Hansard

I begin by belatedly responding to Robert Brown’s earlier point by advising him that, under section 17, nothing affects proceedings that are commenced before section 16 comes into force. The legislation will apply only to court actions that are raised after its commencement.

The Parliament has a proud record on modernising the law on damages, although the need for further reform is well recognised. I had announced plans for a programme that covered three Scottish Law Commission reports—those on psychiatric injury, time bar and wrongful death—but when Bill Butler lodged his final proposal for the bill to address wrongful death issues we adjusted to focus on those first.

I hope and believe that Bill Butler agrees that we have maintained a good and constructive dialogue in the past year. We have engaged fully over a long period to good effect. We worked at all times with the members of the Justice Committee as a team who had one objective: to improve the terms of the original bill to meet the matters that arose in evidence. In particular, I thank the former convener of the committee for his excellent convenership. [Applause.]

The Scottish Government issued a consultation paper last July so that we could contribute constructively to proceedings. Our objective is legislation that ensures that the victims of wrongful death and their relatives get a fair deal and that they have the right, without unnecessary aggravation or delay, to secure a reasonable level of compensation for their financial, physical and emotional losses. The Law Commission concluded that, for patrimonial loss, the best approach was a fully standardised one that, disregarding relatives’ income, works on the basis that fatally injured individuals would have been spending 25 per cent of their income on themselves and 75 per cent on their family’s requirements. That was a central feature of the recommended regime and, with some qualifications, it remains at the heart of the bill.

I should recap the main qualifications that were introduced at stage 2, on which Bill Butler has touched. The first related to the proposed standard 25 per cent/75 per cent assumption. Although that was supported by many stakeholders—including Aviva and the Forum of Scottish Claims Managers from the defenders’ perspective—there were concerns that a one-size-fits-all approach could lead to instances of injustice. The Justice Committee concluded:

“If a rebuttable presumption 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, it might still offer the best way forward.”

It was agreed that the standard assumption could be set aside in those few cases in which its rigid application would lead to a “manifestly and materially unfair” outcome. That should allow some flexibility, but it requires a very high test to be met.

A second qualification related to the disregarding of the surviving spouse’s income. Let me make it crystal clear that we agree that a relative’s income should generally be disregarded. It should be taken into account only in those truly exceptional cases in which ignoring it would lead to a manifestly and materially unfair result—and then only in relation to fixing the appropriate percentage. Otherwise, it should be of no account at all.

The bill now directs that, whenever a qualifying partner or dependent child survives the deceased, 75 per cent of the deceased’s net income or, in very exceptional circumstances, such other percentage as the court may fix, must be taken as having been spent in supporting family and relatives. That is the measure of the relatives’ loss; no further account can be taken of the income of a surviving spouse in calculating the level of support. It can no longer be argued that the Brown v Ferguson formula is relevant.

The result of all this work is, I believe, a much improved piece of legislation—one that, as Bill Butler has argued, will deliver a better approach to claims for wrongful death. On behalf of the Scottish Government, I am pleased to commend the bill to Parliament.

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