Publication - Research and analysis

Civil Law of Damages: Issues in Personal Injury - Analysis of Written Consultation Responses

Published: 6 Aug 2013
Part of:
Research
ISBN:
9781782567844

Analysis of Written Consultation Responses

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69 page PDF

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Contents
Civil Law of Damages: Issues in Personal Injury - Analysis of Written Consultation Responses
4. Time-Bar

69 page PDF

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4. Time-Bar

Background

4.1 In order to be able to raise an action for damages in the civil courts for any form of personal injury, it must be done within the timeframe set out in the Prescription and Limitation (Scotland) Act 1973. There have been concerns that the current law in relation to limitation and to prescription may not always succeed in striking an appropriate balance between the rights of individuals who may wish to make a claim for personal injury and who should have a reasonable opportunity to do so, and the protection of all individuals and organisations against open-ended civil liability.

4.2 Scottish Ministers invited the SLC to review the law and make appropriate recommendations for reform. The SLC published a report in 2007[13] in which it made a number of recommendations, not all of which were tested in this consultation. In relation to prescribed claims they recommended:

Recommendation 18: Claims in respect of personal injury which were extinguished by negative prescription before 1984 should not be revived.

4.3 Each question on the issues relating to time-bar was addressed by more than half of all respondents, with some questions attracting 87% of respondents. As previously, the views of insurance bodies were dominant amongst responses.

Prescription

4.4 The consultation asked:

Question 3a) Do you agree that - for all personal injuries, regardless of the nature and circumstances of the personal injury - even if it were lawful to do so, it would not be advisable to seek to revive prescribed claims (i.e. claims relating to events before September 1964)?

4.5 Thirty nine respondents (87% of all respondents) addressed question 3a) as follows:

Table 15: Summary of views on whether it would not be advisable to revive prescribed claims

Respondent category Yes No Commentary only Total
Insurance bodies 13 13
Legal body reps 6 6
Solicitor firms 4 4
Academics 2 2
MD Unions 2 2
Reps of Historic Child Abuse 2 2
Other 1 1 2
Individual legal 1 1
Individual public 7 7
Total 29 9 1 39

4.6 Around three-quarters (74%) of those who provided a view agreed that it would not be advisable to seek to revive prescribed claims. All of the individual members of the public and both of the representative bodies of historic child abuse disagreed.

Summary of views in agreement

4.7 The most common argument (10 mentions) in favour of not reviving prescribed claims was that this would unfairly prejudice defenders who would most likely encounter problems gathering quality evidence. This situation was viewed as "contrary to justice" (Leg Rep). Five respondents suggested that reviving a claim which had been completely extinguished would be likely to raise issues for defenders under the European Convention of Human Rights.

4.8 Other main views in agreement were:

  • Reviving such claims would result in uncertainty for defenders and insurers (Leg Rep, Leg Rep, Sol).
  • It would not be appropriate to judge an incident occurring in the past by today's standards (Sol, Ins, Leg Rep).
  • Changes in the law relating to liability and computation of damages will have occurred during the intervening period (Leg Rep, Leg Rep).
  • There is already adequate provision for those with legitimate reasons to bring claims from the past, for example, a pursuer who sustains injury as a result of breaches of duty before 1964 does not have time running on the claim until that injury manifests (Sol, MDU).
  • Interest will be running at a judicial rate over the whole period since the alleged wrong (Leg Rep).
  • Those vicariously responsible for the acts of the perpetrator will have moved on (Leg Rep).
  • This would result in a waste of time and resources (Ind-Leg).

Summary of views in disagreement

4.9 Two respondents (Ind-Pub, Rep CA) who considered that it should be possible to revive prescribed claims presented their argument that it can take many years before victims are mentally ready to come forward. Two members of the public described the feeling of not being able to revive such claims as being treated as a "non-person", and being faced once again with people not listening to their story.

4.10 One view (Oth) was that what they perceived to be the denial of effective access to justice for survivors of historic child abuse could be addressed by a combination of appropriate amendments to the prescription and limitation regimes and the establishment of a national reparations programme.

4.11 Other main views in disagreement were:

  • There is still much documented evidence associated with such claims which should be allowed to go to court (Ind-Pub).
  • All victims should receive equal treatment and fairness regardless of when the alleged incident(s) took place (Ind-Pub).
  • The human rights of such claimants have not been addressed to date, and their historical cases should be permitted to proceed through the civil courts (Rep CA).

