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You are here: BAILII >> Databases >> Scottish Law Commission >> Scottish Law Commission (Reports) >> Report on Damages for Personal Injury (Report No. 266) URL: http://www.bailii.org/scot/other/SLC/Report/2024/SLC266.image6.html |
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1.1 The law of damages for personal injury seeks to put a person who has been injured as a result of negligence or other delictual conduct back into the position they would have been in had the injury not occurred. Statutes and case law provide principles and precedents which assist in the quantification of claims.
1.2 One statute, the Administration of Justice Act 1982, 1made important changes to the law of damages in Scotland. That Act introduced damages for necessary services rendered by relatives to an injured person2 and for personal services which an injured person could no longer render to relatives.3 The Act also clarified which benefits and payments received by the injured person should or should not be taken into account in the assessment of an award of damages.4 A further innovation introduced by the 1982 Act was the concept of provisional damages, whereby an injured person likely to suffer a future deterioration in their condition can apply to the court for a provisional award of damages, reserving the right to return to the court for further damages in the event of deterioration.5
1.3 More than forty years have passed since the enactment of the 1982 Act. During those years, there have been significant changes in both society and the law. For example, the nuclear family6 is no longer the paradigm in modern society: many more flexible contemporary family structures now exist.7 In the context of legal developments, statutes have been enacted such as, the Social Security (Recovery of Benefits) Act 1997, the Civil Partnership Act 2004, the Family Law (Scotland) Act 2006, the Damages (Asbestos-related Conditions) (Scotland) Act 2009, the Damages (Scotland) Act 2011, the Marriage and Civil Partnership (Scotland) Act 2014, and the Civil Partnership (Scotland) Act 2021. In addition, the courts have made significant decisions which have affected the direction of the law. Finally, in a socio-legal context, there is greater awareness of the vulnerability of children in the context of damages.
1.4 As a result of those social and legal changes, certain questions have arisen concerning the Scots law governing damages for personal injury. In particular:
• In the context of services rendered to or by an injured person, such as nursing and care services (section 8 of the Administration of Justice Act 1982) or decorating and DIY (section 9 of the 1982 Act), does the current definition of “relative” (section 13 of the 1982 Act) adequately reflect contemporary family structures, or should the definition be broadened?
• Should awards of damages for section 8 and section 9 services be extended beyond the class of “relatives” to include persons such as neighbours or friends?
• Where an injured employee receives payments from a Permanent Health Insurance scheme arranged by their employer, should those payments be deducted from the employee’s damages for wage loss? An apparent conflict between Scottish authority (Lewicki v Brown & Root Wimpey Highland Fabricators Ltd8) and English authority (Gaca v Pirelli General plc9) has caused difficulties.
• Should someone who has suffered negligent exposure to asbestos be barred from raising an action for mesothelioma because of a much earlier (unlitigated) diagnosis of pleural plaques?
• Should damages awarded to young children be more closely monitored?
1.5 This Report examines these questions and related issues, identifies difficulties and discrepancies in the current law, and recommends reforms.
1.6 Previous work by the Scottish Law Commission on damages for personal injury can be found in:
• Scot Law Com No 51: Damages for Personal Injuries: Report on (1) Admissibility of Claims for Services (2) Admissible Deductions (1978).
• Scot Law Com No 64: Report on Section 5 of the Damages (Scotland) Act 1976 (1981).
• Scot Law Com No 74: Prescription and the Limitation of Actions: Report on Personal Injuries Actions and Private International Law Questions (1983).
• Scot Law Com No 134: Report on The Effect of Death on Damages (1992).
• Scot Law Com No 196: Report on Damages for Psychiatric Injury (2004).
• Scot Law Com No 207: Report on Personal Injury Actions: Limitation and Prescribed Claims (2007).
• Scot Law Com No 213: Report on Damages for Wrongful Death (2008).
1.7 The proposal that we should examine the further issues outlined in paragraph 1.4 above attracted support in the responses to our consultation on the Tenth Programme of Law Reform.10 The project was duly included in the Programme, which was approved by the Scottish Government.
1.8 In February 2022 we published a Discussion Paper 11outlining the existing law, and identifying aspects which might require modernisation, simplification, or clarification. We are grateful to all those who took time to respond to the consultation.
1.9 In this Report, we adopt the following structure. Chapter 2 deals with the law concerning necessary services rendered by a relative to an injured person (section 8 of the 1982 Act), and also personal services which the injured person is unable to render to a relative because of the injury (section 9 of the 1982 Act). Chapter 3 focuses on deductions from awards of damages (section 10 of the 1982 Act), including Permanent Health Insurance schemes and the cases of Lewicki and Gaca. Chapter 4 discusses provisional damages (section 12 of the 1982 Act) and asbestos-related disease, with particular emphasis on an issue of time-bar arising from a diagnosis of an asymptomatic condition (e.g., pleural plaques). Chapter 5 focuses on awards of damages to children, and the possible need for greater supervision of those awards. Chapter 6 lists our recommendations for law reform. There are four appendices.
1.10 In terms of section 29 of the Scotland Act 1998, a provision is outside the competence of the Scottish Parliament if, among other things, it relates to reserved matters as defined in Schedule 5 to that Act. The law of damages for personal injuries in Scotland is not a reserved matter. Thus, in our view, the provisions enacting the recommendations are within the legislative competence of the Scottish Parliament. We do not consider that an order under section 104 of the 1998 Act is required.12
1.11 Furthermore, in our view, the provisions enacting the recommendations would be compatible with the requirements of the European Convention on Human Rights13 and the requirements of the United Nations Convention on the Rights of the Child.14
1.12 If the Scottish Government decides to implement any or all of the recommendations contained in this Report, appropriate commencement and transitional provisions may be required. Commencement of the Bill provisions is a matter for the Scottish Government. However, section 8 of the draft Bill provides that it and section 9 (Short title) of the Bill will come into force on the day after Royal Assent. The other provisions of this Act come into force on such day as Scottish Ministers may by regulations appoint. Section 8(3) provides that commencement regulations may include transitional, transitory, or saving provision and make different provision for different purposes.
