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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.image7.html |
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2.1 In Chapter 2 of the Discussion Paper, 1we considered sections 8 and 9 of the Administration of Justice Act 1982 (“the 1982 Act”) which concern awards of damages for services rendered to an injured person (i.e. where a relative cares for the injured person as a result of their injuries) or by an injured person (i.e. where the injured person is unable to continue providing services to their relative because of their injuries). At present, claims under both sections 8 and 9 are restricted to “relatives”, as defined in section 13(1) of the 1982 Act. In our Discussion Paper, we asked consultees (i) whether the current definition of relative remains appropriate and (ii) whether claims under sections 8 and 9 should be restricted to “relatives” or extended to others, such as friends or neighbours.
2.2 In this Chapter, we reflect on the responses to the questions posed in Chapter 2 of the Discussion Paper, consider amending the definition of “relative” under section 13(1) of the 1982 Act and examine the implications of extending the definitions of eligible claimants for claims under sections 8 and 9 beyond relatives.
Current law
2.3 As part of our 1978 report,2 we conducted a review of the common law concerning the right of an injured person’s relative to receive damages for “necessary services” they have rendered to the injured person as a consequence of their injuries (i.e. as a consequence of the delictual act of the responsible person). We also considered whether Scots law should allow an injured person to claim damages for their inability to provide “personal services” to their family in circumstances where they would, but for their injury, have provided those services. The recommendations made in the 1978 report were given effect in Part II of the Administration of Justice Act 1982.
2.4 Section 8 of the 1982 Act provides a mechanism for the recovery of damages for necessary services that have been rendered to an injured person as a consequence of their injuries. Section 8 as amended provides:
“8 Services rendered to injured person
(1) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith.
(2) The injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under subsection (1) above.”
2.5 “Necessary services” are not defined in the legislation but have been held to include services such as nursing care, housekeeping, shopping, and emotional support.3 An individual will only be entitled to compensation under section 8 where they are a relative of the injured person.4 Where services have been rendered by someone other than a relative, damages will be recoverable by the injured person only if there exists a contractual arrangement between the injured person and the person providing those services.
2.6 Section 9 of the 1982 Act allows the injured person to recover damages for personal services that the injured person would have, but for their injury, provided to their family:
“9 Services to injured person’s relative
(1) The responsible person shall be liable to pay to the injured person a reasonable sum by way of damages in respect of the inability of the injured person to render the personal services referred to in subsection (3) below.”
2.7 “Personal services” are defined in subsection (3):
"(3) The personal services referred to in subsection (1) above are personal services—
(a) which were or might have been expected to have been rendered by the injured person before the occurrence of the act or omission giving rise to liability,
(b) of a kind which, when rendered by a person other than a relative, would ordinarily be obtainable on payment, and
(c) which the injured person but for the injuries in question might have been expected to render gratuitously to a relative.”
2.8 Unlike section 8, section 9 does not require the injured person to account to the relative for any damages received: the inability to provide personal services is seen as a loss suffered by the injured person, not the relative to whom those personal services would otherwise have been rendered. While this may seem counterintuitive, the rationale is explained in our 1978 report:
“...It may be objected that it is not the injured person himself but his family who suffer the loss. We think, however, that this is an artificial way of looking at the matter. The injured person will normally have some earning capacity outside the family which he will have lost as a result of the accident. Within the family group, for practical reasons, a system of division of labour and pooling of income obtains in which, though in law the services are rendered gratuitously, they are in practice a species of counterpart for the benefits which that member receives as a member of the family group. If by reason of an accident a member of the family group loses the ability to offer the appropriate counterpart for the benefits he receives, he should be compensated for this loss.”5
Background
2.9 At present, claims under both section 8 and section 9 are restricted to “relatives”, as defined in section 13(1) of the 1982 Act:
“...‘relative’, in relation to the injured person means—
(a) the spouse or divorced spouse;
(aa) the civil partner or former civil partner;
(b) any person, not being the spouse of the injured person, who was, at the time of the act or omission giving rise to liability in the responsible person, living with the injured person as husband or wife;
(ba) any person, not being the civil partner of the injured person, who was, at the time of the act or omission giving rise to liability in the responsible person, living with the injured person as the civil partner of the injured person;
(c) any ascendant or descendant;
(d) any brother, sister, uncle or aunt; or any issue of any such person;
(e) any person accepted by the injured person as a child of his family.”
2.10 Section 13 also has to be read subject to section 4 of the Marriage and Civil Partnership (Scotland) Act 2014. Section 4 provides that references in legislation (within devolved competence) to people who are (or were) married should be read as referring to both same and different sex married couples, and references to two people who are (or were) not married but living together as if husband and wife should be read as referring to both same and different sex cohabitating couples. References to two persons of the same sex who are (or were) living together as if they are (or were) in a civil partnership ceases to have effect. Therefore, the reference to people living together as if in a civil partnership in section 13(1)(ba) ceases to have effect by virtue of section 4(4) of the 2014 Act.
2.11 It seems that the underlying intention in relation to the definition of “relative” in the 1982 Act (as expressed in the 1978 Report) was that services rendered by or to those members of the family group who, in a fatal accident claim, would be entitled to claim damages for loss of support, are the only ones which should be covered. The definition was therefore based on that set out in schedule 1 of the Damages (Scotland) Act 1976.
2.12 Damages for wrongful death are now governed instead by the Damages (Scotland) Act 2011. The definition of “relative” as set out in section 14(1) of the 2011 Act provides for persons accepted as6 the parent, grandparent, grandchild or sibling of the deceased following a fatal injury to be treated as a “relative” for the purposes of “loss of society” claims. This means that, at present, there is a difference between the definition of relative in the 2011 Act and the definition of relative in the 1982 Act. The latter does not make such allowances for persons accepted as part of the family (with the exception of children accepted as part of the family).
