Have your say about the Scottish Law Commission’s review of personal injury damages

This article originally appeared in The Scotsman, authored by Head of HF Scotland, Steven Smart.

The Scottish Law Commission announced a consultation process on 23 February to review matters relating to awards of damages in personal injury claims. Whether provisions setting out criteria the Courts must apply when calculating certain awards remain adequate or require reform is to be considered.

Sections 8 and 9 of the Administration of Justice Act 1982 provide that an award of damages can be made for necessary personal services provided to a person, or which they are unable to provide to someone, as a result of injuries sustained in an accident. However, such an award is restricted to assistance provided by, or to, a “relative”.

The definition of “relative” has been modified over the years to include the different kinds of family relationships which exist in contemporary Scotland. For example, it extends to spouses, cohabitants and civil partnership of the same sex or different sexes. Two questions are posed for further potential development in this area. The first is whether children/parents, grandchildren/grandparents and siblings who are “accepted as part of the family” should be eligible. The second is whether such an award should be restricted to relatives at all. Should damages be recoverable where the same assistance is provided by or to someone who is not a relative? What if the assistance is provided by a voluntary or charitable organisation?

Where a person receives damages as a result of injuries sustained, Section 10 of the 1982 Act sets out what can and cannot be offset against an award. In the context of social security payments, the law has long established which benefits may be capable of being offset against which parts of a claim. However, the phased introduction of Universal Credit, as opposed to individual payments of specified benefits, has created a real difficulty in personal injury actions. This is because the certificates issued identifying sums paid to an injured party from the date of an accident are not broken down. How can parties or the Court therefore assess which sums are properly to be offset?

This can present a significant hurdle to parties reaching a negotiated settlement, even when all involved have a desire to do so and are often in agreement that the certificate produced likely includes payments which are not related to the accident. Such payments ought not to be capable of being offset. A claimant can feel unjustly short-changed when it is argued what sum ought to be deducted from their claim. At the same time, a defender will feel it is unjust that they are not only paying double compensation to the injured party and the Government but may also require to fund the welfare state for entirely unrelated payments. The initial view expressed by the commission that an appeal against the sum ought to be lodged with the CRU based on evidence heard in Court does not sit easily alongside principles of effective and economic justice or the encouragement of parties to seek to resolve disputes.

In addition to these specific issues, other matters to be reviewed include whether a negligent party ought to be responsible for the cost of care provided by the state as a result of injuries sustained, the law relating to payment of provisional damages in claims concerning asbestos related diseases and protecting the interests of injured children where damages are paid.

At a time when it seems to have become increasingly fashionable to question the legal profession upholding the rule of law and defending the rights of all, it is worth reiterating the Scottish Law Commission exists to offer independent advice to the Government to improve, simplify and modernise Scots Law. Central to that aim is a commitment to “the essential step” of public consultation to ensure proposals are both acceptable and workable, an opportunity recent domestic and international events ought to remind us not to take for granted. The consultation is open for responses until 15 June 2022.

Publication Author:

Steven Smart
Partner & Head of HF Scotland