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Damages

Personal Injury

Under Scots law where a person is injured or their property is damaged as a result of the wrongful (e.g negligent) actions of another person or organisation he or she can, if relevant criteria are satisfied, raise an action in the civil courts for damages in respect of loss, injury and harm suffered.

Damages are a matter for the Courts to decide and it would be for individuals to seek their own legal advice on whether they had a case or not under the current law.

The current law reflects changes made in recent years by Acts of the Scottish Parliament, including:

Damages

The Scottish Government's consultation paper Civil Law of Damages: Issues of Personal Injury explored key recommendations made by the Scottish Law Commission in reports on Psychiatric Injury and Limitation & Prescribed Claims. The consultation ran from December 19, 2012 until March 15, 2013. Following the consultation period two stakeholder events were held. A further submission was prepared by an attendee at the second of those events.

An independent analysis of the written consultation responses, along with the full text of individual responses, (where consent to publish was given) is available:

The Scottish Government's formal response to the consultation outlines the key actions that it will take as a direct result of the consultation.

A Damages Bill was announced by the First Minister as one of the legislative priorities of the Scottish Government's Programme for Government 2013-14 on September 3, 2013. The action the Scottish Government intends to take will be delivered through the Damages Bill.

Discount Rate

A "Discount Rate" may be applied to awards of damages for personal injury, to avoid over-compensation. Section 1 of the Damages Act 1996 allows the Scottish Ministers to prescribe the Discount Rate for calculating the amount to be deducted from an award. The Discount Rate is currently 2.5%, following a decision taken in 2002. The background to that decision is given here.

In November 2010, the Minister for Community Safety announced that the Scottish Government was undertaking a review of the Discount Rate in Scotland. The Minister for Community Safety and Legal Affairs wrote in October 2011 to the Justice Committee, advising that a public consultation on the methodology for setting the Discount Rate will be carried out. A copy of that letter can be viewed here.

A consultation paper Damages Act 1996: The Discount Rate How Should It Be Set? (CP12/2012) was published on 1 August 2012 jointly by the Scottish Government, the Ministry of Justice and the Department of Justice, Northern Ireland. The consultation Damages Act 1996: The Discount Rate - How Should It Be Set? closed on 23rd October 2012. Responses are currently being analysed.

A second consultation paper Damages Act 1996: The Discount Rate - Review of the Legal Framework (CP 3/2013), which sought views on whether the legal parameters governing the way in which the discount rate prescribed under section 1 of the Damages Act 1996 is currently calculated, should be changed; and whether there is a case for encouraging the use of periodical payments. This second issue will be primarily examined in the context of the law of England and Wales and Northern Ireland only.

On periodical payments in Scotland, consideration of this issue is limited to the extent that a periodical payment order may be made but only with the consent of the parties involved.

This paper is now closed. Responses are being analysed.

On 27 March 2107 Scottish Ministers made on Order changing the Discount Rate to minus 0.75%.  The Order came into force on 28 March 2017.  A link to the Order and Policy Note are below along with correspondence between the Scottish Government and the Government Actuary’s Department - a statutory consultee of the process.

The Damages (Personal Injury) (Scotland) Order 2017

Letter from Scottish Government to Government Actuary's Department dated 21 March 2017

Letter from Government Actuary's Department to Scottish Government dated 24 March 2017

Defamation

Any individual can bring a defamation action to protect his or her reputation. Individuals who consider that a statement made about them is defamatory and may damage their reputation should seek their own legal advice. In principle, anyone who has made a false statement can be sued for defamation by the injured party.

It is a matter for the courts to decide whether the statement complained of is capable of bearing a defamatory meaning.

The Scottish Government consultation paper Defamation and the Deceased: Death of a Good Name has now closed. Responses are now available. In October 2011, the Minister for Community Safety and Legal Affairs wrote to the Public Petitions Committee advising of the outcome of the consultation. A copy of that letter can be viewed here.

Prescription and Limitation

The right to bring an action in the civil courts is subject to time limits, as set out in the Prescription and Limitation (Scotland) Act 1973.

As regards personal injury, the time limit in Scotland for bringing an action for compensation is essentially three years from gaining knowledge of the injury, though courts have discretion to allow an action to proceed after that period has elapsed if they think it would be equitable to do so.

As regards other types of claim, the time limits set by the 1973 Act vary. For example, the time limit on taking action to claim money owed runs from 5 years to 20 years, depending upon the type of debt.

Limitation (Childhood Abuse) (Scotland) Act

The Limitation (Childhood Abuse) (Scotland) Bill was introduced to Parliament on 16 November 2016 and it passed Stage 3 on 22 June 2017. It received Royal Assent on the 28 July 2017 and the Limitation (Childhood Abuse) (Scotland) Act 2017 came into force on 4 October 2017.

More information about the Limitation (Childhood Abuse)(Scotland) Act 2017, what is involved in claiming compensation through the civil courts, and how to get legal advice can be found in this booklet.

Background

The Scottish Government issued a consultation on the removal of the 3 year limitation period from civil actions for damages for personal injury for in care survivors of historical child abuse. This consultation sought views on a number of matters around the removal of the 3 year limitation period (also known as time-bar) for survivors of historical child abuse. Responses to the consultation informed the development of legislative proposals to remove the 3 year limitation period. The consultation ran from 25 June 2015 to 18 September 2015. A participative workshop was also held with survivors of historical child abuse to discuss the issues and listen to their views.

An independent analysis of the written consultation responses, along with the full text of individual responses, (where consent to publish was given) is available:

  • Analysis of written consultation responses
  • Consultation responses - all responses have been digitised and published online on Citizen Space, the Scottish Government’s digital platform. Each response has a Response ID (used by the respondent themselves and should be kept private) and a Unique ID (which can be seen by the public and used to get in touch about another person’s response. To view the individual PDF version of the response - click on View Response, scroll down to the bottom of the page and click on the link under Offline answers.

The Scottish Government's formal response to the consultation outlines the key actions that it will take as a direct result of the consultation. A draft Limitation (Childhood Abuse) (Scotland) Bill and its associated explanatory notes which puts into effect the key actions have also been published. These three documents can be found here: Publications

The Limitation (Childhood Abuse) (Scotland) Bill was introduced to Parliament on 16 November 2016.

A Business and Regulatory Impact Assessment and an Equality Impact Assessment have also been conducted and published.