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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 14735
Experience:  30 years as a practising solicitor.
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Can element of Solatium be craved in respect of

Customer Question

Can element of Solatium be craved in respect of psychological injury and harm suffered as secondary consequential loss within and part in parcel of an Action founded upon the Scots Law of Delict that is raised under the Ordinary Cause procedure?For the purposes of context in the relation to the above question, I will briefly provide the following background.A warranted Personal Injury Action was raised for psychological injury and harm that was caused on account of unlawful removal and loss of several personal moveable items that were of very personal and sentimental nature on number of grounds. And given that Personal Injury Actions do not permit pleadings and damages craved in respect of the actual value of the lost items themselves, the Personal Injury Action was therefore then remitted to the Ordinary Cause procedure with amendments to include pleading and craves in respect to damages for actual value of the items lost, whilst attempting to maintain the psychological injury element of the claim now by way of Solatium within the said remitted Action. However, I require clarification on whether this approach is valid, proper and competent, and hence the reason for the above question.
Submitted: 14 days ago.
Category: Scots Law
Customer: replied 14 days ago.
I forgot to include, if the above is not proper, valid and or competent, then what should and or can be done? I mean, is it possible to seek to have the original Personal Injury Action restored ?
Expert:  Virtual-mod replied 14 days ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

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Customer: replied 14 days ago.
Yes I am willing to wait
Expert:  JGM replied 14 days ago.

I am a solicitor in Scotland.

Expert:  JGM replied 14 days ago.

I think a case for psychological injury for the loss of physical items would be very difficult to prove in terms of making a causal link between the loss and the injury. Is there a credible medical report lodged in court? In my opinion, the action should properly be pled as a case for the value of the items with an element of damages for inconvenience and distress. I hope that helps. Please leave a positive rating so that I am credited by JustAnswer for helping you today.

Customer: replied 14 days ago.
Thank you for your response, but this does not quite answer my question, which is whether secondary pleadings and craves for Solatium can be feasibly made in relation to the psychological harm and injury caused by the loss of personal items that were of significant sentimental / emotional nature, within and or part in parcel of an Action that is founded upon law of delict and raised under Ordinary Cause Procedure in relation to actual value of the items lost, namely can both aspects of the claim be combined under a single Action founded on the Law of Delict that is raised in under Ordinary Cause Rules and Procedure; one for value of the items lost, and the other for psychological injury and harm caused thereof on account of the lost items; by way of damages for Solatium (General Damages), and whether if such an approach is valid and competent in the circumstances to seek to combine the Action in this way.

The point that you raise I think relates to merits or viability of my case and claim, which does not address my question as such, although I appreciate your expressed Opinion. However for the purposes of clarity I shall provide little more background and context which relates to my question.

Firstly, in answer to your question, I have an Expert Witness Psychologists Report; which confirm the Causal Link between the loss of the items and psychological injury and harm; particularly given the sheer volume and very personal and emotional nature of the items lost, and furthermore there are persuasive arguments and grounds that would satisfy the forseeability test in the circumstances. Accordingly a Personal Injury action was raised ahead of the time bar in the first instance by a previous Agent.

Then there was question of the claim that you have suggested; which was warranted by Counsel as an Action founded on the Law of Delict via Ordinary Cause procedure, i.e. for the value of the items together with the element of Inconvenience (Nominal Damages). However, as you will be aware the claim for value of items themselves cannot be incorporated or made part in parcel of Personal Injury Action. However, it has been asserted that, the same can be achieved otherwise i.e both parts of the claim being raised and incorporated as a combined Action covering both aspects of the claim (value of the items and psychological impact caused thereof by crave for Solatium) via the Ordinary Cause Procedure. Accordingly the original Personal Injury Action was then remitted with amended pleadings and craves to include damages in respect to the value of the items lost. However, I am not convinced or clear whether this approach is proper and competent in the circumstances, and whether in fact two aspects of the claim should have been raised separately in concurrent Actions i.e. one for claim for damages for the value of the items founded on the law of delict via the Ordinary Cause Procedure, the the second claim for damages for the Psychological Injuries and harm caused thereof via the Personal Injury Action route? I will add that one of the reasons given by previous Agents for combining the two Actions or combining all elements of the claim in this way into a single Action under the Ordinary Cause Procedure, was because it was suggested that the Courts and Sheriff would find it objectionable and we would be criticised for having two separate concurrent Actions on separate tracks in relation to the items lost even though the claims or actions would be in relation two entirely different and distinct aspects of loss incurred and damages being claimed arising from the loss of the items; however, and again I am not convinced event this advice was proper and accurate either in the circumstances.

Please advise.