Earlier this week, the Scottish Law Commission, led by Lady Paton, published a report recommending changes to the law on damages in Scotland.
The last significant change in this area of the law resulted from the Administration of Justice Act 1982 ("the 1982 Act"), which implemented recommendations made by the Scottish Law Commission in its 1978 report. The 1982 Act introduced damages for services provided to or by an injured person. It also provided entitlement for an injured person to return to court at a later date if their condition deteriorated, by allowing for provisional awards of damages. Since then, substantial changes in both society and the law has resulted in the need for further reform in this area to modernise Scots law.
Societal change includes the significant diversification of family structures over the last 40 years, whilst legal changes include the enactment of relevant statutes and court decisions which have impacted the development of the law in this period.
The Scottish Law Commission's recommendations aim to modernise, simplify, and clarify the law of damages for personal injury, ensuring it is fit for modern society.
These recommendations include:
- Introducing a new legislative provision under the Prescription and Limitation (Scotland) Act 1973 to address the time bar issue in respect of pleural plaques claims, by distinguishing asymptomatic asbestos-related conditions from symptomatic asbestos-related conditions. This would mean that an individual's or relative's claim (following the death of their loved one) would no longer be time barred, where the injured person did not take action when suffering from an asymptomatic condition to protect their future claim, which then developed into a more serious symptomatic condition. This change would mean they would still be entitled to claim damages in those circumstances.
- Amending the definition of 'relative' in the 1982 Act to include persons accepted into the family as a parent, grandparent, sibling, grandchild, or ex-cohabitant of the injured person.
- Extending those entitled to damages for services provided to an injured person under the 1982 Act to include individuals who are not related to the injured person, such as friends or neighbours.
- Requiring an evidence affidavit to be produced with regards to services claims.
- CRU certificates should be updated to provide sufficient detail on what benefits are recoverable.
- Clarifying what qualifies as a “contribution” towards a permanent health insurance scheme under the 1982 to Act to determine if a payment made to an injured person under this scheme should be deducted from an award of damages.
- Considering whether "industrial disease" should be included in the definition of "injury" under the Health and Social Care (Community Standards) Act 2003.
- Introducing a statutory provision that an injured person is entitled to opt for private medical treatment, care and accommodation as opposed to relying on NHS services or local authority support. Reform should also be considered of the law concerning recovery of the injured person's costs as provided by local authorities.
Amendments to the Children (Scotland) Act 1995 providing increased supervision when an award of damages in made to a child.
The Scottish Government will now consider whether or not to implement any or all of the Commission's recommendations.
At MFMac, our experienced personal injury team can provide advice and guidance on the proposed reform. Contact us today on 0131 247 1000 or at our personal injury team page.
