August 26th, 2010
Below is the full text of all the submissions made to my proposed Damages (Scotland) Bill.
30 October 2009
We are writing in response to your consultation paper on the proposed Damages (Scotland) Bill, which was published on 3 August 2009.
We welcome the opportunity to reply to this consultation, having already responded to the discussion paper which the Scottish Law Commission published in 2007. Our response to this consultation will, therefore, focus on the issues which were not covered by the original discussion paper.
In our submission to the Scottish Law Commission,(copy attached) we stated that we believed ‘the discussion paper succinctly summarises the current law and makes proposals which will be of significant benefit to people whose relatives have been wrongfully killed’. We still believe that there is a case for the Damages (Scotland) Act 1976 to be amended, and broadly welcome both the final report and draft Bill produced by the Scottish Law Commission.
In response to questions two and three in the consultation paper, we agree that there should be set deductions from an assessment of damages for living costs. A fixed deduction would spare bereaved families the current trauma of a deeply intrusive enquiry into the financial history of the deceased, and possibly other family members, at a time of severe emotional strain.
A set deduction of 25 per cent will also save time in the process of calculating the award, as there will be reduced investigations into the finances of the deceased, and should provide the bereaved family with the compensation they need more quickly than is the case under the current arrangements. It will increase the predictability of awards and improve the prospects of settlement without litigation. There should also be an additional saving in lawyers’ costs by removing the need for lengthy investigations into the financial arrangements of the deceased, and his family.
We also believe that a deduction of 25 per cent would better reflect the changing arrangements within households, where women are much more likely to be working than has been the case in the past.
We agree that damages for non-patrimonial loss should not include damages in respect of any mental illness suffered. Close relatives of the deceased will, of course, experience emotions of extreme grief, and it is difficult to separate those feelings from a psychiatric disorder, brought on by the loss of their loved one. Where psychiatric disorders are taken into account, there are difficulties with recognition and definition of such disorders. Lawyers currently have to consider whether there might be a diagnosis of psychiatric illness, leading to bereaved relatives having to undergo psychiatric examination, which is the last thing they should endure in the circumstances. Taking psychiatric disorders into account also leads to some relatives receiving higher damages than others based on the severity of their psychiatric disorder, and we believe any “ranking of grief” on this basis is invidious.
We are not immediately aware of any additional costs associated with the proposed Bill, and have no further comments on the details of the consultation document, or the draft Bill.
The proposals are timely and proportionate and APIL expresses its strong support. This is one of a number of areas where the Scottish Law Commission has made proposals to bring the law of Scotland up to date and we wish the Bill a speedy progress through Parliament.
With very best wishes
Russell Whiting
Parliamentary Officer, APIL
Tel: 0115 938 8727
Email: russell.whiting@apil.org.uk
Damages (Scotland) Bill: Consultation Paper
The ABI’s Response to Bill Butler MSP’s Consultation on Damages for Wrongful Death
Introduction
The Association of British Insurers (ABI) is the voice of the insurance and investment industry. Its members constitute over 90 per cent of the insurance market in the UK and 20 per cent across the EU. They control assets equivalent to a quarter of the UK’s capital. They are the risk managers of the UK’s economy and society. Through the ABI their voice is heard in Government and in public debate on insurance, savings, and investment matters. And through the ABI they come together to improve customers’ experience of the industry, to raise standards of corporate governance in British business and to protect the public against crime. The ABI prides itself on thinking for tomorrow, providing solutions to policy challenges based on the industry’s analysis and understanding of the risks we all face.
- 1. Do you agree with the Commission’s main recommendation, and the reasons for it, that the existing law, which is contained in the 1976 Act, should be repealed and consolidated or re-enacted in the draft Bill, subject to certain amendments to it and to the 1982 Act. (see paragraphs 2.1-2.9 above)?
Insurers want to be able to pay correct levels of compensation to claimants through a straightforward process that is efficient while meeting the needs of claimants. We agree in principle that the approach to compensation should be amended to take into account changing economic realities; however, we are not convinced that the proposals outlined in the draft Bill will achieve this.
- 2. Do you agree with the Commission’s recommendations Nos 4 and 5(b), and the reasons for them, that, when assessing the victim’s claim of damages for patrimonial loss, (a) the court should make a fixed deduction of 25% of his net annual income during the lost period to represent the victim’s reasonable living expenses (see paragraphs 4.1-4.4 above);
There are advantages to simplifying the process for assessing damages, as this should lead to a faster and more efficient compensation system for claimants. However, fixing the amounts concerned in legislation will restrict the future flexibility of courts and may make it difficult to take into account future changing economic realities. Moreover, as the Commission recognised in their Report on Damages for Wrongful Death (p13), in practice, in settlement negotiations, the deceased’s reasonable living expenses are agreed without too much difficulty.
(b) a claim under section 9 of the 1982 Act should include damages in respect of the victim’s inability to provide gratuitous personal services to his relatives during the lost period ( see paragraphs 5.1- 5.2 above)?
We agree that relatives should be compensated for losses they sustained as a result of the deceased’s injuries. If, as a result of a wrongful act, a deceased is unable to provide personal services gratuitously to his family until his notional date of death, it is right and proper that appropriate relatives are entitled to claim for that entire loss, including the lost period.
- 3. Do you agree with the Commission’s recommendations Nos 11(a) –(d) and 12, and the reasons for them, that, when assessing the relatives’ claim of damages for patrimonial loss, (a) in every case, the court should assume that the total amount available to support the deceased’s relatives is an amount equivalent to 75% of the deceased’s net annual income;
Please see our answer to 2(a).
(b) in the case where the claim for loss of support is made by a relative who is the deceased’s spouse, civil partner, cohabitant, or dependent child and no other relative makes such a claim, the court should (i) assume that the deceased supported them to the extent of 75% of his net income; (ii) the pursuer’s net income is to be disregarded;
In addition to our comments under 2(a), we are not convinced it reflects economic reality to assume that the deceased’s living expenses would only be 25% of their own income as opposed to 25% of a joint income. In reality, there is a link between an individual’s living costs and their joint income and therefore to disregard the joint income completely will lead to overcompensation. In other words, the proposal could lead to a large number of situations in which the pursuer (the relative) is being put in a better financial support position than they would have been had the death not occurred, thus going against the basic principles of reparation.
The disregarding of the pursuer’s net income, while recommended in the Commission’s Report, was not suggested as a proposal in the original Discussion Paper and therefore has not been consulted on previously.[1] Further financial assessment would need to be done to measure the effect this change would have on a range of situations.
(c) in other cases, the relative is not to be awarded more in compensation for loss of support than the actual amount of that loss and this cannot exceed 75% of the deceased’s net income; (d) where a claim is made by the deceased’s spouse, civil partner, cohabitant or dependent child, and also another relative whom the deceased was supporting, the amount of that other relative’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; (e) a dependent child is to be defined for those purposes as 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;
We agree with (c), (d), and (e).
(f) the relative’s loss of support should be divided into past loss and future loss, and a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only (see paragraphs 6.1-6.5 above)?
We disagree; the approach should remain that taken in the case of Wells v Wells, and currently applied in courts, where one multiplier applies from the date of death.
We understand that reason for the proposal is to take away unnecessary complexity by introducing a single multiplier from the date of awarding damages, as exists for injury claims. The argument put forward is that the multiplier is discounted to take account of factors in the future and thus it is not correct to apply it to the period from death to trial/ settlement, as that is now in the past.
However, unlike in injury claims where the claimant is still alive at the date of awarding damages, in fatal claims a period of uncertainty does exist between death and trail. This is because the deceased may have died from natural or other causes had the incident not occurred. Therefore it remains valid to apply a multiplier from the date of death.
4. Do you agree with the Commission’s recommendation No 15, and the reasons for it, that states that 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 (see paragraphs 7.1-7.5)?
We agree.
5. Do you agree with the Commission’s recommendation No 14, and the reasons for it, that the relatives’ damages for non-patrimonial loss should not include damages in respect of any mental illness suffered by a relative as a consequence of the victim’s death (see paragraphs 8.1-8.3)?
We agree. A claim for damages in respect of any mental illness should be brought in a separate action.
6. Do you think there will be additional costs associated with this proposed bill and in what areas will they arise?
As we have demonstrated above, some of the recommendations would lead to overcompensation; and as a result this would lead to increased costs for defendants. Potentially, these costs could be offset by a more efficient compensation process and reduced legal costs. Further financial assessment would need to be done to measure the effect the recommendations would have on a range of situations.
7. In what ways do you think the proposed Bill have equal opportunities impacts, if any?
No comment.
8. Do you have any other comments in relation to my proposal for a Member’s Bill?
As stated in our answer to question 1, we agree in principle that the approach to compensation should be amended to take into account changing economic realities, and we are in favour of creating a more straightforward and efficient compensation process for claimants where possible. However, we are not convinced that the proposals outlined in the draft Bill will achieve this.
[1] The
Discussion Paper highlighted judicial criticism of the existing
Brown v Ferguson formula and suggested that that formula should no longer be used, but did not actually propose an alternate method.
Response
By
The Forum of Scottish Claims Managers
To
Damages (Scotland) Bill: Consultation Paper – 3rd August 2009
FSCM are pleased to be asked to contribute to the discussion paper
and respond as follows:
Question 1
Do you agree with the Commission’s main recommendation, and the reasons for it, that the existing law, which is contained in the 1976 Act, should be repealed and consolidated or re-enacted in the draft Bill, subject to certain amendments to it and to the 1982 Act. (see paragraphs 2.1-2.9 above)? If you do not agree, please explain why not.
Response to Question 1
FSCM welcome the Commission’s recommendations and agree with most of the Commission’s recommendations. Where we do not agree with the recommendations, we will comment in further detail below. We are content for the existing legislation to be consolidated into the new bill and accept the rationale for doing so.
Question 2
Do you agree with the Commission’s recommendations Nos 4 and 5(b), and the reasons for them, that, when assessing the victim’s claim of damages for patrimonial loss,
(a) the court should make a fixed deduction of 25% of his net annual income during the lost period to represent the victim’s reasonable living expenses (see paragraphs 4.1-4.4 above); and
(b) a claim under section 9 of the 1982 Act should include damages in respect of the victim’s inability to provide gratuitous personal services to his relatives during the lost period ( see paragraphs 5.1- 5.2 above)?
If you do not agree, please explain why not.
Response to Question 2
(a) FSCM agree with the commission’s recommendations for paragraph four. We accept the court should make a fixed deduction of 25% of the net annual income to represent his/her living expenses.
(b) In relation to 5 (b) we agree, that subject to proper evidence appropriate relatives should be entitled to claim under section 9 of the 1982 Act for services during the lost period.
With our response to 2 (a) we are clear that we are making a large concession from a defenders perspective and do so in the interest of narrowing the areas where dispute arise and therefore facilitating quicker compensation. The defenders are aware that they are forgoing any arguments on such deductions for living expenses in individual cases.
However in the interests of equity and fairness the one caveat we would use to qualify such an acceptance is that we do consider the approach taken by the courts in Brown v Ferguson (i.e. pooled incomes) should remain and we shall make further comment below in our Response to Question 3.
Question 3
Do you agree with the Commission’s recommendations Nos 11(a) –(d) and 12, and the reasons for them, that, when assessing the relatives’ claim of damages for patrimonial loss,
(a) in every case, the court should assume that the total amount available to support the deceased’s relatives is an amount equivalent to 75% of the deceased’s net annual income
(b) in the case where the claim for loss of support is made by a relative who is the deceased’s spouse, civil partner, cohabitant, or dependent child and no other relative makes such a claim, the court should
(i) assume that the deceased supported them to the extent of 75% of his net income;
(ii) the pursuer’s net income is to be disregarded;
(c) in other cases, the relative is not to be awarded more in compensation for loss of support than the actual amount of that loss and this cannot exceed 75% of the deceased’s net income;
(d) where a claim is made by the deceased’s spouse, civil partner, cohabitant or dependent child, and also another relative whom the deceased was supporting, the amount of that other relative’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;
(e) a dependent child is to be defined for those purposes as 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; and
(f) the relative’s loss of support should be divided into past loss and future loss, and a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only (see paragraphs 6.1-6.5 above)?
If you do not agree, please explain why not.
Response to Question 3
FSCM agree with the general principle of the commission in relation to questions 11 (a) – (d) and would respond as follows.
(a) Agreed – subject to deduction of the pursuers earnings as detailed in our Response 2 (a) above.
