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Civil Law of Damages: Damages for Wrongful Death: A Consultation Paper

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MINISTERIAL FOREWORD

We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others: A National Outcome being pursued by the Scottish Government

We all have a responsibility for ensuring that our actions do not harm our fellow citizens. If, through wilful or negligent action breaching a duty of care, anyone of us materially harms or is harmed by another in a manner which was reasonably foreseeable, the law should provide for appropriate redress.

It is important that Scots law in relation to delict - wrongdoing and associated remedies, specifically financial restitution through the payment of damages - is up-to-date, providing a fair, even-handed approach in determining rights and obligations. Consequently, I welcome the fact that the Scottish Law Commission has reviewed, and recommended reforms, for three important aspects of the law on claims for damages relating to personal injury. Those three aspects are: Psychiatric Injury, which was addressed in a report in 2004; Limitation and Prescribed Claims (also known as time-bar), which was addressed in a report in 2007; and Wrongful Death, which was addressed in a report in 2008.

The Scottish Government is committed to ensuring that, informed by this work, appropriate legislative proposals are progressed so that our civil law keeps pace with modern life and delivers justice efficiently and effectively. For this reason, in December 2009 I announced an intention to engage with stakeholders, through a programme of dialogue and formal consultation, so that we could take account of all relevant perspectives in making progress.

It was envisaged that this programme would integrate work on these three reports. However, it has since emerged that there is particular concern with the issue of damages for wrongful death. In January, 34 MSPs from across the spectrum expressed support for a proposal for a Member's Bill " in relation to rights to damages in respect of personal injuries and death and for connected purposes". We have decided to respond to that concern by addressing that particular aspect first. It remains our intention to address the other two as soon as possible, as we are in no doubt about their significance.

With regard to wrongful death, we acknowledge gratefully the valuable work undertaken both by the Commission and latterly by Bill Butler MSP in relation to his Member's Bill. However, that work and our own dialogue with stakeholders suggest that concerns remain about some key proposals for reform. Consequently, we believe that further work is warranted, in order to focus on the key points and secure a clear understanding of the implications.

I am pleased therefore to publish for consultation this paper on the law on damages for wrongful death. I look forward to considering the responses.

Fergus Ewing MSP
Minister for Community Safety