Damages (Scotland) Bill:Stage 1
The next item of business is a debate on motion S3M-7566, in the name of Bill Butler, on the Damages (Scotland) Bill. We are very tight for time today, so timeous speeches are called for.
14:19
I am pleased that we are debating the Justice Committee’s stage 1 report on the Damages (Scotland) Bill. I thank the committee for its detailed consideration of the bill, and express my gratitude to the committee clerks, the Scottish Parliament information centre and the non-Executive bills unit for their assistance. I place on record my appreciation for the role of Thompsons Solicitors, which has assisted me in the preparation of the bill and the accompanying documents for the bill’s introduction, including the financial memorandum, and my thanks to Clydeside Action on Asbestos and the Clydebank Asbestos Group. For completeness, I thank the Minister for Community Safety, Mr Ewing, for the constructive approach that he has taken at all times during the bill’s progress. If the bill proceeds to stage 2, I am certain that that constructive engagement will continue.
The bill, which was introduced on 1 June 2010, has a clear purpose: to implement the recommendations of the Scottish Law Commission’s “Report on Damages for Wrongful Death”, which was published in September 2008. In Scots law, when an individual suffers an injury or contracts a disease as a result of the actions or omissions of another person or a legal entity such as a company, damages can be claimed from the wrongdoer. The law makes specific provision for cases of personal injury that result in premature death, whether the death is immediate or more protracted.
The Damages (Scotland) Act 1976 is the main legislation that addresses damages for wrongful death. In its report, the Scottish Law Commission concluded that there is general acceptance that the 1976 act
“has become over-complex and, indeed, contains inaccuracies as a consequence of the numerous amendments made to it.”
Accordingly, the commission’s major recommendation was that
“the 1976 Act should be repealed and replaced by new legislation which will restate the current law with greater clarity and accuracy.”
The commission’s report is a considered one that builds on the existing legislation. Indeed, the commission recommends that only five substantive changes be made to the existing law. Notwithstanding that observation, members should be under no misapprehension: reform is urgently needed because of the nature of the cases and the number of people who are affected. Every year, hundreds of people in Scotland are wrongful death victims or become ill with fatal work-related diseases. On average, every year 30 people die in Scotland in workplace accidents. In 2008, 272 people died on Scottish roads. Between 1 January 2009 and 20 April 2010, 210 people with mesothelioma and 58 people with asbestos-related lung cancer sought assistance from Clydeside Action on Asbestos. In numerous other fatal accidents that were unrelated to work or road-traffic accidents, the deceased person was the victim of another’s negligence. Most such deaths become claims and then court actions. Year on year, they add to the volume of wrongful death cases in which claims are made.
It is accepted that wrongful death cases are among the most difficult and anxious cases with which personal injury practitioners deal. Such cases tend to be hard fought by insurers and defenders, which can mean that they take longer to resolve. As well as dealing with their bereavement, families have the practical burden of financial hardship to shoulder, and the unknown and often daunting legal process to face. If the reforms in my bill can reduce the uncertainty and delays to which families and victims are subjected, the Scottish Parliament will have met a need that has perhaps been understood only by victims and those who have assisted them.
Let me turn to two of the bill’s most significant amendments to the existing law. The first concerns section 1(6)(c) of the bill, which gives effect to Law Commission recommendation 4 by providing that, in calculating an award for damages by way of solatium, the court is to deduct 25 per cent of the amount that the victim could have been expected to earn or to receive in benefits during the loss period, to represent the victim’s living expenses during that period. It would be fair to say that that part of the bill has provoked most disagreement. In its report, the Justice Committee noted:
“There was a roughly even split among witnesses on this proposal, with disagreement focusing on the extent of the problems with the current law; the extent to which the proposal would bring greater certainty, speed up settlements and avoid the need for intrusive questioning; whether 25% was the right proportion; whether it should be a rebuttable presumption rather than a fixed amount; and how often a fixed deduction would lead to over- or under-compensation.”
The committee’s conclusion, which is contained in paragraphs 103 to 107 of its report, reflects the divided nature of the evidence that was submitted to it. The committee says that it
“recognises that a strong case has been made for the merits of a fixed 25% deduction for the victim’s living expenses ... However, the Committee also acknowledges the ... main objection to this proposal, namely that a fixed deduction is to some extent arbitrary”
and could
“lead to a degree of over-compensation in some ... circumstances and under-compensation in others.”
It remains my sincere view that the fixed 25 per cent rule on the victim’s living expenses is correct. I accept, of course, that we are not dealing with an exact science, but as Lord Drummond Young, Mr Garrett and others said in evidence, there is always a difficulty in calculating an individual’s living expenses. There is an arbitrary aspect, but one should take a broad approach.
I believe that the fixed 25 per cent rule will speed up the process and minimise intrusive questioning. I should add that I remain concerned about the suggestion of a rebuttable presumption, which could take us backward and undermine what the bill seeks to do. Nevertheless, let me make it crystal clear that I take seriously the committee’s admonition to engage constructively with the Scottish Government in consideration of the question. I promise that I will work with the minister to see whether a workable compromise can be found. I give that commitment unreservedly to Parliament.
The second significant amendment to the existing law is in section 7(1) and is in accordance with recommendation 11(a) of the Scottish Law Commission report. The section makes provision for use of a fixed proportion of the victim’s net income to simplify the calculation of damages that are payable to relatives for loss of financial support. Under section 7(1), the courts will be required to assume that 75 per cent of the victim’s annual income is the amount that the victim spent on supporting his or her spouse, civil partner or cohabitant and any dependent children. Further—and this is important—the court will have to disregard entirely the income of the person making the claim.
As the Justice Committee’s report states at paragraph 145, the proposed 75 per cent figure is
“the obvious corollary of the proposal ... to have a fixed 25% deduction”.
Therefore, the concerns about section 7(1) are, in essence, the same as those that have been raised regarding the 25 per cent deduction, and I have the same whole-hearted commitment to work with the Government and members to see whether those concerns can be addressed at stages 2 and 3. Incidentally, I welcome the committee’s view that it is appropriate that the income of relatives should be disregarded.
The constraint of time leaves me no opportunity to refer to other significant issues and areas of the bill, such as the withdrawal of certain relatives’ existing rights to claim damages, the use of the multiplier in calculating damages, the exemption relating to mental illness and the financial implications of the bill. I anticipate that members will wish to raise other salient matters that are referred to in the committee report during the debate. I will endeavour to respond to those issues in my summation.
I move,
That the Parliament agrees to the general principles of the Damages (Scotland) Bill.
I call Bill Aitken to speak on behalf of the Justice Committee.
14:27
As Mr Butler said, the bill has its genesis in a Scottish Law Commission report dated 2008. In turn, Bill Butler picked up the issue and brought it before the Parliament, seeking to legislate by means of a member’s bill. The Justice Committee met on 10 separate occasions to consider the bill and took evidence from 12 witnesses. The witnesses included Lord Drummond Young, the chairman of the Scottish Law Commission; representatives of the Faculty of Advocates and the Law Society of Scotland; the Minister for Community Safety; various representatives of the legal profession; and, of course, Bill Butler. I thank all those who gave evidence to the committee and congratulate them on the quality of that evidence. At this juncture, I also thank the clerking team, and particularly Andrew Mylne, for all their work.
