Damages for wrongful death

[Project now completed]

Professor Joseph Thomson
Team members
Susan Sutherland, Project Manager

This project has now been completed. Our Report on Damages for Wrongful Death (Scot Law Com No 213) was published on 30 September 2008.

The project stemmed from a reference from Scottish Ministers in September 2006 inviting the Commission

"To consider the law relating to damages recoverable in respect of deaths caused by personal injury and the damages recoverable by relatives of an injured person; and to make any appropriate recommendations for reform."

At the time the Commission received the reference, the Bill which became the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 (asp 18) was introduced in the Scottish Parliament. Prior to the 2007 Act, the Damages (Scotland) Act 1976 provided that claims by the immediate family of a person who died as a result of personal injury were extinguished if the injured person settled his claim before he died. As a result of that provision, victims of mesothelioma had to decide whether to obtain compensation while they were still alive or leave the claim to be pursued after their death by their relatives who could stand to receive larger awards of damages. In these circumstances, many mesothelioma sufferers did not pursue their own claims in order that their relatives could obtain more generous compensation after their death. The 2007 Act amended the Damages (Scotland) Act 1976 so that in cases of mesothelioma the deceased's immediate family can claim damages for non-patrimonial loss even although the deceased had obtained an award of damages or settled his claim before he died. As a consequence, mesothelioma victims no longer have to make the stressful decision of whether or not to pursue their own claims while alive: now they can do so without affecting the separate right of their immediate family to claim damages for non-patrimonial loss after their death.

Our Report takes into account the helpful responses which we received to our Discussion Paper on Damages for Wrongful Death (DP No 135) which was published on 1 August 2007. It recommends a number of changes to the law of damages in cases where a person dies as a result of personal injuries. The main recommendation is that the Damages (Scotland) Act 1976, which has been heavily amended, should be repealed and replaced by a new Act which restates the current law in a clearer and simpler form.

In the Report we also recommend a number of substantive changes to the existing law, including

  • a new method of calculating the damages payable to a victim's family which recognises that the traditional family model of a single breadwinner is declining and that families must be considered as a whole;
  • limiting the classes of relative who have a claim for damages as a result of a victim's death in order to focus more clearly on the victim's immediate family.

In addition, we recommend several technical changes in relation to the calculation of damages by the courts.

On 29 April 2009 Bill Butler MSP lodged a proposal for a Members' Bill to implement the Commission's draft Bill, annexed to the Report on Damages for Wrongful Death. This was followed by a consultation paper on the Bill (PDF) published on 3 August. The Damages (Scotland) Act 2011 (asp 7) received Royal Assent on 7 April 2011.

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

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

Page archive date: 2 June 2010