The Scottish Law Commission’s proposed changes to the law of personal injury damages in Scotland

In December 2024 the Scottish Law Commission (‘SLC’) issued its long-awaited report on damages for Personal Injury.

The SLC’s recommendations are with the aim of modernising, simplifying and clarifying the existing law. Burness Paull, as part of its work with the Forum of Insurance Lawyers, had contributed to the SLC’s consultation.

The SLC has included a draft Damages (Scotland) Bill that incorporates its recommendations. We will share further updates on the Scottish Government’s response as soon as more information becomes available, providing clarity which recommendations are likely to become law and the expected timeline. The headlines from the report are as follows:

• Whilst it has long been the case that damages can be paid to compensate for (i) the notional costs of services (care) provided to an injured person; and/or (ii) the services which the injured person would otherwise have provided, those entitled to claim under statute did not reflect the more modern family arrangements. The proposed changes to legislation include:
  • Expanding the category of those entitled to payment for services (under section 8 of the Administration of Justice Act 1982) to those who are not relatives provided the person providing services is not doing so with a contractual right to payment or otherwise in the course of their profession. The right to payment is not extended to those charities who provide care. 
  • The same extension is not recommended by the SLC for non-family members who would have benefited from the services of an injured party had it not been for an accident. 
  • Introducing a court rule which requires someone claiming services to lodge an affidavit with certain prescribed information. This should help to reduce the broadness of the brush which is currently applied when calculating service payments. 
• The SLC recommends that steps are taken with the DWP so that CRU certificates give sufficient detail to identify what benefits can be offset from certain settlements. 
• Increased supervision by the courts is recommended where damages are paid to young children. The court may inquire as to how the award will be invested, protected and administered.
• A change to the timebar rules for asbestos litigation. Read here for more details on that. 
• Whilst the SLC considered other potential changes, the status quo is essentially maintained in some areas which were the subject of consultation, including:
  • A wrong doer will continue to be prevented from claiming services. For example, if one spouse is responsible for the injuries of the other, they cannot claim the cost of services for caring for the injured spouse.
  • The statutory presumption that a claimant is entitled to opt for private healthcare is maintained, albeit with a change in the statutory framework recommended. 
  • Payments received by an injured person under a Permanent Health Insurance scheme arranged by their employer to which they have contributed financially (either by direct payment, tax or NIC or by deduction from earnings) continue not to be deductible from an award of damages. Where no such contribution is made, payments made under the scheme should be deductible from an award of damages.

The recommendations of the SLC are significant and, if implemented, will become one of the most significant updates to personal injury law in Scotland for decades. Cumulatively the changes are likely to increase the cost of claims but, overall, a fair balance seems to have been struck by those on the claimant and defence side. 

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