Amendment of section 9 of Administration of Justice Act

In section 9 of the Administration of Justice Act 1982 (c.53) (services to injured person’s relative)—

(a)

after subsection (1) there is inserted—

“(1A) In assessing the amount of damages payable by virtue of subsection (1) above to an injured person whose date of death is expected to be earlier than had the injuries not been sustained, the court is to assume that the person will live until the date when death would have been expected had the injuries not been sustained.”,

(b)

subsection (2) is repealed,

(c)

in subsection (3), for the words “subsections (1) and (2)” there is substituted

“subsection (1)”, and

(d)

in subsection (4), for the words “subsection (2) above” there is substituted

“section 6(1) of the Damages (Scotland) Act 2008 (asp 00) (relative’s loss of personal services)”.

NOTE

Section 13 amends section 9 of the Administration of Justice Act 1982. While section 9 of the 1976 Act makes provision in relation to patrimonial loss during the lost period, it appears that it does not extend to the 1982 Act. Accordingly, neither the victim nor his relatives can claim damages in respect of his inability to provide services during the lost period.

Paragraph (a) inserts a new subsection (1A) in section 9 of the 1982 Act which alters this position: it provides that, in assessing damages under subsection (1) in cases where the victim's expectation of life has been reduced, the court is to assume that he would have lived until his notional date of death had the injuries not been sustained. This provision, which reflects section 1(5) of the draft Bill, makes it clear that damages under section 9 of the 1982 Act are payable in respect of the lost period. In doing so, it implements recommendation 5(b).

Paragraphs (b) to (d) make changes to section 9 of the 1982 Act to allow the relatives' right to damages for loss of personal services to be brought into the draft Bill (section 6 above). Paragraph (b) repeals section 9(2) of the 1982 Act, as it is re-enacted in section 6(1) of the draft Bill. In consequence, the reference to subsection (2) is removed from subsection (3) by paragraph (c). In order to preserve the effect of subsection (4), a reference to section 6(1) of the draft Bill is substituted by paragraph (d) for the reference to subsection (2).

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Interpretation

(1)

In this Act, unless the context otherwise requires—

“personal injuries” means— 45

(a)

any disease, and

(b)

any impairment of a person’s physical or mental condition, and

“relative”, in relation to a person who has died, means a person who—

(a)

immediately before the death is the deceased’s spouse or civil partner or is

living with the deceased as if married to, or in civil partnership with, the deceased,

(b)

is a parent or child of the deceased, accepted the deceased as a child of the

person’s family or was accepted by the deceased as a child of the deceased’s family,

(c)

is the brother or sister of the deceased or was brought up in the same

household as the deceased and accepted as a child of the family in which the deceased was a child, or

(d)

is a grandparent or grandchild of the deceased.

(2)

In deducing a relationship for the purposes of paragraph (c) of the definition of

“relative” in subsection (1), any relationship of the half blood is to be treated as a relationship of the whole blood.

(3)

In any enactment passed or made before this Act, unless the context otherwise requires,

any reference to a loss of society award is to be construed as a reference to a grief and companionship award.

NOTE

Section 14 makes provision for interpreting the Bill. It corresponds to section 10 of and Schedule 1 to the 1976 Act.

Subsection (1) defines "personal injuries" and "relative". The definition of "personal injuries" in the 1976 Act has been amended twice. Paragraph 3 of the Schedule to the Damages (Scotland) Act 1993 added the words "and injury resulting from defamation or any other verbal injury or other injury to reputation". Section 8(8) of the Protection from Harassment Act 1997 added the words "or injury resulting from harassment actionable under section 8 of the Protection from Harassment Act 1997".

In the draft Bill, these amendments have been removed and the definition has reverted, in essence, to the one contained in the 1976 Act as enacted. This approach has been taken in order to simplify and clarify the definition, and to add greater intellectual coherence to it. In the rare cases where injury to reputation or harassment causes impairment to a person's physical or mental condition, this will continue to be a personal injury and the victim will have a right to damages accordingly. Insofar as injury to reputation was concerned, however, the 1993 Act was chiefly concerned with transmissibility of rights to executors. This end has been achieved by different means in the draft Bill (see the note to section 2).

The definition of "relative" has changed significantly in the draft Bill. At present, there are two classes: relatives generally (as defined in Schedule 1 to the 1976 Act) and the deceased’s immediate family (as defined in section 10(2) of the 1976 Act). The latter group is a subset of the former, and while any relative may seek damages for loss of support, only the deceased’s immediate family may seek a "section 1(4) award" for non-patrimonial loss (see the note to section 4 of the draft Bill). This distinction is swept away in the draft Bill as a result of the new approach which has been taken.

In effect, "relative" in the draft Bill encompasses the group known as the deceased’s immediate family in the 1976 Act. This implements recommendation 15. The definition is greatly simplified as a result, and it has been redrafted to reflect the wider changes in family law (for example, the status of cohabitants, the creation of the status of civil partner and the abolition of illegitimacy). As a consequence, there is no need

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to re-enact the definition of the deceased person’s immediate family contained in section 10(2) of the 1976 Act.

Section 10(3) of the 1976 Act provides that references to any other Act are to that Act as amended. It has not been re-enacted because there is no need to insert an express provision of this nature into individual Acts (see section 20(2) of the Interpretation Act 1978 and paragraph 15(2) of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (SSI 1999/1379)

In document (SCOT LAW COM No 213) Report on Damages for Wrongful Death. report (Page 55-57)