Responses to the Discussion Paper
2.13 In our Discussion Paper, we asked the following questions:
“2. (a) Do you consider that the definition of “relative” in section 13(1) of the
1982 Act should be amended to include children/parents, grandchildren/grandparents, and siblings who are accepted as part of the family?
(b) Do you consider that there is any other category of “relative” which should be included?
3. Should the definition in s 13(1)(b) be amended to include ex-partners?”
Question 2(a)
2.14 Twenty-eight consultees7 responded to this Question. All consultees were in favour of amending the definition of “relative” in section 13(1) of the 1982 Act to include children/parents, grandchildren/grandparents, and siblings who are accepted as part of the family.
2.15 Two main reasons were given to justify support for the amendment, namely, (i) the desire to achieve consistency with the Damages (Scotland) Act 2011 (fatal claims) and provide equal treatment of relatives in both fatal and non-fatal cases, and (ii) the need for the law to be adapted to keep pace with societal changes.
Discussion
2.16 Seeking to align personal injury law in this area to improve fairness and consistency was supported by several consultees. Action on Asbestos suggested that such an amendment would ensure the equal treatment of relatives in both fatal and non-fatal cases. Kennedys Law similarly emphasised the need for consistency, stating that similar policy considerations should apply when assessing those caught by the statutory definition of “relative”.
2.17 Digby Brown expressed concern with the current situation:
“There seems no good reason for retaining the current differences, such as the omission of a person accepted by the injured person as a grandchild of his family, and the narrower definition of “sibling”, and as a result, excluding services provided by those relatives from the damages claimed by the injured party.”
2.18 The Faculty of Advocates commented that it is unjust to exclude a person who has been accepted as part of an injured person’s family. Tom Marshall advised that it makes sense to include those persons who are an accepted part of an injured person’s family, since the persons who are actually rendering services to the injured person are likely to be considered by the injured person as part of their family at the time of or after the injury, rather than necessarily those persons with whom they have always had a familial relationship. Drummond Miller also picked up on this point: “By the very fact that services are being provided by them [those accepted as relatives] ... it indicates that the nature of the relationship is the same as the relationship the pursuer would have had with the current defined ‘relative’.”
2.19 An equally important consideration is that the family makeup in Scotland, and public policy in relation to family law, has changed significantly since the 1982 Act was enacted. In modern Scotland, it is common for persons to accept, for example, their partner’s children from a previous relationship into their family - leading to family units in which siblings, parents, grandparents, etc. are connected by family bond, even if not by consanguinity. The Senators of the College of Justice recognised this in their response and advise that a wider definition would “reflect the perception of the concept of the wider family in the modern context”. Clyde & Co also point out that the make-up of the modern family differs from that of the average family in the 1980s. They explain that many do not have spouses or civil partners and may not live with a significant other as a spouse or a civil partner. As such, they argue that it is not unreasonable to extend the definition of relative to the wider family group.
2.20 We agree with all of the above observations. There is a gradual (but evident) rise in the number of ‘non-nuclear’ families. These responses made evident the need to reform this particular provision to ensure that the law keeps pace with, and reflects, societal change. We also note that section 8 claims are only competent where there is a pre-existing basis for that claim: that is, where the injured person has in fact received services from the relative and those services were necessary because of their injury. An expansion of section 8 would not entitle additional family members to a windfall from the injured person’s damages claim - it would simply allow the recovery of reasonable remuneration for services that the family member is already providing.
2.21 We therefore recommend that:
(Draft Bill, section 5)
Question 2(b)
Responses to the Discussion Paper
2.22 Twenty-four consultees answered this Question. Eighteen8 answered negatively. Six9 answered positively.
2.23 Of the responses submitted in favour of any further amendment of section 13, three consultees 10suggested that the definition should be extended to cover “any person accepted by the injured person or deceased as a member of his family.” Action on Asbestos similarly suggested that the category of “relative” should be made flexible, so as to reflect modern societal familial structures. They explained that this would be a more effective approach, allowing the inclusion of individuals whom the injured person includes in their own definition of family. Two consultees 11supported further amendment so as to bring the definition in the 1982 Act entirely in line with the definition in the 2011 Act.
2.24 Those that opposed further amendment did so mainly on the basis that the amendment proposed in Question 2(a) would be sufficient, and that any further extension would be excessive.
Discussion
2.25 The majority of consultees opposed any further amendment of the provision to include other categories of “relative”. Several consultees who responded in favour of further amendment suggested that the definition should be extended to cover any person accepted by the injured person or deceased as a member of his family. While initially this appears to be an appealing approach to redefining the term “relative”, concerns that such an extension would be excessive are not ill-founded. There may be a risk of extending the field of potential claimants far beyond the parameters currently accepted by society as representing bona fide members of a family. We are persuaded by the majority of consultees that further amendment to section 13(1), by way of including other categories of “relative”, is not necessary at this time. The amendment we recommend to the definition of “relative” in Question 2(a) above goes far enough.
Question 3
Responses to the Discussion Paper
2.26 Question 3 asks consultees whether the definition of “relative” in section 13(1)(b) should be amended so as to include ex-partners. Of the 28 consultees who responded to this Question, 1912 supported amending the definition in such a manner, seven13 opposed such an amendment and two 14suggested alternatives.
2.27 Amongst those supporting such an amendment, a number of consultees explained that for the sake of consistency, the definition of “relative” in section 13 should include ex-partners to bring it into line with section 14 of the 2011 Act, which allows former partners to claim for loss of financial support in cases relating to death.
