• In delict the primary obligation (the duty) is not to harm others unjustifiably.
• The secondary obligation is to compensate a person injured by such unjustifiable harm.
• Delictual duty requires that if we harm others, without justification, we must make reparation
for the wrongdoing. Put the person back in the position they were in before the event.
• Once it has been established that the defender has been negligent, the actual measure of
damages to be awarded must be resolved.
Assessing delictual damages
In delict, damages are assessed so as to compensate the pursuer for the loss of what he already had
and to restore him, in as much as money can do so, to the position he was in before the injury
occurred.
Awards of damages in respect of pure economic loss are only made in very restricted circumstances
Damages take the form of payment of a sum of money.
Auld v Sharp 1874 2R 191 (by Lord Neaves at page 199):
“money is the universal solvent”.
Types of award:
Delictual damages take the form of either or both of:
• Solatium - compensation for pain and suffering arising from the personal injuries, both at the
time of the injury up to the date of bringing an action and for the future
• Patrimonial loss - compensation for loss of net earnings from the time of injury up to the time
of bringing an action and for the future.
1. SOLATIUM
Solatium means solace or comfort and provides compensation in respect of non-pecuniary losses such
as pain and suffering. The measure of the award is therefore artificial to some extent.
Where pain and injury will continue after the date of proof of solatium award will be apportioned
between past and future solatium.
, The Mediana
The artificial nature of solatium was commented on by Lord Halsbury in:
The Mediana [1990] AC 113
“...you very often cannot even lay down any principle upon which you can give damages. How is
anybody to measure pain and suffering in monies counted? Nobody can suggest you can, by any
arithmetical calculation, establish what is the exact sum of money which would represent such a thing
as pain and suffering which a person has undergone by reason of accident.”
Factors taken into consideration
In making a solatium award the courts will take into account:
– The extent of the injury
– The pursuer’s awareness of pain
– Pain and suffering already experienced
– Future pain and suffering
– Loss of amenity (i.e., enjoyment of life)
– Pain and suffering in respect of awareness of reduced life expectancy
Having assessed the quantity of damage, the court is obliged to consider the question of interest.
Interest is payable under the Damages (Scotland) Act 1958 as amended in 1971. Although solatium is
awarded as a lump sum, it is important for the purpose of awards of interest to distinguish past and
future solatium. Interest is only awarded on past solatium. Past solatium is a sum awarded for the
pursuer’s pain and suffering until the date of the proof. But if the pursuer is experiencing pain and
suffering and loss of amenities at the date of the proof, the court will estimate damages to
compensate the oursuer for the fact that these may continue in the future. \\
Case illustrations
Thompson v British Railways Board [1991] 11 WLUK 231
Thompson’s ankle was broken when he was working for the British Railway Board, he came
back to work and for the next couple of months he worked on remedial duties, but he
eventually had to give up work entirely because the pain was too much, thus he wanted to
sue. The problem was that he had a longstanding unrelated injury to his knee, and he would
have had to give up his work anyway. He has been injured and is entitled to damages but the
damages can only cover the period when he eft work because of his injury here and the period
that he would have had to leave work anyway because of his unrelated injury to his knee.
Mooney v City of Glasgow District Council [2000] 1 WLUK 479
A boy in a Glasgow City playground banged his head. There was no lasting injury and he was
given an award of £2,000 which was all solatium relative to pain and suffering. It was agreed
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