The Justice Committee has become fairly adept at identifying early in the process of any proposed legislation the issues that are likely to be controversial. That was the case with the bill. As Bill Butler identified, the first point that caused concern and difference of opinion surrounds the calculation of the award for solatium. Bill Butler has picked up and run with the Law Commission’s recommendation that the court should deduct 25 per cent of the settlement amount as representing the victim’s living expenses. There can be no doubt that that represents a good starting point, but there was mixed evidence on the issue.
It is certainly the case that, as a result of the Court of Session judgment by Lord Uist in the case of Brown v Ferguson, most cases have followed that formula and settled at about that level. However, the law has become slightly confused following a judgment in the case of Guilbert and others v Allianz Insurance plc, in which Lord Kinclaven took a different view. In neither case did the losing party seek to take the matter to the division, which is perhaps unfortunate in that some clarity could have been introduced.
There are certainly arguments in favour of the 25 per cent figure. First, there can be no doubt that it would restrict the need for what can sometimes be an intrusive examination of family accounts at a time when the relatives are understandably distressed. That view was taken by Thompsons Solicitors, and Lord Drummond Young highlighted that the measure might be
“a worthwhile price for getting rid of the need for an intrusive and upsetting investigation”.—[Official Report, Justice Committee, 14 September 2010; c 3442.]
That said, it was pointed out by Gordon Keyden of Simpson & Marwick Solicitors that such inquiries might well be necessary in any event to deal with other aspects of the claim.
On the question of the obviation of delays, again, the evidence was mixed. The real issue is one of fairness. Would the figure be fair in assuring that compensation was obtained at the proper level or are there risks of overcompensation or undercompensation in the case of the deceased partner being a high earner? It is fair to say that some members of the committee were persuaded in favour of the 25 per cent deduction while others were not. Others felt that the compromise that originally came from the Government's own consultation paper might be the way forward, whereby the 25 per cent deduction would be put in place, but as a rebuttable presumption. It is one of the issues that, to my mind and in the view of the majority of the committee, need further exploration. I know that Bill Butler and the Scottish Government have already made arrangements for early dialogue, assuming that the bill passes stage 1 today.
One of the other issues of difficulty surrounded compensation for non-patrimonial losses. However, there seems to be some controversy within the legal profession as to what that should be termed, and the committee did not consider it to be an all-consuming issue.
The proposed exclusion of mental disorder resulting from bereavement was much more taxing, and the Law Commission had very sound reasons for including the provision in the bill. Again, there are two conflicting decisions of the outer house of the Court of Session—in the cases of Gillies v Lynch and Ross v Pryde. In the absence of a firm judicial view, it is the committee’s belief that section 4(3)(b) should be removed from the bill altogether, which would leave the flexibility that is necessary either to introduce separate legislation on damages for psychiatric injury, or to obtain a decisive ruling from the division.
The other principal issue, which is very much related to the 25 per cent deduction, relates to relatives’ claims for patrimonial loss. The committee largely viewed the two matters as being complementary and analogous, and the arguments were similar.
The fourth issue that was identified was the application of the multiplier relating to relatives’ claims for patrimonial loss. The committee was surprised that there was such a disparity of views among witnesses. Having listened to the alternative arguments, the committee concluded that there was a better argument for running a single multiplier from the date of the court order rather than from the date of death.
Finally, difficulty was experienced with regard to the definition of relatives who are entitled to claim. There is acceptance of the fact that we no longer live in a society that is dominated by the nuclear family; however, it is fair to say that the general weight of evidence was against defining the relatives who would be entitled to claim as members of the victim’s immediate family. A number of instances were cited in which difficulty could arise.
The many difficulties in the path of the bill could be obviated if people made wills. A disturbingly large number of people die intestate.
I must hurry you.
There is merit in the bill, and the committee’s view is that it should pass this hurdle today. Nevertheless, there is a lot more work to be done on it.
14:33
The bill seeks to replace the Damages (Scotland) Act 1976, as recommended by the SLC in its “Report on Damages for Wrongful Death”. The stated aim is to modernise and simplify the law in this area. In more human terms, it is about trying to facilitate fair compensation, and the Government shares that aim.
In December 2009, I announced our intention to consult on issues relating to damages for personal injury, including the commission’s recommendations on wrongful death, psychiatric injury and time bar. There would have been real merit in such an approach because of the connections between those areas. However, in January this year, Bill Butler lodged a final proposal for the Damages (Scotland) Bill and we changed our plans to accommodate that. We consulted on wrongful death issues alone so that we could engage constructively with work on the bill, and the results of that consultation inform our approach.
There seems to be a consensus that the 1976 act should be replaced. However, like the consultations that were undertaken by Mr Butler before the bill was introduced and by the Justice Committee thereafter, our exercise revealed deep divisions on fundamental issues—not a simple division between pursuers and defenders, but divisions among a whole range of stakeholders. Therefore, like the Justice Committee, we conclude that key issues require further consideration.
Some of the bill’s provisions run the risk of delivering unfair outcomes. I cite the provisions that would deny some relatives the right to claim for patrimonial loss. Even if a young person had evidence to prove reliance on the financial support of an aunt or uncle, a claim for compensation would be prohibited. We cannot support that.
Similarly, it is unlikely that we can agree definitively to exclude damages for a mental disorder that is induced in a relative by a victim’s death. That is not because we are sure that the provision is wrong, but because we are not yet convinced that it is right.
It might, however, be possible to reach agreement on the issue of the multiplier. The weight of independent expert opinion seems to favour reform so that a multiplier would apply from the date of settlement of a claim rather than the date of death.
There appears to a greater challenge in achieving confidence in the bill’s central provisions, which would introduce a one-size-fits-all set of fixed rules for dealing with the income and expenditure of pursuers. In essence, those provisions state that for every family—regardless of its composition—it can be assumed that an individual will spend one quarter of his personal net income on himself and the remainder on family and household expenses, and that that will never be affected by how much the other members of the family earn. The SLC acknowledged that such a broad-brush approach would lead to cases of undercompensation and overcompensation, but it also judged that that is a price worth paying for the benefit of speedier settlements with less intrusive inquiries.
The difficulty is that we have little hard evidence to quantify how much inappropriate compensation would occur, and how much more quickly and less intrusively settlements might be reached. Testing the validity of the judgment that underpins the bill’s central provisions is, therefore, difficult.
In the absence of robust evidence—and picking up on an idea initially floated by the Law Society of Scotland—we considered whether the standard rules could be framed as rebuttable presumptions, allowing an opt-out for exceptional cases. We continue to look at that, although we acknowledge that any such move would need to be carefully circumscribed to avoid compromising the benefits of the provisions.
My remarks have focused on the recipients of compensation. I have two further remarks to make before I close.
First, payment will usually come not from those who have inflicted a fatal injury but, indirectly, from citizens through their insurance premiums, which might arguably be reflected in increased settlements.