Historical child abuse

4.12 in its 2007 report the SLC also made the following recommendation:

Recommendation 19: A special category of claims in respect of personal injury resulting from institutional childhood abuse which were extinguished by negative prescription before 1984, and which would allow this category only to be revived, should not be created.

4.13 Whilst the consultation did not ask specifically for views on this recommendation, there were a number of respondents including members of the public, representative bodies of historic child abuse, and the Scottish Human Rights Commission (SHRC), who shared a common view that survivors of historic child abuse in Scotland are currently denied effective access to justice.

4.14 In a paper attached to its main consultation response, the SHRC described the steps which other jurisdictions have taken to address the issue of access to justice for survivors of historic child abuse. In particular:

(i) Introduction of a "special regime" through either:

a) exemption from the prevailing limitation regime (examples were cited from several Canadian provinces); or

b) providing explicitly that judicial discretion may apply to cases of historic child abuse (example of New Zealand legislation provided).

(ii) Establishing ad hoc reparation programmes (compensation mechanisms) for survivors of historic child abuse (examples were cited from Ireland, Canada and Australia).

4.15 The themes of better access to justice and greater judicial discretion regarding cases of historic child abuse emerged repeatedly in responses of members of the public and representative bodies of historic child abuse to the current consultation.

The length of the limitation period

4.16 The SLC proposed that the current standard limitation period of three years during which time pursuers usually have to raise a claim, once they have become aware of all the relevant statutory facts and are not under a disability, should be extended to five years.

4.17 The consultation asked:

Q3b) Do you agree that the standard limitation period should be raised to five years?

4.18 Thirty nine respondents (87% of all respondents) addressed question 3b) as follows:

Table 18: Summary of views on whether the standard limitation period should be raised to five years

Respondent category Yes No Mixed views Total
Insurance bodies 13 13
Legal body reps 1 4 1 6
Solicitor firms 1 3 4
Academics 2 2
MD Unions 3 3
Reps of Historic Child Abuse 2 2
Other 1 1 2
Individual legal 1 1
Individual public 1 5 6
Total 8 30 1 39

4.19 Around three-quarters (77%) of those providing a view did not agree that the standard limitation period should be raised to five years. This included all of the insurance bodies. Legal body representatives and solicitor firms were split in their views, although the majority disagreed with the proposed extension.

Summary of views in disagreement

4.20 There was a general consensus that it is in the public interest for disputes between parties to be concluded as quickly as possible. A common view (15 mentions) was that three years is ample time for most cases. It was remarked that facts rarely become clearer with the passage of time, and 19 respondents expressed concern that the longer the time period, the greater risk of the quality of evidence reducing, due to, for example, witness memory failing. Some respondents cautioned that the passage of time also presented more chance of policyholders going into liquidation. Several respondents (9 mentions) emphasised their view that their support for retaining the three year period was on the presumption that s.19A of the Prescription and Limitation (Scotland) Act 1973 would still operate, giving judicial discretion for some cases (e.g. historic child abuse) to be brought outwith the standard period.

4.21 Ten respondents from four different sectors commented that extending the limitation period to five years would encourage unnecessary delays in cases proceeding, resulting in pursuers having to wait longer for their rightful compensation. It was commonly thought (8 mentions) that the extended period would attract higher costs for pursuers as more time is spent locating evidence and witnesses. These costs would most likely impact on size of future premiums.

4.22 Eight respondents described how establishing a five year limitation period would be inconsistent with other limitation periods, for example, the two years in aviation and shipping convention (Ind-Leg) and three years in the Consumer Protection Act (Acad). Four respondents from three different sectors considered that a five year period would create what they perceived to be an unnecessary distinction from the comparative period of three years in England.

4.23 Other arguments presented in disagreement were:

  • In cases of historic child abuse it does not matter whether the period is three years or five years (6 mentions). One respondent saw any extension of the period to be merely "window dressing" (Ind-Pub).
  • Three years strikes the right balance between the rights of pursuers and defenders (6 mentions).
  • People are more aware of their rights to claim these days and are therefore able to raise cases more quickly (6 mentions).
  • There is no substantive evidence that the current three year limitation period is not adequate (Ins, Leg Rep, Sol).
  • A longer period would reduce certainty for both defenders and pursuers (MDU, Leg Rep, Sol).

