1 Rights of relatives of a deceased person.S
(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 M1Social Security Act 1975 or the M2Social 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 [F1or in Part II of the Administration of Justice Act 1982][F2or under section 1 of the International Transport Conventions Act 1983] 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.
Textual Amendments
F1Words inserted by Administration of Justice Act 1982 (c. 53, SIF 122:3), ss. 14(1), 73(5)
F2Words inserted by International Conventions Act 1983 (c. 14, SIF 102), s. 3(6), Sch. 1 para. 4(a)
Modifications etc. (not altering text)
C1S. 1 modified by Consumer Protection Act 1987 (c. 43, SIF 109:1), ss. 6(1)(c), 41(2), 47(1)(2)
C2S. 1 amended (prosp.) by Antarctic Minerals Act 1989 (c. 21, SIF 86), ss. 13(1)(b)(2), 20(2)
C4S. 1(5) extended (S.) by International Transport Conventions Act 1983 (c. 14, SIF 102), s. 3(6), Sch. 1 para. 2
Marginal Citations
Valid from 18/04/1993
[F31A Transmissibility to executor of rights of deceased relative.S
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.]
2 Rights transmitted to executor in respect of deceased person’s injuries.S
(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.
Valid from 18/04/1993
[F42A Enforcement by executor of rights transmitted to him.S
(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.]
Textual Amendments
Modifications etc. (not altering text)
C6S. 2A amended (18.4.1993) by 1993 c. 5, ss. 6(1)(2), 8(3).
3 Certain rights arising on death of another not transmissible.S
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—
(a)damages by way of solatium in respect of the death of any other person, under the law in force before the commencement of this Act;
(b)a loss of society award,
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: andvice versa.S
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; . . . F5
Textual Amendments
F5Words repealed by Administration of Justice Act 1982 (c. 53, SIF122:3), ss. 14(2)(a), 73(5)
5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6S
Textual Amendments
6Limitation of total amount of liability.S
(1)Where in any action to which [F7this section] applies, so far as directed against any defender, it is shown that by antecedent agreement, compromise or otherwise, the liability arising in relation to that defender from the personal injuries in question had, before the deceased’s death, been limited to damages of a specified or ascertainable amount, or where that liability is so limited by virtue of any enactment, nothing in this Act shall make the defender liable to pay damages exceeding that amount; and accordingly where in such an action there are two or more pursuers any damages to which they would respectively be entitled under this Act apart from the said limitation shall, if necessary, be reducedpro rata.
(2)Where two or more such actions are conjoined, the conjoined actions shall be treated for the purposes of this section as if they were a single action.
[F8(3)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 injuries from which the deceased died;
(b)in respect of the death of the deceased, by any relative of his.]
Textual Amendments
F7Words substituted by Administration of Justice Act 1982 (c. 53, SIF 122:3), ss. 14(2)(b)(i)(3), 73(5)
Modifications etc. (not altering text)
7 Amendment of references in other Acts.S
In any Act passed before this Act, unless the context otherwise requires, any reference to solatium in respect of the death of any person (however expressed) shall be construed as a reference to a loss of society award within the meaning of section 1 of this Act; and any reference to a dependant of a deceased person, in relation to an action claiming damages in respect of the deceased person’s death, shall be construed as including a reference to a relative of the deceased person within the meaning of this Act.
8 Abolition of right of assythment.S
After the commencement of this Act no person shall in any circumstances have a right to assythment, and accordingly any action claiming that remedy shall (to the extent that it does so) be incompetent.
9 Damages due to injured person for patrimonial loss caused by personal injuries whereby expectation of life is diminished.S
(1)This section applies to any action for damages in respect of personal injuries sustained by the pursuer where his expected date of death is earlier than it would have been if he had not sustained the injuries.
(2)In assessing, in any action to which this section applies, the amount of any patrimonial loss in respect of the period after the date of decree—
(a)it shall be assumed that the pursuer will live until the date when he would have been expected to die if he had not sustained the injuries (hereinafter referred to as the “notional date of death”);
(b)the court may have regard to any amount, whether or not it is an amount related to earnings by the pursuer’s own labour or other gainful activity, which in its opinion the pursuer, if he had not sustained the injuries in question, would have received in the period up to his notional date of death by way of benefits in money or money’s worth, being benefits derived from sources other than the pursuer’s own estate;
(c)the court shall have regard to any diminution of any such amount as aforesaid by virtue of expenses which in the opinion of the court the pursuer, if he had not sustained the injuries in question, would reasonably have incurred in the said period by way of living expenses.
Valid from 18/04/1993
[F99A Solatium for loss of expectation of life.S
(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 of the award to loss of expectation of life.]
10 Interpretation.S
(1)In this Act, unless the context otherwise requires—
“loss of society award” has the meaning assigned to it by section 1(4) of this Act;
“personal injuries” includes any disease or any impairment of a person’s physical or mental condition;
“relative”, in relation to a deceased person, has the meaning assigned to it by Schedule 1 to this Act.
(2)References in this Act to a member of a deceased person’s immediate family are references to any relative of his who falls within sub-paragraph (a) [F10(aa)] , (b) or (c) of paragraph 1 of Schedule 1 to this Act.
(3)References in this Act to any other Act are references to that Act as amended, extended or applied by any other enactment, including this Act.
Textual Amendments
F10"(aa)" inserted by Administration of Justice Act 1982 (c. 53, SIF 112:3), ss. 13(4), 73(5)
11Repeals.S
The enactments specified in Schedule 2 to this Act are hereby repealed to the extent specified in relation thereto in the third column of that Schedule.
Modifications etc. (not altering text)
C9The text of s. 11 is in the form in which it was originally enacted; it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.
12 Citation, application to Crown, commencement and extent.S
(1)This Act may be cited as the Damages (Scotland) Act 1976.
(2)This Act binds the Crown.
(3)This Act shall come into operation on the expiration of one month beginning with the day on which it is passed.
(4)Nothing in this Act affects any proceedings commenced before this Act comes into operation.
(5)This Act extends to Scotland only.