Lady Paton

Damages for personal injury are a sensitive type of civil claim because they involve a delicate balance of interests. The principle of restitutio in integrum – putting a person in the position they would have been but for the accident – remains a fundamental principle of the law of delict in Scotland. However, applying that principle can be far from straightforward. 

It is appropriate to review the Administration of Justice Act 1982 now because there has been significant societal change since its enactment, the commission said. Case law has also developed considerably in this area and has demonstrated that some of the provisions may be unduly complex and may be in need of clarification, and perhaps even reform.

The commission also considers that it is appropriate to review the provisions in the Children (Scotland) Act 1995 concerning the management of damages awarded to children, especially given that children may be dependent on these awards for the rest of their lives. 

The discussion paper considers and asks for views on four areas of the law of damages for personal injury:

• Awards of damages in respect of services provided to and by an injured person and specifically whether the restriction to relatives should continue to apply;
• What deductions should be made from awards of damages;
• The operation of provisional damages, particularly in the context of asbestos-related disease;
• The management of damages awarded for the benefit of children so that the children’s interests can be best safeguarded.

The commission invites comments from anyone with an interest. Responses to the discussion paper can be made until 15 June 2022.

Following consultation, the commission will assess consultees’ views and commence work towards publication of a report. 

Lady Paton, chair of the Scottish Law Commission and lead commissioner on this project, said: “It is important that the law on damages for personal injury is fair and reflects modern society; and also that it operates in a clear, consistent and transparent way.  When someone is injured through another person’s negligence, it is crucial that damages can be assessed in a way that is equitable to both parties in order to enable them to move forward. This Discussion Paper examines four specific areas of the law of damages in order to suggest some ways in which it may be modernised so that it is fit for today’s society. 

“We are keen to hear from anyone interested in the law of damages for personal injury, ranging from legal practitioners, insurance specialists, academics, interest groups, people who have been injured through another person’s negligence, through to the wider general public. The responses we receive now will help us to shape policy and make any necessary proposals for future reform of the law.”