Summary of views in agreement

4.24 Two respondents provided the view that modern-day cases sometimes demanded greater investigatory work and expert reports which could take longer than previously to produce (Acad, Leg Rep).

4.25 The other arguments provided in favour of extending the limitation period to five years were:

  • Fairer to pursuers who may have delayed onset of a disease, disorder or illness caused by the event (Acad).
  • Five years gives a better balance than three between the rights of the pursuer and the defender (Acad).
  • Five years will allow more victims to receive justice (Ind-Pub).
  • Five years will allow more pursuers to be taken seriously (Ind-Pub).

4.26 The consultation asked:

Q3c) Do you agree that it is appropriate to have a single, standard limitation period for all types of personal injury claim, instead of different periods for different types of injury?

4.27 Thirty eight respondents (84% of all respondents) addressed question 3c) as follows:

Table 17: Summary of views on whether there should be a single, standard limitation period for all types of personal injury claim

Respondent category Yes No Total
Insurance bodies 13 13
Legal body reps 5 5
Solicitor firms 4 4
Academics 2 2
MD Unions 2 1 3
Reps of Historic Child Abuse 2 2
Other 2 2
Individual legal 1 1
Individual public 1 5 6
Total 30 8 38

4.28 Just over three-quarters (79%) of those providing a view agreed that it is appropriate to have a single, standard limitation period for all types of personal injury claim. This included all insurance bodies and solicitor firms.

Summary of views in agreement

4.29 The most common argument (14 mentions) in favour of a single, standard limitation period was that this creates a simple rule, which is easy for the public to understand. One respondent commented:

"We should not differentiate the limitation period for different personal injury claims, as it is likely to cause more confusion in the courts and create artificial distinctions that do not take into account actual harm endured" (ENABLE Scotland).

There was acknowledgement amongst some of these respondents that discretion still applies under the law in cases of specific difficulty such as historic child abuse.

4.30 Thirteen respondents expressed their agreement with the argument that different limitation periods could lead to difficulties in classifying the claimant's injury/injuries to determine the applicable limitation period, which could result in further dispute and litigation.

4.31 Another common argument (13 mentions) was that a standard period would provide for greater certainty for both pursuer and defender. Six respondents remarked that consistency within the industry is very important.

4.32 Other arguments in favour of a single, standard limitation period were:

  • There does not appear to be any useful purpose served by introducing different periods (Sol, Sol, Leg Rep).
  • Different limitation periods would contribute to difficulties for the insurance industry in quantifying risk (Acad).
  • Different limitation periods may imply certain injuries are of lesser or more significance than others:

"....might unjustly discriminate between, or subconsciously indicate, the greater or lesser importance or significance of some injuries. For example, if the limitation period for taking an action for reparation of psychiatric injury were shorter than an action for reparation for physical injury the signal which the law would send is that physical injury is more worthy of legal protection" (Grzegorz Grzeszczyk (Acad)).

Summary of views in disagreement

4.33 The arguments outlined against one single, standard limitation period were:

  • For some cases, such as historic child abuse, there should be different limitation periods or no limitation period (the view of five members of the public).
  • Due consideration should be given to personal injuries which lie latent for some time before surfacing (Rep CA).
  • Some occupational disease claims need longer limitation periods (MDU).

Judicial discretion

4.34 With respect to personal injuries, the Law Reform (Miscellaneous Provisions) Act 1980 introduced a new discretionary power to the courts to override the three year limitation period (now s.19A of the 1973 Act) where equitable to do so, and so allow a claim outwith the limitation period. The discretion is unfettered and, aside from the consideration of what is equitable, the legislation does not specify any factors which the court should take into account or disregard when exercising its discretion.

4.35 Since the introduction of the power, concerns have been raised from defenders that the discretionary power increases uncertainty and diminishes the confidence that can be taken, once the standard limitation period has expired, that there is not prospect of being pursued for damages. From the pursuers' perspective, there has been criticism that the power has been exercised too sparingly in that the courts' practical interpretation of the provision has not fully met society's expectations. The latter criticism has been particularly associated with claims for damages for historic childhood abuse.