(b) (i) Agreed – again, subject to deduction of the pursuers earnings as detailed in our Response 2 (a) above.
(b) (ii) Strongly disagree. FSCM are absolutely opposed to any suggestion that the pursuer’s income should be disregarded.
To ignore the impact of the pursuer’s income and to fail to consider the pooled income of the family unit would lead to gross overcompensation and be in breach of the defenders rights to fairness, equity and justice. The proposal could lead to large numbers of situations where the pursuer is being put in a better financial support position than they would have been but for the accident, thus going against the basic principles of reparation.
There would be many instances in the current economic climate where the pursuer is the main earner or earns as much as the deceased. One of the stated aims of the Bill is to reform in the face of the ‘economic realities of modern family structures’ and in our opinion, the practice of considering the pooled income of a family unit (and deducting the income of the Pursuer to arrive at the available loss of support pool) is one such cornerstone principle in considering modern family life and making sure our legislation is fit for purpose whilst providing true equality of arms and overall fairness for the consumer.
To provide an example of the above in practice, here is an example:
Example 1
Family A:
In Family A, there is one partner earning a net salary of £25,000 and the other partner does not work
In this example, we will assume that the working partner dies, therefore, the multiplicand or annual loss of support is £18,750 (being £25,000 less 25%)
Family B:
In Family B, both partners are working and earn £25,000 each net salary
Exactly as above, if one of the partners were to die, the multiplicand or annual loss of support would be £18,750
However, if we re-calculate Family B using the pooled income model: (and deduction of surviving spouse’s income)
Family B: (using pooled income)
The family pooled income is £50,000. 25% is deducted for living expenses / own keep of the deceased, thereafter, the surviving spouse’s income should be deducted.
The multiplicand or annual loss of support is £12,500 (being £50,000 less 25% – £25,000)
Conclusions:
If we are to assume for simplicity of calculation, that the multiplier is 20, then the total loss of Support for Family A is £375,000.
If the Bill’s recommendations are enacted, The total loss of Support for Family B would also be £375,000, but the reality is the surviving spouse would still have their own income added on top – if you apply the original income back in using the same 20 multiplier, this adds an additional £500,000 – making a total of £875,000 which would be more than double what Family A would receive over the same period.
In effect the recommendations, if enacted, would create a clear gulf in the level of support awarded between the families to the detriment of the lower earning Family A.
(c) Agreed.
(d) Agreed.
(e) Agreed.
(f) Disagree. The stated aim of the Bill and the recommended reforms are to take away situations where over-complexity exist, simplify access to justice for the consumer / pursuer and to facilitate a quicker and easier method of agreeing appropriate compensation without the need to over burden the courts.
By dividing a relative’s loss of support claim into past and future losses the main overriding problem is what date can be taken as the present date?
The starting point for the Commission’s recommendation (Paragraph 6.3 on page 10 of the Consultation paper) is a Proof date. The losses sustained before the Proof date are the past losses and the losses sustained after the Proof date are the future losses.
This approach would be contradictory to facilitating any settlement without the intervention of the court because the approach is predicated on the actual Court Proof date being the pivot upon which the calculation is balanced.
Even if the defenders and pursuers do attempt to negotiate a settlement using the present date to calculate what is in the past and what is to be allowed to the future, such a calculation becomes more obsolete with every day which passes.
The approach taken in the case of Dingwall v Walter Alexander & Sons we believe is appropriate. The multiple should be calculated from the dare of death..
Furthermore, the multiplier starts from the date of death to avoid the removal of the risks relating to every day life that the deceased would have been exposed to had they survived i.e. they could have suffered ill health or accident and this is only compensated for by using a multiplier from the date of death. To calculate from the date of settlement is to remove that risk and, again, over compensate the Pursuer.
Applying the multiplier from the date of death also fits with the aim of reducing needless litigation and not over burdening the judicial system with cases where negotiated settlement should be easily achievable.
Question 4
Do you agree with the Commission’s recommendation No 15, and the reasons for it, that states that 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 (see paragraphs 7.1-7.5)? If you do not agree, please explain why not.
Response to Question 4
FSCM agree that only members of the deceased immediate family (as redefined) should have a right to sue for patrimonial as well as non-patrimonial loss.
Question 5
Do you agree with the Commission’s recommendation No 14, and the reasons for it, that the relatives’ damages for non-patrimonial loss should not include damages in respect of any mental illness suffered by a relative as a consequence of the victim’s death (see paragraphs 8.1-8.3)? If you do not agree, please explain why not.
Response to Question 5
FSCM agree with the commission recommendation that relatives claim for grief and companionship should not include any award in respect of any mental illness suffered by a member of the deceased immediate family. Such claims may involve questions of causation and time bar and should be subject to a separate (independent) action.
Question 6
Do you think there will be additional costs associated with this proposed bill and in what areas will they arise?
Response to Question 6
As you will appreciate from our response, FSCM are opposed to any recommendations which would lead to higher levels of litigation or significant delays in allowing consumers access to fair levels of compensation. We have commented in detail above where we consider the recommendations would create such barriers.
If the recommendations were implemented, this would inevitably lead to increased costs which in turn would be directly passed on to the consumer in a number of different ways. This is a matter which not only affects insurers (which result in higher premiums for consumers) but also have vast implications for bodies such as the National Health Service and local government where the additional cost would have to paid for by the consumer indirectly.
Question 7
In what ways do you think the proposed Bill have equal opportunities impacts, if any?
Response to Question 7
FSCM do not consider the proposed bill will have any impact on equal opportunity legislation.
Question 8
Do you have any other comments in relation to my proposal for a Member’s Bill?
Response to Question 8
In relation to a single multiplier, for a relative’s loss of support we would refer you to the original discussion paper for the reasons set out in paragraph 3.52. FSCM consider the multiplier should run from the date of the deceased death only. Following the status quo regarding the pooling of income will prevent increase in the level of damages/costs and will not preclude speedy access to justice. Pursuer’s solicitors should have no difficulty in obtaining documented evidence to prove earnings/family income.
Thompsons Scotland Response
to
Damages (Scotland) Bill: Consultation Paper – Bill Butler, MSP
Response by Thompsons Solicitors
Question 1.
Do you agree with the Commission’s main recommendation, and the reasons for it, that the existing law, which is contained in the 1976 Act, should be repealed and consolidated or re-enacted in the draft Bill, subject to certain amendments to it and to the 1982 Act. (see paragraphs 2.1-2.9 above)? If you do not agree, please explain why not.
We support the Commission’s view that radical reform to the law of damages on death is not required but that there are a small number of important areas where improvements can be made. The essential components of the existing law, which allows for claims by injured parties and their relatives when fatal injuries or illness is sustained through the negligence of others, are sound. The law on wrongful death has been the subject of much amendment and judicial scrutiny and a “consolidation” will be helpful.
There has been the Damages (Scotland) Act 1993 and the extension of the definition of ‘immediate family’ in terms of the Family Law (Scotland) Act 2006. Legislation also amended the Act for the continuance of section 1(4) claims notwithstanding settlement during life for mesothelioma cases in terms Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007. There are also matters affecting damages for wrongful death contained in other statutes, such as services to injured persons by relatives, Section 9 of the Administration of Justice Act 1982.
There have also been a number of Scottish Law Commission reports.
- Report on the Law Relating to Damages for Injuries Causing Death, SLC 31 page 43.
- Report on Title to Sue for Non-Patrimonial Loss, SLC 187.
There have also been the cases on the Act.
- Quinn –v- Reid [1981] SLT (Notes) 117
- Monteith –v- Cape Insulation [1998] SC (IH) 906, [1999] SLT 116
Absence of brothers and sister qualifying for non-patrimonial loss being the subject of judicial criticism.
- Telfer –v- Kellock [2004] SLT 1290
Inability of civil partner to claim for non-patrimonial loss
- McAllister –v- Imperial Chemical Industries Plc [1997] SLT 351
Competent for in-laws to claim for non-patrimonial loss
- Dingwall –v- Walter Alexander & Sons (Midland) Ltd [1982] SC (HL) 179, [1981] SLT 313
- Donald –v- Strathclyde Passenger Transport Executive [1986] SLT 625
- McManus’s Executrix –v- Babcock Energy Ltd [1999] SC 569, [2000] SLT 655
The law had been in a confused state in terms of Dingwall and Donald giving contradictory views on what is included or not included in non-patrimonial loss. This was considered together with the report of the Law Commission extensively by McManus’s Executrix.
- Shaher –v- British Aerospace Flying College Ltd [2003] SC 540, [2003] SLT 79
- McLean –v- William Denny & Bros Ltd [2004] SC 656, [2004] SLT 1099
- Murray’s Executrix –v- Greenock Dockyard Co Ltd [2004] SLT 1104
- Cruickshank –v- Fairfield Rowan Ltd [2005] SLT 462
This concerned the levels of payment for non-patrimonial loss for widows and immediate relatives including adult children and parents for non-patrimonial loss.
- Weir –v- The Robertson Group (Construction) Ltd, Outer House, Lord Glennie, 11 July 2006 (2006 GWD 25-575)
- Brown –v- Ferguson [1990] SLT 274, [1988] SCLR 577
Although bound by the authority in Brown –v- Ferguson, the Lord Ordinary in Weir questioned the method of calculation as laid out in Brown –v- Ferguson.
- Warnock –v- Clark Contracts, Outer House, Lord Wheatley 18 November 2004 (unreported)
There have also been a number of articles
- The Damages Scotland Act 1993, Maguire 1993 SLT (News) 245 at p248
- Moodie (1993) 38 JLS 212 at p213
- Changing Values: Bereavement Awards in the post-Shaher World by AM Hajducki, QC, at 2003 SLT (News) 189
- Relatives’ claims on death, Maguire, 2007 SLT (articles) p43-46
- Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007
Question 2.
Do you agree with the Commission’s recommendations Nos 4 and 5(b), and the reasons for them, that, when assessing the victim’s claim of damages for patrimonial loss,
(a) the court should make a fixed deduction of 25% of his net annual income during the lost period to represent the victim’s reasonable living expenses (see paragraphs 4.1-4.4 above); and
(b) a claim under section 9 of the 1982 Act should include damages in respect of the victim’s inability to provide gratuitous personal services to his relatives during the lost period ( see paragraphs 5.1- 5.2 above)?
If you do not agree, please explain why not.
We entirely agree with the Commission’s recommendations number 4 and 5 (b) and the reasons for them.
2 (a)
We agree that the court should make a fixed deduction of 25% of net annual income during the lost period to represent the victim’s reasonable living expenses.
The state of the current law is unsatisfactory and leads to considerable uncertainty. The only judicial authority is an English authority, Harris –v- Empress Motors Ltd [1984] 1 WLR 212, [1993] All ER561. There is no Scottish authority apart from an interim damages case of Frank William Fletcher as Guardian of Lisa Smart –v- Christopher Lunan [2008] CSOH 55, Lord Carloway. The only full potential authority on the case was Farrelly –v- Yarrows Shipbuilders Ltd [1994] SLT 1349, [1994] SLR 47 for Section 9 where this claim was not addressed and the pursuer given their full wages without any deduction of living expenses. It could be said in Scotland that no-one really knows what “living expenses” includes.
The uncertainty also aggravates resolution of such a claim whereby the arguments for either side lead to a large discrepancy in percentages of living expenses to be deducted leading to delays in settlement and resolution of the claim (often arguments for deductions of 75%, see example below and the case, above, of Frank William Fletcher as Guardian of Lisa Smart –v- Christopher Lunan where the judge took 60% off).
Any delay can be to the severe prejudice of the dying person because it may prevent their case being resolved before they die or too late for them to have benefit from it.
Having regard to the limited authority, there can be much delving into the personal circumstances and lifestyle of the individual concerned.
On the case authorities, living expenses of a dying person would be less than they would be if there was a claim for a surviving spouse for loss of support where the spouse had little or no income. This is because the calculation of living expenses for a dying person is deemed and argued by defenders to be greater than the second calculation for the deceased where the living expenses are deemed to be less. There is no logic in this. The virtue of the Law Commission’s recommendations would be to treat both circumstances as the same.
What the Commission proposes now is a simple rule based on the principle that the living expenses which are deductible from future income are expenses of necessity/living expenses not expenses of choice or lifestyle (see paragraph 3.8 of the Commission Report). The 25% rule is a realistic estimate which can be applied readily to any case. An example is provided below of a joiner who had a limited life expectancy because of his injuries. The defenders argued for a 75% deduction of his living expenses, this would have resulted in the undernoted calculation.
