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Government launches damages law reform

21 December 2012

The Civil Law of Damages: Issues in Personal Injury is the subject of a new consultation by the Scottish Government.

The review furthers an SNP manifesto commitment to consolidate and update the existing legislation on the law of damages, building on the work of the Scottish Law Commission. It seeks views on implementing the Scottish Law Commission’s 2004 report on Damages for Psychiatric Injury. its 2007 report on Personal Injury Actions: Limitation and Prescribed Claims, and on the one outstanding recommendation in its 2008 report on Damages for Wrongful Death.

There is also a chapter seeking views on a range of related issues such as the discount rate to be applied in calcluating future loss, interest on damages, and periodical payments.

Ministers anticipate legislating before the next Scottish Parliament elections to reform the law on damages for psychiatric injury and the law on limitation, but say that further examination of some of the Commission's proposals is necessary, in view of certain concerns expressed and because of subsequent developments in legislation and case law.

On psychiatric injury, the paper asks for views on whether the common law should be replaced by a statutory rule, and the suitabiliity of the concept of "ordinary fortitude" as a consideration in assessing whether damages should be payable, as well as questions in relation to witnessing or learning of an accident, and psychiatric injury caused by wrongful death.

The prescription and limitation chapter focuses on the issue of whether claims which have been treated as completely extinguished since 1984 – in particular, claims for historic child abuse that took place before September 1964 – should be capable of being revived. (Incidents since that date can be the subject of a claim, although certain limitation rules have to be satisfied.) Ministers propose to accept the Commission's conculsion that extinguished claims should not be revived at all, but ask for views.

There is also a question whether the standard limitation period for personal injury claims should be raised from three years to five, without any distinction being made between types of claim; and whether there should be statutory guidance on when the court's discretion to extend the period should be exercised. The later emergence of further injuries is also considered.

Whether the Damages (Scotland) Act 2011 is achieving its aim of clarifying the law relating to claims following fatalities is another subject on which views are invited.

The deadline for responses to the paper is 15 March 2013.

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