As many of you may be aware the Damages (Scotland) Bill is a
private member's Bill currently proceeding through the Justice
Committee of the Scottish Parliament. The Bill was introduced by
Bill Butler MSP. It follows a 2008 Scottish Law Commission report
looking at damages in fatal cases.
A consultation exercise concluded towards the end of August 2010
and oral evidence was heard during September. Only two firms of
solicitors have been invited by the Justice Committee to give
evidence - Simpson & Marwick and Thompsons. Frank Maguire of
Thompsons and our Gordon Keyden gave evidence to the Committee on
Tuesday 21 September. At the outset the Chair of the Justice
Committee took the opportunity to congratulate Simpson &
Marwick on their recent success in being named Litigation Firm of
the Year 2010.
The evidence given to the Committee was in the form of a panel
involving Simpson & Marwick, Thompsons, a representative from
the Forum of Insurance Lawyers and a representative of the
Association of Personal Injury Lawyers. The main issue arising from
the Bill is fixing the percentage of living expenses of the
deceased at 25% in all cases. In calculating future loss of support
that fixed percentage is to be used, and the proposal in the Bill
is that the income of the surviving spouse should be ignored in the
calculation. In many cases this will significantly increase the
levels of award. That, however, is not the primary basis for
opposing the fixing of a percentage deduction. There will be cases
(for example involving the death of a young father with several
children) where a deduction of 25% will in fact under compensate
the family. In those circumstances it may well be that the living
expenses of the deceased would only be 15% of his net income. This
example highlights that a fixed figure does not suit all scenarios,
and the status quo where parties agree the figure between
themselves, or have the court fix it, should remain.
The Scottish Government have also commenced a consultation
process on damages in fatal cases. The Government have approached
Simpson & Marwick requesting a meeting to obtain as much
background information as possible to allow the Government to come
to a view as to whether it should support the Bill, or whether it
will look to introduce its own Bill.
Contributed by David Tait