4.36 The SLC recommended that the provisions relating to the discretionary power should be amended to include a non-exhaustive list of matters to which the court may have regard in determining whether to allow an action to be brought.

4.37 The consultation asked:

Q3d) Do you agree there should be a statutory, non-exhaustive list of matters relevant to determining whether it would be equitable for the courts to exercise discretion to allow an action to be brought outwith the limitation period?

4.38 Thirty nine respondents (87% of all respondents) addressed question 3d) as follows:

Table 18: Summary of views on whether there should be a statutory, non-exhaustive list of matters to assist courts in determining whether to exercise discretion

Respondent category Yes No Depends on content Total
Insurance bodies 13 13
Legal body reps 6 1 7
Solicitor firms 2 2 4
Academics 2 2
MD Unions 1 1 1 3
Reps of Historic Child Abuse 2 2
Other 1 1
Individual legal 1 1
Individual public 6 6
Total 19 19 1 39

4.39 Respondents were evenly split over whether there should be a statutory, non-exhaustive list of matters relevant to determining whether it would be equitable for the courts to exercise discretion to allow an action to be brought outwith the limitation period. However, 68% of those disagreeing with the proposal were insurance bodies; apart from these respondents, only six others disagreed.

Summary of views in agreement

4.40 Few substantive arguments were presented by respondents to support their agreement with the proposal. These comprised:

  • The list would allow s.19A of the Prescription and Limitation (Scotland) Act 1973 to operate more effectively (Ind-Leg, Leg Rep).
  • It would help to achieve greater consistency in judicial decisions (Leg Rep, Sol).
  • Will be fairer to pursuers in cases of industrial disease where symptoms may not emerge until many years after the injury has been caused (Leg Rep, Leg Rep).
  • Gives practitioners guidance on the factors which the court must take into account, thereby assisting them in identifying relevant factors to present to the court (Sol, MDU).
  • Enables each case to be considered on an individual basis (Ind-Pub).

4.41 One respondent recommended a change of wording from, "non-exhaustive list of matters to which the court may have regard", to "non-exhaustive list to which the courts shall have regard" (Leg Rep), which they considered would have the effect of making the consideration of the list mandatory rather than discretionary.

Summary of views in disagreement

4.42 It was commonly thought (13 mentions) that the current statutory provisions, along with case law, were working well and provided a simple and sustainable approach to allowing for judicial discretion. Four respondents (Acad, Ins, Sol, Leg Rep) questioned what additional benefits would be gained by the introduction of the statutory, non-exhaustive list. One commented:

"By its very definition a 'non exhaustive' list does not include all relevant matters which can be taken into account by the court. It begs the question as to how useful a non-exhaustive list would be to either party............A non-exhaustive list gives parties no better indication, certainty or consistency than allowing the list of relevant matters to be determined by the courts based on general guidance from established legal authorities, as happens at present" (HBM Sayers).

4.43 Five insurance bodies disagreed on the basis that a statutory list still could not account for all situations. Four respondents (Acad, Ins, Sol, Leg Rep) cautioned that any initial list may need regular updating as further factors feature in new cases.

4.44 Other views in disagreement were:

  • The proposal could result in increased litigation and court time surrounding the interpretation of the new statutory rules (Ins, Ins, Acad).
  • The proposal may result in the listed factors taking precedence over those relevant but unlisted (Acad, Sol).
  • It may reduce judicial discretion, limiting decision-making on a case-by-case basis (Ins, Leg Rep).
  • Defenders will face less certainty due to an increase in potentially subjective/random factors being adopted as the basis for extended liability (Acad).
  • The introduction of a non-exhaustive list in addition to judicial discretion may encourage a "have-a-go" culture with pursuers more optimistic that their cases may be considered as an exception (Acad).

4.45 The consultation asked:

Q3e) Do you have views on potential options for reforms beyond those proposed by the Scottish Law Commission?

4.46 Three key recommendations emerged from responses. A prevailing view amongst insurance bodies was that civil jury trials should be abolished on the grounds that they create a two-tier system of justice which can lead to unfairness for both pursuers and defenders. It was suggested that if jury trials are to be retained, then juries should be referred to guidance such as case law or Judicial College Guidelines, in order to make fairer assessments of damages in accordance with previous decisions.