Secondly, the financial memorandum says that statement of funding policy might enable the United Kingdom Government to require the Scottish Government to recompense it for any additional costs that it incurs as a result of the bill. David Mundell wrote to me yesterday, to inform me that the Scottish Government’s opinion that the statement of funding policy would not apply here is “not necessarily shared” by the Treasury and other UK Government departments. My officials have been invited to pursue the issues with his.
There is uncertainty, too, about forum shopping issues.
I will truncate my speech and conclude by thanking Mr Butler for his approach to his bill. We will continue to work constructively with him. I appreciate the way in which he has conducted the bill process; it is a credit to him. I also thank the Justice Committee for a useful report. I hope that we have a consensus on which to build and which, with co-operation from all sides, should allow us to find a way through the difficulties that I have set out.
I must ask that future contributions to the debate be limited to four minutes, please.
14:38
I am pleased to be able to contribute to today’s brief debate, which touches on issues of complexity and great importance. Someone who is facing death because of the actions or negligence of others, or those who are seeking damages for the loss of a loved one, should not have to endure an unnecessarily protracted and demanding legal process to obtain the damages to which they are entitled. Today, too many individuals and families in Scotland face those difficulties. Bill Butler seeks to change all that through his bill, and he is to be congratulated on his work on the issue.
I thank the Justice Committee for its stage 1 report, which reflects the fact that there are still points to be debated and room for amendment. Indeed, on issues such as the exclusion of damages for mental disorder from the process and the definition of relatives who are entitled to claim, I have an open mind ahead of stage 2.
The report also highlights points of agreement on important issues. I believe that the case against disregarding the income of the surviving relative is weak. The current approach does not reflect today’s reality: most often, both partners are employed. Lord Drummond Young put it very well when he said:
“In effect, to maintain the household at the existing level”—
of income—
“the survivor needs his or her own income as well as the deceased’s income”.—[Official Report, Justice Committee, 14 September 2010; c 3443.]
I do not accept the argument from the Forum of Scottish Claim Managers that that would result in “gross overcompensation”, particularly as we start from the position that bereaved families are being undercompensated. That is the inescapable truth that lies at the heart of the Scottish Law Commission’s proposed reforms.
The most vexed question, to which the minister referred, is the standard 25 per cent deduction for living expenses. That measure offers the most hope for simplifying and curtailing the legal process. The figure has been debated, but it was reached after due consideration by the Scottish Law Commission. It might well result in more generous compensation in some instances, but not in excessive compensation. The crucial point is that it will counter current arrangements that undercompensate pursuers.
That argument was well put by solicitor advocate Frank Maguire in his evidence. He made the point that most fatal damages claims involve people who suffer from mesothelioma. A dying victim is likely to be unwilling or unable to extend negotiations or to take the matter to court; in effect, they are forced by circumstances to accept a larger deduction for living expenses than is fair or appropriate. The current situation makes undercompensation far more likely.
A 25 per cent deduction opens the possibility for lower legal expenses to be incurred in determining the level of damages and for less time to be spent in court. That must be beneficial for all parties, and particularly for victims at what is a distressing time.
On the introduction of a rebuttable presumption in relation to a 25 per cent deduction, the fear is that that would take us back to a protracted legal process. I am not attracted to that proposal, unlike the minister, but I am pleased that he is prepared to discuss the matter with Bill Butler.
It is important that we make progress on the bill. It is two years since the Law Commission reported and I believe that more individuals and families in such sad situations should benefit from new legislation that is passed in the Parliament. I hope that we will proceed with changes that will make significantly easier a process that is stressful for people who have suffered great wrongs and who are entitled to damages.
14:42
The ability of a citizen to recover damages from another person because of an injury or a death that that other person caused involves a controversial area of our law that is certainly not without its failings. We all agree that the subject must be dealt with appropriately and effectively.
The issue of damages is no stranger to the Parliament. It was dealt with through the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 and the Damages (Asbestos-related Conditions) (Scotland) Act 2009.
I, too, congratulate Bill Butler on ensuring that his bill has reached stage 1. I commend him for his hard work and the dedication that he has shown on the bill’s journey thus far.
In Scots law, when an individual suffers an injury or contracts a disease as the result of an act or an omission by another person, or as the result of the acts or omissions of a legal entity such as a company, damages can be claimed from the wrongdoer. Damages that are awarded for personal injury are intended to restore the victim to the position that he or she was in before the wrongful act or omission took place, to the extent that a financial award can achieve that aim. It is important to remember that the damages that are awarded are not intended to penalise the wrongdoer.
The bill implements the Scottish Law Commission’s recommendations, which were outlined in its “Report on Damages for Wrongful Death”. Mr Butler’s bill does not differ from the Law Commission’s draft bill, which was produced alongside that report, except in one aspect.
The Scottish Conservatives agree with the bill’s general principles and will vote in favour of it at decision time. However, the bill is not without its problems, and I will focus on a couple of issues, the first of which is the provision for calculating an award of damages for patrimonial loss—in Scots law, the sum of money to be paid to the injured party by the responsible party that is over and above the compensation that is paid for injury to feelings or emotional distress. The bill proposes a fixed 25 per cent deduction from the amount that the victim could have been expected to earn or to receive in benefits during the lost period, to represent the victim’s living expenses in that time.
The proposal is based on the view that a fixed reduction would reduce the need for intrusive questioning about family budgeting and speed up the settlement of claims. Although that is a noble aim, concerns have been raised over the arbitrary nature of a fixed 25 per cent reduction that takes no account of individual circumstances and which could lead to overcompensation in some cases and undercompensation in others. Indeed, it has been suggested that the proposal violates the fundamental principle that a victim should be compensated only for the loss suffered.
An option that the Justice Committee considered during its stage 1 evidence taking and which the Scottish Government brought forward in its consultation paper was to put the 25 per cent deduction into statute, but as a rebuttable presumption. That appears to be an attractive compromise if it ensures the avoidance of the distress caused when family accounts have to be gone through at a time when relatives feel particularly vulnerable. The proposal would also enable defenders to oppose settlements where the 25 per cent figure was thought not to be appropriate.
The definition of those entitled to a recovery is another difficult area. The proposal in the bill would remove the existing right of certain relatives, beyond those defined as members of the immediate family, to claim for damages if they could show that they had been supported by the victim. We recognise that a line needs to be drawn to prevent unfounded claims. The compensation is a finite amount of money; it should not be diluted or diverted from family members to compensate casual acquaintances. I believe that more work will need to be done to expand the definition without casting the net too widely.
You must close, please.
I have another opportunity to speak in the debate, Presiding Officer. I have no more to add other than to confirm that the Scottish Conservatives will support the bill at stage 1.
14:46
I congratulate Bill Butler on his persistence and skill in bringing forward the Damages (Scotland) Bill. We do not always appreciate the amount of time, skill and determination that it takes to take a member’s bill through the Parliament without the normal support that a minister gets for Government bills. I say to the Presiding Officer and the business bureau that the timescale that has been allowed for the debate on such a complex issue is not at all satisfactory. I hope that the bureau will look at that.