2.28 Other consultees referred to societal changes and the need for the law to reflect modern familial structures. Action on Asbestos, the Association of Personal Injury Lawyers and Digby Brown suggested that such an amendment would reflect the reality of modern family life, including the increasing prevalence of blended families 15. Similarly, Thompsons Solicitors said that it is common for former partners to provide gratuitous personal services, rendering any definition of “relative” excluding ex-partners incomplete and unreflective of the realities of the provision of care.
2.29 It is also worth noting the response of Drummond Miller, who make the point that many long-term committed relationships are purposely not marked by marriage or civil partnership, despite having the same level of commitment and interdependency as those formalised relationships. They therefore propose that no distinction should be made between the two.
2.30 Those opposing such an amendment provided a variety of reasons for their view. Several thought that the extension to section 13 proposed in Question 2(a) goes far enough. Horwich Farrelly Scotland said that they were not aware of “any evidence to suggest that there is a failure to deliver justice which requires the statutory definition to be extended to apply to an ex-partner who was not a spouse or civil partner”.
2.31 The Medical and Dental Defence Union of Scotland felt strongly that the desire to bring the definition of relative in section 13 into line with the definition in section 14 of the 2011 Act was flawed.
“No. While we can see that it could be tempting to introduce ex-partners to dovetail with the definitions used in the Damages (Scotland) Act 2011, there are important policy reasons against so doing. An ex-partner of the deceased is entitled to claim for loss of support under section 4(3)(a), but is not entitled to claim for loss of society under section 4(3)(b). The availability to an ex-partner of a claim for loss of support reflects that the deceased person may have had a legal obligation to support them, but nothing more. This view is bolstered by the fact that under section 7(1) of the 2011 Act, assessment of compensation for loss of support is to be restricted for ex-partners, in a way that it is not restricted for current partners. It would be contrary to logic if an award of damages was to be available in respect of an ex-partner providing necessary services, when parliament has determined that such an individual should not be entitled to damages for loss of society in the event that their ex-partner has died. It is entirely appropriate for ex-partners to remain excluded from the definition in section 13 and, accordingly, from the scope of services claims under sections 8 and 9.”
2.32 While recognising the case, in principle, for such an amendment to section 13, the Association of British Insurers expressed concern regarding the extent to which such an amendment would broaden the definition of “relative” under the provision. They suggest, instead, an exploration of tests which may be applied to ensure that the definition does not become excessively broad, and that ex-partners only fall within the definition in certain circumstances. They suggest the use of Lord Armstrong’s discussion of “living together as man and wife” in Dewar v Graham’s Dairies Ltd16 as a starting point for exploring whether an ex-partner should fall within the definition of section 13, but caution that additional safeguards would still need to be introduced, alongside a requirement for suitable supporting evidence.
Discussion
2.33 We are aware that it is increasingly common for individuals to choose not to formalise their enduring relationships through marriage or civil partnership, but to live together as cohabiting partners. A definition of “cohabitant” is provided in section 25 of the Family Law (Scotland) Act 2006:
“25. Meaning of “cohabitant” in sections 26 to 29.
(1) In sections 26 to 29, “cohabitant” means either member of a couple consisting of—
(a) a man and a woman who are (or were) living together as if they were husband and wife; or
(b) two persons of the same sex who are (or were) living together as if they were civil partners.”
2.34 As with the amendment to include children/parents, grandchildren/grandparents, and siblings, the same considerations of social change apply. An increasing number of individuals in long-term committed relationships are making the deliberate decision not to formalise their relationships by pursuing a marriage or civil partnership.
2.35 If an injured person has previously been married or in a civil partnership when their injury occurs, their ex-spouse or ex-civil partner is currently defined as a relative under section 13 and is therefore eligible for remuneration under section 8 of the 1982 Act, as discussed above. However, if the injured person is not married or in a civil partnership, their ex-cohabiting partner is not eligible.
2.36 We are of the view that it should not be the case that ex-cohabitants who had previously been in relationships that exhibited the same level of care, love, loyalty, and affection as formalised relationships be excluded from section 13 and from seeking appropriate remedies.
2.37 While the minority of consultees opposing this amendment raised concerns regarding the widening of the scope of “relative” under section 13, we do not consider such a widening to be excessive. Such an amendment would, as with children/parents and grandchildren/grandparents accepted as part of the injured person’s family, widen the scope only to the extent necessary to keep pace with societal developments and, moreover, would only allow recovery where an ex-cohabitee is in fact providing services to the injured person: it would not automatically entitle ex-cohabitees to a windfall from the injured person’s award of damages. We are therefore of the view that legislating to amend section 13(1)(b) to include ex-cohabitants is the appropriate way forward. The recommendation below and section 5 of the draft Bill implements this approach.
Report on Cohabitation
2.38 We acknowledge this Commission’s Report on Cohabitation,17 which was published in November 2022. The report recommends reform of the current definition of “cohabitant” in section 25 of the Family Law (Scotland) Act 2006. It proposes a new definition of “cohabitant” to be defined as “a member of a couple who are or were living together in an enduring family relationship”. This definition of cohabitant is widely framed to permit the court to consider whether a person is or was a cohabitant on a case by case basis, having regard to their whole circumstances. It aims to protect against claims at the end of brief or casual relationships where there has been no economic interdependence.
2.39 As the Report on Cohabitation is under consideration and has not yet been implemented, we have made our recommendation in this Report using the current law which is based on cohabitants living as if married or in a civil partnership with the injured person. Section 5(2)(d) of the draft Bill therefore provides an amendment to section 13 of the 1982 Act to substitute for current sub-paragraphs (b) the following, “a person who (b) not being the spouse or civil partner of the injured person, who is living or has lived with the injured person as if married to the injured person”.
2.40 However, should the position change and the Scottish Parliament implement the recommendations in the Report on Cohabitation, including the recommended reform of the definition of “cohabitant”, an alternative amendment to section 13 of the 1982 Act to take account of this could be:
“any person who is the cohabitant or former cohabitant of the injured person”.
2.41 This amendment would capture ex-cohabitants as is our policy intention.
2.42 We therefore recommend that:
(Draft Bill, section 5)
Background
2.43 Putting aside the issue of how to define “relative”, there is a wider question of whether it is appropriate to restrict section 8 awards to relatives. Under the current law, a neighbour or friend who provides services to the injured person would not be entitled to remuneration from the responsible person under section 8. In this part of the Report, we consider the rationale for excluding non-relatives from section 8 and the case for reform.
2.44 In our 1978 report, we recommended that section 8 be restricted to relatives only. We said that:
“... [s]ervices rendered by persons within the family group are often motivated by a high sense of duty, and in order to render them members of the family may be prepared to make considerable sacrifices, including leaving their employment. But they may expect, in the long run, to receive some benefit as a counterpart, though not necessarily a benefit of a tangible nature. That such services are frequently rendered by persons within the family group is a matter of common experience and is reasonably foreseeable. The occasions on which persons outside the family group render such services are less frequent, and less readily foreseeable. When they are rendered they are normally given in a spirit of disinterested philanthropy, without any prospect or even thought of benefits in counterpart. In our view, it is only within the family group that there is a demonstrable social need to allow recovery in respect of services rendered ....”18
2.45 The report adds that to include non-relatives might (i) make settlement or litigation more difficult and (ii) increase the number of spurious claims.18
2.46 Our 1978 report differed from the position adopted by the Law Commission of England and Wales, which recommended in 1973 that services provided “by members of the family or by friends” should be remunerated.19
2.47 As we stated in our Discussion Paper, we think there is a case to review the policy position set out in our 1978 report:
“Where necessary services have been given gratuitously in consequence of the injuries in question, we see no policy reason why the responsible person should avoid liability to pay damages representing reasonable remuneration for those services, and the repayment of expenses, solely on the basis that the services were provided by an individual who is not a relative ”20
2.48 As of 2022, 36% of households in Scotland consist of a single adult living alone, compared to 19% at the time of the 1971 census. 21While living alone does not of itself mean that there will be no support from family members, it is perhaps indicative that such a person may depend alternatively or additionally upon a friend or neighbour for necessary services. These shifting demographics suggest that the view of this Commission in 1978 - that “it is only within the family group that there is a demonstrable social need to allow recovery in respect of services rendered” 22- is a view which has become outdated.
Responses to the Discussion Paper
2.49 Accordingly, in our Discussion Paper we asked consultees:
“4. (a) Do you consider that section 8 of the 1982 Act should be extended to
claims in respect of necessary services provided gratuitously to an injured person by individuals who are not family members?
(b) If so, should an individual who is not a family member be regarded as providing services gratuitously if he or she provides them without having any contractual right to payment in respect of their provision, and otherwise than in the course of a business, profession or vocation; or according to some other formula and, if so, what?”
2.50 Twenty-seven consultees responded to Question 4(a): 16 supported extending section 8 to non-relatives,23 ten opposed such an extension, 24and one consultee supported the extension only in exceptional circumstances.25
2.51 In common with the responses we received to Question 3, a number of consultees supported an extension to section 8 on the grounds that social attitudes had changed since the publication of our 1978 report26 and that it is now more common for individuals to rely on their friends or neighbours for help. Thompsons Solicitors and Unite the Union told us that they frequently encounter cases where it is friends and neighbours, rather than relatives, who are providing essential services to the injured person following their injury.
2.52 The University of Aberdeen School of Law said that the injured person should not be disadvantaged because of a failure to enter into a contractual arrangement with a person, other than a relative, who has provided services. They said that “there is considerable artifice in requiring such agreements where they would not usually be created in the ordinary course of friendly or neighbourly behaviour. It would not generally occur even to a person who was reasonably vigilant and astute about their legal position to do so”. Similarly, Tom Marshall said that “there is no rational basis for distinguishing between one type of person providing those services and another”.
2.53 Amongst consultees opposed to extending section 8, many claimed that to do so would lead to an increase in spurious claims, add to the complexity of proceedings and require more cases to go to proof. Aviva Insurance told us that the defender in section 8 claims is often “entirely in the dark” as to family dynamics and the true extent of the services rendered to the injured person, with the defender only having an opportunity to investigate this if the case goes to proof; to extend section 8 further would result in more cases running to proof and “would have the effect of prolonging cases to the detriment of Pursuers and Defenders and utilising valuable court resources in the process”.
2.54 The Association of British Insurers, DAC Beachcroft and NFU Mutual pointed out that section 57 of the Criminal Justice and Courts Act 2015 means that, in England and Wales, a personal injury claimant may have their entire claim dismissed if they are found to have been fundamentally dishonest. There is no equivalent provision in Scotland.
2.55 Of the 16 consultees in favour of extending section 8, ten27 supported the recommended definition of gratuitous services in Question 4(b) and six went into more detail on the quantification of these damages.28 Action on Asbestos, Kennedys Law and Thompsons Solicitors suggested that the same quantification should apply to both relatives and nonrelatives. The Society of Solicitor Advocates recommended that quantification be calculated using a set hourly rate to be increased by the Retail Price Index; Direct Line Group recommended a commercial rate minus 25% be used, to reflect the gratuitous nature of the services. Tom Marshall said that quantification should be left to the courts.
Discussion
2.56 We agree with the majority of consultees that social change since the publication of our 1978 report means that to distinguish between services rendered by relatives and by nonrelatives is no longer reasonable. As we noted above, 29there has been a marked increase in the number of single-person households in Scotland, and it can therefore be expected that family members may no longer be the exclusive providers of necessary services, and that friends or neighbours may also assist. Thompsons Solicitors and Unite the Union told us that this expectation is borne out in their practice. As the University of Aberdeen said, “there is considerable artifice” in requiring an injured person to enter into contractual arrangements with a friend or neighbour in order to recover for these services, where these are not required in the case of relatives.
