Types of compensation in Scotland
In the event of your child’s case being successful you will be awarded compensation based upon the child’s injuries and financial losses. This is meant to put your child back into the same financial position as if the accident had not taken place.
The main categories under which compensation is assessed are:
- Damages for pain and suffering.
- Past and future wage loss.
- Past and Future services.
- Past and future care
- Other costs.
Pain and Suffering
Damages for pain and suffering are called solatium and they are designed to compensate the child for the pain, suffering and loss of amenity caused by the actual injury. The amount given will depend on the nature and extent of the injury and will be assessed either by reference to previous Court cases or by Guidelines known as the Judicial Studies Board Guidelines. For brain injury these Guidelines indicate a maximum payment in the region of £250,000.
Past and Future Wage Loss
This involves assessing what employment your child would have had in the future but for the accident. This will involve investigation by your solicitor of how the other members of the family earn their living, of your child’s school record and of any plans for future life which your child had discussed. Loss of pension rights will also be considered
Past and Future Services
It will normally be the case that members of the family provide a great deal of support to a child who has suffered brain injury in an accident. The law allows such family members to be paid for these services provided that they are necessary. This is money recovered from the defenders for payment to family members and is not paid out of your child’s award of damages.
Past and Future Care Costs
Depending on the severity of your child’s injury there may be long term losses. These losses will include, if appropriate,
- The cost of providing personal care.
- The cost of a case manager.
- Any accommodation requirements.
- Cost of special aids and equipment.
- Extra transport costs.
- The cost of managing financial affairs.
In Scotland damages are awarded on a lump sum basis. There is only one opportunity to obtain damages and therefore working out the appropriate sum is complicated and uses tables which contain information about life expectancy and the rate of return on investments.
The only other alternative in Scotland is a structured settlement which has the benefit of providing a guaranteed income stream on an annual basis throughout your child’s life. The difficulty with a structured settlement is that the basis of calculating the income stream is based upon an inflation index that will inevitably mean the income will be insufficient to meet costs in the future.
Author: Robert T Swanney, Partner, Digby Brown LLP