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If you have suffered an injury or been the victim of medical negligence in the last 3 years in Scotland then you may be entitled to make a claim for compensation against those responsible. Most of the information elsewhere on this site applies just as much in Scotland as it does in England & Wales, but there are a few important differences.
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In Scotland, slightly different names are used for parties to an action than those used in England. The claimant is known as the "Pursuer" and the person the action has been raised against is the "Defender". Actions will either be raised in a local court known as the Sheriff Court or in the Court of Session in Edinburgh. If a Sheriff court action is raised it will be in the court nearest to where the accident took place. There is a limit of £750 damages awarded, below which the court will not award pursuer's any legal costs which they may have incurred. Such actions are therefore best pursued by claimants in person - see www.scotcourts.gov.uk for more information.
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An action will generally be raised in the Court of Session if it is more complex and warrants the instruction of counsel (barristers, which in Scotland are known as "Advocates") or if it is a particularly valuable claim. Medical negligence actions will normally be raised in the Court of Session due to their more complex nature.
The Scottish jurisdiction does not have the same requirements of pre-trial discussion and openness that now exist in England. While in England a case should be ready to proceed the day it enters court (which usually affords a relatively speedy resolution), in Scotland much of the investigation is still carried out once the action has been raised. This can result in some delays, which can often be frustrating to the pursuer.
In Scotland Legal Aid is still available, provided the pursuer qualifies. If the pursuer does not qualify then other funding options may be available to them. An action could be privately funded; carried out on the so-called "No win, no fee" basis; or legal expenses insurance might be available, although in Scotland the premium is not, as yet, recoverable against the defender. Our panel solicitors will be able to provide more details on all of these options and discuss fully the most appropriate in the circumstances. If you'd like to have your potential personal injury or medical negligence case assessed free of charge then click here.
As in England a pursuer will need to show that they were owed a duty of care by the defender and that the accident occurred as a result of the defender's failure in that duty of care towards them; or indeed a failure in complying with their statutory duties. They will also have to show that the injuries suffered by them were a consequence of those failures.
There are several different heads of claim which will be considered in assessing the value of any claim. The main three are Solatium, past and future wage loss, and services.
Solatium represents compensation for pain and suffering. It is similar to the concept of special damages in England and Wales. Essentially it covers any non-financial loss suffered by the claimant. Matters normally taken into account in assessing solatium are the extent of the injury; the pursuer's awareness of pain; pain and suffering already experienced; future pain and suffering; and loss of amenity (i.e. a reduction in the claimant's enjoyment of life, e.g. if they can no longer participate in sports and pastimes they used to enjoy).
Past wage loss is usually relatively easy to assess. If the claimant has already missed work as a result of their injuries then details of the earnings they would have achieved can be obtained and the net loss calculated. The assessment of future wage loss is far more complex and technical and persons making such calculations will often refer to the Ogden Actuarial tables for assistance. The pursuer's net annual earnings as at the present date will first be ascertained. Thereafter this will be multiplied by a figure obtained from the Ogden tables to provide an overall figure for future loss of earnings. The figure given by the Ogden tables will be considerably less than the number of years the claimant would have been expected to work had it not been for the accident. The reason for the discount is that the claimant is expected to invest the money to give them a return. Often the claimant will have suffered a loss of their pension rights due to their inability to work. An actuarial report will be required to assess this and it can also be included in the claim.
Services. A pursuer will often require assistance following an injury. Any assistance given to him by relatives can form part of the claim. Additionally, services the pursuer used to give but which, owing to their injuries, he is no longer able to provide, can be claimed for.
In medical negligence cases a report from an independent expert will be required on whether there was negligence. Thereafter a further report on causation will generally be sought to show the link between the negligence and the subsequent injuries suffered. It is far more difficult to prove either negligence or causation in a medical negligence context as the courts use a much higher test than that which is applied to other personal injury cases. Usually a defender will be liable if he fails to exercise reasonable care, but what is reasonable will be determined by the judge.
Medical negligence is a specialized area of personal injury practice and we have experienced medical negligence solicitors in Scotland who can advise you on your claim.
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