2.57 However, we appreciate the concerns expressed by a sizeable minority of consultees that an extension of section 8 claims might result in difficulties for defenders. With the broader definition of “relative”, and the extension of section 8 to neighbours and friends, it may be less easy for defenders to ascertain who has rendered services, why, and how they became involved with the injured person. Accordingly, we invite the Scottish Civil Justice Council (and in particular the Personal Injury Committee) to consider issuing a Practice Note or Rule of Court requiring a pursuer to lodge an affidavit in support of a claim regarding services under section 8 rendered by a non-relative, giving such information as the note or rule specifies. The Committee might also wish to consider whether such an affidavit requirement should apply to all section 8 services claims (whether a relative’s or non-relative’s), with a view to clarifying the facts, assisting with the resolution of the case, and avoiding the unnecessary use of court time. Finally, to assist with the efficient disposal of personal injury actions, the Committee might wish to consider whether claims for services in terms of section 9 of the Administration of Justice Act 1982 would benefit from a similar affidavit requirement (although our recommendations at paragraphs 2.59 relate solely to section 8 of the 1982 Act).
2.58 On the definition of “gratuitous services”, in response to Question 4(b), we recommend that a person - relative or non-relative - be regarded as providing services gratuitously where they are provided without a contractual right to payment and otherwise than in the course of a business, profession or vocation. We do not make any recommendation regarding the quantification of these damages.
2.59 We therefore make the following recommendations:
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)
(Draft Bill, section 2)
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 under 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.
Background
2.60 A further question we considered in our Discussion Paper was whether section 8 should be extended so that charitable bodies and other voluntary organisations could recover expenses for the cost of providing care to the injured person. This is now the case in England and Wales, following Drake v Foster Wheeler Ltd 30and Witham’s Executrix v Steve Hill Ltd.31 In Drake, the court made an award for the notional cost of the care provided to the injured person by a charitable hospice, amounting to 62% of the hospice’s running costs (the percentage of the hospice’s costs not funded by donations). However, the court in Witham’s Executrix held that there is no reason to make a notional award, preferring instead to make an award covering the entire actual cost of providing services to the injured person.
2.61 In our Discussion Paper, we asked consultees whether section 8 should be extended to include charitable and voluntary organisations and, if so, how damages should be assessed (i.e. should the approach in Drake or the approach in Witham’s Executrix be followed). In particular, we asked:
“Is there a clear distinction to be drawn between (on the one hand) individuals who choose to give their services to particular individuals gratuitously and (on the other) organisations or bodies which offer their services gratuitously to all those who ask for or need them, such that section 8 claims should extend to the first category but not to the second? It does not seem to us that any principle of the law of damages requires that the second category be excluded. There are, however, plainly serious issues of policy about whether such an extension would be appropriate.”32
Responses to the Discussion Paper
2.62 Accordingly, we asked consultees:
“5. (a) Do you consider that section 8 of the 1982 Act should be extended to
claims in respect of necessary services provided gratuitously to an injured person by bodies or organisations such as charities?
(b) If so, should legislation prescribe how damages should be assessed or should it be a matter left to the discretion of the courts?
(c) If you consider that legislation should so prescribe, what factors do you consider that the court’s attention should be directed to? For example, should the court be directed to consider “such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith” as an appropriate means of assessment or should a concept of reasonable notional costs be adopted? Or some other way of assessment?”
2.63 Twenty-seven consultees responded to part (a) of this question. Ten were in favour of extending section 8 claims to include charities;33 17 were opposed.34
2.64 Of those consultees in favour of extending section 8 to include charities, several said that it is the duty of the responsible person to pay for services that have been made necessary as a result of the responsible person’s actions, and that the responsible person should not be absolved of this duty by charitable endeavour. Drummond Miller noted that charities will often be providing services to the injured person at the expense of providing services to another person in need, and that the responsible person should not be able to avoid payment “due to the fact that another organisation has stepped in ... and so it is fair for the charity to receive some recompense for the care provided”.
2.65 Action on Asbestos drew our attention to the services that charities provide, such as emotional and psychological support, that are not readily available elsewhere and cannot always be rendered by friends or family members. Under the current law, services such as these cannot be recovered under section 8.
2.66 A key point of disagreement between those in favour of extending section 8 and those opposed was whether the nature of “charitable” bodies was a reason to distinguish them from a friend, relative or neighbour providing services. Whereas Digby Brown said that “there is no reasonable basis for distinguishing” charities from private individuals, many of the consultees opposed to extending section 8 disagreed. For example, the Senators of the College of Justice said that:
“. there is a distinction to be drawn between (i) individuals who provide gratuitous care or services out of love, affection, loyalty or compassion, and (ii) charitable bodies, for whom the provision of care and services simply reflects the raison d’etre of the organisation concerned. We consider that there is a possibility that the extension of section 8 to claims in respect of necessary services provided by charitable organisations might be perceived as running contrary to the public perception of the concept of registered charities, the vocational purposes of which are to assist those in need, without compensation.”
2.67 The Senators made an additional observation: that any extension of section 8 may motivate charities to prioritise cases that raise the possibility of recovery - to the detriment of other, deserving, cases.
Discussion
2.68 As mentioned above, it seems to us that the pertinent issue is whether the nature of charities - as bodies that exist “to assist those in need, without compensation” - is a relevant distinction from a private individual that means it is right to exclude them from section 8.
