Plans for reforming law of damages move up the agenda - Andrew Gilmour
President John F Kennedy observed that “change is the law of life” and in that spirit, the Scottish Law Commission, chaired by Lady Paton, has prepared a report seeking to reform the law of damages in personal injury cases in Scotland, so it is more attuned with circumstances in modern society.
The report seeks to increase access to justice, remove unfairness, modernise and make more transparent the calculation and management of damages.
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Hide AdChanging demographics have resulted in support being provided to injured people by individuals and social support structures beyond the traditional “nuclear family”. The report proposes expanding the definition of “relative” to include people accepted into a family and ex-cohabitants of the injured person. Further, those who can claim for damages in respect of support they provide should be extended from “relatives” to any “individual”, as long as the services were not rendered in a contractual or business relationship.


The proposal would, for example, allow a neighbour or a friend, who helped with shopping or housework for an injured person, have damages claimed for from a compensator. How this will be evidenced and valued remains to be seen and some have raised questions. It is proposed that if damages are recovered, an injured person should undertake to pay those sums to the individual who assisted them, to avoid being overcompensated.
The report considers whether time-bar issues relating to symptom-free asbestos conditions should be waived. It notes there are many individuals who have had an earlier diagnosis of an asymptomatic asbestos condition which did not proceed to litigation, resulting in later, more serious symptomatic asbestos conditions being time-barred, preventing the recovery of damages. Draft legislation accompanying the report proposes to reverse this, likely to result in more claims, but removing a barrier to compensation in emotive circumstances.
Deductions from damages have also been considered. Payments made to an injured employee, under a permanent health insurance scheme that they have contributed to financially, are not to be deductible from damages, contrasting with the position in England. There is also to be a statutory provision to allow an injured person to claim for private medical treatment, care, accommodation and equipment, rather than require to utilise available NHS or local authority support.
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Hide AdDue to their vulnerability, the report seeks to increase the court’s supervision of how damages awarded to injured children are managed. The Scottish courts have historically had relatively limited involvement in managing such awards. The report proposes that before making any award of damages to a child, the court should now have a duty to inquire how the award will be invested, protected, and administered.
It will consider factors such as the level of damages awarded and future care and accommodation needs of the child. The court will have regard to child welfare; an order will only be made if it is better for the child. The views of the child should be taken into account when considering how the damages are to be managed. The Accountant of Court may be involved in appropriate cases.
With the prospect of passing a Budget by February undoubtedly top of the agenda, there is no clear timescale for a response from the Scottish Government or the potential introduction of, and debate on, a draft bill. The report provides food for thought in the meantime as the report seeks to align our law with situations arising more frequently in claims.
Andrew Gilmour is a Partner, Horwich Farrelly