Giving justice to those whose loved ones have been killed as a result of the negligence or breach of a statutory duty of others is a difficult exercise. It has been the subject of judicial decision and a number of attempts at reform by legislators. The principal act in that regard is the Damages (Scotland) Act 1976, which has been regularly amended.
In the short time available to me, I will concentrate on the most significant issue in the bill: the proposal in section 1(6) that a standard amount of 25 per cent should be deducted, as living expenses, from earnings or other income that the victim was likely to receive had he or she not died or had their life not been shortened. The provision replaces the current law under which cases are settled on an individual basis but influenced by the formula that was defined primarily in the 1990 case of Brown v Ferguson.
I must confess that—like, I think, most of the committee—I found the issue very difficult. The arguments for change were that detailed inquiries into household expenses were intrusive, the resultant calculations were arbitrary, and the whole exercise delayed settlement. There is some truth in all of that. On the other hand, there are many other necessarily intrusions, not least into the nature and extent of personal services that relatives provide. Such issues are among many that have to be resolved in negotiation, or by the court in cases that go to court. As we have heard, and as the committee touched on, cases rarely go to judicial decision on that particular point.
If the traditional calculation is incidentally arbitrary—I stress “incidentally”—the 25 per cent proposal is, by its very nature, arbitrary, too. There was a heavy emphasis in the evidence that we received on mesothelioma resulting from exposure to asbestos. Undoubtedly, deaths caused by mesothelioma are not to be wished on anyone and bring many pressures on claimants. However, it would be very unsatisfactory to try to define different causes of death and apply different rules to them. The question has to be: what provision would fit people who die in a road-traffic accident or an industrial accident or by way of industrial disease? Bill Butler helpfully gave us some of the numbers on that issue.
There is no question but that many mesothelioma cases involve older pursuers. Much of the statistical evidence came from the principal trade union lawyers who deal with such cases. We heard the hypothetical case of a young scaffolder with six children who is killed in an industrial accident. Under the 25 per cent rule, he would be undercompensated. That case was by no means, as some suggested, an unusual case that should be disregarded under the principle that hard cases make bad law. On the contrary, when I was in practice, I dealt with several scaffolding accidents—admittedly, perhaps those involved fewer children. Sadly, building industry accidents are a phenomenon that occurs far too often in Scotland—indeed, it occurs more often in Scotland than in other countries.
In the end, I have come to the view that there is merit in the 25 per cent deduction as a rule of thumb, but that it must possible to alter it in exceptional cases, however those are defined. I do not accept that that would open up every case to intrusive examination. As the minister said, the formulation of the provision on the exceptions should be examined closely. The issues here are a mirror image of the arguments about the victim’s living expenses—the 75 per cent provision at the other end, under section 7(1).
The bill raises important issues of some complexity. On some, there may be no totally satisfactory universal solution; on others, the bill marks a clear improvement. Like other members of the committee, I am happy to recommend to Parliament that the bill should have the opportunity to proceed to stage 2. I hope that further discussions between Bill Butler and the Government may resolve some of the issues.
14:50
I thank all those who gave evidence to the committee, the committee clerking team and SPICe for all their assistance, and Bill Butler for all his hard work to get the bill to this stage. I echo Robert Brown’s comments about the difficulty and hard work that that entails.
The issue of the 25 per cent deduction took up much of the committee’s time in debate and argument. I was going to quote paragraph 52 of the committee’s report, but Bill Butler has already done so. The fact that there are a wide variety of views on the bill, especially on this issue, has already been mentioned. In effect, there were three options before the committee: to agree to the deduction of a fixed amount for living expenses and on what the figure should be; to reject the idea completely in favour of negotiation between the parties, which is the status quo; or to support the idea of a fixed figure but with some flexibility—in other words, a rebuttable presumption.
Although some members of the committee thought that the correct approach was to have a fixed figure, others thought that that would result in an unfair outcome in some cases, where there would be either overcompensation or undercompensation. The hypothetical scaffolder and his family whom Robert Brown mentioned were referred to by Simpson & Marwick, but that was only one example of possible undercompensation or overcompensation.
Despite concerns that it could undermine the purpose of the fixed figure, and after hearing the evidence and debating the point at length, the committee agreed that the suggestion of a fixed figure with a rebuttable presumption is perhaps the best solution, although it requires some detailed work by Bill Butler and the Government. However, recognising the force of the argument that such a proposal, if unfettered, could lead to little improvement on the current position, the committee accepted that a rebuttable presumption should be used only to deal with cases in which 25 per cent is clearly not the current figure for the deduction of living expenses. Although the drafting of such an amendment may be difficult, that seems to the committee to be the best way forward. Resolution of the problem is crucial if I am to support the bill after stage 1.
It was difficult to reach a conclusion on the proposed exclusion of mental disorder in section 4(3)(b). I fully appreciate the reasons why Bill Butler thought that it was appropriate and necessary to include the provision in the bill. However, given the complexity of the issue and the requirement for this area of law to be examined at much greater length, I must support the committee’s conclusion that section 4(3)(b) should be removed at stage 2. As paragraph 127 of the committee report states, the sensible way forward is
“to leave the law in this area essentially unchanged until there is either a decisive Inner House ruling on the matter or until separate legislation on damages for psychiatric injury can address the issue in a more considered and comprehensive way.”
I realise that some people will be disappointed by that conclusion, but I think that it is correct at this time.
Whether the partner’s income should be wholly or partially excluded from any calculation was an issue of contention for some witnesses and in some of the evidence that was given to the committee, but there was a fair degree of unanimity in the committee that the correct way forward was to disregard the surviving partner’s income in any calculation. I thought that it was a fairly straightforward argument that, if a known amount is lost due to an unlawful death, that amount should be compensated for and the partner’s income is irrelevant. Some witnesses felt differently.
Despite the arguments that were put forward by those who opposed the disregarding of the partner’s income, I remain of the view that the partner’s income is irrelevant and that taking it into account can lead to unjust outcomes.
Paragraph 138 of the committee report says:
“Thompsons said it was ‘difficult to understand the logic or fairness’ of the current rule, which could lead to a surviving spouse with no income obtaining full compensation for loss of support, and a surviving spouse with his or her own income obtaining no compensation, even though in each case, the loss of income to the household was the same.”
The member will need to conclude now.
I support the general principles of the bill, although a number of areas still need to be resolved at stage 2.
14:55
Like other members, I congratulate Bill Butler on taking the bill to this stage. I hope that it goes further and becomes law in due course.
In 2006 I considered introducing a bill to amend the Damages (Scotland) Act 1976, prompted by the particular circumstances of sufferers of mesothelioma whose cases were heard by the courts before they died and whose relatives were disqualified from seeking compensation. We considered a general revision of the damages legislation in that context. In the event, it was decided to home in on the particular problems around mesothelioma. That led to the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007, which was passed unanimously by the Parliament, much to its credit.
