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.

What can be covered

Many people have misconceptions about what one can and can't claim when you have a personal injury, and just how much you can expect to get financially for the injury incurred. We'll try and cover all the basics here, and provide you with some examples of the range of damages that different claims can achieve.

All claimants are entitled to damages for the personal losses suffered as a result of the accident, which will include damage to clothing and personal possessions, loss of earnings and any insurance policy excess. If you have been personally injured in a road accident and your vehicle is off the road for then you can also request a hire car in your claim.

Often, you will be covered for the personal pain and suffering endured as a result of the accident. You can also cover future losses, for example an inability to carry on with your work, loss of future promotion prospects, and an inability to participate in sports. Solicitors always split the payment you could receive into categories called General and Special Damage claims.

If injured as a passenger in a car or in a motorbike incident, then you may have a claim and you should proceed, no matter who the actual driver of the vehicle was, even if you know them.

You should not be concerned by the fact that you may know or are related to the driver - this must be of no consequence. You may be embarrassed about bringing a claim, but you shouldn't be. If the driver of the vehicle you were in was not at fault, then your claim will be against the other third party responsible. If your vehicle's driver was partly or wholly at fault then the case will be handled his or her insurers, so they will not be paying you themselves at all.

Always remember that the driver of your vehicle owes you a legal duty of care to ensure that you are at all times reasonably safe. The same legal principle applies to other drivers. If this duty is breached and you are injured then you may well have a claim that can be made.

Passengers have legal rights, just as drivers do. Be sure to make a note of any injuries, no matter how superficial they may seem. They could be worsening later with more serious complications which set in.