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Scotland Focus

31 July 2019

Our monthly round-up of developments dominating the legal landscape in Scotland.

July 2019

Scottish Government

Discount Rate

New rate for England and Wales – On 15 July the Lord Chancellor announced a new discount rate for England and Wales of -0.25% for cases settled after 5 August 2019 (previously minus 0.75%).

This was met with general disappointment by the insurance sector.  The rate was set at the lowest end of what had been predicted and at a level which many believe will still result in overcompensation to claimants.

Scotland - In comparison, it will be the UK government actuary and not the Lord Chancellor that will set the rate in Scotland and who has to submit his decision to the Scottish Government by 28 September 2019. 

As well as a different person deciding the rate in Scotland the legislation that sets out the guidance for calculating the rate also differs significantly.  The Damages (Investment Returns and Periodical Payments) (Scotland) Act 2019 requires the UK government actuary to make two reductions to the discount rate which he would otherwise fix.  It was anticipated that these "adjustments" would mean a lower rate in Scotland.  However, with the rate being set lower than expected in England and Wales it maybe that the rates end up the same or much closer than anticipated. 

Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018

The introduction of QOCS appears unlikely before the end of 2019.  Progress is being made with the earliest date for full SCJC approval likely to be 9 September.  It is understood that, after approval, there will be a three-month period before commencement.

Case Law

Local Authority Liability - Edinburgh Tram/Cyclist – important decision about extent of duties of local/roads authorities in two recent cases.  Cyclists were injured in accidents while crossing tram rails in separate locations in Edinburgh at an unsafe angle.  The pursuers identified two key risks posed by tram rails to cyclists: (1) a risk of the tyre or tyres slipping on the metal rails; and (2) a risk of the tyre or tyres becoming caught in the metal groove of the rail.

There was no dispute that these risks can be minimised if the rails are crossed at right angles.  As the angle shallows, so the risk of the wheel slipping or becoming caught increases. Crossing at an angle less than 45 degrees increases the risk of an accident to an intolerable level.

The pursuers averred that the defenders had a duty to minimise the risk the rails presented to cyclists and a duty to avoid creating or maintaining such a hazard in the design, construction and maintenance of the road layout for cyclists.

The defenders argued that as a roads authority they had no obligation in law to protect road users taking reasonable care from obvious dangers.   

Accordingly, the task for the Court was to decide:

  1. if there was a hazard posing a significant risk of an accident;
  2. if so, whether it was obvious; and
  3. what was reasonably foreseeable to or known by the defenders?

Lady Wolffe was persuaded that the construction of the road layout did not allow for cyclists to cross the rails at a safe angle. 

"The particular risk in both locations was being required to cross the rails at too shallow an angle and having to do so while following the expected line and direction of travel."

The specific risks at both locations were known or reasonably foreseeable to the defenders as they had been identified in road safety audits carried out before the accidents.  Lady Wolffe found liability to be established and granted decree in favour of each pursuer with no deduction for contributory negligence. 

Test case? - We understand there may be as many as 100 other similar claims waiting to be litigated following this decision.  However, it is expressly stated in the judgment that these two claims are not to be viewed as test cases. It seems the court wishes to make clear that these judgements do not permit a wholesale attack on the entire tram network.  It was a combination of the specific road/traffic lane construction in each location, requiring cyclists to cross the tram rails at an unsafe angle that meant liability was established in these two cases. 

Elizabeth Fairley v Edinburgh Trams Ltd and City of Edinburgh Council [2019] CSOH 50 / Iain Lowdean v TIE Ltd and City of Edinburgh Council [2019] CSOH 50

Scottish Abuse Claims

Scottish Government Redress Scheme

More than 70 survivors of abuse in care (aged 70 or over) have already taken advantage of the Advance Payment Scheme set up by the Scottish Government and been awarded £10,000 compensation.

Abuse pre-action protocol –The working party met in May and we understand that once they are satisfied with the draft protocol they are looking to circulate this for comments.  We hope we can become involved at this stage to present our opinions.

Scottish Child Abuse Inquiry – In October, the Inquiry will resume Phase 4 of its investigations into residential childcare establishments run by male religious orders. 

News and updates can be viewed here

If you wish to discuss training for your teams or consider outsourcing abuse work please contact Andrew Lothian who heads up our Scottish abuse team.

Events

12 September - Scottish Claims Conference Thursday 12 September 2019.  Invitations will be sent out this week. 

Counsel Seminar – Fundamental dishonesty in Scotland – date tbc

Contact

For further information please contact: 

Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305

Alison Grant, Partner, Professional Indemnity (Scotland) on 0141 228 8127

Jill Sinclair, Head of Counter Fraud (Scotland) on 0141 228 8196

Caroline Coyle, Senior Associate and Professional Support Lawyer, Insurance on 0141 228 8132 

Further Reading