The first, and perhaps most significant, change will be an increase of the limitation period for raising an action for damages for personal injury from three to five years. According to the Scottish Government's response, this is with a view to assisting those dealing with cases "where a higher degree of investigatory work and more expert reports may be required". This increase brings personal injury cases into line with actions in relation to various other obligations, all of which prescribe after five years.
At the moment courts have discretion by virtue of section 19A of the Prescription and Limitation (Scotland) Act 1973 ("1973 Act") to allow claims to proceed outside the three year limitation period. This discretionary power will remain in relation to the five year limitation period. However, the Scottish Government recommends the provision of a detailed, non-exhaustive list of factors within the 1973 Act which should be taken into account by a court when considering whether or not to exercise its discretion. While it is suggested this will be of benefit in any personal injury case, the Scottish Government hopes that it will help the consideration of difficult cases involving such issues as historic child abuse or latent industrial diseases.
Of course, the use or otherwise of the discretionary power under section 19A of the 1973 Act often comes into play when a solicitor has negligently failed to raise an action timeously. It will be interesting to note whether or not this issue is somehow addressed within the list. On the basis claimants will generally have a remedy against the solicitors' insurers in these circumstances, it may be that courts will be encouraged not to use discretion.
A further change which may be of assistance to claimants is the amendment of the so-called "date of knowledge" test. The date from which the limitation period begins to run is the date on which a claimant knows that he or she has an injury for which an action may be raised. At present, the test for determining that date is objective: the court must consider whether it was reasonably practicable for a claimant to discover the injury at the date claimed, or if it should have been discovered sooner. This test will be converted into a more subjective test, whereby the court must consider whether the claimant was "excusably unaware" of the injury. This means that the court may take into account subjective factors, such as the intelligence level or occupation of the claimant.
Clearly this change from an objective to a subjective test is intended to benefit claimants. However, it may lead to slightly bizarre arguments in court where a claimant's solicitor attempts to argue that his client is of low intelligence and therefore cannot have been expected to be aware of a specific injury.
Other changes which will be implemented include amending the reference to "unsoundness of mind" in the 1973 Act to reflecting the definition of incapability under the Adults with Incapacity (Scotland) Act 2000. Scottish courts will also be provided with the express power to impose periodical payment orders.
Finally, it is important to note what will not be changed. The Scottish Government does not intend to introduce a framework for damages for psychiatric injury. The response states that the law has been well tested on this issue, is now fairly settled and applied consistently. Further, no change will be put in place allowing claimants to pursue a second, separate injury arising from the same event as an earlier injury.
It is not yet known when these changes will be implemented, although a Damages Bill was announced as a legislative priority for 2013 - 2014. This suggests we may see a draft Bill in the near future