Period 1
(estimated date of death to March 2009 to age 65 (retirement)
Income £22,000 per annum
Deduct 75%
Therefore lost income £5,500
x 7 £38,500
Period 2
(age 65 to date of death at 81)
Private pension and State pension £4,816 per annum
Deduct 75%
Therefore lost income £1,204
X 18 £21,672
The resulting figures detailed above are manifestly unjust. For a dying person age 57 whose earnings would be £22,000 up to age 65 and thereafter a small pension of £4,816 to be all cut down by 75% leaving him with only £5,500 per annum up to what would have been his normal date of retirement and thereafter only £1,200 is grossly disproportionate. If the calculation had been done as per reform, he would have £16,500 instead of £5,500 for Period 1. For Period 2 he would have had £3,612 instead of £1,200.
2 (b)
As regards section 9 of the 1982 Act, the Commission proposes no change, merely a clarification, since these services are routinely recovered for the lost period at present. They are certainly not excluded by section 9 of the 1982 Act. It seems to be understood in the Consultation Paper that recommendation 5(b) proposes a change, but this is mistaken. This recommendation was included by the Commission to distinguish section 9 services from section 8 services. It was agreed that section 8 services would not be recovered for the lost period, again reflecting existing law and practice (see paragraph 3.11 of the Commission Report).
Where however there is an error in the existing law relating to relatives’ services is in sections 9(3)(a) and 13(1)(b) of the 1982 Act, where the provisions suggest the relative must have been the relative at the time of the act or omission giving rise to the claim rather than at the time the services are performed (in the case of section 8 services) or lost (in the case of section 9 services). One can understand the current provisions applying to a traumatic accident where the qualification of the person living with another applying. However this breaks down when we consider a case of a death from an act or omission which occurred 30 or 40 years ago. The likelihood of the relative, normally the spouse, residing with the deceased then would be remote (and in any event children would not even have been born). These errors have not so far been addressed.
Question 3.
Do you agree with the Commission’s recommendations Nos 11(a) –(d) and 12, and the reasons for them, that, when assessing the relatives’ claim of damages for patrimonial loss,
(a) in every case, the court should assume that the total amount available to support the deceased’s relatives is an amount equivalent to 75% of the deceased’s net annual income
(b) in the case where the claim for loss of support is made by a relative who is the deceased’s spouse, civil partner, cohabitant, or dependent child and no other relative makes such a claim, the court should
(i) assume that the deceased supported them to the extent of 75% of his net income;
(ii) the pursuer’s net income is to be disregarded;
(c) in other cases, the relative is not to be awarded more in compensation for loss of support than the actual amount of that loss and this cannot exceed 75% of the deceased’s net income;
(d) where a claim is made by the deceased’s spouse, civil partner, cohabitant or dependent child, and also another relative whom the deceased was supporting, the amount of that other relative’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;
(e) a dependent child is to be defined for those purposes as 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; and
(f) the relative’s loss of support should be divided into past loss and future loss, and a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only (see paragraphs 6.1-6.5 above)?
If you do not agree, please explain why not.
The economic circumstances and social structures were different in 1976 from today. The economic model was the male working and the female as homemaker and child carer. This meant that the breadwinner was the male. Having regard to economic activity in that period, it was normally the male who was killed. This also applied to road traffic accidents. While cars were fewer in number it was normally the male preserve as driver. Fatalities from road traffic accidents would therefore normally be male also. With the female spouse being therefore financially dependent upon the lost breadwinner, it was easily understood that she would have a claim for that loss of financial support for her and the children. If she had any income then it would have been seen as fairly minor or what could be colloquially termed as “pin money” which understandably would be set off against such income.
The economic and social dynamics have almost entirely changed in 2009. The model of the male breadwinner with female and children dependents is no longer tenable. The manufacturing industry has radically declined which was predominantly a male area of employment. The growth of employment has increased in services, administration, computer technology, public services and finance. The employment of females has increased. The profile is now more a situation of the male and female both earning. The earnings of the female can be more than equal to and in any event contribute significantly to the shared finances. If either of them is killed negligently then despite contributing significantly to the home and it being an undoubted loss to the income of that household, and upon which the expenses were based, any claim is wiped away by the current calculation because of today’s greater parity of income.
There is also the question of civil partners. Loss of financial support would never have been countenanced in 1976 for a civil partner (and proof that the Act could not be so interpreted to provide for them was confirmed in Telfer –v- Kellock, above). They too will follow the same contemporary economic profile as working spouses and, indeed, reinforce that new profile. One who has lost a civil partner would also be severely prejudiced if the 1976 formula was allowed to continue and without the changes of the Law Commission.
In 1976 the method of calculation rests upon an inaccurate and indeed unfair view of society. It should reflect the current position and have a fairer calculation which fits accordingly.
An example drawn from a real case is as follows:
Male Deceased income: State Pension £4,706.00
Civil Service Pension £1,451.00
Private Pension £ 402.46
TOTAL £6,559.46
Female Spouse’s income Teacher pension £5,612.00
State pension £4,680.00
TOTAL £10,292.00
Total joint income £16,851.46
X 60% £10,110.87
Less spouse’s income (£10,292.00)
-£181.12
There is in fact a negative loss of support in this case. However the real contribution to the family income was £6,559.46 which in this calculation counts for nothing.
The new calculation would have been the straightforward 75% of £6,559.46 which would have yielded £4,919.25 per annum which seems much more realistic and fairer.
Here too there is often delay in resolution of the case. There is once again a delving into the personal circumstances and lifestyles of the deceased’s spouse and family. We attach a quote from the case of Audrey Weir –v- Robertson Group (Construction) Ltd which illustrates what has to be looked at:-
“I have to confess to having had some difficulty in understanding the justification for the approach in Brown v Ferguson, at least in the ordinary case. Take a case of the deceased having earned, net of tax and national insurance contributions, say, £20,000 per annum. The assumption underlying the 75/25 split, which is considered appropriate in a case where there are children of the family, is that the deceased will have spent, approximately, a quarter of his net earnings, i.e. about £5,000, on himself. That is, presumably, because that is the amount which he chose to spend on himself. One cannot assume, without more, that he only spent this amount because that was all that was available. In such circumstances, if one now assumes that the wife takes a job and earns £5,000, why should one assume that the deceased will spend more on himself, or that any less of the deceased’s net earnings would have been available to the family? Much will depend, it seems to me, on whether the deceased’s spending on himself is limited by the amount available for the needs or lifestyle of the family. In a case where, within limits, he will spend as much on himself as is available, I can see some logic for saying that as the wife’s income increases, and with it the money available to (and the lifestyle enjoyed by) the family, the amount spent by the deceased upon himself may rise. But I fail to see why that should be an assumption. It may be that evidence would be required to assess into which category a case falls. It seems to me likely that a case such as the present, where the wife earns only a small fraction of the deceased’s earnings, will fall into the category where one should simply ignore the wife’s earnings.”
It will also be noted that the judge here had difficulty in understanding the justification for the approach in Brown –v- Ferguson at least in the ordinary case. He would have been of a mind to discount entirely the spouse’s earnings but stated:-
“I am conscious that this is not the approach that has been followed in Scotland and I do not think that I, as an Outer House judge, should depart from the line of decisions to which I have referred. I therefore propose to take the pursuer’s income into account in the way described by Lord Sutherland in Brown v Ferguson.”
Not only has the Law Commission therefore questioned the approach in Brown –v- Ferguson but there is judicial support for their view.
Question 4.
Do you agree with the Commission’s recommendation No 15, and the reasons for it, that states that 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 (see paragraphs 7.1-7.5)? If you do not agree, please explain why not.
We have reservations over the recommendation to restrict the right to claim for loss of support and loss of services to members of the deceased’s immediate family, as currently defined. We consider that it is eminently reasonable to provide for wider categories of relative to have rights to claim for loss of support or services than those who may claim for non-patrimonial loss. It is easy to distinguish those who have suffered an actual loss of support or services from those who have not. This is different from the basis of the non-patrimonial loss claims, currently in terms of section 1(4) of the 1976 Act. The purpose of this law is to circumscribe the category of person who is entitled to claim. It has to be accepted that persons other than those who are the deceased’s immediate family will suffer distress in contemplation of the deceased’s suffering, grief, and loss of future companionship but the law requires to draw a line somewhere. There is no need to draw an arbitrary line for loss of support or services since the qualification is the actual loss. It is right that more distant relatives, who have suffered a loss, should be able to claim. Here are a few examples: a mother-in-law cared for by a son-in-law; a nephew financially supported by an aunt; a sister-in-law with Down’s Syndrome supported by the deceased. There is no good reason for excluding such claims which can be made under the existing law but will not if the Commission’s recommendations are implemented in full.
We entirely agree with the Law Commission’s recommendations that loss of support should be divided into past loss and future loss and a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only. Multipliers are there to take into account contingencies for the future and, by definition, should therefore not be applied retrospectively because we already know what has happened in the past.
Question 5.
Do you agree with the Commission’s recommendation No 14, and the reasons for it, that the relatives’ damages for non-patrimonial loss should not include damages in respect of any mental illness suffered by a relative as a consequence of the victim’s death (see paragraphs 8.1-8.3)? If you do not agree, please explain why not.
We appreciate the Commission’s recommendation number 14. However we consider that there are four difficulties. The first of these is distinguishing between mental illness on the one hand and symptoms of a relative’s anxiety in contemplation of the suffering of the deceased, subsequent grief and future loss of companionship on the other. That may not be an entirely straightforward question and may depend on complex psychiatric evidence to establish the condition falling within one category or the other. Secondly the exclusion of mental illness may in fact tend to exclude consideration of individual circumstances of a relative and the effect of the death on them. The reaction of grief, distress and loss of companionship may be more in one case than in others without it necessarily being a mental illness. The concern would be that this change would tend to make all awards fall into a strict band rather than as per the individual circumstances. Thirdly there are occasions when the effect of a death on a relative goes beyond anxiety, grief and loss of companionship into mental illness. It is difficult to see how if that is an effect on the individual the damages can therefore not be compensated where the grief develops into a mental illness. Finally a duplication of actions should always be avoided where that is possible in the interests of the administration of justice. (See the dicta of Lord Hope and Lord Rodger in Jameson –v- Central Electrical Generating Board [1999] 1 WLR 141 (HOFL))
We do not agree that the award should now be called the “grief and companionship award”. This is to fail to recognise the confusion which reigned by the opposing cases of Dingwall –v- Walter Alexander and Sons and Donald –v- Strathclyde Passenger Transport Executive because of a change in the terminology and whether that signified a new award thus differentiating it from previous cases where awards were made or partly one and partly the other.
This was part of the reason for the Law Commission report leading to the Damages (Scotland) Act 1993 and subsequent judicial resolution in the case of McManus’s Executrix –v- Babcock Energy Ltd.
It will also be noticed that in the case of McManus, the previous case authorities were distinguished on the basis that they only awarded grief and companionship and not distress, anxiety and contemplation of the suffering of the deceased. This third element is nearly always present in cases of industrial disease and other chronic conditions leading to death. The Lord Ordinary in McManus recognised that this third element was in these cases and therefore provided a higher award. While therefore the Law Commission proposal may be applicable to sudden traumatic accidents, it is not applicable to these others cases. There would, if proposal changed, then be adequate scope for argument as to whether the element recognised in the Damages (Scotland) Act 1993 and in McManus was any longer present, now being confined to “grief and companionship” and therefore impliedly deleting “distress, anxiety and contemplation of the suffering of the deceased”. There has been no difficulty whatsoever in agents referring to this as a section 1 (4) award which is understood and explained as comprising the three possible elements – (1) distress, anxiety and contemplation of the suffering of the deceased, (2) grief on their death and (3) loss of future companionship.
Question 6.
Do you think there will be additional costs associated with this proposed bill and in what areas will they arise?
We consider that there are no additional costs associated with the proposed Bill. Indeed we consider that there will be considerable savings by the Bill. One of the greatest savings will be the diminution in argument for the lost years and loss of support in considering lifestyles and the surviving spouse’s income.
Question 7.
In what ways do you think the proposed Bill have equal opportunities impacts, if any?
In relation to questions of equal opportunities, the Bill entirely supports the principle of equal treatment by recognising and supporting economic parity between either gender or civil partner and removal of a rule which fails to recognise that economic parity. To fail to do so will continue to place them in a position of being under-compensated and in many circumstances not compensated at all for the loss of a spouse or partner.
