Hansard

I rise to speak to the motion in my name that the Damages (Scotland) Bill be passed.

The bill, which was introduced on 1 June 2010, has the clear purpose of implementing the recommendations of the Scottish Law Commission’s “Report on Damages for Wrongful Death”, which was published in September 2008.

In Scots law, when an individual suffers an injury or contracts a disease as a result of the actions or omissions of another person or of a legal entity such as a company, damages can be claimed from the wrongdoer. The law makes specific provision for cases of personal injury that result in premature death, whether the death is immediate or more protracted. The Law Commission concluded that the extant 1976 act

“has become over-complex and, indeed, contains inaccuracies as a consequence of the numerous amendments made to it”

and therefore

“should be repealed and replaced by new legislation which will restate the current law with greater clarity and accuracy.”

The reforms that are contained in the bill seek to achieve that greater clarity and accuracy, and reform is urgently needed because of the nature of the cases and the number of people who are affected. Every year, hundreds of people in Scotland are wrongful death victims or become ill with fatal work-related diseases. On average, 30 people in Scotland die in workplace accidents every year. In 2008, 272 people died on Scottish roads. Between 1 January 2009 and 20 April 2010, 210 people with mesothelioma and 58 people with asbestos-related lung cancer sought assistance from Clydeside Action on Asbestos. In numerous other fatal accidents that were unrelated to work or road traffic accidents, the deceased person was the victim of another’s negligence.

Most such deaths become claims and then court actions. Year on year, they add to the volume of wrongful death cases in which claims are made. It is generally accepted that wrongful death cases are among the most difficult and anxious cases with which personal injury practitioners deal. Cases tend to be hard fought by insurers and defenders, which can mean that they take longer to resolve. As well as dealing with their bereavement, families have the practical burden of financial hardship to shoulder and the unknown and often daunting legal process to face.

If the bill is passed today, the uncertainty and delays to which families and victims are subjected can be reduced and the Parliament will have met a need that has perhaps been understood only by victims and those who have assisted them.

Members will recall that, during the stage 1 debate, I pledged to work constructively with the minister and all members to seek agreement on aspects of the bill that still troubled members and the Government. I am happy to report that constructive engagement has continued to be the order of the day since 15 December and throughout the latter stages of the bill. Both informally in discussions with the minister and his team, and formally during the stage 2 process, there were two interrelated issues that, above all others, required to be resolved in a way that was both practicable and durable. They were matters that the Justice Committee raised specifically in its stage 1 report, with the admonition to the Government and me to come up with an acceptable, resilient compromise on the provisions relating to the fixed percentage of 25 per cent used to calculate the victim’s living expenses in the context of the victim’s claim for damages and its obverse, the fixed percentage of 75 per cent used to calculate the amount that the victim spent on supporting his or her family in the context of the relatives’ claim for loss of support. The committee’s clear advice was that a rebuttable presumption was necessary if it

“could be drafted in such a way that it provides flexibility only when it is needed, without undermining the benefits of a fixed deduction in the majority of cases”.

Despite my reservations about a rebuttable presumption, which I expressed at stage 1, I believe that the compromise that is expressed in the Government amendments that were agreed unanimously at stage 2 places the onus on those who wish to challenge the fixed percentages.

The phrase that was agreed—“manifestly and materially unfair”—forces those who wish to challenge the normal fixed percentages to make the argument for why their client’s case is “genuinely unusual”. That is a much higher and more focused test than if the provision were simply to be phrased as “on special cause shown.” That would have been far too wide. As I said at stage 1, the words employed must not be so wide as to provide

“an open door to all defenders”.—[Official Report, 15 December 2010; c 31568.]

Nonetheless, for the avoidance of doubt and the guidance of those who at some future date may have to opine in respect of this provision in the bill, I would be grateful if the minister in his speech could place on record the Government’s support for such an interpretation of the bill’s intent in this regard.

During stage 2 discussions, there also arose the issue, in relation to a relative’s claim for loss of support, of the requirement in the bill to disregard the income of the person making the claim. Mr Ewing will recall that I expressed my concern at the time about the deletion of section 7(1)(b). He will also recall that the matter was the subject of considerable debate. The minister assured me at the time that

“The formula in section 7(1)(a) already provides for the amount available to support the relatives to be 75 per cent. It is clearly implicit in that section that no further calculation is to be made to disregard a relative’s income”.—[Official Report, Justice Committee, 1 February 2011; c 4128.]

For the avoidance of doubt, I ask Mr Ewing to reiterate what I understood him to say at stage 2—namely, that the matter of the disregard would arise only in exceptional cases in which the 75 per cent figure would result in manifest and material unfairness. In other words, will the minister be good enough to confirm in Parliament that the principle of the disregard in respect of the income of the person making the claim remains intact?

I look forward to the debate.

I move,

That the Parliament agrees that the Damages (Scotland) Bill be passed.

15:06