Injury claims in Scotland

Scottish Legal Aid is still available, if the individual qualifies. If they do not qualify then other funding options may be available. Injury claims could be privately funded or legal insurance might be available, but in Scotland the insurance premium is not recoverable against the defender.

A pursuer will have to demonstrate that they were owed a duty of care by the defender and that the accident occurred as a result of the failure in that duty towards them; or a failure in complying with statutory duties. The persuer will also need to show that the injurywas a consequence of those failures.

There are many different heads of claim which are considered in assessing the value of claims. The main one is Solatium, past and future wage loss, and services required as a result of the accident.

Solatium is to compensate for pain and suffering. It is similar to special damages in England. It covers all non-financial loss suffered by the claimant. Claims assessment takes into account the injury; the pursuer’s awareness of pain; the pain and suffering already experienced; future pain; and the loss of amenity.

Wage loss is usually easy to assess. If the claimant has missed out on work as a result of their condition then details of the earnings can be obtained and the loss calculated. Assessment of future wage loss is more complex and people making these calculations will need to refer to the Ogden Actuarial tables.

The pursuer’s net annual earnings at the current date will first be calculated. This will be multiplied by a figure taken from the Ogden tables to provide a figure for the future loss of earnings. The figure from will be considerably less than the years the claimant would have been expected to work had it not been for the accident.

The claimant is expected to invest the money to give them a financial return. The claimant will often incur a loss of their pension rights because of the future inability to work - this can be added to their claims. Actuarial reports will assess this and other claims and be included in the case.

The pursuer may require assistance following an accident. Assistance given by relatives or others can form part of the claims. Services that the pursuer used to give but is no longer able to provide, can be claimed.

With medical injury negligence cases, a report from an independent expert will always be required. A further report will be sought to show the direct link between the negligence and the injury. It is more difficult to prove negligence in a medical negligence case as courts use a much higher test. The defender will be liable if he fails to show reasonable care, and the judge will decide what is reasonable.

Scottish claims

Normally, past wage loss is very easy to enumerate. If the claimant has lost work as a direct result of their injury then all details of all the lost earnings can easily be obtained and the actual loss calculated. However, the assessment of potential wage loss is of course much more complex and people making these calculations will look at the Ogden Actuarial tables for assistance.

Then the pursuer’s net actual annual earnings at the current time will be determined. Thereafter this is multiplied by a number from the Ogden tables to provide an actual overall figure for the potential future loss. The numbers from the Ogden tables will of course be considerably less than the actual years the claimant would have expected to work if it had not been for the injury.

One specific reason is that the claimant will be expected to invest the award to give them a future financial income. The claimant might also incur a future loss of their pension rights because of their inability to earn. A financial actuarial report will be able to assess this and it can also be put in with the case notes.

Also, a pursuer might require assistance following an accident and injury. Actual assistance given by relatives or others can be part of the claim. Also, services the pursuer needed to be able to give but is no longer able to provide, will also be part of the claim.

In medical negligence accidents, a report from a third-party, totally independent expert will be required where there is evidence of negligent behaviour. Another report will be sought to prove the link between the negligence and the injury. It's always more difficult to show negligence or causation in medical cases as the courts use a higher test than with personal injury cases. Usually the defender will be liable if they fail to show reasonable care - what is considered to be reasonable will be determined by the judge.

It's a fact that more accidents happen at work than anywhere else at all. In fact half of all accidents happen in the normal workplace environment. It is often very difficult for employees to start a case if personal injury has occured. Employees are wary of the possible repercussions if they take their employer to court proceedings. Most fears are groundless as employers are by law obliged to have Employer's Liability Insurance, covering them if any employee is injured. Legal action can be taken against employers who show discrimination against employees who are following up legitimate and rightful claims for damages and compensation.

There is a link between liability and negligence (often known as a the common law duty) and the legal duties which are imposed covering different situations (eg Health & Safety regulations). There also a growing number of laws which employers must always comply with or risk criminal and civil prosecution cases.

The first practical thing to do after a work acciden when you are going to be off work for any period of time, is to ensure that you receive statutory sick pay. If you are off work for six months then you can get long-term invalidity or disablement benefit. Be sure to check for any additional legal or contractual claims which may be payable to you.