Question 8.
Do you have any other comments in relation to my proposal for a Member’s Bill?
We are pleased that the Bill is being adopted as a Private Member’s Bill given that the Scottish Government have taken no action as yet to the Law Commission’s proposals.
Thompsons Solicitors
Berkeley House
285 Bath Street
Glasgow
G2 4HQ
26 October 2009
Fire Brigades Union
Scotland
Consultation Response;
Proposed
Damages (Scotland) Bill
October 2009
FBU Scotland — 52 St Enoch Square, Glasgow, G1 4AA 0141-221-2309
www.fbuscotland.org |
FBU Scotland — 52 St Enoch Square, Glasgow, G1 4AA 0141-221-2309
www.fbuscotland.org |
FBU Scotland – 52 St Enoch Square, Glasgow, G1 4AA
0141-221-2309
www.fbuscotland.org
Consultation Response – Proposed Damages (Scotland) Bill
Summary
The Fire Brigades Union believe that the existing Damages (Scotland) Act 1976 has served us well but has now become outdated and as a result, in it’s current form, no longer serves the purpose for which it was designed. The rapid changes in society since the 1970’s has led to a situation where, what would have been considered the ‘norm’ is now almost unrecognisable to us today.
Family structures, economic interdependence, societal acceptance of civil and same sex partnerships have all had massive impacts on our communities and how most people live their lives. In essence what can be considered ‘normal’ has fundamentally and permanently changed.
From the perspective of the FBU in Scotland we have noted many of these changes first hand, as working within a small, tight knit community these have been clearly noticeable by observing the make up of our membership over the years. In the 1970’s firefighters were exclusively white, male workers, usually living in either service accommodation or local authority housing. Despite low pay they were generally the main earner. The current situation is quite different. Whilst there remains a high percentage of white male workers – the fire and rescue service tries to be an equality employer – those that are currently serving are often not the main earner in the household. Most now live in owner occupier or privately rented accommodation.
In terms of home ownership alone, the change, especially in regard to these proposals, since the 1970’s is significant. The vast majority of FBU members now own their own homes. Many of them purchased with mortgages which were based on multiple incomes. The loss of one of those incomes, even the lesser will have a huge impact on the future of that household. Given the cause of the loss of income has been the wrongful death of a partner, there is quite enough pain and suffering already, without the added worry of being able to remain in the family home, or other such financial concerns.
The Damages (Scotland) Act 1976 does not recognise this change in demographics and puts our membership at a distinct disadvantage should they be killed whilst on duty. We are therefore supportive of the proposal to update the Act and support the basis of the current proposal.
Response to Consultation Questions
Part 4: Questions
I would welcome any comments which you may have upon this paper and upon the Commission’s report and draft Bill and, in particular upon the following questions.
1 Do you agree with the Commission’s main recommendation, and the reasons for it, that the existing law, which is contained in the 1976 Act, should be repealed and consolidated or re-enacted in the draft Bill, subject to certain amendments to it and to the 1982 Act. (see paragraphs 2.1-2.9 above)? If you do not agree, please explain why not.
(1) Yes – we believe that the current Act has served its purpose but now no
longer reflects the society that it was designed to protect. We would look for appropriate steps to be taken to allow any new Act to function in a similar manner but to better reflect the current social and family structures in Scotland.
2 Do you agree with the Commission’s recommendations Nos 4 and 5(b), and the reasons for them, that, when assessing the victim’s claim of damages for patrimonial loss,
(a) the court should make a fixed deduction of 25% of his net annual income during the lost period to represent the victim’s reasonable living expenses (see paragraphs 4.1-4.4 above); and
(a) Yes – whilst sceptical that 25% is not necessarily the correct figure to place on this given the wide range of family structures now in existence, we do appreciate that the simplicity offered by this method and the use of a single calculation outweighs many perceived disadvantages.
(b) a claim under section 9 of the 1982 Act should include damages in respect of the victim’s inability to provide gratuitous personal services to his relatives during the lost period ( see paragraphs 5.1- 5.2 above)?
If you do not agree, please explain why not.
(b) Yes – we believe that this can be a significant factor, one that is generally not considered inside a relationship but one that would be quite noticeable following the loss of a partner.
3 Do you agree with the Commission’s recommendations Nos 11(a) –(d) and 12, and the reasons for them, that, when assessing the relatives’ claim of damages for patrimonial loss,
(a) in every case, the court should assume that the total amount available to support the deceased’s relatives is an amount equivalent to 75% of the deceased’s net annual income
(a) Yes – We believe that in every case the 75% figure should be taken to support the deceased person’s partner and dependent children.
(b) in the case where the claim for loss of support is made by a relative who is the deceased’s spouse, civil partner, cohabitant, or dependent child and no other relative makes such a claim, the court should
(i) assume that the deceased supported them to the extent of 75% of his net income;
(ii) the pursuer’s net income is to be disregarded;
(b) Yes – It is our opinion that most families are now reliant on the income
of two earners. The loss of the income from one partner, whether primary or secondary earner, has such an impact that this alone should be considered, no matter the income of the surviving partner. We believe that given a claim by a spouse, civil partner, cohabitant and any number of dependant children that this should be deemed the primary claim and that it is reasonable to utilise the figure of 75% to settle this claim.
(c) in other cases, the relative is not to be awarded more in compensation for loss of support than the actual amount of that loss and this cannot exceed 75% of the deceased’s net income;
(c) Yes – an income may be used to support the “family” in any number of
ways and we believe this allows a fair balance to be struck between actual loss and a theoretical future loss.
(d) where a claim is made by the deceased’s spouse, civil partner, cohabitant or dependent child, and also another relative whom the deceased was supporting, the amount of that other relative’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;
(d) Yes – It is our position that the proposal is a significant improvement on the current situation and therefore should be supported. However, given the dramatic change in family circumstance we believe it is wrong for additional claims to adversely affect the primary claim and would argue that claims by a supplementary relative should not reduce any settlement that will support the surviving partner and or any dependant children.
(e) a dependent child is to be defined for those purposes as 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; and
(e) Amend – we would suggest that this clause be amended to include those
of 18 or over who are in full time, further education.
(f) the relative’s loss of support should be divided into past loss and future loss, and a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only (see paragraphs 6.1-6.5 above)?
If you do not agree, please explain why not.
(f) Yes – any loss prior to the date of the interlocutor should be the full
amount of loss. Future loss is theoretical and can utilise the calculation referred to above.
4 Do you agree with the Commission’s recommendation No 15, and the reasons for it, that states that 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 (see paragraphs 7.1-7.5)? If you do not agree, please explain why not.
(4) No – we believe that this recommendation exhibits the same
shortcomings as the existing Damages (Scotland) Act, in that it does not take account of the numerous and sometimes torturous family structures currently functioning in Scotland. We believe that any claim for either patrimonial or non-patrimonial loss by a relative outwith the immediate family should be taken on its own merits and not pre-judged by exclusion from the Act.
5 Do you agree with the Commission’s recommendation No 14, and the reasons for it, that the relatives’ damages for non-patrimonial loss should not include damages in respect of any mental illness suffered by a relative as a consequence of the victim’s death (see paragraphs 8.1-8.3)? If you do not agree, please explain why not.
(5) No – We believe there may be significant difficulty in defining Mental Illness in relation to individual circumstances surrounding the loss of a relative or partner. There will also be difficulty in assessing the comparative impact of that loss on any medical condition. We foresee this as being a contentious issue that will focus more on the potentially disputed mental wellbeing of the survivor rather than on the impact of their loss on them. Finally the avoidance of duplicated actions should be desired as this simply extends the period of suffering for the families concerned.
6 Do you think there will be additional costs associated with this proposed bill and in what areas will they arise?
(6) No – indeed given the simplification of the calculation process there may
in fact be a reduction in time spent on any one case, leading to probable cost savings.
7 In what ways do you think the proposed Bill have equal opportunities impacts, if any?
(7) Positive – we believe that the proposals will have a positive equalities
impact especially in terms of;
- The majority of deaths at work currently are male workers. Where a female partner is the higher earner, their income would no longer eliminate any award for support.
- Even where the partner is the lower earner a more equitable arrangement will exist, reflecting the fact that most households rely on multiple incomes.
- In terms of same sex partnerships, the proposal recognises them as a legitimate form of relationship, which again in practical terms may be based on multiple incomes.
8 Do you have any other comments in relation to my proposal for a Member’s Bill?
(8) The FBU Scotland, having unfortunately experienced all too often the affect and impact of a death at work has on our members families would welcome the opportunity to be further involved in the furtherance of this Bill. We would welcome the opportunity to provide evidence in support of our position. Our contact details are included below. The lead official on this topic is;
John Duffy
FBU Scotland Chair
52 St Enoch Square
Glasgow
G1 4AA
07801 047618
john.duffy@fbu.org.uk
Fire Brigades Union Scotland
The Voice of Professional Firefighters & Emergency Fire Control Operators
The Fire Brigades Union is a politically non-affiliated Trade Union that represents almost 7,000 Professional Wholetime, Retained, Auxiliary, & Volunteer Firefighters, Middle Managers and Emergency Fire Control Operators in Scotland – over 90% of the Services’ Uniformed Personnel.
Fire Brigades Union Officials are available to all sections of the community, to advise on any issue relating to Fire and Rescue Service & Public Fire Safety matters. Our role is not only to serve our members but, as the Voice of Professional Firefighters, to ensure that the public get the best possible Emergency Fire & Rescue Service throughout Scotland that they rightly demand & deserve.
Fire Brigades Union: Scottish Officials
Roddy Robertson John Duffy
Executive Council Member, Scotland Scottish Regional Chair
Mobile: 07801-047-601 Mobile: 07801-047-618
E-mail: roddy.robertson@fbu.org.uk E-mail: john.duffy@fbu.org.uk
Jim Malone Gavin Barrie
Scottish Regional Organiser Scottish Regional Treasurer
Mobile: 07801-047-613 Mobile: 07801-047-603
E-mail: jim.malone@fbu.org.uk E-mail: gavin.barrie@fbu.org.uk
Fire Brigades Union Scotland
52, St Enoch Square,
Glasgow G1 4AA
TEL: 0141-221-2309
FAX: 0141-248-6862
www.fbuscotland.org
UCATT Response Bill Butler Damages (Scotland) Bill
UCATT is the specialised trade union for all workers construction and allied trades with about 18,000 members in Scotland.
UCATT welcomes the opportunity to respond to the draft Bill. Construction is the sector with the highest percentage of fatalities from all industrial sectors in Scotland, also the number and ratios of injuries and cases of ill-health are staggeringly high. Therefore, rights in relation to damages in respect of personal injuries and wrongful death impact on our members families and partners.
UCATT supports the overriding principles contained in the Bill seeking to establish a fair settlement of damages in the event of wrongful death.
Questions:
1. Yes. UCATT agrees with the Recommendation that the Act needs to be updated, with a small number of important areas requiring improvements. The existing law and way in which damages are calculated does not reflect 21st century society where increasingly each person in a family has equal economic contributions to make to their standard of living and financial affairs.
2. We entirely agree with the Commission’s recommendations.
UCATT supports the recommendation of a fixed deduction of 25% from damages as net annual income is a fair establishment of living expenses that a person would have used for their own ends. This would also end the uncertainty around reasonable living expenses that can lead to delays in settlement of claims.
Where personal gratuitous services can no longer be provided for a relative by the deceased then UCATT would support compensation to the relative of that person for the likely cost of those services by another party.
3. UCATT supports the recommendations made in the Bill over the amount of income that should be assumed to have been used to support the deceased relatives was 75%. The recommendation to disregard the pursuers net income is one that UCATT would support as modern societal pressures on finance often require two salaries to enable families and partners to meet all obligations. UCATT gives its support to the 75% of net income figure as a fair line of which to limit financial loss damage. This also makes the calculation of claims less burdensome.
4. We have reservations around the recommendation to restrict the right to claim for loss and support to members of the deceased’s immediate family. It is reasonable to provide the right to claim for relatives for loss of support or services than those who may claim for non-patrimonial loss. Persons other than immediate family may suffer loss and there is no need to draw an arbitrary line for loss of support since the qualification is the actual loss. It will right in certain instances that a distant relative of the deceased claims for loss. An example would be a mother in-law cared for by a son in-law, there would be no reason to exclude such a claim where the loss can be established.
UCATT agrees that loss of support should be divided into past loss and future loss. We support the recommendation that a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only.