The way in which the 2007 act highlighted certain inconsistencies in damages legislation provided the opportunity for the Scottish Law Commission report and for Bill Butler’s bill. I very much welcome his bill because in a sense it extends in a sensible, considered way and to a wider category of people some of the principles that we agreed, and the approach that we took, under the 2007 act.
Those who suffer from asbestos-related conditions will benefit from the Damages (Scotland) Bill—perhaps not those who suffer from mesothelioma, who are already protected under the 2007 act, but those who suffer from other asbestos-related conditions, such as asbestosis, that unfortunately can lead to death.
Many other people have injuries as a consequence of industrial accidents, and there are people who suffer following road-traffic accidents. Those people require a clear, cogent pathway, where the parameters in which compensation can be dealt with should be rendered clear. I understand that that is work in progress, and that there are still disagreements and controversies about aspects of the precise scope and exact wording of the legislation. However, it must surely be right that, if the existing legislation is unsatisfactory, it is the duty and obligation of the Parliament to clarify the situation and make it abundantly clear to everyone—including claimants, their lawyers, employers and parties to any case—the basis on which compensation may be pursued, and the rules governing that. If there are inconsistencies—as there undoubtedly are; we can see that from the committee’s report and from the Law Commission’s report—they should be addressed. We need to iron out unfairnesses in the system so that it becomes more transparent and clear for everybody.
Various campaign groups played an active role in the mesothelioma campaign, such as Clydeside Action on Asbestos, the Clydebank Asbestos Group, the Scottish Trades Union Congress and Thompsons Solicitors, which were very much involved in the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill. Those same bodies have also been very much involved with Bill Butler in developing the bill that is before us, and they have thereby performed a valuable service to the Parliament by drawing various matters to our attention and seeking our support in finding a resolution.
Again, I commend Bill Butler for introducing the bill and wish him well in his efforts to get it approved by the Parliament.
14:59
I, too, congratulate Bill Butler on all his hard work on the bill, and I echo all the comments that my colleague Robert Brown made.
I agree that the law on damages for wrongful death needs to be modernised and consolidated. However, as I think the majority of members acknowledge—all those who have already spoken do—we cannot make progress unless the bill addresses the significant divisions of opinion on the key proposals for reform that were expressed in evidence to the committee.
I start with the issue of the victim’s claim. As the committee correctly recognised, there will always be a trade-off between the merits of simplicity and certainty on the one hand, and the flexibility that is needed to ensure that victims of wrongful acts are correctly compensated on the other. As the proposals stand, I am concerned that adopting a fixed figure of 25 per cent for the proportion that is to be deducted from a victim’s income for the lost period sits too far towards simplicity, and that the bill suffers from inflexibility as a result.
As Bill Aitken and others have said, a way forward on the issue could be the introduction of the 25 per cent figure as a rebuttable presumption rather than a fixed position in all cases. That would provide both a solid guideline for the judiciary and a yardstick to help victims in what will often be a difficult time for them. At the same time, it would maintain the flexibility required to allow for exceptions.
The committee report was succinct in expressing the principle that should support a revamped damages system:
“to restore the family’s finances to what they would have been had the wrongful death not taken place”.
I suggest that it is that principle, rather than a strictly mathematic one, that should underpin any bill.
On relatives’ claims, I want to address the question of who is entitled to claim patrimonial loss. As several members have argued, including my colleague Robert Brown, restricting entitlement to claim patrimonial loss to the immediate family runs the risk of narrowing the current definition, which I believe must be avoided.
There is a question of balance. A definition is right and necessary for clarity, but any legislative attempt, whether intentional or otherwise, to narrow the current definition of who can claim would be a step backwards. That obviously leads to a second question, which is whether the current definition needs to be extended. I would not be against that concept in principle, but I share the committee’s concerns that no such proposal has been consulted on and any definition would be difficult to establish. As I said, it is a matter of balance.
As I said, the law on damages for wrongful death has needed modernisation for a long time—the Scottish Law Commission makes that clear in its 2008 report. If we are going to take the necessary step forward, using either the Damages (Scotland) Bill or a future bill, that must be a step forward for all victims. Everyone affected by financial loss as a result of wrongful death should be entitled to the closure that compensation offers.
I support the general aims of the bill, but I share the concerns expressed by the committee on several points of detail. Should the bill pass stage 1—as I said, I will certainly support it this evening—I suggest that, in the limited time available, Bill Butler must work constructively with the minister to address the issues raised by the committee in its report.
15:02
I start by congratulating Bill Butler on his pursuance of the subject. Without his determination, we simply would not have got here. I am also grateful to colleagues for addressing many of the points of detail in our report, which means that I will not do so. Instead, I will pick up four matters of principle that have emerged through the process that we have been through as the Justice Committee, and I will ask one or two folk who are outside the committee to consider some of the issues that the process has thrown up.
Of course, there are no personal comments in this contribution. Responsibility lies where it lies, and we need to try to find ways through the issues.
The first point is that the bill has come to the Justice Committee relatively late in the session. As it happens, we have agreed to make it our member’s bill priority. I am therefore sure that we will have time for it, and I am glad about that. However, I am conscious—Bill Butler will be the same—that other bills in the Justice Committee portfolio will probably slip as a result of the timetables that we have been given. That raises an important point that I want to make: if everything is referred to the Justice Committee, we will lose members’ bills—we might have lost the Damages (Scotland) Bill if we had thought that others were a higher priority. We need to grasp that important matter as a Parliament.
Secondly, this is one of several bills that have come from the Scottish Law Commission. It is fair to say that in this session we have made considerable progress in dealing with them, and I hope that the commission is happy with that, but we still do not have a mechanism in principle to deal with the good work that comes from the Scottish Law Commission to the Parliament. I put that issue before the chamber. I am not sure who should be responsible—the Presiding Officer, the Parliamentary Bureau or the Government—but we have to grasp the issue. The Scottish Law Commission is doing good and professional work, but unless we are careful some of it will simply be missed and not brought forward fast enough.
Thirdly, I bring to members’ attention a small point in the bill: the use of discounts—or multipliers—and the consideration of the time between the date of the victim’s death, the date of settlement and the lifespan of any beneficiary thereafter. We have had some argument about which multiplier we should use and have been referred to the Ogden tables but, very late in our evidence taking, we came to the conclusion—at least, certainly, I did—that there should be two multipliers or two applications of the Ogden tables. We have the problem of deciding how to address and bring into the discussion an issue that has come late in our evidence taking.
Fourthly, I will consider an issue to which Bill Aitken referred: the difficulties in Scots law when we have conflicting decisions. Brown v Ferguson and Guilbert v Allianz Insurance plc are conflicting High Court decisions on damages. Equally, whether psychiatric loss should be included in non-patrimonial loss is subject to conflicting outer house decisions: Gillies v Lynch and Ross v Pryde.
I am concerned that, as far as I can see, we have no mechanism in Scots law for resolving those difficulties, other than by introducing legislation to the Parliament. That is wholly unsatisfactory because, unless legislation comes through the Parliament, we find ourselves in conflict with one of the meanings of the rule of law, which is that people have a right to know what the law is. Conflicting High Court decisions mean that we do not know what the law is. We must address that at some stage.
