Damages (Scotland) Act 1993
| Year | 1993 |
Damages (Scotland) Act1993
1993 CHAPTER 5
An Act to clarify and amend the law of Scotland concerning the right of certain relatives of a deceased person, and the right of executors, to claim damages in respect of the death of the deceased from personal injuries; to make provision regarding solatium where personal injuries result in loss of expectation of life; and for connected purposes.
[18th February 1993]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Rights of relatives of a deceased person.
(1) In section 1(4) of the Damages (Scotland) Act 1976 (in this Act referred to as ‘the 1976 Act’) for the words from ‘the loss’ to the end there shall be substituted the words ‘all or any of the following—
(a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death;
(b) grief and sorrow of the relative caused by the deceased's death;
(c) the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died,
and the court in making an award under this subsection shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) above.’.
(2) At the beginning of subsection (5) of that section there shall be added the words ‘Subject to subsection (5A) below,’.
(3) After subsection (5) of that section there shall be inserted the following subsection—
(5A) Where a deceased has been awarded a provisional award of damages under section 12(2) of the Administration of Justice Act 1982 , the making of that award does not prevent liability from arising under this section but in assessing for the purposes of this section the amount of any loss of support suffered by a relative of the deceased the court shall take into account such part of the provisional award relating to future patrimonial loss as was intended to compensate the deceased for a period beyond the date on which he died.’.
2 Transmissibility to executor of rights of deceased relative.
2. After section 1 of the 1976 Act there shall be inserted the following section—
1A ‘Transmissibility to executor of rights of deceased relative.
1A. Any right to damages under any provision of section 1 of this Act which is vested in the relative concerned immediately before his death shall be transmitted to the relative's executor; but, in determining the amount of damages payable to an executor by virtue of this section, the court shall have regard only to the period ending immediately before the relative's death.’.
3 Transmissibility to executor of deceased's right to solatium for his injuries.
3. For section 2 of the 1976 Act there shall be substituted the following section—
2 ‘Rights transmitted to executor in respect of deceased person's injuries.
(1) Subject to the following provisions of this section, there shall be transmitted to the executor of a deceased person the like rights to damages in respect of personal injuries (including a right to damages by way of solatium) sustained by the deceased as were vested in him immediately before his death.
(2) There shall not be transmitted to the executor under this section a right to damages by way of compensation for patrimonial loss attributable to any period after the deceased's death.
(3) In determining the amount of damages by way of solatium payable to an executor by virtue of this section, the court shall have regard only to the period ending immediately before the deceased's death.
(4) In so far as a right to damages vested in the deceased comprised a right to damages (other than for patrimonial loss) in respect of injury resulting from defamation or any other verbal injury or other injury to reputation sustained by the deceased, that right shall be transmitted to the deceased's executor only if an action to enforce that right had been brought by the deceased before his death and had not been concluded by then within the meaning of section 2A(2) of this Act.’.
4 Enforcement by executor of rights transmitted to him.
4. After section 2 of the 1976 Act there shall be inserted the following section—
2A ‘Enforcement by executor of rights transmitted to him.
(1) For the purpose of enforcing any right transmitted to an executor under section 1A or 2 of this Act the executor shall be entitled—
(a) to bring an action; or
(b) if an action for that purpose had been brought by the deceased but had not been concluded before his death, to be sisted as pursuer in that action.
(2) For the purpose of subsection (1) above, an action shall not be taken to be concluded while any appeal is competent or before any appeal taken has been disposed of.’
5 Solatium for loss of expectation of life.
5. After section 9 of the 1976 Act there shall be inserted the following section—
9A ‘Solatium for loss of expectation of life.
(1) In assessing, in an action for damages in respect of personal injuries, the amount of damages by way of solatium, the court shall, if—
(a) the injured person's expectation of life has been reduced by the injuries; and
(b) the injured person is, was at any time or is likely to become, aware of that reduction,
have regard to the extent that, in consequence of that awareness, he has suffered or is likely to suffer.
(2) Subject to subsection (1) above, no damages by way of solatium shall be recoverable in respect of loss of expectation of life.
(3) The court in making an award of damages by way of solatium shall not be required to ascribe specifically any part...
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