5. UCATT sees potential difficulties in this proposal. How can you distinguish between mental illness symptoms of a relative’s of anxiety, grief and loss of companionship?
There are reasons to suggest that grief, and other conditions can lead to a mental illness within a relative and the proposals may make awards fall into a strict band rather than assessing individual circumstances. We also believe that the warding of any grief and companionship award is unhelpful as these awards fail to take into consideration, during cases of industrial diseases at least, the anxiety, distress and contemplation of the suffering of the deceased
6. UCATT does not consider that there are no additional cost savings with the proposed Bill. The biggest saving will be the lessening in the argument for consideration of lifestyles and the surviving spouse’s income in cases of Damages for wrongful death.
7. The Bill supports equality by recognising the potential economic parity between sexes is a feature of modern Scottish society.
8. We support the Private Members Bill, and would have liked the Scottish Government to have take action on the Law Commission proposals.
UCATT
2nd November 2009
Unite the Union Scottish Region Response:
Damages (Scotland) Bill Consultation
Introduction
Unite – the Union represents around 200,000 working people and their families throughout Scotland. We are the UK’s largest trade union with 2 million members in a range of industries including transport, energy, construction, financial services, manufacturing, print and media, the voluntary and not-for-profit sectors, local government and the NHS.
Unite’s representation services cover a range of issues, both inside and outside the workplace. We help with personal injury claims, employment matters, wills, conveyancing and many other legal issues. Specific to this consultation, in conjunction with our legal partners, Unite represents our members and the interests of their families in matters of workplace fatality and injury.
Placed in the context of workplace fatalities and subsequent damages awarded to the loved ones of victims, it is obvious that any developments and change to this legislation is of utmost importance to our members and change is indeed required. We fully share Bill Butler’s view that the current system of damages for wrongful deaths can be improved and reform should be implemented as a matter of urgency.
Overview
Unite supports the key recommendations of the Scottish Law Commission’s (SLC) 2008 Report on Damages for Wrongful Death which Bill Butler MSP intends to impliment via his Members Bill. The 2008 report made a number of recommendations for changes to the law of damages in cases where a person dies as a result of personal injuries.
The main recommendation is that the Damages (Scotland) Act 1976, which has been heavily amended, should be repealed and replaced by a new Act which restates the current law in a clearer and simpler form. The Report also recommends a number of substantive changes to the existing law. These include:
- A new method of calculating the damages payable to a victim’s family which recognises that the traditional family model of a single breadwinner is declining and that families must be considered as a whole;
- Limiting the classes of relative who have a claim for damages as a result of a victim’s death in order to focus more clearly on the victim’s immediate family.
The current legislation states that, “”When a person suffers injury or disease as a result of the actions or omissions of another, Scots law recognises the wrong by allowing reparation to be claimed from the wrongdoer. Reparation takes the form of damages, intended to compensate the injured person for the loss, injury and damage he has sustained. Where the person dies as a result of the injury or disease, the right to claim damages passes to his executor.”[1]
When assessing damages, the court will consider both the patrimonial and non-patrimonial loss which the victim has suffered. Patrimonial loss consists of economic loss as a result of the personal injuries and this is the area of the legislation where Unite has a key interest on behalf of our members and their families, specifically the method of award of damages in the legislation which we believe is now obsolete.
The Need for Reform
As it stands, we believe the Damages (Scotland) Act 1976 is no longer relevant to the society it seeks to protect despite its need for strong legislation being absolutely crucial.
Death at work is unfortunately still an all too common occurance in Scotland. In 2007/08, 32 employees were killed at work and approximately 12,000 other employees were injured at work. Among the dead were five Unite members – three who perished in the Flying Phantom tug tragedy on the Clyde and two more who were crushed to death at the Pennyvenie open cast mine in Dalmellington, Ayrshire. In April 2009, 16 oil and gas workers perished when their helicopter transfer crashed at sea 14 miles from the Aberdeenshire coast. It is very clear that we need damages legislation that is in the interests of victims and their families, that the law puts people and life first.
Since the Damages (Scotland) Act was implimented in 1976 much has changed in the UK labour market’s composition not to mention the nature of industry and working practices. Changes to society and the labour market such as family composition, increased opportunities for the employment of mothers, Government policies, care provisions, nevermind the nature of work (e.g. the decline of industry and the rise of the service economy) mean our society is markedly different one from over thirty years ago and this is crucial to our main point of contnention with the existing damages legislation.
The method of award for personal injury is based on the rationale of an era when one member of the family (usually the male employed in a manual industrial occuaption) was predominantly the main breadwinner in the household, possibly supplement by a significantly lesser wage from the other (usually the female) – what the SLC’s Report terms ‘the traditional family concept’. To put this into context, at the start of the 1970s the UK employment rate for men was 92.1% and for women it was 56.4% – a difference of 35.7%. By September 2008 the employment rate for men was 78.3% and for women 70.1% – a difference 8.2%.[2]
By 2020 the UK labour force is projected to comprise 53.3% men and 46.7% women. The respective figures for 1971 were 62.9% and 37.1%.[3] It is fair to say the UK labour market composition and the world of work has changed significantly.
Today, the reality for many working people and their families is very different – work and society has evolved. For example, there is a high likelihood that both partners in the household will hold down full-time jobs to maintain the living standards of both themselves and their dependents. There will be greater parity of earnings in households where both members are employed in similar occupations such as blue collar manufacturing jobs or white collar managerial roles.
In other cases one member of the household may be working in a lower paid yet more industrially hazardous occupation while the other may be employed in a high-paid white collar public sector occupation. Put simply, in the 21st century the methodology for the award of damages cannot be based on ‘the traditional family concept.’
If the existing legislation currently adheres to a ridgid 1970’s family model as a basis for the award of damages then this presents a number of obvious problems that could have a detrimintal impact for victim’s families and their dependents. As Bill Butler MSP correctly pointed out in the consultation paper this, in the worst case, could lead to incidences of families not pursuing a damages claim even though the deceased may have been making a substantial contribution into the household income.
Furthermore, for occupationally diverse trade unions like Unite, the problems in the existing legislation are deeply concerning. Many of our members work in industries that rank highly in workplace fatalities. For example, of the provisional figure of 180 workplace fatalities in the UK in 2008/09: 63 occurred in the services sector; 53 occurred in the construction sector and a further 32 deaths in the manufacturing sector.[4] We cannot support legislation that works to the detriminent of our members’ interests and those of their families and must lobby for its reform.
Therefore, we support the SLC’s recommendation to apply a straight 25% deducation to patrimonial loss damages, subsequently awarding the victim’s immediate family 75% of his or her annual income for the remainder of their projected years of service. A standard formula will provide greater consistency, transparency and piece of mind for the loved ones of the deceased. Furthermore, it could also reduce the considerable delays in resolving awards and outcoms that many families presently face.
Conclusion
Unite believes that this consultation is taking place during a crossroads moment for the Scottish justice system and the interests of working people and their families.
Against the backdrop of a virulent insurance lobby pursuing an agenda of profit in times of recession the Scottish Government have introduced justice proposals that effectively privatise our civil courts with the declared intention of making Scottish Citizens ultimately pay 100% of court fees prior to accessing justice, effectively disenfranchising hundreds of thousands of people on low incomes from accessing justice on issues from personal injury to asylum.
Despite new Corporate Manslaughter legislation in April 2008, the law still does not go far enough to make employers themselves fully responsible for the health and safety of workers. Negligent operators such as ICL Stockline – fined £400,000 for health and safety breaches which left nine dead in the 2004 disaster – can still escape a criminal conviction and families must still wait years for judgements on their deaths of their loved ones. And, as we have highlighted, workplace fatalities continue.
It is clear that now and more than ever that Scotland’s workforce needs a strong and dependable legislative framework. The proposals put forward by Bill Butler MSP may only provide a small crumb of comfort to the families of the deceased but it will ensure some financial stability and reliability from the legal system in difficult times. Crucially, Scotland will have legislation on damages awards for death by personal injury that is more reflective of the society it serves to protect and that is a step in the right direction.
[1] Damages (Scotland) Act 1976, s2 (1)
[2] Kent, K. ‘Employment Changes Over 30 Years’, Economic & Labour Market Review, Feb 2009
[3] Madouros, V. ‘Projections of the UK labour force, 2006-2020’, ONS, Jan 2006
[4] HSE, ‘Fatal Injury Statistics’ 2008/09
| Bill Butler MSP
Glasgow Anniesland
129 Dalsetter Avenue
Glasgow
G15 8TE
bill.butler@scottish.parliament.uk
Date: 2 November 2009
|
Dear Mr. Butler,
Damages (Scotland) Bill: Consultation Paper
The Obligations Law Sub-Committee of the Law Society of Scotland (the Sub-Committee) has considered the above consultation and has the following comments to make.
The Sub-Committee welcomes the introduction of the Bill. The Damages (Scotland) Act 1976 as it stands is almost completely unworkable. Even in its consolidated form, it is intelligible only with great difficulty.
The Sub-Committee’s main area of concern is the assumption that the deduction applied for reasonable living expenses should be 25%. The Sub-Committee is broadly supportive of this measure and believes it will assist with the resolution of many low-value cases. However, the Sub-Committee believes that further thought should be given to this proposal. Such a hard-and-fast rule may not be suitable for complex or high-value cases. One possible solution would be to allow the rule to be challenged where exceptional cause is shown.
I trust these comments will be of some assistance. If you require any further information, please do not hesitate to contact me.
Yours sincerely
Erin Drover
Law Reform Officer
DD: 0131 476 8353
E: erindrover@lawscot.org.uk
RESPONSE
by
FACULTY OF ADVOCATES
to
Bill Butler, MSP
on
Damages (Scotland) Bill
The Faculty of Advocates was one of the consultees which submitted written comments on the Scottish Law Commission’s Discussion Paper on Damages for Wrongful Death (No.153) and welcomes the further opportunity to comment on the further consultation paper and draft Bill.
Our responses to the questions raised at Part 4 of the consultation paper are as follows:
- We agree that the existing law should be repealed and re-enacted in the draft Bill, subject to certain amendments.
- We agree with the Commission’s recommendations Nos.4 and 5(b).
- We agree with the Commission’s recommendations Nos.11(a)-(d) and 12.
- We disagree with the Commission’s recommendation No.15 (relatives’ title to sue for patrimonial loss). We can see no good reason to adopt a more restrictive approach than that which currently operates. If, as a matter of fact, a former partner or an aged aunt was being supported by the deceased then it is difficult to see why, as a matter of policy, he or she should be deprived of the right to make a claim in respect of the loss thereby suffered.
Far from being anachronistic, we would suggest that the current system more closely reflects the realities of modern life. It may well be the case that the immediate family are most likely to have been in receipt of the deceased’s support at the time of his death but just because a certain state of affairs is less likely does not mean that the law should ignore the possibility of it arising. One can readily imagine a former spouse or civil partner remaining subject to a degree of financial support for many years following separation and it is not immediately obvious to us why, having established that such support existed, that individual should lose out because he or she does not fall within narrow familial parameters.
In our opinion, there is nothing inherently complicated or ambiguous in the current definition nor does simplification for the sake of it justify reform, particularly where a more restrictive approach is being suggested. We would have thought that, if anything, a more liberal approach would be justified by the less structured nature of family relationships in today’s society.
- We do not agree with the Commission’s recommendation No.14 (exclusion of mental illness from non-patrimonial loss).
Firstly, as a matter of grammatical and legal accuracy, we suggest that the proposed ‘grief and companionship award’ should instead be referred to as ‘grief and loss of companionship and guidance award’.
We appreciate that this is a little less succinct but if the claim is to reflect the type of claim which is currently taken under s.1(4)(c) of the 1976 Act (which covers ‘society and guidance’) and if ‘companionship’ and ‘society’ are intended to be synonymous then the extended wording should, in our opinion, be preferred.
Of perhaps greater substance, we suggest that the current approach to assessing the recoverability of a relative’s claim for grief (as reflected in Gillies v Lynch 2002 SLT 1420) is to be preferred to the proposed exclusion for ‘mental disorder’.
