CHAPTER 3: THE VICTIM'S CLAIM
A victim may claim for loss suffered up to the date of proof and also for future loss: Scottish Law Commission, Report on Damages for Wrongful Death, September 2008
3.01 Where the deceased has settled their claim before death, he or she would receive compensation under the following heads: pain and suffering (both past and future); loss of expectation of life; loss of earnings up to the date of the award; and, loss of future earnings based on the notional date of death as if he or she had not been injured. The first and second of these four heads of compensation represent non-patrimonial loss. The third and fourth heads represent patrimonial loss.
3.02 Where an injured person dies, and his or her claim has not been settled, it transmits to that person's executor who may make a claim on his or her behalf. However, the executor's claim is limited to patrimonial and non-patrimonial loss attributable up to the actual date of death. The executor's claim does not cover future loss, attributable to the period after death ("the lost period"). Monies recovered by the executor will pass into the deceased person's estate.
3.03 Where a person dies instantaneously as a result of another person's wrongful action, the deceased's executor cannot raise a claim on behalf of the victim's estate. This is because the deceased would not have endured pain and suffering and would not have been aware that his expectation of life had been reduced.
3.04 In this area, probably the most significant recommendation in the SLC's report relates to the calculation of the victim's reasonable living expenses for the lost period.
(A) Patrimonial Loss: Calculation of the Victim's Reasonable Living Expenses for the Lost Period
3.05 In discussing the issue 10, the SLC noted general acceptance of the proposition that, after the victim's likely income for the lost period had been calculated, it was appropriate - as has long been the case - that their reasonable living expenses in that period should be calculated and deducted from that income level. The SLC explained the rationale for such a deduction in this way:
" Damages for patrimonial loss during the lost period are intended to be compensatory only. A deduction has to be made for the victim's reasonable expenses as they would have been incurred by the victim during that period if he was not going to die prematurely: failure to do so would result in over-compensation."
3.06 As regards the mechanism for giving effect to this policy, the SLC explicitly noted " the absence of any reported Scottish cases" and the implication that under the current approach - which involves personal living expenses being calculated on a case-by-case basis, so that in principle the most extravagant individuals would incur the greatest deductions for living expenses - " difficulties may be more theoretical than real". The SLC report also recorded that "we have been informed that in practice in settlement negotiations the victim's reasonable living expenses are agreed without too much difficulty".
3.07 Nevertheless, bearing in mind the potential for litigation (as regards the complex evidential issues which could arise) and the representations of one of the respondents to its consultation exercise, the SLC concluded that " there should be a simple rule providing for a deduction for the victim's living expenses which falls within a band which would be considered reasonable" and therefore recommendation 4 of the SLC report was that:
- " the victim's reasonable living expenses… should be taken to be 25% of the victim's net income during that period."
3.08 The idea of such a one-size-fits-all figure for the calculation of living expenses did not feature in the SLC's discussion paper and the report's recommendation has elicited some concern. While some support was given to the recommendation, on the basis that it would be less intrusive for the pursuer; cases could be dealt with more quickly; and certainty would be enhanced, others were not persuaded by a fixed rule of law. A view was also expressed that not many cases are challenged on quantum and that a 25% fixed share would undoubtedly increase the size of the awards made.
3.09 Some stakeholders seem opposed to the idea in principle. Others have concerns but appear able to contemplate some compromise arrangement between the current approach and the recommended one. In response to Mr Butler's consultation exercise, for example, the Obligations Law Sub-Committee of the Law Society of Scotland identified this as its " main area of concern", expressing a view that " such a hard-and-fast rule may not be appropriate for complex or high-value cases", but suggesting that if could well be acceptable if it were possible for the rule to be challenged where exceptional cause can be shown. In other words, the 25% figure would be presumption which could be rebutted if suitable grounds were established. (It should be noted, however, that when considering similar issues in relation to relatives of victims, as opposed to victims themselves, the SLC report states clearly that " this figure should not be variable… if this sum was open to variation, it would invite litigation thus defeating the object of reform".)
3.10 It seems to the Scottish Government that at the heart of this issue is a general underlying tension between:
(i) the objective of ensuring that injured parties are neither under-compensated nor over-compensated, by determining the actual value of the loss to be compensated in individual cases as accurately as possible (a process which can potentially take time, effort and money in gathering and assessing relevant evidence); and
(ii) the objective of ensuring that injured parties in all cases are compensated as quickly and painlessly as possible.
3.11 The central issue, therefore, appears largely to be a subjective one. That is - bearing in mind that the aim of the law is " to put the victim.... in the position in which he would have been had he not been injured, so far as money can achieve this" - whether the evidence suggests that for patrimonial loss the recommended change in the law is required and would yield advantages in relation to the second objective which would outweigh any disadvantages in relation to the first.