…Scottish jurisdiction in personal injury claims

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Personal injury claims in Scotland; jurisdiction, proper law, and time-bar

(continued from introductory page)

Update August 2004; time-bar provisions are out of context here, but so many visitors come here looking for them I have added the main Scottish statutory provisions pending a rewrite.

In this field few issues of jurisdiction are likely to arise.

  • A defender domiciled in Scotland (in practice, a person living in Scotland, a corporate body based in Scotland, or the Crown) can always be sued in Scotland in a personal injury claim; Article 2:
  • If more than one defender is being sued, it is enough that one is domiciled in Scotland; Article 6:
  • If the accident occurred in Scotland, including for this purpose its continental shelf, there is Scottish jurisdiction; Article 5(3).
  • Finally, even if none of the above apply, if harm is suffered in Scotland as a result of a negligent act elsewhere in the world, there is an argument that there may be Scottish jurisdiction limited to the extent of that harm, so that a Scottish resident who is injured in an accident on holiday anywhere in the world by anyone could sue in Scotland rather than that country, at the cost of losing the pre-repatriation element in the claim: Article 5(3) read with Shevill v Presse Alliance; but Marinari v Lloyds Bank, Henderson v Jaouen, and Kronhofer v Maier suggest not.

The real problem may lie elsewhere, in the different question as to what system of law is applicable to the claim. The general rule is that it is the law of the jurisdiction where the accident occurred that governs both liability and the heads of damages, although not their calculation; Private International Law (Miscellaneous Provisions) Act 1995, section 11. This may be displaced if it is 'substantially more appropriate' that another system be used; typically, where both parties are from the same jurisdiction. There are European proposals to change this principle in some cases, notably road accidents (note) .

There may be a suggestion that, even if the Scottish courts have jurisdiction, another court is more 'appropriate' so that the court should decline jurisdiction on forum non conveniens principles; for an example of this argument, see Kelly v CGU, 26 November 2004. Unless that court is another Scottish court, or possibly another United Kingdom court, this argument cannot survive the mandatory jurisdiction provisions of the Brussels scheme; see the decision of the European Court of Justice, 1 March 2005, in Owusu v Jackson, (and earlier opinion of Advocate General).

There is however a further potential trap in the operation of timebar; if under the 1995 Act a foreign law governs the obligation, it also governs questions of timebar: Prescription and Limitation (Scotland) Act 1973, section 23A. This may be longer or shorter than the usual Scottish three years.

Examples:

  • Scot injured in New Zealand by negligence of Italian returns to Scotland; can sue in New Zealand or in Italy, and possibly in Scotland; but in either Italy or Scotland New Zealand law probably applies and its personal injury limitation period is (or was recently) two years; so any action in Scotland should be brought in that period.
  • Scot injured in New Zealand by negligence of Scots spouse returns to Scotland; can sue in New Zealand or in Scotland; in Scotland, Scots law would probably be held to apply and its personal injury limitation period is three years; so any action in Scotland should be brought in that period although it would be prudent to litigate before New Zealand limitation ran.

Assuming that, as is normally the case, Scottish timebar provisions apply, under the 1973 Act as amended these are:

"Actions in respect of personal injuries not resulting in death

17.-(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

(2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after-

(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or

(b) the date (if later than any date mentioned in paragraph (a) above), on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts -

(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;

(ii) that the injuries were attributable in whole or in part to an act or omission; and

(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.

(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind.

Actions where death has resulted from personal injuries

18.-(1) This section applies to any action in which, following the death of any person from personal injuries, damages are claimed in respect of the injuries or the death.

(2) Subject to subsections (3) and (4) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after -

(a) the date of death of the deceased; or

(b) the date (if later than the date of death) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of both of the following facts -

(i) that the injuries of the deceased were attributable in whole or in part to an act or omission; and

(ii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.

(3) Where the pursuer is a relative of the deceased, there shall be disregarded in the computation of the period specified in subsection (2) above any time during which the relative was under legal disability by reason of nonage or unsoundness of mind.

(4) Subject to section 19A of this Act, where an action of damages has not been brought by or on behalf of a person who has sustained personal injuries within the period specified in section 17(2) of this Act and that person subsequently dies in consequence of those injuries, no action to which this section applies shall be brought in respect of those injuries or the death from those injuries.

(5) In this section 'relative' has the same meaning as in Schedule 1 to the Damages (Scotland) Act 1976.

19A(1) Where a person would be entitled, but for any of the provisions of section 17 of this Act, to bring an action, the Court may, if it seems equitable to do so, allow him to bring the action notwithstanding that provision."

For practical examples, use Scottish Courts keyword search for 'prescription and limitation'. There is a short survey of the operation of these provisions by Johanna Aho, a former Eurodevil.

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