Damages for personal injury

Commissioner

David Johnston QC

Team member

Gillian Swanson, Project Manager

The project on damages for personal injury is Item No 7 of our Tenth Programme of Law Reform.  It is a medium-term project which we aim to complete by the end of the Programme, that is by the end of 2022.

What will the project review? 

The Administration of Justice Act 1982, Part II, deals with (a) awards of damages in relation to services; (b) deduction from damages of specified benefits; and (c) awards of provisional damages.  We intend to review each of these issues to take account of contemporary circumstances.  In particular:

  • Awards of damages for services are currently restricted to ‘relatives’.  We think consideration needs to be given to whether the current definition of ‘relative’ remains appropriate and to the wider question whether that general restriction should continue to apply.
  • The law in Scotland and in England differs on the items deductible from damages.  This has generated uncertainty in relation, for example, to deductibility of private health insurance and residential care costs, the quantum of which may be very substantial.  The policy in relation to deductibility appears to us to be ripe for review.
  • We think it appropriate to review how provisional damages operate in cases where the full extent of a person’s injury emerges only after a substantial period of latency.  This is important in order to make sure, on the one hand, that claims are brought without undue delay but, on the other, that pursuers are not under-compensated owing to the need to raise proceedings before the full circumstances of their injury can properly be appreciated.
  • A related issue (albeit one not arising directly from the 1982 Act) which we intend to consider is whether arrangements need to be put in place to protect awards of damages made to children; there have been instances where parents or guardians have sought to exploit a child’s misfortune for financial gain.

Contact

If you require any further information about the project on damages for personal injury, or if there are matters you wish to raise on the topic of damages for personal injury, please email: gillian.swanson@scotlawcom.gsi.gov.uk

If you would like to be kept informed of future publications and events on this project, we would be happy to add you to our email mailing list on request.