Damages

Question 1

What kind of damages come under loss?

Answer 1

Solatium and Patrimonial loss

Question 2

What are the two types of solatium claims at common law?

Answer 2

Solatium for affront, breach of privacy and defamation

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

Question 3

What is a patrimonial loss?

Answer 3

Patrimonial loss can be expressed in money.

Question 4

What is solatium loss?

Answer 4

Non patrimonial loss does not really have a monetary value. However, the damages awarded will be in monetary terms.

Question 5

What kind of claim is property harm/ destruction and for which loss?

Answer 5

Common law claim for patrimonial loss
Cost of repair
Cost of replacement
Diminution of value of property
Claims calculated at market value. Reasonable expenses allowed.

Question 6

What is the solatium claim for personal Injury/death claims? (Victim’s claim)

Answer 6

Where victim is aware: common law claim for pain and suffering
Common law claim for impairment
Statutory claim for diminished life expectancy Damages (Scotland) Act 2011 s.1(1), s.1 (2-4)…needs awareness s.1(2)

Question 7

What is the patrimonial claim for personal Injury/death claims? (Victim’s claim)

Answer 7

Statutory claim for diminished life expectancy based on expected earnings/ benefits during ‘lost period’ less 25% 2011 Act s.1(1), s.1 (5 – 7).
Lost period = notional date of death – expected date of death s.1(5)
In exceptional circumstances court may depart from 25% rule to avoid under or over compensation s.1 (7)
Common law claim for past losses, normally loss of earnings plus reasonable expenses
Common law claim for future losses. Multiplicand x multiplier
Statutory claim for relatives’ services Administration of Justice 1982 Act s.8 Reasonable remuneration plus reasonable expenses. Victim accounts to relative s.8(2) Relative has no right to claim s.8(4)
Statutory claim in respect of personal services victim is no longer able to render relatives 1982 Act s.9 calculated to notional date of death. Services covered…see s.9(3). Relative has no right to claim s.9(4) subject to 2011 Act s.6 (1)

Question 8

What are the special forms of damages?

Answer 8

Provisional Damages, Administration of Justice 1982 Act s.12
Exception to normal rule available only where defender is a public authority or is insured
Interim Damages, Court of Session Rules of Court 89 (1) available only where liability is admitted or success of pursuer more or less guaranteed

Question 9

What is an executor’s claim?

Answer 9

On death of victim all claims incurred to date of death will transmit to executor, Damages (Scotland) Act 2011 s.2
No claims for future losses
Victim has no claim where death is immediate

Question 10

What is a relatives’ claim?

Answer 10

2011 Act s.3 allows relatives’ claims under ss.4-6 where a) D is liable to pay damages to victim or victim’s executor or…
b) D would have been liable but for victim’s death
Any defences that would have been available against the victim remain available against executor/ relatives
Loss of support, patrimonial claim, s.4(3)(a) available to immediate family (defined s.14 (a – d) and all relatives actually supported
Claim calculated according to s.7
Total available = 75% of victim’s net income x multiplier set by the court. In exceptional circumstances can vary %age to avoid unjust and unfair results s.7(2)
Loss of society, solatium claim, s.4(3)(b) available to immediate family only
Loss of personal services, patrimonial claim, s.6. Reasonable sum available. S.6 (2) personal services defined as per 1982 Act s 9