The time limit, and why it may not apply

The ordinary rule is three years, under section 17(2) of the Prescription and Limitation (Scotland) Act 1973, running from the injury or from the later date on which the injured person knew or could reasonably have known the essential facts.

Section 17(3) then provides:

In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind.

Read that carefully. The subsection disregards any time during which the disability existed. Where a brain injury has removed a person’s capacity from the moment of the accident, and that continues, there is no period at all that counts towards the three years. The claim does not time bar while the incapacity subsists.

Two honest qualifications. “Unsoundness of mind” is the statutory phrase and the Act does not define it, so whether a particular person meets it is a question of fact supported by medical evidence rather than something that follows automatically from a diagnosis. And many people who sustain a brain injury retain capacity — the ordinary three years applies to them in the normal way. The provision protects those who genuinely cannot conduct their own affairs, not everybody who has had a head injury.

Separately, section 19A gives a court a discretion to allow a time-barred action to proceed where it appears equitable to do so. It is a discretion and not a right, and no case should ever be planned around it.

Who raises the claim when the injured person cannot

Scotland does not have a Court of Protection and does not use the English deputyship system. The route here is the Adults with Incapacity (Scotland) Act 2000.

An application for a guardianship order is made to the sheriff, not to the Court of Session. Any person claiming an interest in the adult’s property, financial affairs or personal welfare may apply, and that ordinarily means a family member. A local authority must apply where the statutory conditions are met and nobody else is likely to. The application must be supported by two medical reports based on examinations carried out within thirty days before it is lodged, together with a mental health officer’s report where welfare powers are sought.

A guardianship order may confer powers over property and financial affairs, over personal welfare, or both. The sheriff must be satisfied that the adult is incapable, that the incapacity is likely to continue, and that no less intrusive measure under the Act would be sufficient. The default duration is three years, though the sheriff may order a different period, including an indefinite one. The sheriff will usually require the guardian to find caution — an insurance bond protecting the adult’s estate against loss caused by the guardian’s mismanagement.

Section 64(3) of the 2000 Act gives the guardian power to act as the adult’s legal representative within the scope of the order, and that is how the damages action is raised in the adult’s name. The Public Guardian’s own guidance for financial guardians expressly contemplates a financial guardianship sought for a limited purpose such as pursuing a damages claim, so an application made specifically to enable the litigation is a recognised and ordinary thing to do.

Where the court considers that the adult’s interests within the litigation itself need separate protection, it may appoint a curator ad litem to represent them in the proceedings. The Judiciary of Scotland’s own handbook describes the curator ad litem as acting as dominus litis, with authority to pursue, defend or compromise the proceedings in the adult’s best interests.

What happens to the money

This is where Scotland diverges sharply from England, and where families who have read English material arrive with the wrong expectations.

There is no Court of Protection and no separate court approval procedure of the English kind. Oversight instead runs through the guardianship itself. The settlement is agreed by the guardian acting within the powers the sheriff granted. The guardian must then deposit money received in an account in the adult’s name, must ensure sums above the prescribed threshold earn interest, and must invest prudently, in a diversified way and suitably for the adult’s estate, taking professional advice before making new investments. Compensation, including under a structured settlement, goes into the inventory of the estate lodged with the Office of the Public Guardian. Annual accounts follow, and the bond of caution stands behind the whole arrangement.

Supervision is divided. The Office of the Public Guardian supervises the exercise of financial powers, keeps the public registers and investigates where an adult’s finances appear to be at risk. The Mental Welfare Commission for Scotland deals with the welfare side and visits adults subject to welfare guardianship. The local authority supervises welfare guardians.

What a brain injury claim has to cover

These are among the largest claims in Scots law, and the reason is that the compensation is not principally for the injury. It is for a lifetime of consequences that the injured person and their family would otherwise carry themselves.

Solatium — the Scottish term for the pain, suffering and loss of amenity itself — is often the smaller part. The substantial heads are the cost of care and case management for life, lost earnings and lost pension, accommodation that can be adapted or has to be bought, therapies that the health service does not provide at the intensity required, equipment and its replacement, and the cost of managing the fund itself. Where a family member has given up work to provide care, that has a value and it is recoverable.

Future losses are converted to a lump sum using a discount rate. In Scotland that rate is determined by the Government Actuary under the Damages Act 1996 as amended by the Damages (Investment Returns and Periodical Payments) (Scotland) Act 2019, and it was set at plus 0.5 per cent in September 2024. The next statutory review must begin on 1st July 2029.

On the value of solatium itself, one caution. The Judicial College Guidelines are produced for England and Wales and have no formal standing in Scotland. Scottish courts assess solatium by reference to previous Scottish awards, and quantum in the Court of Session can be determined by a civil jury, which has no direct English equivalent. A figure lifted from an English guideline table, or from an online calculator built on one, should not be treated as the value of a Scottish claim.

Interim payments and rehabilitation

Serious brain injury claims take years to resolve, because the prognosis cannot be settled until the recovery has plateaued and nobody should be settling a lifetime claim on an incomplete picture. That does not mean the family has to wait years for money. Interim payments can be sought where liability is not seriously in dispute, and they are what pays for immediate care, adaptations and case management while the claim runs. Getting rehabilitation started early is frequently the single most valuable thing a claim achieves, and it should not wait for the litigation.

The most common causes we see

Road traffic collisions, particularly those involving cyclists, motorcyclists and pedestrians. Falls from height on construction sites and other workplace accidents; where the injury happened in the course of employment, the employer’s duties and the evidence that follows from them are dealt with on our page about a head injury at work. Assaults, where the Criminal Injuries Compensation Authority scheme may be the route if there is no insured wrongdoer. And clinical negligence — a delayed diagnosis of a bleed, a mismanaged birth, an anaesthetic failure — where the claim runs against the health board rather than an insurer.

Sources

• Prescription and Limitation (Scotland) Act 1973, section 17, legislation.gov.uk
• Adults with Incapacity (Scotland) Act 2000, section 58 — guardianship orders, legislation.gov.uk
• Adults with Incapacity (Scotland) Act 2000, section 64 — powers of guardians, legislation.gov.uk
• Guardianship orders, Office of the Public Guardian (Scotland)
• The Adults with Incapacity Act, Mental Welfare Commission for Scotland
• Damages Act 1996, section 2 — consent orders for periodical payments, legislation.gov.uk
• Review of the personal injury discount rate in Scotland, Government Actuary’s Department

This page is general information about the law of Scotland and is not advice on your circumstances. Time limits are strict and the consequences of missing one cannot be undone. Take advice on your own case.