Possible reforms to damages awards under the Administration of Justice Act 1982 are put forward by the Scottish Law Commission in a discussion paper published today.
The Act allows money claims for services provided to an injured person by a family member, and for loss of services formerly provided by the injured person, as well as provisional damages awards to reflect the possibility of a medical condition becoming worse over time.
At the same time the Commission invites views on whether the law should be changed regarding the management of awards to children.
In its Discussion Paper on Damages for Personal Injury the Commission states that it is appropriate to review the 1982 Act now because there has been significant societal change since its enactment. Case law has also developed considerably in this area and has demonstrated that some of the provisions may be unduly complex and may be in need of clarification, and perhaps even reform.
At present, awards of damages in respect of services provided to and by an injured person can only be made where the services involve relatives. The Commission questions whether society today would still consider the loss of personal services previously rendered to a non-relative as too remote, and not within the reasonable foreseeability of the responsible person.
Examples might include two friends living together, one providing personal care to the other; a neighbour providing personal care such as shopping and grass-cutting for someone with no one else to help; and someone providing a "befriending" service, visiting a non-relative in their own home.
As regards provisional damages, the Commission requests views about asbestos-related disease, and in particular whether an unforeseen time bar problem concerning pleural plaques and subsequent more serious disease such as mesothelioma, has emerged due to the development of statute and case law in Scotland, which now explicitly recognises pleural plaques as a form of personal injury.
The 1982 Act also deals with deductions from damages as respects certain public and private benefits received. There is a question whether the case law is consistent regarding health insurance cover, and the Commission asks whether any reform is needed.
It also considers it timely to review the provisions in the Children (Scotland) Act 1995 concerning the management of damages awarded to children, and the level of supervision to ensure that damages are invested appropriately to provide for the child's needs for as long as that as required.
The project is part of the Commission's Tenth Programme of Law Reform.
Lady Paton, chair of the Scottish Law Commission and lead commissioner on the project, commented: "It is important that the law on damages for personal injury is fair and reflects modern society; and also that it operates in a clear, consistent and transparent way. When someone is injured through another person’s negligence, it is crucial that damages can be assessed in a way that is equitable to both parties in order to enable them to move forward. This discussion paper examines four specific areas of the law of damages in order to suggest some ways in which it may be modernised so that it is fit for today’s society.
"We are keen to hear from anyone interested in the law of damages for personal injury, ranging from legal practitioners, insurance specialists, academics, interest groups, people who have been injured through another person’s negligence, through to the wider general public. The responses we receive now will help us to shape policy and make any necessary proposals for future reform of the law."
Access the discussion paper here. Responses can be made until 15 June 2022. An article by Lady Paton will be published in the March issue of the Journal.