15:06
I am pleased to contribute to the stage 1 debate on the Damages (Scotland) Bill. I thank Bill Butler for his hard work in introducing the bill. He has provided a convincing, rational and passionate case for the proposed legislation.
I recognise that the member, the Scottish Government and the committee all wish to secure fair compensation for those who are in the hugely difficult position of having lost in tragic circumstances a loved one upon whom they relied for financial support. However, some key disagreements remain about how that can best be achieved. As members can see from the stage 1 report, although the committee supports the bill proceeding to stage 2, committee members do so with differing levels of enthusiasm.
There are differing views on whether the bill should proceed as a separate piece of legislation or whether the Scottish Law Commission’s three sets of legislative recommendations on damages should be advanced together. However, we would find the time to deal with the second option only in the second half of the next parliamentary session at best. Therefore, the decision comes down to a judgment on how urgent the need for legislation is and to what extent, and how many, families will continue to be disadvantaged or placed in extremely difficult circumstances without the bill.
The committee remains divided on whether the benefits outweigh the risks. On balance, I believe that there is a strong case for pursuing the bill in this parliamentary session. I am not convinced that further delay or the amalgamation of the bill with the Scottish Law Commission’s other recommendations would lead to any better legislation.
The level of confidence in the extent and depth of the research is one of the problematic issues that the committee has faced in addressing the bill. Mr Butler argued at the outset of the process that there was no need for further consultation on the bill proposal. That argument was rejected by the majority of the committee, a decision that Mr Butler later endorsed.
Extensive consultation has now been undertaken. However, during stage 1, the case for additional evidence and further research was stated. At the heart of that was the committee’s problem in coming to a firm view on the merits or otherwise of a fixed 25 per cent deduction for the victim’s living expenses.
I am persuaded by the arguments in favour of a fixed 25 per cent deduction, principally because it would reduce the need for intrusive questioning at an extremely difficult time—a set of circumstances that often leads to people being prepared to settle for less than they may be entitled to. It could also speed up the settlement of claims.
The committee accepted the reality of undercompensation, but remained divided on whether a fixed 25 per cent deduction would be the correct response. However, it appears to me that the evidence supporting the 25 per cent deduction came from actual cases whereas the argument against a fixed deduction was largely based on hypothetical cases. All eventualities must, of course, be considered, but there is also a need for a degree of pragmatism.
The committee has considered the merits of the Scottish Government’s proposal for a rebuttable presumption, and encourages further exploration of that option if it can provide flexibility without undermining the benefits of the fixed reduction. That is a difficult task, which has now been passed to stage 2.
I appreciate some members’ cautiousness about the range of the evidence that was presented to the committee. However, I am not convinced that the remaining divisions can be addressed by pursuing further research or evidence. We might have pretty much reached the extent of the research that is available on the issue. It might be that some are still unhappy with the depth of the research that is available, but we are in danger of going round in circles with no resolution. As Mr Butler said in evidence:
“There comes a point when it is necessary to cut to the chase and recognise that there is a body of evidence.”—[Official Report, Justice Committee, 28 September 2010 ; c 3550.]
I support that view.
If we start from the premise that, although there might be concerns that the evidence is not as wide ranging or as varied as we would like, it is as good as we are going to get, the issue comes down to whether a compromise can be reached on the key issues that are identified in the stage 1 report to allow the bill to proceed further. I welcome the commitment that the minister and Mr Butler have made today to work together to attempt to reach a compromise.
The Damages (Scotland) Bill is the first member’s bill that I have been involved with at stage 1, and I appreciate the committee’s constructive and thoughtful approach to it. Although, as a committee substitute, I was not involved with the bill from the start, I look forward to that constructive approach being continued at stage 2.
15:10
I am happy to take part in this debate on the stage 1 report on the Damages (Scotland) Bill, which is being promoted by Bill Butler. I commend him for his efforts and determination thus far.
Members will be aware of my interest in damages issues and my involvement as a member of the Justice Committee when it examined the Damages (Asbestos-related Conditions) (Scotland) Bill earlier in the session. Although I am not a member of the committee any more, I signed the proposal for Bill Butler’s bill after meeting him some months ago, and I have been keeping an eye on the bill’s progress through the committee. I am keen to ensure that members of the public can have confidence in the Parliament and its course of action in dealing with damages issues. In my opinion, the Parliament has dealt with the issues fairly and justly, and thankfully previous bills have succeeded. I am, of course, referring particularly to the asbestos-related legislation in the current and previous sessions.
The committee has recommended that the bill should proceed to stage 2, but members have spoken about a few issues that need to be resolved. I do not intend to go over old ground, but I will touch on one issue that I found of interest in the committee’s report. With every paragraph, I was becoming more convinced that the 25 per cent compensation payment was the way forward, but then I got to the arguments against, and I thought that they were also logical and correct. I can therefore understand why the committee has recommended that Bill Butler and the Scottish Government should meet and attempt to resolve that vital issue. I was happy to hear Bill Butler’s comments on the matter earlier in the debate.
For me, this important aspect of the bill comes down to a couple of key points. The first is that we need to ensure that the claimant obtains their damages with as little delay as possible while also ensuring that they obtain a fair and equitable result. Secondly, we need to ensure that the fair and equitable damages award is just that for those who have to pay out. People might ask—I do not know whether the issue was raised in the private sessions—whether it would be such a bad thing if the surviving relative or family was overcompensated by a small margin. After all, they have lost a loved one, and no amount of money will ever replace them, especially when they have been taken tragically through a wrongful death, but a slight overcompensation might not be a bad thing.
There are various other issues in the bill that I would like to discuss, but time constraints prevent me from doing so.
I fully appreciate that the bill, although short in page numbers, is not short in terms of the issues that it highlights and the questions that it raises for the committee, the Government, the Parliament and wider Scotland.
I do not think that I am speaking out of turn when I say that every party in the Parliament wants to ensure that damages legislation is robust in order to protect our citizens. It could be argued that all three Scottish Law Commission reports on damages should be rolled up into one larger bill, and who knows what will happen post the election in May? However, the here and now dictates that the bill is trying to provide some solutions. It is clear that there are issues that require to be addressed, and I am sure that Bill Butler will have been working on them in anticipation that the bill will move on to stage 2. I will vote for the bill to proceed but, for the good of the bill and what it aims to do, it needs to address the many points and questions that the committee has raised. If it does that, it will be a thoroughly useful addition to the statute book.
We move to the wind-up speeches.
15:14
In opening, I would like to make a couple of general comments. The bill is obviously about compensation-for-death cases, in which context all sorts of sympathies, emotions and horrible situations for families come into play, but it is important to remember that the job of the justice system is to do justice and to facilitate fair compensation, those issues notwithstanding. These are matters of judgment. In one or two speeches, there was just a hint that it was a bad thing that there were uncertainties and conflicting decisions in the law. That is obviously a bad thing to an extent, but the law is not a fixed, final sort of entity.