The definition which is imported from s.328 of the Mental Health (Care and Treatment)(Scotland) Act 2003 includes, amongst other things, ‘mental illness’. We suggest that this definition, in the present context, is too wide and will therefore restrict unfairly a relative’s claim for grief, particularly where it may be said have endured for an abnormal period. As Lord Macfadyen pointed out in Gillies (at para. [15]):
‘It is in my view clear that the extent of the grief suffered by a relative as a result of the death of a deceased will vary from the slight or moderate through to serious, grave or catastrophic. No doubt in the past there was less recognition than there now is that grief can sometimes have a sufficient impact on the sufferer to amount to or result in a deterioration of psychiatric health..It seems to me to be quite artificial to attempt to draw a borderline between grief caused by bereavement and psychiatric illness caused by bereavement. If the relative’s emotional reaction to bereavement is of such a degree as to amount to psychiatric illness, I see no logic in treating it as something different from grief. As counsel for the pursuers pointed out, any such rule would place an artificial cap on s.1(4)(b) claims, and would operate to the unfair effect of allowing a full measure of the loss of a relative who is only slightly affected by the bereavement, but restricting the evidence available to explain the extent of the grief in the most serious cases.’
We agree entirely with those observations and would suggest that any arbitrary cut-off point imposed by a statutory definition of mental disorder will operate to the potentially significant disadvantage of relatives who suffer severe grief reactions. The danger in the proposed approach is that a ‘tariff award’ may arise which fails to reflect appropriately the varying degrees of grief which are commonly suffered as a result of a relative’s death.
In essence, we take the view that grief should not be temporally limited. If an entirely different mental illness is diagnosed then we can see some force in the recoverability of compensation for that injury being determined in separate proceedings but the starting-point for this type of claim, in our view, ought to be that all grief reactions are, as a matter of legal relevancy, recoverable however long they last.
It is perhaps interesting to note that, in the Gillies case, there was uncontested psychiatric evidence that there are 3 stages to the grieving process:
(i) anger and disbelief;
(ii) a period which might be described as equivalent to ‘Victorian mourning’ (weeping, intrusive thoughts etc.), likely to last 6-12 months; and
(iii) coming to terms with the individual’s death.
If the Bill is enacted as it stands, it seems to us that there is a real risk of claims towards one end of the spectrum being characterised not simply as grief in its more severe form but as a separate mental disorder.
One might then wonder what the practical consequences of the judge or jury being bound to proceed on that basis might be. An arbitrary upper limit would presumably have to be imposed on the relative’s claim and the award which would otherwise have been made for the remainder would have to be pursued separately. Not only does this lead to a multiplicity of litigation (involving greater expense, inconvenience and judicial resources) but it might also potentially give rise to time-bar arguments in the later proceedings. Or should the relative have to raise a separate action as soon as Defences are intimated which contain an assertion that at least part of the claim for a ‘grief and companionship award’ (if the current expression is retained) is irrelevant because it represents a separate mental disorder rather than a severe grief reaction ?
We have spoken to several counsel who can point to cases where they have pursued claims for individuals who endure unusually long or intense grief reactions. As matters currently stand, the approach taken in Gillies is invariably followed and we would be concerned that the wording in the Bill would innovate upon that approach by unfairly restricting the recoverability of such claims.
19 October 2009
RESPONSE
by
FORUM OF INSURANCE LAWYERS (SCOTLAND) (FOIL)
to
CONSULTATION PAPER BY BILL BUTLER, MSP
on
DAMAGES (SCOTLAND) BILL
FOIL
The Forum of Insurance Lawyers (FOIL) is a UK wide association of lawyers who act predominantly or exclusively for insurance clients (excluding legal expenses insurers).
Amongst the aims of FOIL is the exchange of information among its members, the development of expertise in insurance related issues through education, and the monitoring and advancement of law reform on matters of interest to insurers and the wider public interest.
FOIL is structured on a regional basis. There are 10 regions within the UK with each region having a representative to chair and coordinate meetings and business within the region. Scotland is a region on its own. The Scottish region is an active group and focuses on issues affecting insurers under the Scottish legal system.
FOIL is committed to serving the wider public interest.
Consultation by Bill Butler, MSP on Damages (Scotland) Bill
General
We consider that it is important not to lose sight of the fundamental nature and purpose of an award of damages in cases involving personal injury or death. Such damages are essentially compensatory and are awarded to persons who have sustained actual or likely loss. They are not penal. Nor are they awarded so as to provide windfalls.
The fundamental purpose of an award is of course, so far as money can, to restore the person who has sustained the loss, injury and damage to the position he would have been in but for the wrongful act. In the case of a living injured person these losses essentially comprise of solatium and past and future patrimonial losses. The damages are personal to the injured person while he lives. On the death of the injured person through injuries caused by the wrongdoer the claimant’s personality ceases. It is submitted that the law should be concerned with ensuring that the deceased’s actual losses, and the actual or likely losses of those family members who were dependant, or likely to be dependant, on the deceased’s financial support at the time of his death, are fairly and properly compensated.
FOIL did of course respond to the Scottish Law Commission’s Discussion Paper on Damages for Wrongful Death (August 2007 – Discussion Paper no. 135) and for ease of reference and for the sake of completeness we attach a copy of that response.
Responses to Questions
FOIL respond to the specific questions detailed in Part 4 of the Consultation Paper as follows:-
- 1. Do you agree with the Commission’s main recommendation, and the reasons for it, that the existing law, which is contained in the 1976 Act, should be repealed and consolidated, or re-enacted in the draft Bill, subject to certain amendments to it and to the 1982 Act.
We entirely agree that it would be helpful for the Damages (Scotland) Act 1976 (as amended by various piecemeal amendments via other legislation) to be repealed and re-enacted in a single piece of legislation incorporating these various amendments and introducing new provisions to reflect coherence, consistency and fairness.
- 2. Do you agree with the Commission’s recommendations Nos 4 and 5(b), and the reasons for them, that, when assessing the victim’s claim of damages for patrimonial loss,
(a) the court should make a fixed deduction of 25% of his net annual income during the lost period to represent the victim’s reasonable living expenses;
(a) We agree that in the context of assessing the victim’s claim for damages during the lost period a deduction should continue to be made for the victim’s reasonable living expenses. Such a deduction is reflective of the compensatory and restorative nature of an award of damages in cases involving personal injury or death. The purpose of such an award is of course to restore the injured party or dependant relative, so far as money can, to the position that he or she would have been in but for the act or omission of the wrongdoer. It is not to create what might be described as a windfall.
We do not agree with the Commission’s recommendation 4 that the deduction should in every case be taken as 25% of the victim’s net income during the lost period. In our view the assessment of the victim’s claim should be a question of fact and circumstance in every case. In our experience assessment of damages for this head of claim has not proved difficult in settlement negotiations. Our experience would appear to be reflected by the absence of any reported decision on the court’s approach to Section 9(2)(c) of the 1976 Act.
We would refer to our detailed response to Question 3 dealing with the calculation of loss of support.
and
(b) a claim under Section 9 of the 1982 Act should include damages in respect of the victim’s inability to provide gratuitous personal services to his relatives during the lost period?
We agree with the Law Commission’s recommendation that 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 personal services to his relatives during the lost period.
We should say that in our experience this is what happens in practice. We are not aware of any case in which the award by the court, or the agreed settlement for future Section 9 services under the 1982 Act, has been reduced on the basis of the provisions of Section 9(2)(b) or (c) of the 1976 Act.
- 3. Do you agree with the Commission’s recommendations nos 11(a)-(d) and 12, and the reasons for them, that, when assessing the relatives’ claim of damages for patrimonial loss,
(a) in every case, the court should assume that the total amount available to support the deceased’s relatives is an amount equivalent to 75% of the deceased’s net annual income.
(b) in the case where the claim for loss of support is made by a relative who is the deceased’s spouse, civil partner, cohabitant, or dependant child and no other relative makes such a claim, the court should –
(i) assume that the deceased supported them to the extent of 75% of his net income;
(ii) the pursuer’s net income is to be disregarded;
(c) in other cases, the relative is not to be awarded more in compensation for loss of support than the actual amount of that loss and this cannot exceed 75% of the deceased’s net income;
(d) where a claim is made by the deceased’s spouse, civil partner, cohabitant or dependant child, and also another relative whom the deceased was supporting, the amount of that other relative’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 dependant children;
We do not agree with the Commission’s recommendation nos. 11(a) – (d) and 12.
In relation to Part 3(a) of this Question, and in particular the Commission’s recommendation 11(a), we would comment as follows:-
It seems to us that the fundamental rationale behind the Commission’s recommendation for a specific formula is one of expediency, ie simplicity and to save the time and expense involved by the court hearing evidence on the actual prevailing circumstances surrounding the way in which the deceased split/allocated his income (see para. 3.36 of the Commission’s Report). We do not agree with the Commission’s approach here. In our view for justice to be done in a case where parties cannot agree the court should hear evidence in the matter. At para. 3.35 of the Commission’s Report, the Commission contend that families do not keep detailed accounts so as to enable a calculation to be made as to how much the deceased spent on himself. In our view, and indeed in our experience, the deceased’s family, particularly the surviving spouse/co-habitee, is well able to provide adequate evidence so as to facilitate a fair and reasonable agreement to be reached, or in the absence thereof for the court to reach a fair and reasonable assessment as to what the multiplicand should be.
We observe that at para. 3.35 of the Commission’s Report (at the top of page 22) that it is stated “… relatives settle at artificially low levels because they cannot prove enough financial details.” We would question the factual basis for that statement. In our experience the reality is that deceased’s relatives are in a far stronger position to prove their losses than the defenders are to refute them. By virtue of the provisions of the Civil Evidence (Scotland) Act 1988 the court is entitled to accept the evidence of the dependant relative in question in order to reach the finding in fact as to the amount of support provided by the deceased. All that the defenders can do is rely on their entitlement to cross examine the relative. In any event, in our experience what tends to happen is that evidence of prevailing circumstances is submitted by the claimants’ legal advisers to the defenders’ legal advisers and on a consideration thereof a fair and reasonable settlement can be reached which reflects the restorative nature of an award of damages in cases of this type.
In the Commission’s Report (see para. 3.36) it is acknowledged that by applying a rigid formula of 25% for every case this will mean that in some cases the award is too low for some people and too high for others. With great respect to the Commission such a situation is not at all satisfactory. If the evidence is that the deceased did not support his family at all then in our submission, given the nature of awards of damages in cases of this type, the court ought not to make any award. Per contra if the evidence is that the deceased only spent about 10% of his income on himself and supported his family by paying them the balance of 90%, on that evidence in our view the court ought to make the award based on 90%.
Awards/settlements in fatal cases can involve very large sums of money (hundreds of thousands of pounds). Damages for loss of support are frequently the highest head of claim in such cases. In our view awards should reflect the evidence and the restorative nature of damages in personal injury/fatal cases. We can appreciate that an approach based on expediency can perhaps be justified when dealing with small claims (say up to £5,000 as highlighted in the recent Report of the Scottish Civil Courts Review). In such cases fairness has to be balanced with expediency to avoid disproportionate expense but in our view cases involving large sums should be determined on a fair assessment of the evidence adduced and not via a “one size fits all” approach as recommended by the Commission.
We feel that it is apposite to highlight FOIL’s response to Question 9 posed by the Commission in its Discussion Paper (no. 135). We re-state our answer as follows:-
“In our view in fatal cases awards of damages should fairly represent compensation for actual or likely loss sustained by family dependants of the financial support of the deceased “breadwinner”. The extent of such loss must in our view be a question of fact in every case. Formulae such as deductions of say 25/30% to take account of the deceased’s personal spending, or further variations as highlighted in Brown v. Ferguson 1990 SLT 274 to take account of circumstances where both spouses/partners are working can be helpful. However, in our view they are no more than a guide and it is for the parties to agree, or for the courts to determine, on the basis of evidence adduced the extent of the actual or likely loss in question.”
FOIL adheres to that view. Indeed, the view expressed by FOIL was subsequently reflected in a recent case (Guilbert and Others v. Alliance Insurance Plc – 27th January, 2009) in which Lord Kinclaven rejected the contention that a deduction of 25% for the deceased’s own living expenses was a rule of thumb and in applying a deduction of 30% on the evidence before him. To quote his Lordship “A rule of thumb may be a useful tool and a starting point, or a cross check available to help reduce the matters in dispute and to focus the issues, but it is no substitute for deciding a case according to the evidence. In the absence of agreement, it is for the pursuer to satisfy the court that the sums claimed are appropriate, fair and reasonable in the circumstances of the particular case concerned.”