4.47 Four respondents (Rep CA, Rep CA, Ind-Pub, Acad) gave their view that victims of historic abuse have not been well served by the existing rules on limitation and that these required further examination and review in order to be fair. One academic's view was that a provision be introduced whereby any period of "effective incapacity" (such as brought about by an alleged victim's induced reticence or suppression of memory) is disregarded for the purposes of computing the limitation period.

4.48 The view of one solicitor firm was that in the event that the Aitchison decision is not reversed through statute, then s.4(2) of the Damages (Asbestos related Conditions) (Scotland) Act 2009 is amended to make clear that it was intended to be a transitional provision affecting only those cases in which proceedings had been brought prior to the commencement of the Act. This respondent argued that:

"Doing so would permit persons who had developed an asymptomatic condition and had been advised of its presence more than three years prior to 17 October 2007 to contend that the injuries were not significantly serious to justify the bringing of court proceedings. The Aitchison decision would therefore not automatically force such persons who later develop a symptomatic condition to rely on the discretion of the court to permit their actions to proceed" (Thompsons Solicitors and Solicitor Advocates).

The subsequent emergence of an additional injury

4.49 The consultation asked:

Q3f) Do you agree that it is in the interests of justice that there should be only one limitation period following the discovery of a harmful act, during which all claims for damages for associated injuries must be brought?

4.50 Thirty three respondents (73% of all respondents) addressed question 3f) as follows:

Table 19: Summary of views on whether there should be only one limitation period during which all claims must be brought

Respondent category Yes No Commentary only Total
Insurance bodies 13 13
Legal body reps 4 1 1 6
Solicitor firms 4 4
Academics 1 1 2
MD Unions 2 2
Reps of Historic Child Abuse 2 2
Other 1 1
Individual public 3 3
Total 25 7 1 33

4.51 Around three-quarters (76%) of those providing a view agreed that it is in the interests of justice that there should be only one limitation period following the discovery of a harmful act, during which all claims for damages for associated injuries must be brought.

Summary of views in agreement

4.52 Five respondents commented that having only one limitation period brings a degree of certainty for both pursuers and defenders. Three respondents (Ins, Sol, Leg Rep) considered that unless one limitation period was adopted, practical difficulties and increased costs would be generated in deciding whether late emerging conditions were wholly distinct or related to the original wrong. Finally, two insurance bodies emphasised that courts still have discretion to override limitation periods by virtue of s.19A of the 1973 Act.

Summary of views in disagreement

4.53 One main substantive point was made by a legal body representative who cautioned of serious consequences of this recommendation for people with long-latency industrial disease and victims of historic child abuse. As an example, this respondent hypothesised:

"As a result of Aitchison.... a terminally ill mesothelioma victim who claims compensation for this condition but who (having known about the presence of plural plaques but failed to claim for it) will no longer be able to receive the help he desperately needs, quite literally, dying without compensation" (Association of Personal Injury Lawyers).

4.54 One respondent (Acad) remarked that despite this proposal not necessarily being in the interests of justice (for example, in relation to historic abuse victims), it nonetheless was in accord with legal principle, and means that the law of limitation in this regard is consistent with that of prescription.

4.55 The consultation asked:

Q3g) Do you consider that there should be any exceptions to this principle?

4.56 Thirty one respondents (69% of all respondents) addressed question 3g) as follows:

Table 20: Summary of views on whether there should be any exceptions to this principle

Respondent category Yes No Total
Insurance bodies 13 13
Legal body reps 2 3 5
Solicitor firms 1 2 3
Academics 2 2
MD Unions 1 1 2
Reps of Historic Child Abuse 2 2
Other 1 1
Individual public 3 3
Total 9 22 31

4.57 Of those who provided a view, the majority (71%) did not consider that there should be any exceptions to the principle that there should be only one limitation period following the discovery of a harmful act, during which all claims for damages for associated injuries must be brought.

Summary of views opposing exceptions

4.58 The following key reasons were given in opposition to there being exceptions to the principle:

  • Courts are already able to make exceptions under s.19A of the 1973 Act (11 mentions). One respondent remarked:

"It is in the interests of justice for all parties for there to be certainty. The current Act provides that certainty with an 'escape' which Judges can apply if it is the interests of justice to do so" (Aviva Insurance Limited).

