller cousins. This is because they create a near or total restriction on the ability of a comprehensive category of claimants to access court-based remedies or settlements. As a trade-off for this, they offer a statutory entitlement to compensation for certain classes of injury, and a fast and streamlined claims process. However, a question that has not fully been analysed by research or practice remains: is this balancing act ultimately a fundamental problem from a human rights perspective, or an acceptable alternative approach?

The four big funds studied in this book are located in jurisdictions that do not all have a fundamental human rights framework equivalent to the European Convention on Human Rights (ECHR) or the United States Constitution. Only Canada’s human rights frameworks are connected to its written constitution and/or have a fundamental nature. This leads to a natural or default presumption that a fundamental human rights framework may be incompatible with such a fund, or that the fund hinders access to justice in an unacceptable way. However, there has been no scholarly legal analysis of whether these presumptions or suspicions would be correct.