We do of course fully accept that in recent times it is very common for families to have their joint incomes assessed when lenders consider applications for mortgages or other loans. In our view this is all the more reason why a “one size fits all” approach should be rejected. A great deal of discussion appears to have taken place on the impact of the Brown v. Ferguson formula. Our understanding is that this was a first instance decision of Lord Sutherland which was appealed to the Inner House. We believe that the matter was not tested by the Inner House on account of the case being settled extra judicially. We therefore feel that undue weight should not be placed on the approach taken in Brown v. Ferguson.
For the aforesaid reasons we therefore do not agree that the court should make a fixed deduction of 25% of the deceased’s net annual income to represent the victim’s reasonable living expenses when assessing loss of support.
It follows from our foregoing response to recommendation 11(a) that we do not agree with the Commission’s recommendations highlighted in Parts (b), (c) and (d) of Question 3.
We would also refer to our response to Question 4.
(e) a dependant child is to be defined for those purposes as 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; and
We agree with the proposed definition of a dependant child, namely, that such a child should be defined as 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 an obligation of aliment at the time of his death.
(f) the relative’s loss of support should be divided into past loss and future loss, and a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only?
We are not persuaded by the Commission’s full reasoning here. We accept that in calculating loss of support it is entirely appropriate that it should be divided into past loss and future loss. However, we are not persuaded that a single multiplier should run from the date of decree in respect of future loss only. We would contend that despite the House of Lords deciding in the English case of Wells v. Wells 1999 1AC (which is technically not binding in Scotland) that the use of Ogden actuarial tables should be the starting point in assessing awards of damages, the assessment of such an award is not an exact science. Indeed, as was said by Lord Lloyd of Berwick in Wells “I do not suggest the judge should be a slave to the tables. There may well be special factors in particular cases.”
We would respectfully refer to the late Lord Wheatley’s comments in the decision of the Second Division in the case of Dingwall v. Walter Alexander & Sons (Midland) Ltd. (Reported in 1981 SLT at page 314) when considering this fundamental issue –
“The pursuers maintained that the Lord Ordinary erred in determining the multiplier as from the date of death when it should have been determined as from the date of proof. It was submitted that in non-fatal cases the practice has generally been to determine the multiplier as from the date of the proof, and that there was every reason, even apart from uniformity, for adopting the same starting point in a fatal case. It was further submitted that this would be fairer and admittedly advantageous to pursuers, since if the later point of time were adopted, it was unlikely, particularly in the case of young widows, that there would be any significant difference in the fixing of the multiplier despite the interregnum between the death and the proof. I do not regard the fact that the later date would be of advantage to pursuers is a factor in deciding this issue. The function of the court is to seek to do even-handed justice between the parties. The question is – which is right? The right to damages for loss of support arose here on the death of the deceased. The multiplier formula has to be used to deal with imponderables. One of the important imponderables is the period which the deceased would have lived but for the accident. That is something which cannot be determined with exactitude either at the date of death or at the date of the proof. The imponderable period must start from the date of death and for that reason I am of the opinion that if the multiplier formula is to be used the multiplier should be determined from the date of death. While the point at which the multiplier should be determined in a non-fatal case has not been universally decided to be the date of the proof, the majority of the decisions in the Outer House have been in favour of that point of time. This issues was fully canvassed by Lord Ross in Will v. Charles Will Ltd. and he decided that the majority view was correct. I agree with him. However, the justification for a different point of time to apply in fatal cases is the imponderable to which I have referred immediately above, whereas in a non-fatal case it can be determined what actual loss of wages or wage-earning capacity has been sustained by the pursuer between the date of the accident and the proof. If the multiplier formula only requires to be resorted to in order to deal with the situation which is governed by imponderables, then the dates at which the multiplier has to be determined must differ.”
As the Commission highlighted in its Discussion Paper (para. 3.52 at page 34 thereof) “If the relative receives damages for the full loss of support incurred over the previous 5 years, he would be marginally over compensated as damages would have been awarded without taking into account that the deceased might have died during that period.”
In our view the multiplier should continue to run from the date of death.
- 4. Do you agree with the Commission’s recommendation no. 15, and the reasons for it, that states that 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?
We do not agree with this recommendation of the Commission. Under the existing law a very wide group of the deceased’s relatives are entitled to claim damages for loss of support. Those so entitled in respect of deaths occurring on or after 4th May, 2006 comprise:- the deceased’s spouse, divorced spouse, civil partner, former civil partner, cohabitant, parent, child, any person accepted by the deceased as a child of the family, brother, sister (or their issue), any ascendant or descendant, and any uncle or aunt (or their issue).
The present law is based on the premise that the onus is on the entitled relative who claims loss of support to prove the actual extent of the deceased’s support to him/her. In our view the present state of the law is satisfactory. Under the present law relatives require to prove that they were financially dependent on the deceased prior to death in order to make a claim. If the category of persons entitled to claim loss of support is restricted to “immediate family” then a relative who was actually financially dependent on the support of the deceased but did not fall within that restricted category would suffer financial hardship. We are not clear as to why the Commission again seek to apply a “one size fits all” approach here. In our experience it is unusual for members of the deceased’s family who do not fall within the category of “immediate” family to claim loss of support. However, if at the time of the deceased’s death such support was being made by the deceased to the non-immediate family relative we believe that such a relative should be entitled to be restored to the position he/she was in prior to the death.
- 5. Do you agree with the Commission’s recommendation no. 14, and the reasons for it, that the relatives’ damages for non-patrimonial loss should not include damages in respect of any mental illness suffered by a relative as a consequence of the victim’s death?
We agree with this recommendation of the Commission.
- 6. Do you think there will be additional costs associated with this proposed Bill and in what areas will they arise?
Our primary concern is to ensure that the law of damages in fatal/reduced life expectancy cases is fair and consistent. We do not have adequate data available that would enable us to form a view on whether the proposed formula approach to the calculation of loss of support and loss of earnings will increase or reduce awards. In our experience the calculation of loss of support and future loss in “lost years” cases is capable of agreement in the vast majority of cases.
- 7. In what ways do you think the proposed Bill have equal opportunities impacts, if any?
We are not aware of any impact which the proposed Bill will have on equal opportunities.
- 8. Do you have any other comments in relation to my proposal for a Members’ Bill?
In the context of claims for loss of support we would highlight the provisions of Section 4(1) of the Law Reform (Miscellaneous Provisions) Act 1971 which essentially provide that neither the re-marriage of a widow, nor her prospects of a re-marriage are relevant considerations when assessing her claim for the death of her husband. We have some difficulty in reconciling these provisions with the compensatory/restorative nature of an award of damages in fatal cases. In a situation in which, eg the marriage was of short duration and the widow subsequently re-marries as a result of which she is financially better off than when married to the deceased, it does seem to us that in assessing damages in Scotland the court should be entitled to take due account of such a situation.
Dr Peter D. Semple, DL, MD, FRCP. (Glas,Edin,Lond.) 1/11/2009
High Lunderston,
Inverkip
PA16 0DU
Tel: 01475 522342
Email; psempke@fsmail.net
Dear Bill,
Damages (Scotland) Bill: Consultation Paper
A copy of this paper has just come to me and I contact you by email as time is short. My background is clinical. For 30 years till April 2009 I was Consultant Respiratory Physician at Inverclyde Royal hospital and my clinical exposure to malignant disease is extensive. In particular my cumulative experience of mesothelioma and other asbestos related diseases as a single handed consultant lung specialist in the former lower Clyde shipbuilding area is vast. I currently continue limited locum consultant practice in RAH, Paisley. I am also Chairman of Council of Ardgowan Hospice in Greenock.
Having read the Report on Damages for Wrongful Death I agree that the current system for awarding damages should be improved.
Wrongful death, as in my patients with mesothelioma for instance, creates a huge feeling of injustice and it is difficult to describe the degree of anguish and mental distress that it creates. As I understand it current legislation was laid down in a different era. Demographics in my experience have changed immensely with major changes in the roles of breadwinners in a family unit and so it is timely to revise the way in which financial reparation is made.
Perhaps more importantly it is desirable that a method for agreeing reparation is streamlined and this implies simplification of the regulations which the paper outlines. The current regulations involve lawyers on both sides in prolonged negotiations with resultant inappropriately extensive fees. It does seem iniquitous also that financial reparation is less if settlement is made before the patient dies. That appears to me to compound the injustice. Any attempt to streamline the system and make it fairer can only help patients and their families at this difficult time.
I would like to make two additional points:-
1)With regard to recommendation No 15 that only “immediate” family be able to claim for patrimonial and non-patrimonial damages – in my experience certain people other than “immediate family” as defined care devotedly for others in their terminal illness and most certainly suffer distress, grief and loss of companionship on the victim’s death. For instance the case in my ken of a sister in law, who being the only living relative of a dying man, cared for him with great compassion. I would be concerned that the definition of family proposed might exclude such a person.
2) With regard to recommendation No 14 that relative’s claims for non-patrimonial loss should not include damages in respect of mental illness suffered as a consequence of the victim’s death – mental illness can be very difficult to define and what might be severe grief in one person can lead to prolonged anguish, turmoil ad post bereavement depression in another. In my clinical experience I have encountered mental illness (prolonged clinical depression requiring specialist treatment) as a direct consequence of bereavement.
I wish you well with the introduction of the member’s Bill.
Yours sincerely,
Dr Peter Semple.
Damages (Scotland) Bill: Consultation Paper
The Associated Society of Locomotive Engineers and Firemen (ASLEF) is the UK’s largest train driver’s union representing approximately 18,000 members in train operating companies and freight companies as well as London Underground and Overground.
ASLEF welcome any changes to Scotland’s law that assist a family who have lost or will lose a family member due to personal injury leading to financial loss. Losing a loved one through personal injury has many terrible consequences. Of course the first consequence is loss and grieving. The most lasting consequence however, is often financial insecurity. It is essential in any civilised society that the bereaved are provided for and that losing a provider does not lead to poverty and hardship.
The loss of a family member often leaves families in extremely difficult financial situation. The legal process can often be painful and daunting. At present, deductions made according to the earnings of the widow or widower making this process even more lengthy and unpleasant.
Firstly, as the Scottish Law Commission’s states, taking in to account the widow or widower’s income can often lead to a family receiving no compensation for the death of a loved one, even if they made a substantial contribution to the household income. This is simply not right. Any lost income should be compensated for and to some extent the earnings of the widow or widower should not be taken into account. Their earnings at that time may be high, leading to low compensation, but it does not mean that they would continue to earn at such a rate, especially they have to take a greater role in child care due to the loss of a family member.
Stopping this practise would prevent any examinations of financial circumstances and respective earnings. In turn this would lead to simplification of the process leading to speedier resolution and less distress for families. Trawling through financial records of a bereaved family for this unnecessary purpose causes unnecessary anguish.
ASLEF agrees that a reduction of the individual’s livings expenses should be taken in to account. Nobody wants to profiteer from the death of a family member. The union believes that the reduction of 25% is a fair figure. Once again, a standard and consistent figure for this amount would make the process far clearer.
The Union also strongly agrees that claims should include damages in respect of the victim’s inability to provide gratuitous personal services to his relatives during the lost period. The deceased may well have performed important roles such as caring for dependents prior to their death. This will lead to additional expenses as these essential roles get taken on by others. A human’s contribution to a family is often beyond simply the wages they bring home, and important services they provided can be lost.
Put simply, the compensation to a family following the loss of a provider to personal injury should try to ensure that, as much as possible they are financially left in the same position as they were prior to the incident. ASLEF believes that this Bill helps to achieve this goal.
Damages for Wrongful Death – consultation response
Introduction
The STUC represents some six hundred and forty thousand workers across Scotland. We speak for trade union members in and out of work, in the community and in the workplace. Our affiliates have interests in all sectors of the economy.
STUC’s affiliated unions are involved daily in the protection of their members interests and a key aspect of this work is providing appropriate support them in the case that they have an accident or suffer ill-health attributable to preventable workplace conditions.
In seeking to support such workers and their families, unions, support groups and individual workers employ the services of Scottish legal firms to undertake the detailed representational work required. In particular STUC works closely with Thompsons Scotland, and we are supportive of their response to this consultation which is broadly representative of our views but more detailed.
STUC is pleased to respond to this consultation. Having followed the progress of the Scottish Law Commission’s Report on Damages for Wrongful Death, we have been disappointed that, since its submission in September 2008 to Ministers, no indication has been given on whether the substance of the report has been accepted and whether or when appropriate legislation will be introduced.