  • In the interests of justice, certainty and consistency there should be no exceptions (4 mentions).
  • A formal list of exceptions will be too prescriptive (Ins, Ins).
  • It will be difficult to compile a list of exceptions as too narrow a list will risk a pursuer unable to make a claim, and too broad a list risks rendering the limitation period irrelevant (Ins).
  • Permitting exceptions may lead to satellite litigation and further dispute (Ins).

Summary of views in favour of exceptions

4.59 The following key reasons were given in favour of exceptions to the principle:

  • In cases such as historic child abuse, mental illness resulting from the event(s) may not emerge until many years after the abuse took place, leading possibly to loss of employment and financial security deserving damages much higher than those originally sustained for physical injury (Rep CA, Rep CA).
  • There may be additional injury emerging, distinct from the previous injury, which should give rise to a fresh date of knowledge and therefore a further limitation period for a claim for that additional injury. One respondent commented:
    "The area that this would be most relevant in is disease cases. For example, a person subjected to excessive noise exposure may suffer hearing loss and tinnitus which are separate and distinct conditions. The victim may be diagnosed with one condition with the other not becoming apparent until a much later date. If there were to be one limitation period only, then it is possible that one claim may become time barred with reference to the other. This could also apply to asbestos cases where a victim may be diagnosed with one condition such as asbestosis to then be later diagnosed with mesothelioma" (Thorntons Law LLP).
  • Decisions on exceptions should not be left to the discretion of Judges (Leg Rep).

4.60 The consultation asked:

Q3h) How would you suggest that the difficulties and anomalies identified by the Scottish Law Commission (in their report at paragraphs 2.17-2.24) and the Court in Aitchison[14] might be overcome?

4.61 Twenty four respondents (53% of all respondents) addressed question 3h). The prevailing view (20 mentions including all 13 insurance bodies) was to concur with the SLC that the overriding principle has to be that following a delictual act, only one cause of action should arise in which all damages must be sought. It was felt that the Carnegie approach cannot readily be reconciled with this principle, and that the current law as defined by Aitchison is now part of the bank of case law which helps inform the court on the circumstances in which it should exercise its discretion under s.19A.

4.62 The importance of applying only one limitation period was re-emphasised by five respondents. One outlined the rationale behind their view:

"We consider that the application of one limitation period is appropriate for the following reasons:

1. It is wholly consistent with Scots law as it has developed from the 19th Century.

2. It provides certainty. When an action has been raised and concluded, all parties know that it is at a definitive end.

3. The rights of the pursuer are protected where he or she can seek provisional damages.

4. The rights of the pursuer who chooses not to raise an action for a minor injury are further protected by judicial discretion under s.19A" (Simpson and Marwick Solicitors).

4.63 One insurance body also highlighted the provisions of s.12 of the Administration of Justice Act 1982, which allows the court to award provisional damages to an injured person who has sustained injury as a result of the fault of another person in circumstances where there is a risk that at some time in the future the injured person will, as a result of the injury, suffer some serious deterioration in their physical or mental condition.

4.64 A few respondents (4 mentions) argued that exceptions should be made for specific circumstances such as historic child abuse or industrial disease, where late onset psychological or physical injury can develop.

4.65 The consultation asked:

Q3i) Do you consider there is a need to make provision for cases where it was known that the initial harm was actionable but where decisions not to litigate were taken in good faith in reliance on the rule in Carnegie before it was overturned by the Court in Aitchison?

4.66 Twenty eight respondents (62% of all respondents) addressed question 3i) as follows:

Table 21: Summary of views on whether there is a need to make provision for cases relying on the rule in Carnegie

Respondent category Yes No Total
Insurance bodies 13 13
Legal body reps 1 4 5
Solicitor firms 1 3 4
Academics 1 1
MD Unions 1 1
Reps of Historic Child Abuse 2 2
Individual public 2 2
Total 6 22 28

4.67 Of those who provided a view, the majority (79%) did not consider there to be a need to make provision for cases where it was known that the initial harm was actionable but where decisions not to litigate were taken in good faith in reliance on the rule in Carnegie before it was overturned by the court in Aitchison.