Various attempts have been made, from the work of Gaius and Justinian in the days of Roman law to the development of the Napoleonic code, to create an all-encompassing and finalised provision, but such attempts do not solve the problems; they just add to the difficulties and change the basis of interpretation. The law is an evolving thing. However, in response to Nigel Don’s point, it is fair to say that the damage to mental health that is done by the death of a relative and the Brown v Ferguson dispute are important issues, on which we need to have some clarity in the law if we are to move forward.
We face another dilemma in properly hitting the right balance between doing justice and officious fiddling. Such issues have emerged during the bill’s consideration. Some parts of the bill will undoubtedly do good, but on others there are distinctly mixed views about the way forward.
When I was in practice, the solatium for the emotional stress and suffering that resulted from the loss of a spouse was typically around £14,000. In total, death claims would usually be much more substantial because of claims for loss of support, services and other expenses, but it was nevertheless extremely difficult to explain to a relative that our society valued a human life at no more than £14,000.
The bill proposes a number of miscellaneous but interconnected changes. The committee rightly recommended that the mental disorder issue should be left to be dealt with in separate legislation that is properly considered and consulted on. It is difficult to fiddle about with that area without having much fuller evidence. The committee was also unpersuaded of the case for a new name for the grief and loss of society heads of damages, because it seemed to me and to others that the current heads of damages are perfectly well understood—the mental disorder issue aside—and that changing the names would risk unintended consequences. Whether it is known as solatium, loss of society or, as the bill suggests, a “grief and companionship award” is inconsequential.
The important issue of the 25 per cent, which lies at the heart of most of the disputes that surround the bill, has already been touched on.
I have a brief point to make on the victim’s living expenses and the income of the partner. Although I agree with others that it is appropriate to separate that out and to remove it from the calculation, it cannot be removed entirely because of the need to look at household expenditure and costs of that sort. Bill Butler would no doubt say that that works both ways, but it is an important point nevertheless.
On the definition of relatives who are entitled to claim, I simply say that I support the current law. I am not persuaded by the bill’s proposal to narrow the current definition, nor by the suggestion that it should be widened. It is a proper part of a legal system to define who is close enough to the victim to be given a right to damages in the event of traumatic death. It is not the job of the law to provide a right to damages in all situations, however remote the connection between the parties.
One final general issue is whether the bill should proceed to finality in the present session of Parliament or whether it would be preferable for a composite bill that took on board the other Scottish Law Commission reports in this area to be introduced at a future date. It is understandable that the Scottish Government believes that more research is needed, but it might be overstating the case a little. Like Claire Baker, I am not totally persuaded that much new would come out of that. I rather think that I would be reluctant to go against the Government’s view, given the complexity of the issues. At present, however, I commend Bill Butler’s efforts and urge Parliament to support the bill at stage 1.
15:19
This has been a useful debate, and has highlighted the need to reform the way in which Scots law deals with damages. A number of useful speeches have been made, most of which have centred on two key points: the 25 per cent deduction for living expenses and the proposed changes to the definition of relatives who are able to claim damages.
Stewart Maxwell’s speech was useful in highlighting the committee’s concerns about the 25 per cent loss of earnings deduction. Mike Pringle highlighted the need for reform but expressed the concern that the proposed approach—particularly in relation to the 25 per cent rule—might be too simplistic. I share those concerns and am therefore sympathetic to the rebuttable presumption. The Justice Committee’s report stated:
“If a rebuttable presumption could be drafted in such a way that it provides flexibility only when it is needed, without undermining the benefits of a fixed deduction in the majority of cases, it might still offer the best way forward. The Committee therefore urges Mr Butler and the Scottish Government to engage constructively in consideration of this question.”
The Scottish Conservatives see that as an attractive compromise, as in most cases it would avoid the distress caused by having to go through family accounts when the relatives are feeling particularly vulnerable, but at the same time it would enable defenders to oppose settlements where the 25 per cent deduction was not appropriate. The rebuttable presumption would also be an invaluable tool where families felt that they were being undercompensated. We urge Mr Butler and the Scottish Government to work together on the issue to try to find a way forward that will ensure that no family has to go through unnecessary distress and that they are protected and given the right level of compensation.
Before I close, I want to deal with the definition of relatives and their ability to make a claim. Part of the difficulty with the bill is the requirement for a degree of ambiguity. The bill must allow for flexibility, as people have different personal circumstances. However, it must also provide protection, to ensure that those who need and deserve compensation receive it quickly and painlessly. Section 14 would remove the rights of certain relatives to claim for damages, even if they could show that they had been supported by the victim. Of those who would not be able to claim, the Justice Committee was given the example of a niece or nephew who was supported through university by their aunt or uncle.
Although we do not want to prevent those who have entitlement to claim from doing so, we also recognise that there is a finite amount of compensation. The Justice Committee report says:
“real injustice could result if too much were taken away from family members to compensate relatively casual acquaintances.”
One way of addressing that problem would be to limit the right to claim to those who are able to establish a substantial loss of support. A definition of “substantial” would be required to ensure that the net was not cast too widely or not widely enough, as that could provide further difficulties.
I am pleased that Bill Butler has indicated a willingness to resolve difficulties with the Scottish Government and others to take matters forward, and I again congratulate him on bringing the bill to this stage.
15:22
Like others, I pay tribute to Bill Butler for bringing this important bill to the chamber and for his hard work on and dedication to it, which was clear to anyone who watched his efforts at the Justice Committee when he gave evidence. He clearly has not only a lot of knowledge of the issues but a tremendous amount of commitment. I also want to put on record my thanks to the Justice Committee clerks and my fellow committee members for the work that they have done on the bill.
This is clearly an important issue. The Law Commission identified it as such and said that there was a need for the Damages (Scotland) Act 1976 to be reformed.
There can be no worse thing than to lose a relative in an industrial accident, but having the rigmarole of going through an extensive compensation case cannot help.
It is quite clear from the evidence that we heard and from the Law Commission’s report that the system is not working effectively. We owe it to the hundreds of victims throughout Scotland—whom Bill Butler referred to—to act and put in place a more efficient system that works more quickly and is less stressful and emotionally painful for relatives. We need some simplicity.
The debate and the Justice Committee report have thrown up a number of key issues, among them the 25 per cent deduction for living expenses, and the corollary of that, which is the 75 per cent that represents the money that the victim spent supporting the family.
The committee heard conflicting evidence on the 25 per cent figure—some members have spoken about the conflicting case law. However, I agree with Robert Brown that we must consider other matters in order to take a position. I am persuaded on the 25 per cent figure; I give a lot of weight to the evidence from Thompsons Solicitors on the need to specify a figure. It would offer certainty, speed up the process and save time and resources. That would ultimately help to deliver a less stressful system for victims. There is a duty on us in the Parliament to try to do that.
Having a rebuttable presumption has been another controversial issue. I am not sympathetic to a rebuttable presumption, on the basis that it could open the floodgates for challenges to compensation claims. That would result in cases taking longer, and it would not deal with the issues that the bill was introduced to address. However, I recognise Bill Butler’s genuine offer to enter into discussions to reach a compromise on that, which I am sure that the minister will try to accommodate. I hope that we can address the issues that have been raised in this debate and the committee report, and seek to progress the bill in the current session of Parliament.