STUC is also pleased that the Bill is being taken forward
As will be made clear during this submission, STUC agrees that no thorough going reform of the law in respect of the payment of damages for wrongful death is required. However, as the consultation document suggests, there are a couple of areas in which reform is required, and where if reform is not achieved, significant unfairness and inconsistency will endure. Recognising that individuals and their families currently have cases being dealt with by the legal system and that others will, through the development of workplace related conditions, continue to have recourse to action, STUC believes that there is an urgent need to implement the main recommendation of the Scottish Law Commission and commends Bill Butler MSP for his work towards progressing this.
Question 1.
As indicated above, the Commission is correct in adopting the approach of identifying distinct areas in which clarity and simplicity can be improved rather than proposing a more radical overhaul of the law in respect of damages on death.
Having consulted with our affiliated organisations and the firms who undertake their legal work that there is general satisfaction with basis upon which claims by injured parties and their relatives are based. However, given the extent of amendment to which the law has been subjected, a form of consolidation would be helpful. STUC therefore supports the Commission’s recommendation.
Question 2.
2(a)
There is currently no clear basis for judging living expenses and thus for applying deductions. Making deductions on a case by case basis involves in-depth examination of personal lives and lifestyles and can involve unacceptable delays which are particularly problematic for a dying person but which can also be damaging for surviving relatives.
The important principle in relation to surviving relatives should be that they suffer no detriment as a consequence of their loss. Clearly, in the case where a surviving relative has an income and this is taken into account in calculating the settlement, circumstances can arise whereby the sum for loss of support is substantially reduced or eliminated. This cannot be fair given that it is palpably demonstrated that the money coming into the household is substantially reduced. It is of course fair that some reduction to take account of the living expenses of the dead person should be made.
The Law Commission’s proposal in this area would achieve three things
1) Parity of treatment of damages covering circumstances in which the claim is that of a dying person and in which the claim is that of the living expenses of a surviving spouse. Removing, as the consultation document and Commission suggest, any incentive to delay by either party.
2) A simple rule which identifies that the appropriate deduction is that of an objective percentage for ‘necessity’ costs rather than a subjective assessment of costs identified with individual lifestyles.
3) A fair and consistent estimate of these ‘necessity’ costs – 25% – which can be universally applied and which can be applied to the variety of circumstances which apply.
2 (b)
The advice we have received in relation to section 9 of the 1982 is that services are routinely recovered for the lost period at present and that the assumption with the consultation document that the Commission is proposing a change may not be the case.
We are however advised that there are shortcomings within the existing law relating to relatives’ services within the areas of sections 9 and 13 of the 1982 Act dealing with whether and when the relative must have been the relative at the time of the act or omission giving rise to the claim rather than at the time the services are performed. We would refer the reader to the response of Thompson’s Scotland to this consultation for further details.
Question 3.
STUC has already made clear its support for a simple formula which can be applied both to the claims of a dying person or surviving dependants. Applying a 75% support figure for the deceased’s net income has the virtue of both simplicity and the provision of consistency across the calculations of individual’s and surviving relatives’ loss.
It is a matter of priority that the surviving relative’s income be disregarded. As the consultation suggests, currently, arrangements can give rise to manifest unfairness with the deceased’s significant other and dependent children suffering relative loss because the family has more than one income source. As the consultation suggests, the weaknesses of existing arrangements for calculating loss would have been less apparent a generation ago when it was more likely that a) The male in a family would be the deceased and b) He would have been the main, and very probably, the only breadwinner.
That these norms have changed is widely accepted. It is now common for both spouses or partners to work and in more likely now that the woman to be the higher earner. The response submitted by Thompson’s Scotland provides examples of how the current arrangements can produce manifest unfairness.
We also agree with the Law Commission’ proposals with respect to sections 2(c), 2(d), 2(e) and 2(f) of the consultation. This latter proposal – that the relative’s loss of support should be divided into past loss and future loss, and a single multiplier should run from the date of the interlocutor awarding damages in respect of future loss only is particularly welcome.
Question 4.
The assessment on whether a person has the right to claim for non-patrimonial loss of support and services should be based upon whether such loss has occurred or will occur. Whilst the close family members described by the Law Commission are those most likely to suffer such loss, it is no means certain that other family members or significant others will not do so. It therefore does not seem necessary to draw an arbitrary line as to who can claim when the important test is whether actual loss can be demonstrated.
Question 5.
Concerns have been raised with STUC over the proposal within the Commission’s recommendation number 14 to except mental illness. We are advised that this could cause difficulties in making effective distinctions between mental illness, on the one hand, and symptoms of a relative’s of anxiety and grief on the other. Again we would refer the reader to the Response of Thompson’s Scotland for a more detailed investigation of this point.
Question 6.
The bill proposes a significant simplification of the current system and reduces the incentives for costly delay. As such, we believe its implications are revenue neutral or positive.
Question 7.
The Bill promotes equal treatment by treating all cases in a more consistent manner and, in particular, in dealing with changing economic and social circumstances in which women who suffer loss are more likely to be working at the point where loss is calculated.
Question 8.
As indicated earlier in this paper. STUC is very pleased that this is being taken forward as a Private Members Bill given that there has been no action to date form Government.
STUC October 2009
Response concerning Damages for Wrongful Death
Peter McCormack, Advocate
Introduction
I have serious concerns about some parts of the Scottish Law Commission’s Report 213. I do not agree with the proposals for set 25% and 75% allowances made for living expenses and dependency respectively. I also have concerns about the approach taken to multipliers. Paragraph references are to the paragraphs in the Commission’s report. All views are entirely my own personal views, and are not to be attributed to the Faculty of Advocates or any clients.
Financial dependency
3.35 “As a consequence there is either litigation on such matters [financial dependency] or relatives settle at artificially low levels because they cannot prove enough financial details.”
Who is to say that the levels at which claims settle are too low or too high? The Brown v Ferguson “rule” is a working formula, which can be varied if there is evidence to merit a variation. When was the last reported proof where evidence was led on the percentage for loss of support? It is not a practical ongoing problem.
3.36 “… the resulting figure may be too high for some people and too high for others. But the rule will have the virtue of simplicity and will save time and expense in litigation.”
Making a concrete, invariable rule enshrines in law a violation of the fundamental principle repeated in paragraph 3.4 that damages should restore the victim to the position in which he would have been if the wrong had not taken place. Simplicity is not a virtue if the fundamental principle is violated. In any event, the Brown v Ferguson “rule” is also simple! In my experience, time and expense are not affected by the use of the Brown v Ferguson “rule”. The greatest uncertainty in the quantification of ordinary claims arising out of death exists in the claims for section 8 and 9 services.
3.39 to 3.44 I disagree that the Brown v Ferguson formula is anachronistic or requires to be replaced. The very formula assumes two incomes for the deceased and surviving spouse, so the notion that the formula is less valid simply because there may be more two-income families now than some years ago is invalid. I disagree with the formula’s results being described as “unsatisfactory results”. “Unsatisfactory” to whom? Aspirations of pursuers have to be balanced against the aspirations of taxpayers and payers of insurance premiums who ultimately fund damages claims. This balance is achieved by application of the above-mentioned fundamental principle.
It is perfectly reasonable to suppose that lower earning spouses enjoy the benefit of their spouses’ higher earnings, (after all, if their income is zero, then they are entirely dependent on their spouses’ incomes) and that higher earning spouses are less dependent, if at all, on the lower earnings spouses’ incomes.
The issues mentioned by Susan O’Brien QC are all very well, but how, if at all, are these factors to be quantified? The suggested formula of 75% dependency, ignoring the claimants’ income, is arbitrary, inflexible and throws up its own anomalies.
Taking the Scottish Law Commission’s own illustrated example of a deceased person having earned £20,000 net per annum, it is only surviving spouses earning £60,000 net per annum who would receive nothing for loss of support. This does not seem unreasonable. Furthermore, take the example of a wealthy banker, earning say £200,000 net per annum, whose late spouse earned £20,000 net. The proposed formula would give the banker a net loss of £15,000 per annum. Is this at all realistic? (What if the deceased spouse had expensive taste and spent more than £20,000 per annum on clothes? These types of situation seem to arise regularly in divorce claims. The death might actually save money for the survivor, but the proposed rule stipulates £15,000 per annum.)
Another major flaw in the proposed system is that it does not deal properly or justly with changes in income, most notably on retirement, when the majority of earners will suffer a material drop in income. If a person who earns, say, £40,000 retires, the income on retirement could fall to say £20,000 or less per annum. Is it really realistic to stipulate that the person’s expenditure solely on himself has dropped from £10,000 to £5,000 on retirement? It makes more sense to say that a larger percentage of his income (possible even 100%) should be regarded as spent on himself come retirement. This point may be made when the rule is flexible, but not if a rigid rule is introduced.
Multipliers
3.45 to 3.46 I am in favour of the suggestion that loss of support should be calculated in accordance with the method suggested in the Ogden Tables. I fear, however, that the two paragraphs in the Commission’s report are not clear, and the proposed provision regarding multipliers in Clause 7 of the Bill is at best ambiguous, and possibly incompatible with the suggested Ogden approach.
Where the deceased person has already died before the proof, the action will be continued by the executor and any qualifying relatives. There will have been a period of time between the death and the proof. The Ogden method proposes that an actuarial allowance be made for the possibility that the deceased would have died in any event at some time between his actual death and the proof. This is done by multiplying the loss of support figure for that period by a factor set out in Table E. (A similar factor appears in Table F to be applied to the post proof dependency.)
A multiplier is simply a number that a quantity is multiplied by to make allowance for some factors or other. Thus it seems to me that the numbers in Table E may be regarded as “multipliers”.
Consider however the terms of Clause 7(1)(e):
“(e) any multiplier applied by the court—
(i) is to run from the date of the interlocutor awarding damages, and
(ii) is to apply only in respect of future loss of support.”
On the face of it, this provision prohibits the use of multipliers for the pre-trial period. This would in turn prevent the application of Table E, and so frustrate the application of the suggested Ogden method.
I understand the problem that the provision is trying to address, namely that a multiplier applied from the date of death includes an inappropriate allowance for early receipt, but the suggested provision prohibits more than is intended, or ought to be intended. I disagree with paragraph 3.45 where it is stated that discounting (for early receipt and the possibility of the deceased’s death) is “inappropriate in relation to the calculation of the loss which the relative has in fact sustained between the date of death and the date of the proof”. That is true for the factor of early receipt, but not for possible death. It is possible that the deceased person might have died in any event before the proof. That is why Ogden has Tables E and F!
In paragraph 3.46, the report states “There is no need for a multiplier for the period between the date of death and the date of proof: the relative has sustained a past loss which can be properly quantified”. Assuming that the Table E figures fall within the definition of multipliers (and I do not see why not), this statement is inconsistent with Ogden.
Another comment is that there could be a material time gap between the proof diet and the interlocutor awarding damages. Submissions will have been made to the court on the basis of the future commencing as at the proof diet’s submissions. Why then does the suggested provision stipulate that the future multiplier must only apply from the date of the interlocutor, rather than from the proof diet, or should no date be specified? Applying the multiplier from the date of the interlocutor could result in cases having to be put out By Order for further submissions once the “interlocutor date” is known, at additional unnecessary cost.
I suggest something along the lines of: “Any multiplier concerning future loss of support (which continues from the diet of proof) should be calculated with effect from the end of the diet of proof.”
The qualification in parentheses is so that multipliers for loss which has not commenced (such as loss of pension) are not affected.
Conclusion
In respect of your consultation paper, my answers are as follows:
1. I have no objection to consolidation of the law.
2. I do not agree with the proposal for a fixed 25% deduction for reasonable living expenses.
3. (a) I do not agree with the proposal for a fixed 75% dependency on the deceased’s net income.
(f) I believe that the Ogden approach should be taken as regards multipliers and loss of support, and have concerns that the proposed Bill does not achieve or allow this.
I shall be pleased to discuss any matters arising.
Filed under: General Issues 
Posted in Bill Butler MSP, General Issues | No Comments »
Ann McKechin MP for Glasgow North has echoed the calls of Brendan Gormley, the Chief Executive of the Disasters Emergency Committee (DEC) in thanking local people for their “incredible” generosity to the Pakistan Floods Appeal, and urging those who haven’t yet given to do so – as the disaster tragically continues to unfold in slow motion. 
“The response by people across Britain to the floods in Pakistan has been incredible, and I am proud that thousands of local people in Glasgow have joined the ever growing numbers doing their bit for the nearly 20 million people affected by this terrible disaster.
Without the promise of a grant from the Scottish Government, the SPT Subway system faces a bleak future of decline and closure.
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