Civil Law of Damages: Issues in Personal Injury - Analysis of Written Consultation Responses

2. Introduction

2.1 In its manifesto, the Scottish Government committed to consolidating and updating the existing legislation on the law of damages, building on the work of the Commission . Previous reviews have looked at modernising aspects of Scots civil law. The Scottish Civil Courts Review was undertaken by Rt Hon Lord Gill and addressed how rights and obligations are enforced; and in the Review of Expenses and Funding of Civil Litigation, Sheriff Principal Taylor is examining the financial aspects of civil litigation. The Scottish Government gave its commitment to reform the law of damages in order to update the substance of those rights and obligations.

2.2 Damages for personal injury are the amount of money negotiated between pursuers and defenders, or awarded by the courts, to compensate the pursuer for the injury and loss suffered as a result of the wrongdoing of the defender. For a civil action for damages for personal injury to be successful, evidence needs to demonstrate on the balance of probabilities that:

• there was a breach of a duty of care owed to a person;
• that breach of duty caused the person real harm;
• that harm was reasonably foreseeable as a result of that breach; and
• the person or entity that failed to fulfil the duty of care behaved deliberately or negligently.

2.3 It is also necessary for a civil action for damages to be brought within a defined period. This period is commonly called the "time-bar" and is set out in the Prescription and Limitation (Scotland) Act 1973. The period defined aims to strike an appropriate balance between the rights of individuals who may wish to make a claim for personal injury having reasonable opportunity to do so, and on the other hand, the protection of individuals and organisations against open-ended civil liability.

2.4 The Scottish Government published a consultation paper on 19 December 2012 in which views were invited on implementing the SLC's 2004 report on Damages for Psychiatric Injury^[8], its 2007 report on Personal Injury Actions: Limitation and Prescribed Claims^[9], and on the one outstanding recommendation in its 2008 report on Damages for Wrongful Death^[10]. It also sought comments on a range of related issues such as the discount rate to be applied in calculating future loss; interest on damages; and periodical payments.

2.5 In addition to consulting in a written document, the Scottish Government held two public stakeholder events across Scotland focussing on time-bar, to ensure the issues under consideration were made accessible to a wider range of respondents. The views generated by each of these consultation approaches complement each other and inform the Scottish Government's decisions on the reform of damages law as recommended by the SLC.

2.6 The written consultation closed on 15 March 2013. This report presents the analysis of views contained in the written responses only. These responses have been made publicly available on the Scottish Government website^[11] unless the respondent has specifically requested otherwise.

Consultation responses

2.7 Forty five written responses to the consultation were submitted. Table 1 shows the numbers of responses by category of respondent. Insurance bodies formed the largest category of respondent, accounting for 29% of responses. Overall, 82% of responses were from organisations; the remaining 18% of responses were from individuals. The full list of respondents is in the Annex.

Table 1: Number of responses by category of respondent

NB Percentages do not add to 100% exactly due to rounding.

2.8 It should be noted that the legal body representatives and solicitors who responded to the consultation included those representing pursuers and those representing defenders. These different perspectives are reflected in their responses, as presented in the following chapters.

2.9 An electronic database was used to collate the responses to assist analysis. Qualitative and quantitative approaches were used to analyse the responses to questions which included both open and closed aspects.

Report of findings

2.10 The following four chapters document the substance of the analysis. Chapter 3 examines views on the current law on psychiatric injury and proposals for change. Chapter 4 analyses responses to proposals relating to limitation and prescription which are aimed at striking an appropriate balance between the rights of pursuers and defenders. Chapter 5 summarises views on whether three key recent legislative reforms are achieving their central aims; and Chapter 6 presents comments on two main aspects of future legislative reform: periodical payments; and interest on damages.

2.11 Respondent categories have been abbreviated in the report as follows: