Law commission

Have your say on the Commission’s review of Personal Injury Law – Steven Smart

Steven Smart is Partner and Head of Glasgow Office, Horwich Farrelly

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

The definition of ‘kin’ has been amended over the years to include the different types of family relationships that exist in contemporary Scotland. It extends, for example, to spouses, cohabitants and PACS partners of the same sex or of different sexes. Two questions are posed for potential further development in this area. The first is whether children/parents, grandchildren/grandparents and siblings “accepted as part of the family” should be eligible. The second is whether such compensation should be reserved for family members. Should damages be recoverable when the same assistance is provided by or to someone who is not a relative? What if the aid is provided by a voluntary or charitable organisation?

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Where a person receives damages as a result of injuries suffered, Section 10 of the 1982 Act sets out what can and cannot be deducted from compensation. In the context of social security benefits, the law has long established which benefits can be compensated by which parts of a claim. However, the gradual introduction of universal credit, as opposed to individual specified benefit payments, has created a real difficulty in personal injury claims. Indeed, the certificates issued identifying the sums paid to an injured person since the date of the accident are not broken down. How, then, can the parties or the Court assess which sums should be properly compensated?

This can present a significant hurdle for parties reaching a negotiated settlement, even when all parties involved wish to do so and often agree that the certificate produced is likely to include payments that are unrelated to the accident. Such payments should not be offsettable. A claimant may feel unjustly aggrieved when wondering how much money should be deducted from their claim. At the same time, a defender will find it unfair that he not only pays double compensation to the injured party and the government, but can also demand to fund the welfare state for completely independent payments. The initial view expressed by the commission that an appeal against the sum should be filed with the CRU on the basis of the evidence heard in court does not easily accord with the principles of efficient and economical justice or the encouragement of parties to seek to resolve disputes.

In addition to these specific issues, other issues to consider include whether a negligent party should be liable for the cost of state-provided care as a result of injuries sustained, the law relating to the payment of damages interim relief in claims related to asbestos diseases and protection of the interests of injured children when damages are paid.

At a time when it seems to be increasingly fashionable to question the legal profession which upholds the rule of law and upholds the rights of all, it is worth remembering that the Scottish Law Commission exists to offer independent advice to government to improve, simplify and modernize Scots Law. At the heart of this objective is a commitment to the “essential stage” of public consultation to ensure that proposals are both acceptable and feasible, an opportunity that recent national and international events should remind us not to take for granted. The consultation is open to responses until June 15, 2022.

Steven Smart is a partner and head of the Glasgow office, Horwich Farrelly.