Reforming the civil law of damages

by Personal Injury Claims Blawg on February 11, 2013

Guest post from Dallas McMillan’s injury lawyers in Glasgow (click here). Connect with personal injury specialist David McElroy on Google+ here and on LinkedIn here.

The law on key aspects of damages for personal injury should be modernised and simplified, according to a significant and wide-ranging consultation launched by the Scottish Government in December.

Suggested reforms

It seeks views on aspects of recent proposals from the Scottish Law Commission on:

  • reform of the law on damages for psychiatric injury,
  • the law on prescription and limitation (also known as “time bar”) for actions for personal injury;
  • and a range of related issues such as the Discount Rate; Interest on Damages and Periodical Payments.

Damages for psychiatric injury

The question of damages for psychiatric injury was addressed by the Scottish Law Commission (SLC) in 2004.

At issue is the liability of a person who causes mental harm to be suffered by someone, even though there is no actual physical injury. Examples include a mother seeing her child being killed in a hit and run accident or a construction worker seeing his colleague being dragged through a defective piece of machinery.

In very general terms the recommendations put forward by the SLC, and now the Scottish Government are:

  • people are expected to have a certain level of resilience. So there can be no liability where the mental harm results from things you would normally experience in life, such as bereavement.
  • the mental harm must be reasonably foreseeable and be a medically recognised mental disorder.
  • the person making the claim must have had a “close relationship with another person killed, injured or imperilled in the incident or was acting as a rescuer in relation to the incident.”

Prescription and limitation

This aspect of the consultation is based on SLC recommendations from 2007.

At the moment a person who has been injured must make a claim for personal injury within three years of the date on which he became aware that he had been injured.

So, very generally, a passenger in a car who broke his ribs and leg in a car accident must bring his claim within three years of the accident, otherwise it will be ‘time-barred’. But a man who  has contracted an industrial disease such as mesothelioma (which may take 40 years to develop) will have three years from the date at which he became aware that he had the disease in which to make his claim.

However, the SLC has recommended that this period be extended from three years to five.  It thinks that allowing a longer period will be welcomed, particularly in cases involving claims for occupational diseases, where gathering evidence to bring an action can be very time consuming and difficult – and may take longer than three years.

Impact of past reforms

The final aspect of the consultation looks at the impact that other recent reforms have made, asks whether they are working, and what other reform might be necessary.

In particular it looks at the impact of:

  • Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007
  • Damages (Asbestos-related Conditions) (Scotland) Act 2009
  • Damages (Scotland) Act 2011
  • The discount rate
  • Periodical payments
  • Interest on damages

Comments on the consultation are sought by 15th March 2013.

Contains public sector information licensed under the Open Government Licence v1.0.

Personal Injury Claims Blawg

Personal Injury Claims Blawg

PI claims blogger at PIClaimsBlawg
Personal Injury Claims Blawg is a personal injury law blog, inviting contributions from practitioners, PI law firms and legal academics across the UK, US and beyond. The post above has been published because of the high value associated with the author's work. Contact us if you'd like to get published today.
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