2.69 We are persuaded by the view of the majority of consultees that this is a relevant distinction. To allow charities to recover damages for the services they provide risks undermining their ethos: to help those in need without favour, recourse, or benefit. Accordingly, we are of the view that section 8 of the 1982 Act should not be extended to cover services provided by bodies or organisations such as charities.
2.70 As we are not recommending reform in response to Question 5(a), we do not propose to address Questions 5(b) or 5(c).
Background
2.71 Before leaving section 8 there is one further issue to consider: where the responsible person is the one providing services to the injured person,35 should the responsible person be entitled to compensation under section 8? The position in English law is that such services are not recoverable, following the House of Lords decision in Hunt v Severs. 36In Hunt, Lord Bridge of Harwich said that “there can be no ground in public policy” for requiring the responsible person to pay to the pursuer a sum of money which the pursuer will then be under an obligation to pay back to the responsible person.37 Lord Bridge of Harwich also disapproved of any argument that remuneration for the responsible person’s services could be recoverable where it would not be the responsible person directly, but the responsible person’s insurer, who would meet the cost of this remuneration:38
“The short answer, in my judgment, to [counsel’s] contention is that its acceptance would represent a novel and radical departure in the law of a kind which only the legislature may properly effect. At common law the circumstance that a defendant is contractually indemnified by a third party against a particular legal liability can have no relevance whatever to the measure of that liability.”39
2.72 While this reasoning is sound, there has been some criticism of this position owing to its practical effect. Where the person in the best position to provide necessary services is also the responsible person, the pursuer may have to receive those services from some other relative - at greater inconvenience - in order to make a claim under section 8. Alternatively, the pursuer may be required to enter into a contractual arrangement with outside professionals for the provision of necessary services, so making the claim more expensive for defenders and insurers. For these reasons, the Law Commission of England and Wales recommended the reversal of the decision in Hunt, 40although, at the time of publication, this recommendation has not been taken forward.
Responses to the Discussion Paper
2.73 In our Discussion Paper, we asked consultees:
“6. Should damages be recoverable in respect of gratuitous provision of services
to an injured person where the person providing them is the defender?”
2.74 Twenty-three consultees responded to this question. Ten were in favour of allowing recovery of damages in respect of gratuitous services provided by the defender41 and twelve were opposed.42 The Law Society of Scotland told us that their members were split on this question, and they offered no firm view. They said:
“On the one hand, the Defender may be the only person available to provide gratuitous care to the accident victim. The situation often arises where the Defender is the driver in a road traffic accident and causes injuries to a relative. The only alternative would be to pay for professional assistance which would invariably be more costly and may not result in the ad-hoc care provision that is most often required on a daily basis.
However, that goes against the principle that the Defender should not benefit from their own wrong-doing. Those representing Defenders do not agree with sidestepping the fundamental principle that a negligent wrongdoer ought not to benefit financially from their own negligence, per Kozikowska v Kozikowski (No. 1), 1996 S.L.T. 386, following the House of Lords decision in Hunt v Severs, [1994] 2 AC 350. While appreciating that there are cases where a negligent party may be the only person who can provide services, more serious claims in which significant assistance is required will inevitably result in care costs being sought, ensuring justice is done. In more modest claims, Defenders’ agents do not consider this justifies departing from the principle mentioned above.”
2.75 As in their response to Question 4, the University of Aberdeen were in favour of extending the law as the current narrow scope of section 8 requires pursuers to enter into “artificial” contractual arrangements before they can recover damages. A similar view was expressed by other consultees in favour of extending section 8: that there is no good reason to disincentivise the responsible person from providing essential services where they are best placed to do so.
2.76 Consultees opposed to extending section 8 endorsed the current law as set out in Hunt v Severs and Kozikowska v Kozikowski, 43and said that there was no case for reversing these precedents. DAC Beachcroft said that:
“The courts recognised that it is fundamentally wrong to ‘reward’ a negligent party who also falls within the category of ‘relative’. That relative who then provides gratuitous services to the victim does so by way of moral obligation recognised as public policy. The suggestion that society considers that gratuitous care in those circumstances should have some ‘value’ is flawed.”
Discussion
2.77 We recognise the cogency of the arguments put forward by those in favour of extending section 8 to include defenders. In particular, where the responsible person is insured with respect to the damages, and the responsible person is also in the best position to provide necessary services to the injured person, it is arguable that the responsible person should be reimbursed for the provision of those services.
2.78 The cases “for” and “against” allowing a defender to be compensated under section 8 are well explained by the Law Society of Scotland in their consultation response as set out above in paragraph 2.74.
2.79 However, we do not believe that there is sufficient ground for reform. To extend section 8 to the defender would contravene one of the most basic principles of the law of delict; entitling the defender to reimbursement out of the pursuer’s damages award in respect of an injury the defender caused would contradict the principle of ex turpi causa non oritur actio, which bars a person from receiving damages which arise from their own delictual liability. Any such change to the law would risk allowing the defender to benefit from their own wrongdoing. Moreover, as the Law Society point out, more serious claims will require paid care from professionals or others. Accordingly, we are of the view that section 8 of the Administration of Justice Act 1982 should not be extended to cover services provided by the responsible person.
Background
2.80 Whereas section 8 of the 1982 Act concerns compensation payable to relatives who are providing necessary services to the injured person, section 9 concerns compensation payable to the injured person for the fact that they are no longer able to provide personal services to their relatives.44
2.81 If, as we recommend, section 8 is extended to non-relatives,45 the question arises whether section 9 should likewise be extended to allow the injured person to recover compensation where they are no longer able to provide personal services to persons outwith their family.
