Damages for personal injury

Commissioner

Lady Paton

Team Members

Mariel Kaney, Project Manager
Rachael Irvine, Legal Assistant

This project has now been completed. A Report on Damages for Personal Injury, together with a draft Damages (Scotland) Bill, was published on 4 December 2024.

The Administration of Justice Act 1982 implemented recommendations made by the Scottish Law Commission in our 1978 Report, Damages for Personal Injuries (Report on (1) Admissibility of Claims for Services and (2) Admissible Deductions), introducing damages for services rendered to or by an injured person and also provisional damages. However, there have been significant social and legal changes in the last four decades, resulting in suggestions for further reform. For example, one of the issues raised was whether claims for services should continue to be restricted to “relatives”.

The SLC, as part of its Tenth Programme of Law Reform (and continued into its Eleventh Programme), considered how the law of damages could be made fit for 21st century Scotland. The Report on Damages recommends reform across four topics: the law relating to damages for services, deductions from damages, provisional damages and asbestos-related disease and management of children’s awards of damages.

The recommendations seek to achieve greater fairness in the context of awards of damages for personal injury in Scotland by:

  • Updating the definition of “relative” to reflect modern society;
  • Extending the class of persons entitled to damages for services rendered to an injured person to include, for example, friends and neighbours;
  • Clarifying what qualifies as a “contribution” towards a permanent health insurance scheme, for the purpose of determining whether a payment made to an injured person under that scheme should, or should not, be deducted from an award of damages;
  • Confirming that injured persons are entitled to opt for private medical treatment, care, accommodation, and equipment, rather than rely on NHS or local authority support;
  • Resolving the pleural plaques time-bar problem, so that an asymptomatic condition such as pleural plaques will no longer result in a time-bar preventing recovery of damages for a later-developing symptomatic condition such as mesothelioma;
  • Requiring increased supervision by the courts where damages are awarded to young children.

The Discussion Paper which preceded the Report was published on 23 February 2022.

An outline of the contents of the Report can be found in the Executive Summary and News Release. A Business and Regulatory Impact Assessment is also available.

Contact

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