Views of those against making provision for such cases

4.68 Two respondents (Leg Rep, Sol) commented that in their view, very few cases fall within these circumstances. It was commonly thought (17 mentions) that the discretion afforded to the courts by s.19A should be sufficient to accommodate such cases. One respondent (Leg Rep) argued that it is unsatisfactory to make provision for one special class of cases within a general legislative scheme. Another (Acad) cautioned against establishing provisions with a retrospective effect, commenting that if a risk was taken previously over a decision not to litigate, then the victim must deal with the consequences of that decision now.

Views of those in favour of making provision for such cases

4.69 One respondent (Rep CA) argued that unless provision is made for such cases, some victims of historical abuse will be penalised for taking decisions not to litigate previously due to legitimate reasons such as being incapacitated at the time, or not having full facts. Another (Ind-Pub) recommended that special law is required for cases of historic child abuse, with the legislation separate from the damages law. One legal body representative repeated their view that the Aitchison decision should be overturned.

4.70 One solicitor firm re-iterated their point previously documented at paragraph 4.48 above) by citing the Damages (Asbestos-Related Conditions) (Scotland) Act 2009 as an example of legislation being necessary to protect the position of victims due to changes in the law (see paragraph 5.18 for further information on this Act). They suggested that a similar enactment should be introduced to protect victims in the situation described here to prevent them suffering any prejudice as a result of relying on the decision in Carnegie.

Impact

4.71 The consultation asked for information to assist the Scottish Government in its preparation of a Business and Regulatory Impact Assessment and also the Financial Memorandum which will accompany any future Bill. The following questions were posed:

Q3j) What do you think the impact of implementing these proposals in full would be particularly in relation to the issues below?

Is it likely that more or fewer actions will be raised?

Is it likely that more or fewer cases come to court?

Is it likely that more or fewer cases will be settled out of court?

Is it likely that cases will require more or less preparation time?

Is it likely that cases will require more or less court time?

Is it likely that there will be more of fewer awards of damages?

Is it likely that awards of damages will be higher or lower?

Can you quantify the benefits for pursuers?

Can you quantify the benefits for defenders?

Can you quantify the drawbacks for pursuers?

Can you quantify the drawbacks for defenders?

4.72 Twenty eight (62%) of respondents addressed one or more of these questions. Of these, 13 (46%) were insurance bodies, with their views prevailing amongst those submitted and summarised in Table 22 below.

Table 22: Summary of views on impact of implementing the proposals in full

Impact on:
No. of actions More: 16 respondents
Fewer: 1 respondents (Leg Rep)
No difference: 2 respondents (Sol, Leg Rep)
Comments: one respondent (Sol) considered there retaining the Aitchison approach could give rise to more cases for less serious conditions.
No. of cases coming to court More: 10 respondents
Fewer: 1 respondents (Leg Rep)
No difference: 2 respondents (Sol, Sol)
Comments: increased numbers possibly arising from differing views over interpretation.
No. of cases being settled out of court More: 2 respondents (Acad, Leg Rep)
Fewer: 7 respondents
No difference: 1 respondent (Sol)
Comments: potentially fewer settlements out of court due to the more satellite litigation over the interpretation of provisions.
Preparation time More: 10 respondents (due to the complexity of the new issues involved; and due to difficulties establishing evidence relating to cases from a long time ago).Less: 1 respondent (Leg Rep) No difference: 1 respondent (Sol) Comments: one solicitor firm remarked that there will be more time available for preparation rather than an increase in time taken in preparation.
Court time More: 6 respondents
Less: 1 respondent (Leg Rep)
No difference: 3 respondents (Sol, Leg Rep, Leg Rep)
Comments: more time was envisaged due to the need to consider a statutory list of matters for possible exemption. Also, one respondent (Sol) suggested that legal advisors may put more cases to the court hoping to persuade the court to exercise discretion.
Awards of damages More: 6 respondents
No difference: 3 respondents (Sol, Leg Rep, Ins)
Size of damages Higher: 8 respondents
Lower: 1 respondent (Sol)
Neutral: 2 respondent (Sol, Ins)
Benefits for pursuers Improvement in access to justice, especially for historic child abuse and occupational disease cases (Acad). Compensation sometimes to undeserving claimants due to some late reported claims not being adequately investigated (Ins).
More certainty regarding timing of raising actions and factors which will be taken into account (Sol, Leg Rep).
More time in which to make a claim (Leg Rep, MDU)
Generally beneficial: (Leg Rep)
No benefits: 8 respondents
Benefits for defenders More certainty regarding liability over only one limitation period (Sol, Leg Rep).
No benefits: 13 respondents
Drawbacks for pursuers Increase in time taken to access justice due to increase in preparation and court time (10 respondents).
Adversarial court cases which are potentially intrusive, protracted and costly (Rep CA).
Some deserving claimants may not be compensated due to some late reported claims not be adequately investigated (Ins).
Only one limitation period so the pursuer cannot follow an earlier action with another arising from the same incident (Sol).
Drawbacks for defenders Increase in cost burden due to more cases at a higher cost which may require more staff to deal with and which could ultimately affect premiums (13 respondents).
Applications can still be dealt with under s.19A so there may still be need to deal with old claims (Sol). Possible future adversarial legal processes (Rep CA).
Extension of limitation period will require all organisations to keep records for longer, presenting a bigger administrative burden (Sol).
Defenders' practices and reputations could be called publicly into question with their being held fully accountable and responsible (Rep CA).
Cannot provide view at this stage until greater clarity on reforms 1 respondent (Rep CA)