15:26
This debate has been useful. It was led by Bill Butler and included a contribution from Bill Aitken, who ably set out the committee’s position. It also included contributions from members on all sides of the chamber that highlighted the two strands of what we are seeking to do. There is the emotional strand, as we are trying to ensure that those who have lost a loved one through the negligence of a third party receive fair compensation. As human beings, we all respond to that pull. There is also the intellectual strand, as we must ensure that we pass legislation that is correct and based as far as possible on accurate evidence, which we must do our reasonable best to seek out.
I am happy to pay tribute to Bill Butler for his work in focusing attention on the issue. We have had an excellent constructive dialogue from the outset, which I am sure will continue.
I will cut to the chase and be candid. We need greater confidence that it is right in each and every case to assert that the fatally injured person spent around 25 per cent of his net income on himself. As far as the Government is aware, no firm evidence has been produced to prove that that is the right level in the average case, nor to indicate how much variation from the average there might be. The Scottish Law Commission did no more than
“suggest that 25% falls within the range of what might be considered reasonable”,
in its “Report on Damages for Wrongful Death”. It also acknowledged that there is an “absence of accurate figures” to substantiate the 25 per cent figure.
Members have referred to the evidence from Thompsons, and we are grateful for the effort that the firm has made. However, none of that evidence appears to demonstrate clearly that 25 per cent of net personal income is what people always or normally spend on themselves. Indeed, it would be a somewhat odd and unduly uniform world if every person spent exactly the same amount of money on themselves. It does not feel right that that would be the case, given the vagaries of human nature and the differences in spending practices that we know there are between people.
We also need greater confidence that it is right in each and every case to conclude that the surviving spouse’s income should be entirely disregarded. That proposal seemed to elicit the most vehement opposition from defenders, even from those such as Aviva and the Forum of Scottish Claims Managers, which were prepared to make concessions elsewhere.
Lest it be thought that only defenders had concerns, I note that, in relation to the risk of overcompensation, the judges of the Court of Session advised that
“to ignore completely the income of a surviving spouse or partner, which may be substantial, gives rise to such a risk.”
However, I accept that the Justice Committee was not persuaded by such concerns and I will certainly reflect on that.
Mr Butler may feel that my plea for more evidence may be becoming a little bit repetitive, but I submit that we cannot make legislative bricks without evidential straw. Evidence is essential if we are to gain the confidence that is necessary for fixing a one-size-fits-all rule in statute for a generation. Where might such evidence come from? It seems not unreasonable to expect that pursuers’ agents may have relevant data on file, given that we are told that they have had to be ready to prove personal expenditure levels in all past cases. If that does not prove possible, given that we do not have time for fresh research, it might be helpful to know whether there is evidence that the approach that we are being asked to adopt has been successfully adopted elsewhere in the world. Unless such evidence is available, we might need to consider the merits of introducing rebuttable presumptions instead of rigid rules.
Presiding Officer, I note that my time has expired, so I will ignore the final four or five pages of my speech and reiterate my pledge to every member of this Parliament—but most especially to the member in charge of the bill, Mr Butler—that we will, in the way that we have set out today, do our best, working with all parties and all MSPs, to seek to find a solution that achieves fairness.
15:31
This has been a considered and detailed debate on a very serious area of law. I welcome members’ thoughtful contributions and the constructive tone of all the speeches. I will try, in the time available, to respond as best as I can to the issues that members have raised.
Before I start on that, I reiterate the pledge that I gave in my opening speech to work constructively with the minister, committee members and all members across the chamber to see whether we can get to a piece of legislation that is resilient and evidence based.
As the minister rightly said, the bill’s aim is fair compensation for victims of wrongful death. We can all agree with that. The bill seeks to give certainty, minimise intrusive investigation and expedite the awarding of appropriate damages. We can all agree with those general aims and objectives. However, there is the question of the 25 per cent deduction for living expenses and the obverse 75 per cent calculation for the amount spent on supporting relatives. Getting to a place where all of us—or certainly the majority of us—agree on the way to meet the concerns of both those who fear undercompensation and those who fear overcompensation will be a real challenge, but that is the task that we face. I do not pretend that it will be an easy one. Members of the committee and, especially, the minister know that it will be difficult. Indeed, Lord Drummond Young said in his evidence that the problem with a rebuttable presumption
“is that it would still be necessary to perform the upsetting and difficult exercise of going through the household accounts ... with the surviving spouse or another member of the family. In one sense, things would be worse than they are at present. Currently, the exercise is done at the outset of proceedings ... If there is a rebuttable presumption, in many cases the exercise would be performed at a later stage ... under pressure of demands for information from the defender”.—[Official Report, Justice Committee, 14 September 2010; c 3444.]
It seemed to Lord Drummond Young that that would be the worst of all possible worlds. I would still tend to agree with that, if the provision were simply to be phrased as “on special cause shown”, and I think that the minister agrees with me that that is too wide. We must try to find a form of words such that we draft a piece of law that will delimit the right of defenders to say that there is a rebuttable presumption there that they wish to follow. We do not want an open door to all defenders, as that would be worse than the situation in the law that is extant. That is clearly a difficulty, but I will work closely with the minister, committee members and all other members to overcome it.
Let us turn from difficulties to points of agreement. Many members, including the minister, Richard Baker, John Lamont and Mike Pringle, have talked about the definition in section 14 of relatives who are entitled to claim. I agree with members that the definition is too narrow and restrictive, and I am more than willing to work closely with colleagues to find ways in which we can amend it. The committee helpfully said in paragraph 190 of its report that, taking all of the factors into account, including the unfairnesses with regard to nephews and nieces that Stewart Maxwell alluded to in the committee, we should perhaps go back to the status quo. I am not averse to that. I think that we can progress that matter.
Bill Aitken, the minister and Nigel Don mentioned the application of the multiplier. I tend to agree with paragraph 169 of the report, which states:
“the Committee is satisfied that there is a better argument for running a single multiplier from the date of the court order than from the date of death.”
I know that the minister said that there is still work to be done on that, but I think that the general thrust of the committee’s observation is correct.
On mental disorder, paragraph 127 of the committee’s report states:
“the Committee believes the better course would be to remove section 4(3)(b) altogether, so as to leave the law in this area essentially unchanged”.
It is my intention to lodge an amendment to remove section 4(3)(b). I hope that that will take away that difficulty.
Members have mentioned other issues, and I am sorry that I have not been able to touch on every issue. However, it is positive that there is almost total agreement about the disregard of the spouse’s income.
We all want to provide justice and dignity for victims and their loved ones, and we all agree that the current system can be improved so that it provides a fair level of compensation in cases of wrongful death without the need for unnecessarily long and distressing court cases. Members must put the needs of victims first, and the sensible proposals in the bill need to be implemented urgently. I appeal to all members to support the bill at stage 1. Together, we can make it work and improve the law of Scotland.