If you think you have a personal injury claim - we can help.

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Personal Injury & Medical Negligence Law in Scotland

Scottish personal injury law is designed to support people who have suffered injury or illness through no fault of their own. This area of law makes it possible for injured parties to make an accident claim for any pain or loss suffered.

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Many day-to-day tasks can result in serious or long-term injury. Employees may handle equipment at work which is faulty or dangerous and could cause them harm; drivers and pedestrians are often at risk of serious injury because of reckless or negligent conduct by others on busy roads. 

People can also suffer unexpected injury while undergoing medical treatment because healthcare professionals fail to observe the required standard of care they owe to patients.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

Claiming for personal injury or medical negligence in Scotland

If you have suffered an injury, you may be satisfied with an apology and an admission of responsibility from the other party, however in many situations it may be necessary to seek financial compensation as well. In Scotland the types of injury claim and amount of compensation you are likely to receive differ from elsewhere in the UK. This guide will tell you everything you need to know about claiming for personal injury or medical negligence in Scotland.

For help at this stage please call 01252354412, or fill out the form at the top of the page. 

What questions does this guide answer?

What is a personal injury?

The law defines a personal injury as being one of the following:

  • A physical injury or illness, such as a broken arm 
  • A psychological or mental injury, such as post-traumatic stress disorder 

There are some injuries that are considered very severe, for example a brain injury that will have a long-term impact on a person’s health. These are generally referred to as ‘catastrophic’ injuries.  

For a personal injury claim to be raised, the illness or injury complained of must have been caused by someone else – in other words, the injury was not the victim’s fault.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

What is medical negligence?

‘Medical negligence’ is a specific category of personal injury that relates to an injury or illness that is the result of substandard or negligent treatment from a healthcare professional or a hospital. Examples of medical negligence can vary from errors made during surgery to a mistake in prescriptions ’ medication dosage. The law also protects people from omissions made by healthcare professionals. It allows a claim to be raised if advice on the different treatment options available has not been given, taking into account the impact these treatments could have had on an individual.

Unlike most personal injury claims, medical negligence claims require a different standard of proof to be met before a claim can be successful (more information below).

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How do I make a personal injury claim?

There are two ways to raise a personal injury claim:

  • Using a claims assessor, or
  • Raising a legal claim with a personal injury solicitor

Claims assessors are often not qualified solicitors, and may lack the level of expertise needed to deal with a complicated personal injury claim. They can be a very popular way of pursuing a personal injury claim as they tend to offer their services on a ‘'no win, no fee'’ basis. However, this could impact the level of compensation that you can expect if your personal injury claim is successful.

Alternatively, taking legal action in a civil court, and following the advice of an experienced personal injury solicitor, will help make sure the victim is properly represented and fully compensated for their injury.

Raising a legal claim in the courts will involve working in partnership with a solicitor. It is best to use a solicitor who has experience in handling personal injury claims as they will make sure the victim is well represented in negotiations and court appearances. They will also make sure the victim receives the maximum level of compensation available in the circumstances.

Our personal injury infographic lets you see what the claims process involves at a glance:

WEB VERSION

For help at this stage please call 01252354412, or fill out the form at the top of the page.

How do I make a medical negligence claim?

Medical negligence claims are slightly more complex than other personal injury claims as victims can want to achieve different outcomes:

  • formal admission of responsibility from a healthcare provider;
  • assurances that those errors or mistakes will be removed from future practices;
  • financial compensation.

Seeking financial compensation for medical negligence can be a complex and drawn out process. Anyone hoping to secure compensation should work in partnership with a solicitor who specialises in handling medical negligence claims.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

What is the timetable for raising claims in the courts?

Regardless of whether it is a personal injury or medical negligence claim, if you have suffered harm in this way, you should pursue the matter as soon as possible after the illness or injury. There are very strict timescales that have to be met if a court is to listen to a claim.

Most claims must be brought within three years of an individual suffering an illness or injury. There are instances where this deadline can be extended, but this is at the courts discretion and based on individual circumstances.

If the claim relates to a child who has suffered an injury or illness then the time limits are slightly different. The three-year time limit applies to children only from the moment they reach their 18th birthday. However, the parents or guardians of a child under the age of 18 can make a claim on behalf of their child as soon as an accident happens or an illness is suffered.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

How are legal costs paid?

In Scotland, unlike England & Wales, legal aid is available to help fund a personal injury or medical negligence claim. However, there are criteria that have to be met before legal aid will be given:

  • Savings and anything that the claimant owns must be worth less than a certain amount
  • The claimant needs to be receiving certain benefits
  • The claimant’s weekly disposable income must be less than a certain amount

The thresholds are set annually by the Scottish Legal Aid Board (SLAB). You can input your financial details to the ‘online calculator’ to see if you meet the current legal aid requirements.  Alternatively, you can provide details of your finances to a solicitor who offers legal aid services and they will be able to advise whether the conditions have been met.

If a person is not eligible for legal aid then there are other options available. It is best to speak to a solicitor on what the likely cost of pursuing a claim will be. Most solicitors will be happy to provide a cost checklist.  

A number of law firms offer ‘'no win, no fee'’ funding. Law firms that offer this service are regulated by the Law Society of Scotland and are not the same as fee assessors. If a solicitor offers this service to a client after reviewing the details of their claim, then no fees will be taken from the client unless the claim is successful. The legal fee that will be due if the claim is successful will have been agreed between the client and the law firm before a claim is raised.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

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What needs proven in a personal injury claim?

