Personal injury actions

[Project now completed]

Commissioner
Chairman

Team member
Susan Sutherland, Project Manager

This project arose from two separate matters which Scottish Ministers referred to us. First, they asked us to review the operation of sections 17(2)(b), 18(2)(b) and 19A of the Prescription and Limitation (Scotland) Act 1973 which relate to limitation in personal injury actions. They also asked us to review the position of claims for damages in respect of personal injury which had expired as a result of the law of prescription prior to September 1984.

The law of limitation of actions and the law of negative prescription usually produce a similar practical result in that once the requisite period of time has elapsed the defending party has a defence to a claim which is based on the passage of time. However, prescription and limitation are conceptually different. Limitation is a procedural rule relating to remedies: even after the expiry of a limitation period the obligation to pay damages technically continues to exist. But if limitation is pled by the defending party the court will not allow the obligation to be enforced through the means of a court action. Prescription on the other hand is a substantive rule of law. The basis of prescription is that after the passage of the requisite period of time the obligation to pay damages is wholly extinguished.

The first reference was prompted by concerns among practitioners involved in personal injury litigation - particularly claims for compensation for industrial diseases - that the "date of knowledge" test in section 17 of the 1973 Act is too restrictive. Section 17 contains the main rules on limitation or time-bar in actions of damages for personal injuries. It provides for a 3 year limitation period within which the actions must be raised. It also provides for a number of starting dates for the 3 year period. One of these is the date on which the pursuer was aware, or it was reasonably practicable for him to have become aware, of certain specified facts in relation to his claim. Section 18 is broadly similar to section 17 except that it relates to cases where death has resulted from personal injury. Section 19A gives the court discretion to allow a case which would otherwise be time-barred under section 17 or 18 to proceed if it seems equitable to do so.

The second reference concerned claims for damages for personal injury which were extinguished as a result of prescription before 26 September 1984 when a number of amendments to the 1973 Act came into force. One of those amendments was the removal of personal injury actions from the scope of prescription. This change in the law did not affect claims which had already been extinguished. We received the second reference following concerns about the position of people, particularly those who claim to have suffered childhood abuse many years ago in various institutions in Scotland, whose claims were extinguished under the previous rules of prescription.

Our  Report (Scot Law Com No 207) containing recommendations for changes to the Prescription and Limitation (Scotland) Act 1973 was published in December 2007.

Scottish Ministers announced on 7 February 2008 that they accepted the Commission's recommendation that claims in respect of personal injury which had prescribed before 1984 should not be revived, for the reasons stated in the Report.

The Scottish Government issued a consultation paper on 19 December 2012 covering proposals contained in this Report.

See also the Scottish Government consultation paper on Removal of the 3 Year Limitation Period from Civil Actions for Damages for Personal Injury for in Care Survivors of Historical Child Abuse issued on 25 June 2015.

For further information, please contact info@scotlawcom.gov.uk.

Page archive date: 1 September 2008