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Consultation on the Civil Law of Damages: Government Response to Issues in Personal Injury

At the end of last year, the Scottish government issued its response to the consultation on the Civil Law of Damages: Issues in Personal Injury which was undertaken earlier in 2013. In September 2013 the Scottish government announced details of its legislative programme for 2013-14 and this included a Damages Bill, which is based on many of the proposals in the consultation. Among the provisions of the Bill are proposals to:

  • Increase the limitation period for raising an action for damages for a personal injury from 3 to 5 years

  • Provide a list of factors to assist the court in exercising its discretion under the Prescription and Limitation (Scotland) Act 1973 to allow an action to proceed after the expiry of the limitation period

  • Clarify that it should not be possible for a bereaved relative to obtain damages for psychiatric injury under the Damages (Scotland) Act 2011 following the death of a relative

  • Provide the courts with the power to impose periodical payments in relation to awards of damages for personal injury

The government’s response to the consultation indicates that the package of measures is intended to address some of the practical problems that arise in pursuing claims for personal injuries. The extension of the limitation period for personal injury claims appears to be the most controversial of the reforms. Interestingly, government’s response indicates that there was a general consensus among those who took part in the consultation that it was in the public interest for disputes between parties to be concluded as quickly as possible and most of those who responded to the consultation thought that the current three year time bar period was sufficient. Responses pointed out that a longer time period could have an adverse effect on the quality of evidence and encourage unnecessary delay, as well as reducing certainty for both parties. The Scottish government has decided, however, to follow the Scottish Law Commission’s recommendation that the current time bar period should be extended to 5 years, on the basis that this would be helpful in more complex cases in which further investigation and additional expert reports may be required before proceedings can be raised. This would also bring the limitation period for personal injury actions in line with the prescriptive period for obligations relating to debt, reparation or breach of contract.

There was overwhelming support for a review of periodical payments, which are rarely used in Scotland at present. Currently, an order for periodical payments can only be made with the consent of both parties. The proposed reform will mean that the courts can impose such an order and will have the power to vary these in the future.

Scottish government response.

Contact

For further information please contact Catherine Hart, Associate, Professional Support Lawyer (Scotland) on 0141 228 8000

By Catherine Hart

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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