Clause 9 (Hansard, 19 October 1982)

§ The Solicitor-General for Scotland
I beg to move amendment No. 2, in page 8, line 27, leave out from 'person' to 'a' in line 28.

Mr. Deputy Speaker
With this it will be convenient to take Government amendment No. 9.

§ The Solicitor-General for Scotland
Under section 2(1) of the Damages (Scotland) Act 1976 an injured person's right to raise and pursue an action for damages passes to the executor of his estate on the death of that injured person. It is intended that clauses 8, 9 and 12 should be subject to the same rule. No specific provision to that effect is believed to be needed in part II of the Bill. The existing reference to that rule in clause 9 is correct, but if it remains in tile Bill it might be thought that the rule did not apply to daises 8 and 12. In the circumstances it is felt that silence on the point would be the least confusing course.
Government amendment No. 9 is a drafting amendment to satisfy the hon. Member for Islington, South and Finsbury (Mr. Cunningham) and makes it clear that the "inability" in line 29 refers to the injured person and not to the responsible person.

§ Mr. Dewar
I welcome both those amendments, which are splendid in their way. The amendment that deletes the reference to the executor's rights follows an amendment, that I made in Committee to clause 8. The Minister said that he would consider the need for that, but he has obviously approached it from the other end, to which I make no objection, and has excised the provision from clause 9 rather than added it to clause 8. As to amendment 293 No. 9, I congratulate the hon. Member for Islington, South and Finsbury (Mr. Cunningham) on his return to Scottish politics with a notable triumph. It is a good Social Democratic amendment. It is pedantic, nice and of not much practical importance.

§ The Solicitor-General for Scotland
I beg to move amendment No. 3, in page 9, line 18, after 'funds', insert 'other than any pension or benefit to which section 2(1) of the Law Reform (Personal Injuries) Act 1948 applies'. The amendment is intended to remove any doubt as to the effect of section 2(1) of the Law Reform (Personal Injuries) Act 1948 upon invalidity pensions in assessing damages. It is thought to be right that United Kingdom social security benefits should be treated in the same way throughout the United Kingdom. The amendment ensures that this is achieved. The matter of the provisions of the 1948 Act has already come up in relation to earlier amendments. I said that I thought that this was the most appropriate point to deal with them.
I assure the hon. Member for Glasgow, Garscadden (Mr. Dewar) that with regard to clause 10, the compromise arrangements that are set out in the 1948 Act whereby half the benefits are taken into account, or deducted, are unaltered. The earlier parts of clause 10, paragraphs (a) to (f), set out the types of benefit that are not to be taken into account in reducing the amount. It is important that that should be clearly understood. It is only later in clause 10, paragraphs (i) to (iv), that we find those matters that are to be deducted.
There is now essentially a three-part scheme. If it falls in paragraphs (a) to (f) it is not deducted. If it falls in paragraphs (i) to (iv) it is deducted in entirety. If it is a type of benefit that falls within sectionss 2 of the 1948 Act, half the amount of the benefit, if the particular time limitations set out in that Act are met, are deducted.
I hope that that puts the matter beyond any doubt, and that the hon. Gentleman appreciates the scheme as a whole.

§ Mr. Dewar
The Solicitor-General for Scotland sometimes gives the impression that he is teaching a remedial class. That may be my fault, or a tribute to my obstinacy. The matter is not clear but I shall study hard in the future.
The Solicitor-General for Scotland has said that paragraphs (a) to (f) are not deductible—that is crystal clear. He has said that paragraphs (i) to (iv) in clause 10 are 100 per cent. deductible in the way that is described there. Thereafter, section 2(1) of the 1948 Act still exists. We shall be looking at the five-year period, and 50 per cent. of the expected yield over that period, as a deduction from loss of earnings.
As I understand section 2(1), that means that sickness benefit, invalidity benefit, non-contributory invalidity pension, injury benefit and disablement benefit are delisted, because they are still listed in the 1948 Act. Therefore, they will be at 50 per cent. for the five-year period. I see that the Solicitor-General for Scotland is nodding.
294 Some of the people to whom I have been talking, who know their stuff about reparation in Scotland, had formed the impression that this was a good thing for pursuers because the five-year calculation would no longer be relevant. Clearly, they have been suffering from a misapprehension. I suspect that from the point of view of the pursuer, clause 10 is nothing like as fortunate or generous a provision as was first thought. That is something we should consider at more length. Perhaps I can discuss it with the hon. and learned Gentleman on a later occasion.
At this stage, I merely note what the Solicitor-General for Scotland says, without a great deal of enthusiasm.