2.82 In our 1978 report, this Commission maintained that section 9 claims should be restricted to personal services provided to members of the injured person’s family:
“... Within the family group, for practical reasons, a system of division of labour and pooling of income obtains in which, though in law the services are rendered gratuitously, they are in practice a species of counterpart for the benefits which that member receives as a member of the family group. If by reason of an accident a member of the family group loses the ability to offer the appropriate counterpart for the benefits he receives, he should be compensated for this loss. In this sense we are not advocating a departure from the principle of reasonable foresight as the test of liability for damages, since the system which we have described reflects the normal pattern of family relations in this country. The same test of reasonable foresight, however, would seem to exclude the application of this principle outside the family group. The law cannot take into account unusual instances of gratuitous philanthropy. The Royal Commission, in endorsing this approach, said that:
‘the loss suffered by those not dependent on the plaintiff seems to us to be altogether more remote.”46
2.83 In our Discussion Paper, we noted the difficulty in extending section 9 claims to services provided to non-relatives.47 We said that the loss of personal services provided to a non-relative must be regarded as a loss suffered by that non-relative, not by the injured person. Whereas within the family “a system of division of labour and pooling of income obtains” such that the injured person’s inability to continue to provide services to family members can be described as a loss to the injured person, such a division of labour does not obtain in the same way outside of the family group.
2.84 Considering this, the loss of the provision of personal services to a non-relative is a loss to that non-relative, rather than a loss to the injured person. Claims of this nature would have more in common with claims under section 8 than with the existing section 9 and, while it would be possible to devise a mechanism by which the injured person would be required to account to the non-relative for any compensation under a section 9 claim, 48this tends to suggest that such a loss is too remote to be recoverable.
Responses to the Discussion Paper
2.85 In our Discussion Paper, we asked consultees:
“7. (a) Do you consider that section 9 of the 1982 Act should be extended so
as to entitle the injured person to obtain damages for personal services which had been provided gratuitously by the injured person to a third party who is not his or her relative?
(b) If so, should the injured person be under an obligation to account to such a third party for those damages?”
2.86 Twenty-seven consultees responded to Question 7(a). Twelve were in favour of extending section 9 49and 14 were opposed. 50The Senators of the College of Justice did not express a firm view either way.
2.87 In favour of extending section 9, the University of Aberdeen argued that it is “reasonably foreseeable” that the injured person will be unable to render personal services to non-relatives as a consequence of their injuries, and the loss is, therefore, not too remote to be recoverable. A similar argument regarding remoteness and foreseeability was put forward by other consultees, including Digby Brown, Drummond Miller, and the Association of Personal Injury Lawyers.
2.88 Consultees opposed to extending section 9 took the opposite view. Their position was well expressed by the Faculty of Advocates:
“The Faculty considers that the loss which the extension of section 9 would be intended to address would be too remote to justify the significant innovation which the suggested extension would represent. The loss under contemplation is that of a person outwith the family group and the personal services themselves would be rendered outwith the family group. That loss may therefore readily be distinguished from the loss addressed by the present section 9: the loss there is suffered by the injured person, characterised as the loss of their ability to offer a counterpart in kind for the benefits that they receive within the family group. The latter loss is therefore reasonably proximate to the wrong which caused the injuries.”
2.89 And, on the issue of foreseeability, the Association of British Insurers said that, in their view, the loss of personal services to a non-relative is “not within the reasonable foreseeability of the responsible person, and a reasonably informed member of the public would not have an expectation of an entitlement to damages”.
Discussion
2.90 Respondents were almost evenly split on Question 7(a), with twelve in favour of extension and 14 opposed. In favour of reform, we note the recent shift in societal structure and community interdependence, extending beyond the nuclear family, which was brought to our attention by several respondents. As made clear to us, it is not uncommon for members of the public to rely on their neighbours and friends for the type of support that, previously, was expected of family members. It is on this basis that respondents in favour of reform sought to argue that section 9 should be extended to those who are not members of the injured person’s family.
2.91 However, other consultees maintained that the type of loss envisaged by this reform is too remote from the responsible person’s delictual act to give rise to a claim for damages.
2.92 As set out above, we recommend that section 8 be extended to include services provided by non-relatives. However, we are not convinced of the merits of an equivalent extension of section 9. We maintain that, irrespective of the social shift raised by respondents, it remains the case that, only within the family, a unique division of labour exists which means that personal services rendered by the injured person are “a species of counterpart for the benefits which that member receives as a member of the family group”.51 This is the rationale that underpins section 9 and it does not extend to personal services provided outwith the family.
2.93 For these reasons, we are of the view that section 9 of the 1982 Act should not be extended to allow the injured person to recover damages for personal services that the injured person would have provided to non-relatives. However, given the discussion about provision of an affidavit for section 8 services (see paragraph 2.57 above), we suggest that the Personal Injury Committee of the Scottish Civil Justice Council should also give consideration to introducing a requirement for an affidavit in any claim in terms of section 9 of the 1982 Act.
See Discussion Paper on Damages for Personal Injuries (2022) Scot Law Com No 174, pages 5-20.
Scottish Law Commission, Damages for Personal Injuries: Report on (1) Admissibility of Claims for Services and (2) Admissible Deductions (1978) Scot Law Com No 51, Part I.
McEwan and Paton on Damages, para 12-02.
On the definition of “relative”, see paras 2.9-2.42 below.
For example, someone not related by blood but treated as part of the family.
Zurich Insurance, Stuart McMillan, Ronald Conway, Clyde & Co, Association of Personal Injury Lawyers, Stagecoach, Forum of Insurance Lawyers, University of Aberdeen, Tom Marshall, Unite the Union, Senators of the College of Justice, Aviva Insurance, Digby Brown, Thompsons, Drummond Miller, Faculty of Advocates, DAC Beachcroft, Horwich Farrelly, Association of British Insurers, Society of Solicitor Advocates, Forum of Scottish Claims Managers, FOCIS, Direct Line Group, NFU Mutual, Kennedys, Law Society of Scotland, Medical and Dental Defence Union, Action on Asbestos.
