Delict - Damages Flashcards
What is the definition of Solatium?
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
What is patrimonial loss?
Patrimonial loss is seen as financial loss. It covers loss of estate, wealth, expenses incurred due to injury
What are facts of the STEVENS V YORKHILL 2007
Solatium was awarded after a hospital retained body part of a fetus without permission.
Parents sought damages successfully.
What are the three claims available under the patrimonial loss of property harm/destruction?
- 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)
What is meant by the term ‘subrogation’?
This is where an insurer, who has paid out a claim, will exercise the claimants right to sue the defender in court
What is the key factor in a successful claim for pain and suffering?
That the victim is aware they are actually in pain and suffering
What is covered under the common law claim of impairment?
This claim covers persons who may develop any disability.
In this instance the victim need not be aware.
Which Scottish act covers the claim for diminished life expectancy and what does the specific section entail?
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
How is the statutory claim of diminished life expectancy calculated?
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
What is meant by the ‘lost period’?
This is the notional day of death had injuries not be incurred as per s1(5)
Under what ‘exceptional circumstances’ will courts depart from the usual 25% deduction?
S1(7) states that courts can depart from the usual rule where a person may be over compensated or under compensated
What is entailed in the common law claim for past losses?
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.
Where the victim lives is there any claim available to them?
Yes, there is a common law claim for future losses.
What form of claim is available in respect of ‘relatives services’?
Under the Adminstration of Justice Act 1982, s(8) an injured person is entitled to remuneration and reasonable expenses.
Explain s8(2) of the AOJA 1982
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)
Does the relative have a direct claim under the act for damages?
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.
What form of claim is available where an injured person can no longer provide personal services?
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
How is a claim for personal services calculated?
Calculated from the date of injury to the notional date of death had injury not occurred.
What type of services are covered under the term ‘personal services’
S9(3) provides that services which would usually cost money but were rendered free of charge by the relative are covered under the act.
What are provisional damages?
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.
When is an exception available to the normal rule under provisional damages?
Where defender is a public authority or insured.
What is ‘interim damages’?
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).
Where a victim dies what happens to their claims?
All claims incurred to the date of death transfer to the executor. Regulated by s.2 of the DSA 2011.
What can the executor do in respect of victims claims?
An executor has the power to raise an action on behalf of the deceased victims estate.
