CHAPTER 1: INTRODUCTION
We have the honour to submit to the Scottish Ministers our Report on Damages for Wrongful Death: Scottish Law Commission, Report on Damages for Wrongful Death, September 2008
1.01 There is potentially a case for restitution whenever: there was a breach of a duty of care owed to a person; that breach of duty caused the person real harm; that harm was reasonably foreseeable as a result of that breach; and the person or entity that failed to fulfil the duty of care behaved deliberately or negligently ( i.e. fell below the standard expected of a reasonable person). These features can occur in a wide range of circumstances. Perhaps most obviously, they can happen on our roads and in our workplaces. Thus, a driver may crash, injuring his passengers or other road-users, because his attention was focused on changing a CD or answering a phone call. An inadequate level of attention to health and safety matters in a construction company can lead to an employee being exposed unnecessarily to asbestos dust and, in due course, to him developing a debilitating or fatal lung disease. A lack of proper warning from a cleaning crew about a recently polished floor in an office block can lead to a visitor slipping and cracking her head.
1.02 But it is not just roads and workplaces that can be hazardous. Many personal injuries are sustained in or around the home. For example, it is quite foreseeable that a pot-plant placed precariously on the external window-ledge of a 4 th floor tenement flat could fall and injure a passer-by, that botched D-I-Y by a landlord could lead to tenants being electrocuted, or that a poorly controlled family pet might savage a postman or other visitor to a house. Additionally, a substandard approach to hygiene - not just in a private dwelling or other residence, such as a nursing home, but also at a hospital, a school, a food retailer, or any other establishment - can enable hazardous bacteria to thrive and cause serious illness. Injury and death can also occur around water 1, sometimes as a result of inadequate attention to safety on the part of those who owed a duty of care to the victim.
1.03 Unfortunately, these are some of the hazards of everyday life which, though relatively rare, cannot be dismissed. There are, of course, a number of others. Reasonable efforts are generally taken to avoid them. But it is nevertheless possible that, because of someone else's negligence and breach of a duty of care, anyone of us could sustain a personal injury which was reasonably foreseeable and could have been prevented by proper action. It is equally possible that, because of our own negligence, anyone of us could cause a personal injury to another person in such circumstances.
1.04 And even if we personally have the good fortune not to be injured or to cause injury in such circumstances, as citizens we nevertheless face the moral and financial consequences of knowing that others will. On the one hand, we all want to know that we live in a society that makes suitable provision for supporting those who have the misfortune to be affected by personal injury in this way. On the other hand, for example, particularly if we are on a tight budget, we don't want the cost of insuring our car or our home or our business to be driven up unduly by the number and value of claims that have to be paid out.
1.05 With all that in mind, it is clearly important that Scots law in relation to delict is kept up-to-date and provides a fair and even-handed approach in determining rights and obligations in such cases. Consequently, the Scottish Government is keen to ensure that, informed by the work of the Scottish Law Commission ( SLC) and the views of other stakeholders, appropriate legislative proposals can be brought forward to ensure that our civil law keeps pace with modern life and delivers justice as efficiently and effectively as possible.
1.06 The broad principle outlined in this particular consultation is that the law on damages for wrongful death should be modernised and simplified. This would implement the central recommendation of the report by the SLC on Damages for Wrongful Death2. This consultation seeks views on what the Government's approach should be as regards detailed aspects of the new provisions proposed by that report.
Origins of the Proposals
1.07 The SLC is established by statute to promote law reform. It recommends ways of simplifying, updating and improving the law of Scotland. More information on the SLC can be found on their website. 3
1.08 In recent years the SLC has produced a series of three reports covering aspects of the law on civil actions relating to personal injury. The first two, on Damages for Psychiatric Injury4 and on Personal Injury Actions: Limitation and Prescribed Claims5, are now subject to separate consideration. The report on Damages for Wrongful Death (called "the SLC report" in this consultation paper) was the third, having been produced by the SLC after consideration of responses to a Discussion Paper which they published in August 2007 and following a reference in September 2006 from Scottish Ministers which invited them -
" To consider the law relating to damages recoverable in respect of deaths caused by personal injury and the damages recoverable by relatives of an injured person; and to make appropriate recommendations for reform."
1.09 The SLC report recommends a Damages (Scotland) Bill be introduced. A central purpose of that Bill would be to ensure that the Damages (Scotland) Act 1976 is re-enacted with amendments in order to modernise and simplify the provisions. The SLC report also recommends that it should implement a policy change in relation to the rights of relatives to damages for patrimonial loss and, in particular, the calculation of loss of the deceased's support. It recommends that a fixed percentage deduction of 25% should be made from the deceased's net income, to represent the amount that the deceased might reasonably have spent on his personal living expenses: the remaining 75% should be deemed to have been used to support the family. The SLC report further recommends that the relatives who are entitled to claim patrimonial loss should be restricted to those relatives ("the immediate family") who can currently claim damages for non-patrimonial loss. Other changes to the substance of the law are also recommended.
1.10 The Government considers that it is desirable for the law, especially as it relates to vulnerable individuals such as the victims of personal injury, to be as straightforward as possible, capable of delivering justice efficiently and effectively, in a way that takes account of the realities and complexities of modern life. On that basis, the Government is persuaded that in principle there could be merit in legislating along the broad lines suggested by the SLC.
1. 11 Therefore, subject to the views of consultees, and the availability of Parliamentary time, the Government anticipates supporting legislation in the Scottish Parliament to reform the law on damages for wrongful death.
Additional Policy Development
1.12 While the Government is persuaded that in principle, for the purpose of modernising the law and enhancing its accuracy and simplicity, there could be merit in legislating along the broad lines suggested by the SLC, it is also recognised that it would be sensible to examine further some detailed aspects of the new provisions proposed by the SLC report. This recognition takes into account that:
- some of the SLC report's most fundamental proposals for reform had not crystallised at the time that stakeholders were invited to respond to the SLC's discussion paper;
- nearly all those who responded the consultation exercise relating to the current Member's Bill expressed some level of concern about aspects of the proposed regime;
- in the dialogue undertaken with stakeholders since the Scottish Government's announcement of December 2009, the concerns have recurred.
1.13 It is extremely important to ensure that the Government's position in relation to the SLC recommendations commands widespread support, and that any resulting legislation is robust and durable, entailing no unintended consequences. The aim of this consultation, therefore, is to develop, through engagement with stakeholders, a way forward which takes account of all relevant perspectives, including any potential financial and regulatory implications. The following chapters provide an overview of key SLC recommendations; sets out the Scottish Government's view in relation to these recommendations along with proposals for reform; details the identified areas of concern; and seeks your views on whether the proposals for reform will meet the Scottish Government's intent of modernising the law of damages for wrongful death to reflect modern day society. Responses to the consultation will inform the development of legislative proposals.
1.14 This consultation paper concentrates on areas which the Scottish Government has identified, along with stakeholders, as key sources of concern. It does not seek to repeat the detailed consideration of all aspects of the SLC report, but is restricted to exploring and seeking views from consultees on specific points.
1.15 A series of questions has been included to focus on the key issues which have been identified. This list of questions is not intended to restrict responses and, while we would particularly appreciate views on the questions set out, all comments and views are welcome and will be carefully considered.
1.16 Our intention overall is to avoid restatement of matters already clearly explained by the SLC, except where useful for accessibility, context and the like. The consultation paper directs readers to the relevant SLC discussion paper and report if they want to look at the development of the proposals in more depth.
1.17 Unless otherwise indicated in this consultation, the Scottish Government can be assumed to be minded to accept the SLC recommendations and the reasons for them.