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Chapter 6 Summary of recommendations

• 1.    The definition of relative in section 13(1) of the Administration of Justice Act 1982 should be amended to include persons accepted into family as a parent, grandparent, sibling, or grandchild of the injured person.

(Draft Bill, section 5)

• 2.     The definition of relative in section 13(1) of the Administration of Justice Act 1982

should be amended to include ex-cohabitants of the injured person.

(Draft Bill, section 5)

• 3.    Section 8 of the Administration of Justice Act 1982 should be extended to claims in respect of necessary services provided to the injured person by an individual who is not a relative of the injured person.

(Draft Bill, section 2)

• 4.    Section 8 of the Administration of Justice Act 1982 should be amended to provide that services rendered by any person are recoverable so long as the services are provided

• (a) without a contractual right to payment or (b) otherwise than in the course of a business, profession or vocation.

(Draft Bill, section 2)

• 5.     The Personal Injury Committee of the Scottish Civil Justice Council should consider

introducing a Rule of Court, applying to the sheriff court and the Court of Session, to the effect that a pursuer bringing a claim in terms of section 8 of the Administration of Justice Act 1982 is required to produce an affidavit declaring:

• (a)    the identity of any person who has provided or is providing necessary services that are the subject of the claim;

• (b)    the relationship between the pursuer and that service provider or those service providers;

• (c)    the nature of the services provided;

• (d)    that the pursuer has informed the service provider that the pursuer is making a claim under section 8; and

• (e)    that the pursuer undertakes to account to the service provider for any damages obtained under section 8.

(Paragraph 2.60)

• 6.    Scottish Ministers should raise the issue of CRU universal credit certificates with Ministers in the Department for Work and Pensions as a matter of urgency, drawing attention in particular to the fact that these certificates (as currently issued by CRU) fail to give sufficient detail to enable recipients to identify what benefits are (or are not) recoverable in terms of section 1 and Schedule 2 of the Social Security (Recovery of Benefits) Act 1997.

(Paragraph 3.22)

• 7.     Section 10 of the Administration of Justice Act 1982 should be amended to clarify that

where an employee contributes financially to a Permanent Health Insurance scheme, whether by (i) making a direct payment; (ii) paying tax or NIC on membership of the scheme as a benefit; or (iii) forfeiting the offer of additional remuneration or earnings with their employer in order to gain access to the scheme, or to increased benefits under that scheme, then any payments made to the employee under that scheme should not be deducted from an award of damages. Where no such contribution is made, payments made under the scheme should be deductible from an award of damages.

(Draft Bill, section 3)

• 8.    Section 2(4) of the Law Reform (Personal Injuries) Act 1948 should be repealed and the provisions re-enacted in a new section 10A of the Administration of Justice Act 1982.

(Draft Bill, section 4)

• 9.    Scottish Ministers should give consideration to amending the definition of “injury” in section 150 of the Health and Social Care (Community Standards) Act 2003 to include “industrial disease”.

(Paragraph 3.90)

• 10.    There should be a statutory provision, similar in effect to section 2(4) of the Law Reform (Personal Injuries) Act 1948, that an injured person is entitled to opt for private care and accommodation rather than rely on local authority provision where it is available.

(Draft Bill, section 4)

• 11.    Scottish Ministers should give consideration to reform of the law concerning recovery of the injured person’s care and accommodation costs so far as provided by local authorities.

(Paragraph 3.158)

• 12.    For the purposes of section 17 of the Prescription and Limitation (Scotland) Act 1973, asymptomatic asbestos-related conditions should be distinguished from symptomatic asbestos-related conditions, such that failure on the part of an injured person to raise an action within the limitation period for (i) asymptomatic asbestos-related pleural plaques, or (ii) asymptomatic asbestos-related pleural thickening or asymptomatic asbestosis, would not preclude that injured person from subsequently raising an action for a symptomatic asbestos-related condition, including asbestos-related pleural thickening or asbestosis which has become, but was not previously, symptomatic.

The 3-year time-bar for the symptomatic asbestos-related condition will begin no earlier than the date on which the injured person became aware of the fact mentioned in section 17(2)(b)(i) of the 1973 Act with respect to the symptomatic condition.

Where an asbestos-related disease which was recognised while asymptomatic becomes symptomatic, the 3-year time-bar will begin no earlier than the date on which the injured person is informed by a registered medical practitioner that the condition had caused, or had begun causing, impairment of that person’s physical condition.

In the event of that injured person’s death, the relatives’ claim would no longer be time-barred. For that purpose, section 18 of the 1973 Act would also be amended.

(Draft Bill, section 1)

• 13.    The court should be required, when applying section 13 of the Children (Scotland) Act 1995, to have regard to the same matters that it has to consider when determining an application under section 11(1) of the 1995 Act, namely (i) the welfare of the child, (ii) the “no order” principle and (iii) the views of the child.

(Draft Bill, section 6)

• 14.    Section 13 of the Children (Scotland) Act 1995 should be amended to impose a duty on the court, prior to granting decree for damages for a child, to inquire into the future administration of the award and, if the court considers it necessary, to remit the case to the Accountant of Court. The pursuer’s agent should be required to submit a form to the court, outlining how the funds are to be invested and protected until the child reaches the age of 16. A non-exhaustive list of factors which the court should take into consideration should be contained in the form including (i) the level of damages awarded, (ii) the future care and accommodation needs of the child and (iii) whether the sum is to be placed in a trust and if so, the identity and qualifications of the trustees, together with a copy of the proposed trust deed. If the court does not remit the case to the Accountant of Court, the judge or sheriff should have a duty to explain, in a written report, why this is not necessary. The duty would apply whether damages are assessed and awarded by the court, or whether damages are to be paid as a result of settlement arrangements where a court is invited to interpone authority to a joint minute and grant decree in terms thereof. The duty should not apply to interim awards of damages.

(Draft Bill, section 7)

• 15.    There should be a standalone Commission project, with trust specialist input, entitled “Personal Injuries, Children, and Trusts”, focusing amongst other things on (i) whether section 13 of the Children (Scotland) Act 1995 empowers the court to order payment of a child’s damages into a trust; (ii) if so, whether the trust could be a bare trust, or a substantive trust, or a Personal Injury Trust; (iii) to what extent the court is able to define the purpose(s) of such a trust; (iv) what happens where a court or the Accountant of Court has some continuing supervision in respect of funds held in a trust, and a difference of view arises between the trustees and the court/Accountant of Court; and finally (v) whether there should be independent oversight of an award of damages for a child which is to be placed into trust, and if so, what form that oversight should take and whether such oversight should be necessary in all cases or only in certain specific circumstances.

(Paragraph 5.8)

• 16.    Scottish Ministers should consider exercising their power under section 9(8) of the Children (Scotland) Act 1995 to modify the monetary limits in section 9(2) of that Act, by subordinate legislation.

(Paragraph 5.116)