Damages (Scotland) Act 1976
Damages (Scotland)Act 1976
1976 CHAPTER 13
An Act to amend the law of Scotland relating to the damages recoverable in respect of deaths caused by personal injuries; to define the rights to damages in respect of personal injuries and death which are transmitted to an executor; to abolish rights to assythment; to make provision relating to the damages due to a pursuer for patrimonial loss caused by personal injuries whereby his expectation of life is diminished; and for purposes connected with the matters aforesaid.
[13th April 1976]
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) Where a person dies in consequence of personal injuries sustained by him as a result of an act or omission of another person, being an act or omission giving rise to liability to pay damages to the injured person or his executor, then, subject to the following provisions of this Act, the person liable to pay those damages (in this section referred to as ‘the responsible person’) shall also be liable to pay damages in accordance with this section to any relative of the deceased, being a relative within the meaning of Schedule 1 to this Act.
(2) No liability shall arise under this section if the liability to the deceased or his executor in respect of the act or omission has been excluded or discharged (whether by antecedent agreement or otherwise) by the deceased before his death, or is excluded by virtue of any enactment.
(3) The damages which the responsible person shall be liable to pay to a relative of a deceased under this section shall (subject to the provisions of this Act) be such as will compensate the relative for any loss of support suffered by him since the date of the deceased's death or likely to be suffered by him as a result of the act or omission in question, together with any reasonable expense incurred by him in connection with the deceased's funeral.
(4) If the relative is a member of the deceased's immediate family (within the meaning of section 10(2) of this Act) there shall be awarded, without prejudice to any claim under subsection (3) above, such sum of damages, if any, as the court thinks just by way of compensation for the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if he had not died; and a sum of damages such as is mentioned in this subsection shall be known as a ‘loss of society award’.
(5) In assessing for the purposes of this section the amount of any loss of support suffered by a relative of a deceased no account shall be taken of—
(a ) any patrimonial gain or advantage which has accrued or will or may accrue to the relative from the deceased or from any other person by way of succession or settlement;
(b ) any insurance money, benefit, pension or gratuity which has been, or will be or may be, paid as a result of the deceased's death;
and in this subsection—
‘benefit’ means benefit under the Social Security Act 1975 or the Social Security (Northern Ireland) Act 1975 , and any payment by a friendly society or trade union for the relief or maintenance of a member's dependants;
‘insurance money’ includes a return of premiums; and
‘pension’ includes a return of contributions and any payment of a lump sum in respect of a person's employment.
(6) In order to establish loss of support for the purposes of this section it shall not be essential for a claimant to show that the deceased was, or might have become, subject to a duty in law to provide or contribute to the support of the claimant; but if any such fact is established it may be taken into account in determining whether, and if so to what extent, the deceased, if he had not died, would have been likely to provide or contribute to such support.
(7) Except as provided in this section no person shall be entitled by reason of relationship to damages (including damages by way of solatium) in respect of the death of another person.
2 Rights transmitted to executor in respect of deceased person's injuries.
(1) Subject to subsection (3) below there shall be transmitted to the executor of a deceased person the like rights to damages in respect of personal injuries, sustained by the deceased as were vested in him immediately before his death; and for the purpose of enforcing any such right the executor shall be entitled to bring an action or, if an action for that purpose had been brought by the deceased before his death and had not been concluded before then, 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 timeously taken has been disposed of.
(3) There shall not be transmitted to the executor of a deceased person any right to damages in respect of personal injuries sustained by the deceased and vested in the deceased as aforesaid, being a right to damages—
(a ) by way of solatium;
(b ) by way of compensation for patrimonial loss attributable to any period after the deceased's death,
and accordingly the executor shall not be entitled to bring an action, or to be sisted as pursuer in any action brought by the deceased before his death, for the purpose of enforcing any such right.
3 Certain rights arising on death of another not transmissible.
3. There shall not be transmitted to the executor of a deceased person any right which has accrued to the deceased before his death, being a right to—
and accordingly the executor shall not be entitled to bring an action, or to be sisted as pursuer in any action brought by the deceased before his death, for the purpose of enforcing any such right.
4 Executor's claim not to be excluded by relatives' claim: and vice versa.
4. A claim by the executor of a deceased person for damages under section 2 of this Act is not excluded by the making of a claim by a relative of the deceased for damages under section 1 of this Act; nor is a claim by a relative of a deceased person for damages under the said section 1 excluded by the making of a claim by the deceased's executor for damages under the said section 2; but this section is without prejudice to section 5 of this Act.
5 Provisions for avoidance of multiplicity of actions.
(1) This section applies to any action in which, following the death of any person from personal injuries, damages are claimed—
(a ) by the executor of the deceased, in respect of the relevant injuries;
(b ) in respect of the death of the deceased, by any relative of his;
and in this section, in relation to any such action,—
(i) ‘the relevant injuries’ means the injuries from which the deceased died, and
(ii) ‘connected person’ means a person, not being a party to the action, who (apart from this section) would have a title, whether as the executor of the deceased or as a relative of his, to sue the same defender in another such action based on the relevant injuries, or, as the case may be, on the death.
(2) Where an action to which this section applies has been raised any connected person shall be entitled to be sisted as a pursuer in that action, and except as provided in subsection (5) below every connected person shall be barred from suing the same defender in another such action (whether in the same or any other court) based on the relevant injuries, or, as the case may be, on the death.
(3) A connected person shall not be entitled to be sisted as a pursuer in accordance with subsection (2) above unless he has served notice on all other parties to the action of his application so to be sisted.
(4) Nothing in subsection (2) above shall prevent a court from exercising any power...
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