Damages

Question 1

What is solatium?

Answer 1

Solatium is a claim in respect of eprsonal injury (to feeling, pain and suffering).

Question 2

What is patrimonial loss?

Answer 2

Covers;

(a) Loss of estate
(b) Wealth
(c) Expenses incurred as result of being injured

Economic losses.

Question 3

What are the two solatium claims at common law?

Answer 3

(a) Solatium for affront; defamation, breach of privacy

(b) Solatium in respect of personal injury e.g. pain and suffering

Question 4

What happened in the case of Stevens v Yorkhill NHS trust?

Answer 4

Pursuer was granted damages following unauthorised removal and retention of her deceased child’s brain during a post mortem.

Question 5

What claim is available for property harm/destruction?

Answer 5

Common law claim for patrimonial loss;

(a) Cost of repair (e.g. car smashed in an accident)
(b) Cost of replacement (e.g. car written off)
(c) Diminution of value of property (e.g. dents all over car)

Question 6

What claim is available under the common law when the victim is aware?

Answer 6

A solarium claim for pain and suffering, the victim has to be suffering pain and suffering.

Question 7

What is the claim of impairment?

Answer 7

This is a solatium, common law claim for any form of disability the victim may get. The victim is entitled to this common law claim whether they are aware or not.

Question 8

Name the relevant statute and section for a claim of diminished life expectancy?

Answer 8

s1(1) of the Damages (Scotland) Act 2011

s1(2) states a person must be aware

Question 9

How is the patrimonial claim for diminished life expectancy calculated and is it statute or common law?

Answer 9

(a) based on expected earnings/benefits during the ‘lost period’ less 25%.
(b) Regulated by the Damages (Scotland) Act 2011 s1(5-7)

Question 10

What is the ‘lost period’?

Answer 10

Notional date of death - expected date of death regulated by s1(5)

Question 11

Why is patrimonial loss included with diminished life expectancy?

Answer 11

As a victim’s life is cut short and therefore their earning potential is cut.

Question 12

What does s1(7) of the 2011 regulate?

Answer 12

That in exceptional circumstances the court can depart from the usual 25% deduction rule to avoid over compensating or under compensating.

Question 13

There is a common law claim for losses between date of injury and date of proof (past losses). How is this claim calculated?

Answer 13

Patrimonial claim - Usually loss of earnings plus reasonable expenses.

Question 14

Is there a claim available for losses after injury?

Answer 14

Yes there is a common law claim for future losses.

Question 15

What does section 8 of the Administration of Justice Act 1982 regulate?

Answer 15

Statutory claim for relatives’ services - services which a victim would usually need to pay for e.g. nurse.

Question 16

What does s8(4) state of the AOJA 1982?

Answer 16

Relatie has no direct right to claim.

Question 17

Where the victim is unable to provide services to relatives is there a claim?

Answer 17

Yes, there is a statutory claim under s.9 of the AOJA 1982.

Relative has no direct right to claim as per s9(3)

Question 18

What are provisional damages?

Answer 18

The Court reserve a person the right to come back to Court to claim more damages incase any injuries suffered become worse over time?

Question 19

What piece of legislation regulates provisional damages?

Answer 19

s12 of the AOJA 1982.

Question 20

When are provisional damages allowed?

Answer 20

Where the defender is a public authority or is insured.

Question 21

What are interim damages and how are they regulated?

Answer 21

Payment is given early but only where liability is admitted or success for the pursuer is more or less guaranteed, regulated by the Court of Session Rules of Court 89(1)

Question 22

Where a victim dies can an executor claim on their behalf?

Answer 22

Under s.2 of the 2011 Act all claims incurred to date of death of victim will transfer to executor.