A cautious welcome was given to the Damages (Scotland) Bill by the Parliament's Justice Committee in a report published today. It is a Member's Bill introduced by Bill Butler MSP.
While the committee supports the general aim of the Bill in consolidating and modernising the law of damages for wrongful death, it is split in its view on whether there should be a fixed 25% deduction for reasonable living expenses in relation to the victim’s claim. The committee is also concerned about the level of controversy surrounding other elements of the Bill, and whether there is time to resolve these issues before the end of the current Parliamentary session.
Committee Convener Bill Aitken MSP said: "The whole committee recognises the need to clarify and improve the law in this area, which is what Bill Butler has tried to do through this Member’s Bill. But our inquiry has revealed that practitioners are quite strongly divided on some of the key recommendations made by the Scottish Law Commission and carried forward in the Bill.
“On balance, the committee has agreed to recommend proceeding with the Bill at Stage 1 but there must be some doubt whether the outstanding issues can be sorted out to everyone’s satisfaction in the limited time now available for this Bill.”
The report also highlighted other issues, such as:
- whether the Bill would achieve its aim of allowing claims to be settled more quickly and with less need for intrusive questioning about family circumstances.
- whether the Bill would provide fair compensation in all the various circumstances that might arise.
- concern about the proposed restriction on the categories of relatives entitled to claim.
- a lack of detailed information about the financial implications of the Bill.
The purpose of the Bill is to implement the recommendations of a Scottish Law Commission report: 'Damages for Wrongful Death' (published 2008). It deals with situations where a victim or a relative is suing the person or organisation whose wrongful action led to the victim’s death or to the victim’s life being shortened. This includes mesothelioma victims and victims of fatal accidents in the workplace or on the roads.
One of the Commission’s key recommendations was that, in calculating the damages payable to a victim in respect of the income lost as a result of the injury, the amount deducted to account for the victim’s reasonable living expenses should be fixed as 25% of income. At present, an individual calculation needs to be made of the victim’s actual living expenses and, while 25% is usually regarded as a starting-point, the courts have some discretion to apply a different proportion.
Other Commission recommendations scrutinised by the Justice Committee include:
- disregarding entirely the income of the victim’s surviving relatives in calculating damages awards to those relatives.
- limiting the relatives entitled to claim to the victim’s immediate family.
- The Committee heard evidence from a range of organisations including the Scottish Law Commission, the Law Society of Scotland and individual solicitors’ firms, plus the Minister for Community Safety, Fergus Ewing MSP.
Bill Butler MSP is also the Deputy Convener of the Justice Committee, but was precluded by the Parliament’s Standing Orders from taking part in the committee’s scrutiny of the Bill.