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As part of its Tenth Programme of Law Reform (running from 2018 to 2022), the Scottish Law Commission (SLC) has published a discussion paper seeking views on damages for personal injury.
Launched on 23 February 2022, the consultation forms 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. The deadline for comments is 15 June 2022, and the Commission aims to complete the review by the end of the year.
In this article we delve into the four areas identified in the discussion paper, and provide our initial thoughts on the possible implications for insurers and compensators.
What is included in the discussion paper?
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The discussion paper considers and asks for views on four areas of the law of damages for personal injury:
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Of the four topics, the first three predominantly relate to the provisions outlined within Part II of the Administration of Justice Act 1982. The Commission notes that certain provisions are unduly complex or give rise to uncertainty as a result of how the case law has developed. Further, in some instances, the law in Scotland has diverged from the law in England and Wales, although both systems profess to be aiming to arrive at the same result.
The SLC acknowledges that divergences from the law in England and Wales can lead to uncertainty and increased costs for those involved in litigating these issues.
Awards of damages for services rendered to or by an injured person
Sections 8 and 9 of the 1982 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. The discussion paper explores whether the definition of "relative" is appropriate given that nowadays there is less emphasis on the traditional concept of a nuclear family. Associated with that, there is a desire to achieve consistency with the far broader classification of "relatives" implemented by the Damages (Scotland) Act 2011 in the context of fatal claims.
Over one third of households in Scotland are single-person, posing an obvious gap in present provisions, with such individuals potentially without family members to assist. In such circumstances, a friend or neighbour will often provide the necessary support, however presently these services cannot be claimed for. The paper also looks at whether charitable bodies or voluntary organisations should be included in any recast legislative provisions.
Deductions from awards of damages
The current statutory framework in Scotland 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 and as such, the Commission questions whether reform or clarification is required. Focusing on social security benefits, payments of money and benefits in kind (for example care and accommodation), they ask whether these ought to be deducted from an award of damages and if so, which ones, and why.
By the same token, the Commission also considers apparent discrepancies between Scots law and the law of England and Wales on matters which aim for the same results, attempting to reconcile cases which may appear at odds and further, to explore whether the opportunity of double recovery can be eliminated.
Provisional damages and asbestos-related disease
Section 12 of the 1982 Act introduced the concept of provisional damages into Scots law. Before Section 12 came into force in 1984, the courts applied the well-established rule that, since a pursuer in an action for personal injuries was pursuing a single cause of action, they must claim the entirety of the loss in one action.
The Commission reflects on how the law has developed in this area, whether there are problems with how provisional damages operate and, if so, what potential reform might look like. A significant proposal includes 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.
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.
Management of damages awarded to children
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.
The discussion paper seeks views on a number of points, including whether it should be mandatory for the parents or a guardian to report to the Accountant of Court. This is especially where a child will be largely dependent on an award of damages for the rest of their life, with recent statistics showing that the protective provisions presently in place are not often utilised. Whilst recognising the court’s wide discretionary powers in such situations, it also considers whether there should be a positive obligation on it to make inquiries into the future administration of funds and assets held for the child.
Next steps
Responses to the paper can be made until 15 June 2022, after which the Commission will assess consultees’ views and commence work towards publication of a final report setting out its recommendations to the Scottish Parliament.
Defendant personal injury
United Kingdom