We have a new website go to gov.scot

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

Listen

ANNEX B: SLC Report on Damages for Wrongful Death

List of Recommendations

1. A victim should continue to receive damages for loss of expectation of life as part of an award of solatium only if he is, or was at any time, aware, or is likely to become aware that his life will end prematurely. (Paragraph 3.2)

2. A victim should continue to be able to claim damages for any patrimonial loss sustained between -

(i) the date of decree and the date when he is expected to die; and

(ii) the date when the victim is expected to die and the notional date of death, i.e. the lost period. (Paragraph 3.4)

3. For the purposes of the lost period patrimonial loss should continue to include the victim's earnings and any benefits in money or money's worth derived from sources other than the victim's own estate. (Paragraph 3.5)

4. For the purposes of the lost period a deduction should continue to be made for the victim's reasonable living expenses: these should be taken to be 25% of the victim's net income during that period. (Paragraph 3.9)

5. (a) A claim under section 8 of the Administration of Justice Act 1982 should continue to exclude the lost period. (Paragraph 3.11)

(b) A claim under section 9(1) of the Administration of Justice Act 1982 should include damages in respect of the victim's inability to provide gratuitous personal services to his relatives during the lost period.

(Paragraph 3.11)

6. (a) The executor's right to sue for patrimonial loss should continue to be

restricted to the loss sustained by the deceased up until the date of death.

(Paragraph 3.17)

(b) The deceased's dependent relatives should continue to have a right to

sue for loss of the deceased's support. (Paragraph 3.17)

7. The right of a relative of the deceased to sue for damages should continue to be a dependent right in the sense that the relative cannot sue unless the defender would have been liable to the deceased if the deceased had claimed damages for personal injuries before his death. (Paragraph 3.18)

8. The right to sue on the death of a relative should continue to be extinguished if before he died the deceased had discharged the responsible person's liability to him or his executor. (Paragraph 3.23)

9. Where a victim dies of mesothelioma, his relatives should retain title to sue for non-patrimonial loss although the victim has excluded or discharged liability before his death. (Paragraph 3.29)

10. A relative should continue to be able to recover damages only for the patrimonial loss sustained by her as a consequence of the loss of the deceased's financial support. (Paragraph 3.34)

11. (a) Where the pursuer is the deceased's spouse, civil partner, cohabitant or dependent child the deceased is to be taken as having used 75% of his net income to support his family and the pursuer's earnings are to be ignored;

(b) For these purposes a dependent child is a child of the deceased, or a child accepted by the deceased as a child of his family, who is under the age of 18 and to whom the deceased owed an obligation of aliment at the time of his death;

(c) In all other cases, the pursuer must establish the amount of financial support he received from the deceased: this cannot exceed 75% of the deceased's net income;

(d) Where the pursuers are the deceased's spouse, civil partner, cohabitant or dependent child, and also another relative whom the deceased was supporting, the amount of the latter's support must be deducted from the 75% of the deceased's net income which the deceased is to be taken to have used to support his partner and dependent children. (Paragraph 3.44)

12. The relative's loss of support should be divided into past loss and future loss, and that a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only. (Paragraph 3.46)

13. (a) The relatives of a deceased should continue to have title to sue for non patrimonial loss; (Paragraph 3.52)

(b) An award of damages for non-patrimonial loss should be called a "grief and companionship award". (Paragraph 3.52)

14. A grief and companionship award should not include damages in respect of a mental illness suffered by a relative as a consequence of the victim's death. (Paragraph 3.53)

15. The right to sue for patrimonial as well as non-patrimonial loss should be restricted to those relatives of the deceased who currently constitute the deceased's immediate family. (Paragraph 3.57)