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.

Damage claims

Special Damages are damages which are very easy to quantify - loss of actual earnings, personal medical bills, your taxi fares, new clothes etc. Keep a full record of all additional expenses (including all receipts if you can get them), so that your solicitor can get them back for you.

General Damages are "assessed" ie a financial value is placed on the personal pain and the suffering that you have gone through, future loss of earnings and how the accident has affected your life.

Assessment is an imprecise art, and it all depends on your own personal circumstances and how well you recover. To get some legal guidance, lawyers look at past claims and the level of general damages awarded. They use these facts as a guideline (increasing the figures to allow for inflation) eg a whiplash injury which caused you personal inconvenience for say two weeks might be worth several thousand pounds or more.

There are guidelines for the assessment of General Damages in cases of personal injury. Here are some cases:

Loss of two arms
The loss of a single arm
Permanently disabled arm or arms
The fracture of either forearm
Complete loss of all function of the wrist
Partially disabled wrists
Lesontinuous pain or stiffness in the wrist
Colles’ fracture of one or both wrists

Damage claims in Scotland

Note that in Scotland, Legal Aid is still available, if the pursuer of the case qualifies for it. If the pursuer does not in fact qualify then other possible funding options may possibly be available. Actions could always be privately funded or perhaps legal expenses insurance might be available. However, in Scotland the premium is not always recoverable against the defender's compensation.

English law says that a pursuer will always need to demonstrate that they were owed a duty of care by the defender and that the actual injury occurred specifically as a result of the defender’s failure in their duty. A failure to comply with statutory duties may also be involved. They will also need to be able to show that the injury suffered was a direct consequence of those failures of care.

Also, there are several heads of claim which could also be considered in assessing the precise value of any claims. The main heads of claims is Solatium, which is past and future wage loss and services benefitted from.

Solatium is for actual pain and suffering and it is very similar to special damages in England. Essentially it includes all non-financial loss suffered by the claimant. Assessment takes into account the full extent of the injury; the pursuer’s pain; possible future pain and suffering; plus the actual loss of amenity to the individual.