4.73 The consultation asked:

Q3k) Do you consider that the proposals for the reform of the law of limitation for personal injury actions will affect people, either positively or negatively with the following protected characteristics: age, disability, sex, pregnancy and maternity, gender reassignment, sexual orientation, race and religion or belief?

4.74 Overall, the impact of the proposals in this context were viewed as neutral. Very few comments were submitted by respondents. Three respondents (Rep CA, Ind-Pub, Leg Rep) considered that depending on which reforms are adopted, they could potentially discriminate against or work positively for survivors of childhood abuse who years later suffer associated mental health problems.

4.75 One further comment (Acad) was that the SLC's recommendation 10 concerning updating the terminology "unsoundness of mind" is positive for those with mental disability as the existing terminology is potentially offensive.

Summary of views

4.76 Around three-quarters (74%) of those who provided a view agreed that it would not be advisable to seek to revive prescribed claims for all personal injuries, regardless of the nature and circumstances of the personal injury, even it were lawful to do so. The most common argument in favour of not reviving prescribed claims was that this would unfairly prejudice defenders who would most likely encounter problems gathering quality evidence.

4.77 Around three-quarters (77%) of those who provided a view did not agree that the standard limitation period should be raised from three to five years. Extending to five years was opposed largely on the grounds that this posed a risk to the quality of evidence and encouraged unnecessary delays in proceedings.

4.78 The majority view (79% of commentators) was in favour of a single, standard limitation period for all types of personal injury claim. This was seen as creating a simple rule which is easy to understand.

4.79 Respondents were evenly split over whether there should be a statutory, non-exhaustive list of matters relevant to determining whether it would be equitable for the courts to exercise discretion to allow an action to be brought outwith the limitation period.

4.80 The majority (73%) of those who provided a view agreed that it is in the interests of justice that there should be only one limitation period following the discovery of a harmful act, during which all claims for damages for associated injuries must be brought. Most (71%) did not consider that there should be any exceptions to this principle.

4.81 It was commonly felt that only one cause of action should arise following a delictual act, with all damages sought at that time. A recurring view was that the Carnegie approach cannot readily be reconciled with this principle, and the current law as defined by Aitchison is now part of the bank of case law which informs the court in relation to applying discretion under s.19A.

4.82 Of those who provided a view, the majority (79%) did not consider there to be a need to make provision for cases where it was known that the initial harm was actionable but where decisions not to litigate were taken in good faith in reliance on the rule in Carnegie before it was overturned by the court in Aitchison.

4.83 It was commonly thought that the overall impact of the proposals under discussion would result in an increase in the number of actions raised with more of these coming to court and requiring more preparation and court time. Respondents envisaged overall increases in the number and size of awards for damages. Overall, the differing impact of the proposals on people with protected characteristics: age, disability, sex, pregnancy and maternity, gender reassignment, sexual orientation, race and religion or belief, was considered to be minimal.


Contact

Email: Ria Phillips