What is the personal injury claims process in Scotland?

Is there a time limit for making a personal injury claim in Scotland?

You are advised to get legal advice as soon as you realise you've suffered an injury. This is because the time limit varies based on the case. For example, when it comes to a negligence claim, court proceedings must be started within three years of you first realising you've sustained the injury or within three years of your sixteenth birthday if you were a child at the time of the incident. 

However, in the case of childhood abuse, there is no time limit for bringing a personal injury claim for damages. An advisor specialising in these kinds of cases can provide a better insight into how to make a personal injury claim.

How can I appoint a solicitor?

If you're eligible and wish to go ahead, we'll connect you with the right specialist who can present your claim properly and negotiate with the other side. 

We have a network of trusted personal injury legal firms across Scotland and the UK. They work on a no win no fee basis across Scotland, meaning you won't be charged if your claim doesn't succeed.

The solicitor will study your claim carefully and decide if they can take it on.

What is the pre-action protocol in Scotland?

The Personal Injury Pre-Action Protocol defines the steps to be followed before raising proceedings. It endeavours to promote the fair and timely settlement of disputes, in addition to reducing litigation issues in cases that do not settle.

The Sheriff Court has provided detailed information about the Scottish personal injury pre-action protocol.

How much compensation could I receive under Scottish law for personal injury claims?

Your compensation amount will be decided based on your individual case, so it's hard to tell before your solicitor has investigated the details and initiated negotiations. Influencing factors include the injury type and severity and the losses it caused. 

The Scottish personal injury protocol classifies compensation amounts into several categories, including: 

• Solatium, which is compensation for your pain.
• Lost earnings if you're unable to immediately return to work - this also covers estimated future earnings. 
• Care costs, such as help provided by family, friends and organisations.
• Specialist equipment and household modifications for recovery purposes.

Your solicitor will carefully value the compensation settlement amount based on the above criteria. Our online calculator can help you get a rough idea of how much you might receive when you make a personal injury claim in Scotland. 

What are the common types of personal injury claims in Scotland?

Personal injuries can be either physical or psychological, resulting from a range of causes. The most common are:

• Road traffic accidents: The Scottish Government's figures showed this accounted for one in every two personal injury cases in 2020-21.
• Medical malpractice: Such as surgical errors, misdiagnosis, failure to diagnose serious conditions, and unsuitable prescriptions.
• Workplace injuries: These occur while performing a job or at the workplace.
• Product liability:Raised when a person suffers injury due to the consumption or use of a defective product. Defects could be in design or manufacturing, or it could be that there are inadequate warnings about the risks associated with using or consuming the product.
• Slips, trips and falls: Due to a lack of warning near slippery or cracked surfaces, unsafe staircases, or any other similar reason that's not the injured person's fault. 

What is wrongful death?

Wrongful death is a kind of personal injury in which a person passes away due to someone else's negligence or mistake. In this case, close family members, including the spouse or partner, parents, children and grandchildren, can claim compensation for damages resulting from their loved one's death. 

Damages after a wrongful death include:

• Expenses related to the death, such as medical care services and funeral costs
• Loss of earnings to date
• Loss of future earnings, which may also include loss of benefits
• Emotional pain and suffering

Will I have to go to court?

If your case goes to court, your solicitor will support and guide you through the process, making sure you always know what to expect.

The Scottish Government highlighted that 43% of personal injury cases in 2020-21 went to the All Scotland Sheriff Personal Injury Court.

How does my solicitor prove a claim?

Proving liability in a claim entails establishing blame in four key areas: 

1. Duty: Did the party you hold responsible for your injury owe you a legal duty of care?  
2. Breach: Did they breach that duty by acting, or failing to act, in a particular way?  
3. Causation: Did their actions, or absence of them, cause your injuries? 
4. Damages: Were you injured by their actions or inactions?

How long do personal injury claims usually take?

The time it takes to reach a settlement in a successful personal injury claim in Scotland varies depending on how complex your case is, the type, severity and circumstances of your injuries, plus the time it takes to gather all the necessary medical evidence. 

The duration is also affected by whether you know the identity of the other side, and if they admit liability or challenge it in court. A straightforward road traffic accident claim may be settled in months, whereas a complicated medical negligence case will likely take longer.

Should I accept an early offer from the other side?

Insurance companies sometimes resort to an early offer as a tactic to make a claim ‘go away' quickly. You should be very wary about accepting an early offer, and your solicitor will be too. This is because it will often be a lower amount than you need. Your solicitor will advise you should such circumstances arise.

How do I pay for making a personal injury claim in Scotland?

If you opt for a no win no fee contract, also known as a conditional fee agreement, you should expect no upfront costs or hidden charges.

However, if you win the claim, you'll have to pay two things from your compensation:

• A success fee that compensates the solicitor for the risk they take, as they won't be paid if your claim is unsuccessful.
• The costs of any legal expense insurance.

When you start your claim, your solicitor will offer to take out insurance protection on your behalf. This is sometimes called ATE (After the Event) insurance. If your claim is unsuccessful, the other party's costs will be paid out of this insurance. If you don't receive any compensation, you won't have to pay for the ATE insurance. If your claim is successful, it'll be paid out of your compensation as part of the fees.

Your solicitor will discuss this with you at the start, so you'll know what to expect when your claim settles. If you don't win your no win no fee claim, you pay nothing - as simple as that.