Damages Flashcards
(22 cards)
What is solatium?
Solatium is a claim in respect of eprsonal injury (to feeling, pain and suffering).
What is patrimonial loss?
Covers;
(a) Loss of estate
(b) Wealth
(c) Expenses incurred as result of being injured
Economic losses.
What are the two solatium claims at common law?
(a) Solatium for affront; defamation, breach of privacy
(b) Solatium in respect of personal injury e.g. pain and suffering
What happened in the case of Stevens v Yorkhill NHS trust?
Pursuer was granted damages following unauthorised removal and retention of her deceased child’s brain during a post mortem.
What claim is available for property harm/destruction?
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)
What claim is available under the common law when the victim is aware?
A solarium claim for pain and suffering, the victim has to be suffering pain and suffering.
What is the claim of impairment?
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.
Name the relevant statute and section for a claim of diminished life expectancy?
s1(1) of the Damages (Scotland) Act 2011
s1(2) states a person must be aware
How is the patrimonial claim for diminished life expectancy calculated and is it statute or common law?
(a) based on expected earnings/benefits during the ‘lost period’ less 25%.
(b) Regulated by the Damages (Scotland) Act 2011 s1(5-7)
What is the ‘lost period’?
Notional date of death - expected date of death regulated by s1(5)
Why is patrimonial loss included with diminished life expectancy?
As a victim’s life is cut short and therefore their earning potential is cut.
What does s1(7) of the 2011 regulate?
That in exceptional circumstances the court can depart from the usual 25% deduction rule to avoid over compensating or under compensating.
There is a common law claim for losses between date of injury and date of proof (past losses). How is this claim calculated?
Patrimonial claim - Usually loss of earnings plus reasonable expenses.
Is there a claim available for losses after injury?
Yes there is a common law claim for future losses.
What does section 8 of the Administration of Justice Act 1982 regulate?
Statutory claim for relatives’ services - services which a victim would usually need to pay for e.g. nurse.
What does s8(4) state of the AOJA 1982?
Relatie has no direct right to claim.
Where the victim is unable to provide services to relatives is there a claim?
Yes, there is a statutory claim under s.9 of the AOJA 1982.
Relative has no direct right to claim as per s9(3)
What are provisional damages?
The Court reserve a person the right to come back to Court to claim more damages incase any injuries suffered become worse over time?
What piece of legislation regulates provisional damages?
s12 of the AOJA 1982.
When are provisional damages allowed?
Where the defender is a public authority or is insured.
What are interim damages and how are they regulated?
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)
Where a victim dies can an executor claim on their behalf?
Under s.2 of the 2011 Act all claims incurred to date of death of victim will transfer to executor.
