Delict - Damages

Question 1

What is the definition of Solatium?

Answer 1

Covers injury to personal feelings, pain and suffering.

Example: a wedding venue is cancelled at last minute emotional stress would inevitably occur and parties affected could claim damages under solatium

Question 2

What is patrimonial loss?

Answer 2

Patrimonial loss is seen as financial loss. It covers loss of estate, wealth, expenses incurred due to injury

Question 3

What are facts of the STEVENS V YORKHILL 2007

Answer 3

Solatium was awarded after a hospital retained body part of a fetus without permission.
Parents sought damages successfully.

Question 4

What are the three claims available under the patrimonial loss of property harm/destruction?

Answer 4

• Cost of repair (a car is smashed in an accident)
• Cost of replacement (car is written off in an accident)
• diminution of value of property (worth less because it is covered in dents)

Question 5

What is meant by the term ‘subrogation’?

Answer 5

This is where an insurer, who has paid out a claim, will exercise the claimants right to sue the defender in court

Question 6

What is the key factor in a successful claim for pain and suffering?

Answer 6

That the victim is aware they are actually in pain and suffering

Question 7

What is covered under the common law claim of impairment?

Answer 7

This claim covers persons who may develop any disability.

In this instance the victim need not be aware.

Question 8

Which Scottish act covers the claim for diminished life expectancy and what does the specific section entail?

Answer 8

The regulatory act is The Damages(Scotland) Act 2011 s.1(1) and s.1(2)

S1(1) applies to an action for damages in respect of personal injuries suffered by a pursuer whose date of death is expected to be earlier than had the injuries not been suffered

S1(2) in assessing amount of damages, pursued must at any time, is , or likely to become aware of reduction of life

Question 9

How is the statutory claim of diminished life expectancy calculated?

Answer 9

Based on expected earnings/benefits during the ‘lost period’ less 25% as per s(1)(5-7) of the 2011 act.

The 25% deduction recognised as living Expenses

Question 10

What is meant by the ‘lost period’?

Answer 10

This is the notional day of death had injuries not be incurred as per s1(5)

Question 11

Under what ‘exceptional circumstances’ will courts depart from the usual 25% deduction?

Answer 11

S1(7) states that courts can depart from the usual rule where a person may be over compensated or under compensated

Question 12

What is entailed in the common law claim for past losses?

Answer 12

This is usually a claim for loss of earnings and reasonable damages which are incurred between the date of injury and the date of proof.

Question 13

Where the victim lives is there any claim available to them?

Answer 13

Yes, there is a common law claim for future losses.

Question 14

What form of claim is available in respect of ‘relatives services’?

Answer 14

Under the Adminstration of Justice Act 1982, s(8) an injured person is entitled to remuneration and reasonable expenses.

Question 15

Explain s8(2) of the AOJA 1982

Answer 15

S8(2) states that an injured person is under an obligation to account to the relative any damages recovered from the defender in accordance with subsection (1)

Question 16

Does the relative have a direct claim under the act for damages?

Answer 16

No, s8(4) provides that under delictual law that a relative has no direct right of action against the responsible person for remuneration or expenses.

Question 17

What form of claim is available where an injured person can no longer provide personal services?

Answer 17

Under s9 of the AOJA 1982, an injured person is entitled to damages where they are no longer able to render services to relative due to injuries

Question 18

How is a claim for personal services calculated?

Answer 18

Calculated from the date of injury to the notional date of death had injury not occurred.

Question 19

What type of services are covered under the term ‘personal services’

Answer 19

S9(3) provides that services which would usually cost money but were rendered free of charge by the relative are covered under the act.

Question 20

What are provisional damages?

Answer 20

These are exceptional damages as they give court power to reserve you the right to come back to court and claim more damages incase injuries worsen over time.

Regulated by s.12 of the AOJA 1982.

Question 21

When is an exception available to the normal rule under provisional damages?

Answer 21

Where defender is a public authority or insured.

Question 22

What is ‘interim damages’?

Answer 22

This is where a person can get an early payment up front BUT only where they are guaranteed a successful outcome in court. As per the Court of Session Rules of Court s89(1).

Question 23

Where a victim dies what happens to their claims?

Answer 23

All claims incurred to the date of death transfer to the executor. Regulated by s.2 of the DSA 2011.

Question 24

What can the executor do in respect of victims claims?

Answer 24

An executor has the power to raise an action on behalf of the deceased victims estate.

Question 25

Does the victims relatives have a claim available to them?

Answer 25

Yes, under s.3(ss 4-6) of the DSA 2011, relatives’ claims are allowed where;

(a) Defender is liable to pay damages to victim or victims executors or…
(b) Defender would have been liable but for the victims death

Question 26

What did the case of Beggs v Motherwell Bridge Fabricators Ltd 1988 lay out?

Answer 26

That any defences available against the victim would transfer upon the relatives and executor.

Question 27

Do relatives have a solatium claim?

Answer 27

Yes, where the relatives see the victim go through pain and suffering they have the right to an award of damages under solatium.

Question 28

Relatives are entitled to the patrimonial claim of ‘loss of support’. Who does this claim extend to?

Answer 28

Under s4(3)(a) of the Damages (Scotland) Act 2011, loss of support claims are available. Claim available to the immediate family s4(5)(a) defined in s14(a-d)). AND all relatives actually supported by the victim.

Question 29

How is a claim calculated for loss of support?

Answer 29

The total available is 75% of the victims net income times by a multiplier set by the court. In exceptional circumstances the percentage may vary as per s7(2).

Question 30

What are the three elements needed to claim under ‘loss of society’?

Answer 30

(a) Distress and anxiety endured by relative in contemplation with the victims suffering before death.
(b) Grief and sorrow caused by the victims death
(c) Loss of such non-patrimonial benefit as the relative might have been expected to derive from the victim.

Question 31

Who entitled to a claim of ‘loss of society’.

Answer 31

Immediate family only as per s(4)(3)(b).