Before a personal injury claim can be successful, it needs to be proven that the illness or injury suffered was the direct result of someone else’s negligence.

Sometimes the negligence or fault is not due to the actions of one person alone. Sometimes the negligence is shared between two or more people, for example: a cyclist is injured by a car driver who was driving recklessly, but the cyclist was not wearing protective gear such as a helmet. In these circumstances a court would reduce the level of compensation to reflect the shared blame.  

For help at this stage please call 01252354412, or fill out the form at the top of the page.

What needs proven in a medical negligence claim?

Medical negligence claims are slightly different from other personal injury claims. Before a medical negligence claim can be successful, it must be proven that:

  • There was a duty of care. It needs to be shown that the healthcare professional had an active duty of care towards the person making the claim.
  • That this duty of care was breached. It needs to be shown that the level of care expected from a healthcare professional was not met and the level of care given fell below this expectation.
  • There is a link between the breach of the duty of care by the healthcare professional and the injury or illness suffered by the claimant.

To establish whether or not the duty of care was breached, a court will listen to arguments about the level of medical knowledge and standard of clinical practice common at the time of the incident.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

What evidence needs to be included in a personal injury claim?

Working in partnership with a personal injury solicitor can be very helpful, as they will help gather the evidence to support the claim.  

Photographs of the site of the injury are often incredibly important to a claim.  It is also helpful if photographs are taken immediately after the incident, if this is possible. If the police were involved, it is useful to have a statement from them that supports the claim.

In the case of an illness suffered as a result of an accident, such as stress, medical expert’ opinion should be sought to support the claim. A solicitor will be able to help organise this.

What evidence needs to be included in a medical negligence claim?

When raising a medical negligence claim, the solicitor will ask for sight of the claimant’s medical history. They will review this and work in partnership with them to detail a clear picture of the incident that caused injury or illness, and how this has affected the claimant.

After establishing the facts of the situation, the solicitor will then engage a medical expert who will be able to establish whether or not there is a direct link between the injury or illness and medical negligence.  

When all of this evidence has been collated, the solicitor will consider the merit of the claim and give an idea of the level of compensation to be expected if the claim is successful.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

How much compensation can I expect?

The courts decide on the level of compensation to be awarded in a personal injury or medical negligence claim. They will normally consider several different things:

  • The level of damage suffered by the claimant and the long-term implications.
  • Any loss of earnings as a result of the illness or injury and whether the claimant has any dependants.
  • The likely cost of any ongoing care that will be needed to manage or treat the illness or injury.
  • The costs of engaging solicitors and bringing the matter to court.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

How will compensation be paid?

When compensation is awarded following a successful personal injury or medical negligence claim, it will normally be paid as a lump sum figure. This sum will not have deducted the legal fees that had been agreed in any ‘'no win, no fee'’ arrangement.  
In some cases, generally only those related to very substantial awards for successful medical negligence claims, an initial award may be followed by several other interim payments depending on the ruling of the court.

If a successful claim relates to a catastrophic injury, such as brain injury, the compensation awarded will usually cover an individual for the rest of their life. However, this will depend on the circumstances.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

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Can someone claim on another’s behalf?

Sometimes, someone is unable to make a claim themselves, for example, a child who has not reached the required age. In these circumstances, a parent or guardian will be able to raise a claim on their behalf. However, these people are obliged by law to act only in the interests of the child.

Another situation where an individual is unable to bring a claim themselves is when their mental health prevents them from doing so. In these circumstances, someone else may act on their behalf; however, as with claims raised on behalf of children these claims must only be brought to the court with an individual’s best interests in mind.

The time limits for raising personal injury claims on behalf of other people are complicated and differ depending on who the action is being raised for. The advice of a specialist solicitor should be taken.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

Can a claim be made after the fatal illness or injury of a family member?

It is possible to raise a claim after a fatal illness or injury of a family member. There is a time limit for this: a claim must be brought within three years from the date of death or the date that the death was linked to the illness or injury.

If a claim is successful and financial compensation is being sought, a court will normally consider multiple factors before making an award. These will include the age of any dependents the deceased had and any earnings the deceased could have expected in their lifetime had they survived.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

What if I have been injured as the result of a crime?

The law has been designed to protect people who suffer injury as a result of a crime, for example, being hurt during a robbery.
If someone has suffered an injury following a crime, they should approach the Criminal Injuries Compensation Authority (CICA) who will consider the details of the injury and award compensation if the circumstances warrant it.

As with most claims, there is a deadline within which a claim must be brought if the CICA is to consider it so it's best if claims are brought as soon as possible. Otherwise, a claim must be brought within two years of the incident. The CICA can extend the deadline but will require evidence as to why the claim could not have been brought sooner.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

Key Points

  • The law is designed to support those seeking financial compensation where it is deserved.
  • It is your, the claimant’s, responsibility to prove that the incident that caused you illness or injury was not your fault.
  • Scientific medical evidence must support the claim that the incident caused you illness or injury.
  • There are deadlines within which a claim must be brought.
  • You need to explore the best way to fund your legal claim, in line with your circumstances.
  • It is important to gather as much evidence about the incident as soon as possible.
  • A personal injury claim can be raised on someone else’s behalf.
  • A claim can be raised that relates to a deceased family member.
  • The level of compensation awarded will depend on the circumstances and will be decided by the courts.

For help at this stage please call 01252354412, or fill out the form at the top of the page.

Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.

> For more information, please read our guide to making a personal injury claim.

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Jurisdiction

Scotland

Last Updated

Tuesday, 14 November 2017

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Categories

Accident Claims Personal Injury