1.13 It seems to us that, in particular, section 1 of the Bill may require transitional, transitory or saving provisions. New sections 17ZA(7)-(9) and 18ZZA(3)-(4) capture our policy intention in relation to actions where damages claimed include damages for certain injuries attributable to asbestos exposure.
1.14 The Scottish Government requires a BRIA to accompany proposed legislation. This is published on our website. We are grateful to those who provided information that assisted in its preparation, notably, the nine responses from consultees who provided their view on the economic impact of any of the reforms described in the Discussion Paper.
1.15 The principal conclusion of the BRIA is that any increase in relation to the extent of recoverable claims is likely to be reflected in slight increases in insurance premiums. Consultees told us that if, as a result of the recommendations in this Report, the costs to defenders of personal injury claims increase, consumers may expect to pay marginally higher insurance premiums.
1.16 The BRIA identifies a number of specific economic impacts including:
• The redefinition of “relative” in the Administration of Justice Act 1982, together with the extension of section 8 of that Act to non-relatives, may cause some increase in damages claimed by victims suffering personal injury as a result of negligence. It is possible that insurance premiums (for example, vehicle insurance) may increase slightly.
• Clarification of the deductibility or otherwise of payments made to an injured employee from a Permanent Health Insurance scheme is likely to bring increased certainty and fairness and reduce litigation costs.
• A new legislative provision concerning the pleural plaques time-bar problem is likely to bring increased certainty and fairness, and also to reduce litigation costs, but may increase the damages payable for asbestos-related conditions.
• Increased supervision of awards of damages made to children may require increased court time and additional resources in the office of the Accountant of Court.
1.17 Whilst we acknowledge that there may be a small increase to insurance premiums, we are of the view that this economic impact is offset by improving the experience of participants in damages cases by (i) modernising the law to better reflect Scotland today, (ii) enabling access to justice by widening the variety of persons eligible to bring a claim, (iii) removing obvious unfairness in the current law and the associated anxiety and stress this causes for individuals and families, particularly in relation to those suffering from an asbestos-related disease, (iv) providing clarity on numerous aspects of the law which in turn will reduce both the time and cost involved in bringing a claim, (v) assisting legal practitioners in providing advice to their clients on how cases will be managed by the court and (vi) providing decision makers with clear guidance in terms of the policy objectives and relevant considerations underlying the test for making awards.
1.18 We anticipate that there may be initial training and familiarisation costs, principally for legal practitioners, the Accountant of Court and the judiciary, and perhaps also for other professionals in relevant fields. However, these costs would be relatively small and generally incurred only on first implementation of the proposed legislation.
1.19 Overall, we note that legislative reforms to damages for personal injury may have an economic impact and may lead to a slight increase in insurance premiums and claims for damages. Nevertheless, we recommend reform where such reform is, in our view, necessary or desirable.
1.20 Responses to the Discussion Paper came from practitioners, representative bodies of practitioners and the judiciary, trade unions, a government body, insurers, academics, a business, a member of the Scottish Parliament, a support group, and members of the public. We are grateful to the individuals and organisations who responded to the Discussion Paper. A list of respondents is provided in Appendix B.
1.21 We established an Advisory Group in 2019. The Group met during the project, both in person and virtually. We also established a specialist asbestos-related disease sub-group in 2023. The sub-group met in person and also provided thoughts on early version of section 1 of the draft Bill. The assistance of the Advisory Group and the sub-group has been invaluable. We are grateful to the members for their contributions. Members of the Advisory Group and the sub-group are listed in Appendix C.
1.22 Finally, our thanks go to the Accountant of Court and her staff, who made a major contribution to this project, assisting in the development of policy and the formulation of certain recommendations.
A UK statute, Part II of which, namely ss 7 to 14, extends to Scotland only, implementing certain recommendations in our report Damages for Personal Injuries: Report on (1) Admissibility of Claims for Services (2) Admissible Deductions (1978) Scot Law Com No 51. It is worth noting that England and Wales do not have a statutory equivalent to sections 8 to 10: their relevant law is entirely common law.
Section 8 of the 1982 Act. For example, nursing care, help with bathing, housekeeping, shopping and emotional support. “Relative” is defined in s 13.
Section 9 of the 1982 Act. For example, childcare, housework, gardening, shopping, DIY, decorating, and home maintenance. “Relative” is defined in s 13.
Section 10 of the 1982 Act. For example, earnings from employment must be deducted, but not a contractual pension or benefit. Section 10 must be read with the specific provisions on deductibility of social security benefits, introduced by the Social Security (Recovery of Benefits) Act 1997.
Commonly understood to mean a married husband and wife and their children, living together as a family unit.
For example, cohabitants and civil partners.
1996 SLT 145 (Outer House); 1996 SC 200 (Inner House).
Discussion Paper on Damages for Personal Injury (2022) Scot Law Com No 174.
The 1982 Act has already been amended by Scottish Acts. For example, by the Damages (Scotland) Act 2011.
Scotland Act 1998, s 29(2)(d).
As defined in section 1(2) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.