In this eNewsletter:
 ILU Contacts  Douglas Keir Direct Dial: Email:   Andrew Lothian Direct Dial: Email:
Where are we?1 Rutland Court,
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Personal injury actions: limitations and prescribed claims The Scottish Law Commission yesterday published its report on Personal Injury Actions: Limitation and Prescribed Claims. The most significant recommendations are as follows:
Personal injury limitation period to be increased from three years to five yearsThe report makes particular reference to asbestos-related claims, where the Commission thought practical difficulties occurred in investigating and commencing action within the current three year limitation period. It is thought that a five year period would alleviate these difficulties. The Commission thought it was not easy to justify a distinction between different categories of personal injury claims and therefore, although the arguments in favour of extending the period relate primarily to occupational disease cases, the proposed new period would apply to all personal injury claims.
Date of knowledgeThe limitation period for personal injury claims in Scotland begins to run from the date on which the injured person sustained their injury. When a claimant is not aware of an injury, the period begins on the date on which it was “reasonably practicable” for them to become aware. The Commission recommends that the test should be changed to whether the claimant’s injuries were “sufficiently serious” to justify his bringing an action of damages. The running of the limitation period is to be suspended until after any time when the pursuer was excusably unaware of the seriousness of his injuries or the fact that they were caused by an act or omission of the defender. Exercise of judicial discretion will have regard to new guidelinesCourts would retain their discretion to allow otherwise time-barred claims to proceed. The Commission recommends that judges should also have regard to a non-exhaustive list of factors, to be set out in statute. This would be similar to the system already in place in England and Wales.
Prescribed personal injury claimsThe Commission took the view that it was not appropriate to amend the law and revive any claims which prescribed prior to 1984.
What next?The Commission has produced a draft Bill including the recommendations and it is appended to the Report. The stated aim of the Bill is to help “claimants and their representatives”. Clearly there are major implications for insurers and public authorities, although it remains to be seen whether the recommendations will be implemented in full. We will update you again as soon as there are further developments.
Further informationFor further information, please contact Douglas Keir, Andrew Lothian or your usual contact within the ILU team. |
