The Scottish Law Commission is seeking views on a new discussion paper on personal injury damages.
Personal injury damages are a sensitive type of civil action because they involve a delicate balance of interests. The principle of restitution in integrity – placing a person in the position they would have been in but for the accident – remains a fundamental tenet of Scottish tort law. However, applying this principle can be far from straightforward.
It is necessary to review the Administration of Justice Act 1982 now because there have been significant societal changes since its enactment, the commission said. Case law has also developed considerably in this area and has shown that some of the provisions may be excessively complex and require clarification or even reform.
The committee also considers that the provisions of the Children (Scotland) Act 1995 concerning the management of damages awarded to children, especially since children may depend on these awards for the rest of their lives.
The Discussion Paper examines and solicits views on four areas of personal injury damages law:
- The award of damages for services provided to and by an injured person and more specifically whether the restriction to relatives should continue to apply;
- What inferences should be made from damages awards;
- The operation of provisional damages, in particular in the context of asbestos-related diseases;
- The management of damages awarded for the benefit of children so that the interests of children are best safeguarded.
The commission invites comments from any interested person. Responses to the working document can be made until June 15, 2022.
Following the consultation, the commission will assess the views of those consulted and begin work towards the publication of a report.
Lady Paton, Chair of the Scottish Law Commission and lead commissioner of the project, said: “It is important that personal injury damages law is fair and reflects modern society; and also that it operates in a clear, consistent and transparent manner. When a person is injured by the negligence of another person, it is crucial that the damages can be assessed fairly for both parties in order to allow them to move forward. This discussion paper examines four specific areas of damages law in order to suggest ways to modernize it so that it is relevant to today’s society.
“We look forward to hearing from anyone interested in personal injury damages law, whether they are lawyers, insurance specialists, academics, interest groups, people who have been harmed by another person’s negligence, to the general public.The responses we receive now will help us shape policy and make any necessary proposals for future law reform.