The report’s recommendations include:
- In cases which include a claim for services rendered to an injured person, or relating to services which the injured person is no longer able to provide, updating the definition of “relative” to reflect modern family structures and more complex dynamics;
- Separately, extending the class of persons entitled to damages for services rendered by them to an injured person to include, for example, friends and neighbours.
- Clarifying that payments received by an injured person under a Permanent Health Insurance Scheme to which they have contributed financially (by direct payment, tax or NIC, or forfeiting some remuneration/earnings) should not be deductible from an award of damages;
- Confirming that injured persons are entitled to opt for private medical treatment, care, accommodation, and equipment, rather than rely on NHS or local authority support;
- Resolving the pleural plaques time-bar problem, so that an asymptomatic condition such as pleural plaques will no longer result in a time-bar preventing recovery of damages for a later-developing symptomatic condition such as mesothelioma;
- Requiring increased supervision by the courts where damages are awarded to young children. At present there is no court approval for awards to children in Scotland. The report recommends that the court should have a role to inquire how the award will be invested, protected and administered, and if appropriate referred to the Accountant of Court for further investigation.
It is recommended that points 1 and 2 be supported in practice by the production of affidavit evidence from the person providing gratuitous services to the injured party.
The Scottish Law Commission also took the opportunity to recommend that the Scottish Government clarify with the DWP the concerns raised by claimants about Universal Credit and the lack of clarity over which benefits are or are not deductible from which head of claim.
The report contains a draft Damages (Scotland) Bill which, if passed, would implement the Scottish Law Commission's recommendations.
While the reforms provide a welcome degree of clarity and modernisation, the overall effect will be to increase damages awards, and in the case of children's claims, both sides' costs. We will provide further updates on the implementation of these recommendations when the Scottish Government responds.
View the report
For further information please contact Andrew Lothian