Zurich Insurance, Clyde & Co, Stagecoach, Forum of Insurance Lawyers, University of Aberdeen, Senators of the College of Justice, Aviva Insurance, Digby Brown, DAC Beachcroft, Horwich Farrelly, Association of British Insurers, Society of Solicitor Advocates, Forum of Scottish Claims Managers, Direct Line Group, NFU Mutual, Kennedys, Law Society of Scotland, Association of Personal Injury Lawyers.
Ronald Conway, Unite the Union, Thompsons, Faculty of Advocates, FOCIS, Action on Asbestos.
Unite the Union, Faculty of Advocates, Thompsons.
Association of Personal Injury Lawyers, Ronald Conway, Stagecoach, FOIL, University of Aberdeen, Tom Marshall, Unite the Union, Senators of the College of Justice, Aviva, Digby Brown, Thompsons, Drummond Miller, Faculty of Advocates, DAC Beachcroft, Forum of Scottish Claims Managers, FOCIS, Direct Line Group, NFU Mutual, Action on Asbestos.
Stuart McMillan MSP, Zurich Insurance, Horwich Farrelly, Association of British Insurers, Society of Solicitor Advocates, Law Society of Scotland, Medical and Dental Defence Union of Scotland.
A blended family is a family formed when two people come together and bring a child or children from previous relationships.
[2016] CSOH 151; [2016] 11 WLUK 67.
Law Commission of England and Wales, Personal Injury Litigation - Assessment of Damages (1973) Law Com No 56, para 112. This position was endorsed by the Pearson Report, vol 1, para 346. See also the Law Commission’s later report, Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (1999) Law Com No 262, para 3.60.
National Records of Scotland, “Households and Dwellings in Scotland, 2022” (2023), p 7.
Ronald Conway, APIL, the University of Aberdeen School of Law, Tom Marshall, Unite the Union, Digby Brown, Thompsons Solicitors, Drummond Miller, Faculty of Advocates, Society of Solicitor Advocates, Direct Line Group, Kennedys Law, Law Society of Scotland, Action on Asbestos, Senators of the College of Justice, and Zurich Insurance.
Stuart McMillan MSP, Stagecoach Group, FOIL, Aviva Insurance, DAC Beachcroft, Horwich Farrelly Scotland, Association of British Insurers, Forum of Scottish Claim Managers, NFU Mutual, and MDDUS.
Ronald Conway, Zurich Insurance, APIL, University of Aberdeen School of Law, Unite the Union, Digby Brown, Drummond Miller, Faculty of Advocates, Law Society of Scotland, Senators of the College of Justice. (Aviva Insurance and the Association of British Insurers, while opposed to the extension in Question 4(a), were supportive of the recommended test in Question 4(b) if such an extension were to be recommended).
Tom Marshall, Thompsons Solicitors, Society of Solicitor Advocates, Direct Line Group, Kennedys Law, Action on Asbestos.
[2010] EWHC 2004 (QB), [2011] 1 All ER 63.
[2020] EWHC 299 (QB), [2020] PIQR Q4.
Stuart McMillan MSP, Ronald Conway, APIL, Tom Marshall, Unite the Union, Digby Brown, Thompsons Solicitors, Drummond Miller, Society of Solicitor Advocates, Action on Asbestos.
Zurich Insurance, Clyde & Co, Stagecoach Group, FOIL, University of Aberdeen School of Law, Senators of the College of Justice, Aviva Insurance, Faculty of Advocates, DAC Beachcroft, Horwich Farrelly Scotland, Association of British Insurers, Forum of Scottish Claim Managers, Direct Line Group, NFU Mutual, Kennedys Law, Law Society of Scotland, Medical and Dental Defence Union.
e.g. where the injuries resulted from a road traffic collision for which the injured person’s spouse was responsible.
[1994] 2 AC 350. The position in Hunt was adopted into Scots law by the Outer House in Kozikowska v Kozikowsi 1996 SLT 386.
[1994] 2 AC 350, p 363.
An argument that was later accepted by the Australian High Court in Kars v Kars (1996) 141 ALR 37.
[1994] 2 AC 350, p 363.
Law Commission of England and Wales, Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (1999) Law Com No 262, para 3.76.
APIL, University of Aberdeen School of Law, Unite the Union, Digby Brown, Thompsons Solicitors, Drummond Miller, Faculty of Advocates, Society of Solicitor Advocates, Action on Asbestos, Tom Marshall.
Stuart McMillan MSP, Zurich Insurance, Clyde & Co, Stagecoach Group, FOIL, Senators of the College of Justice, Aviva Insurance, DAC Beachcroft, Forum of Scottish Claim Managers, Direct Line Group, NFU Mutual, Kennedys Law.
[1994] 2 AC 350; 1996 SLT 386.
For a summary of s 9, see paras 2.6-2.8 above.
(1978) Scot Law Com No 51, para 38 (footnote references omitted).
Discussion Paper, paras 2.55-2.57.
See e.g. s 8(2) of the 1982 Act.
Ronald Conway, APIL, University of Aberdeen School of Law, Tom Marshall, Unite the Union, Digby Brown, Thompsons Solicitors, Drummond Miller, Society of Solicitor Advocates, Kennedys Law, Law Society of Scotland, Action on Asbestos.
Stuart McMillan MSP, Zurich Insurance, Clyde & Co, Stagecoach Group, FOIL, Aviva Insurance, Faculty of Advocates, DAC Beachcroft, Horwich Farrelly Scotland, Association of British Insurers, Forum of Scottish Claim Managers, Direct Line Group, NFU Mutual, Medical and Dental Defence Union.
(1978) Scot Law Com No 51, para 38.