Scottish Law Commission publishes its report on damages for personal injury

On 4 December 2024, the Scottish Law Commission (the Commission) published its report on damages for personal injury, along with a draft Damages (Scotland) Bill. This follows a discussion paper which was published in February 2022 as part of a medium-term project to examine whether, and if so how, any clarification or reform of the law in this area should be undertaken to reflect societal change.

In this article we delve into the Commission’s recommendations and likely next steps.

The Commission’s focus issues

As with the 2022 discussion paper, the report focuses on four key areas:

Awards of damages in respect of services provided to and by an injured person and specifically whether the restriction to "relatives" should continue to apply.
What deductions should be made from awards of damages.
The operation of provisional damages, particularly in the context of asbestos-related disease.
The management of damages awarded for the benefit of children so that the children’s interests can be best safeguarded.

The Commission’s key recommendations

Damages for services

Sections 8 and 9 of the Administration of Justice Act 1982 (the Act) provide for claims in respect of “necessary” services rendered by a relative to an injured person, and “personal” services which the injured person is unable to render because of the injury.

Recommendation: the term "relative" should be broadened to encompass individuals who have been accepted into the family, as well as former cohabitants. Additionally, those who provide essential services, such as friends and neighbours, should also be eligible for damages.

“The widening of the definition of those for whom pursuers are entitled to seek services would have an impact on insurers. Where previously claims for flatmates or neighbours were ruled out, if there is an amendment to the current legislation, a broader range of people will be entitled to damages. In turn, the value of personal injury claims will increase.” Lesley Allan

Deductions from damages

The current statutory framework on deductions from awards of damages is found in Section 10 of the 1982 Act. However, the law in this area has been largely developed by case law.

Recommendations: payments received by an injured person under a Permanent Health Insurance Scheme to which they have contributed financially should not be deductible from an award of damages.

An injured person should be entitled to opt for private medical treatment, care, accommodation, and equipment, rather than rely on NHS or local authority support.

“Insurers frequently take a pragmatic approach to private medical treatment to ensure an optimal recovery for the pursuer. Further, often the cost of private treatment is less than a spell on a NHS waiting list would add to a future loss of earnings claim.” Clare Crawford

Provisional damages and asbestos-related disease

The discussion paper proposed creating a provision parallel to the Limitation (Childhood Abuse) (Scotland) Act 2017, which would lift the three year limitation period for issuing court proceedings for asbestos-related disease claims; with alternative proposals including staggered time-bar provisions.

Recommendation: an asymptomatic condition such as pleural plaques will no longer result in a time-bar preventing recovery of damages for a later-developing symptomatic condition such as mesothelioma.

“Whilst arguably improving access to justice, from a compensator’s perspective, such a move could result in a spike in claims and would lead to a lack of finality in settlements and the compounding of evidential difficulties associated with the passage of time.” Daniela Fusi

Management of children’s awards of damages

Despite provision for children under 16 years old having capacity to raise an action, in most cases it is the parents or guardians of the child who will make a damages claim on their behalf. Where a parent or guardian makes a successful damages claim on the child's behalf, the award will be paid to that person on behalf of the child.

Recommendation: before awarding damages to a child, the court should be obligated to assess how the award will be invested, protected, and managed. If necessary, the case should be referred to the Accountant of Court for further review.

“The provision of a mechanism for the court to approve payments for children would offer comfort to insurers accustomed to the English system where that is the norm.” Lesley Allan

Comment

The Commission’s task is to recommend ways of simplifying, updating and improving the law of Scotland. It is an advisory public body and the Scottish Government is not bound by its recommendations.

Although Stage One of the unicameral Holyrood system involves a committee examining the general principles of any bill, and that usually involves seeking views and taking evidence from interested parties, the Scottish Government may decide to first explore the Commission’s recommendations by way of its own consultation. Only time will tell.