The point most sites get wrong

Anyone reading about construction accidents will find page after page telling them that if a health and safety regulation was breached, they have a claim. For accidents on or after 1st October 2013 that is no longer correct, and it is the most consequential thing on this page.

Section 69 of the Enterprise and Regulatory Reform Act 2013 amended section 47 of the Health and Safety at Work etc. Act 1974, reversing the previous default. Breach of a duty imposed by health and safety regulations is now not actionable in civil proceedings unless regulations expressly provide that it is, and none of the construction regulations do. The pursuer must instead prove common law negligence in the ordinary way: that a duty of reasonable care was owed, that it was not taken, and that the failure caused the injury.

What has not changed is that the regulations still matter, and they matter a great deal. Section 47(4) of the 1974 Act expressly preserves any right of action existing apart from the Act, so the common law claim survives untouched. The regulations set out what a competent contractor is expected to do, and a documented breach of the Construction (Design and Management) Regulations 2015 or the Work at Height Regulations 2005 is powerful evidence that reasonable care was not taken. The change is one of route, not of destination: the regulations are now evidence of the standard rather than a cause of action in themselves.

For accidents before 1st October 2013 the old law still applies. Section 69(10) ties the question to the date of the breach, not the date the action is raised. That is relevant to industrial disease claims where the exposure was historic.

Who you claim against

On a construction site the answer is rarely obvious, and getting it wrong wastes time you may not have.

If you are an employee, the ordinary claim is against your employer. Every employer carrying on business in Great Britain must insure against liability for injury to employees under the Employers’ Liability (Compulsory Insurance) Act 1969, and the statutory minimum cover is five million pounds under regulation 3 of the 1998 Regulations. Most policies are written at ten million pounds or more.

If you are genuinely self-employed, there is no employer to sue and no employers’ liability claim to make. That does not leave you without a remedy. You may have a claim in negligence against the principal contractor, another contractor, the site occupier or the client, depending on who was in control of the work or the premises and what went wrong. The Work at Height Regulations 2005 are instructive here even though they are not directly actionable: regulation 3(3) extends duties beyond the employment relationship to any person in control of work, to the extent of that control. A principal contractor therefore owes real duties to a self-employed worker on its site, and those duties inform what reasonable care required.

If you are described as self-employed but do not really work that way — you turn up when told, use somebody else’s equipment, take direction from a foreman — your true legal status may be that of an employee. The Health and Safety Executive’s own guidance is that what matters is the real nature of the relationship rather than the label in the contract. This is worth taking advice on before accepting that you have no employer.

The Occupiers’ Liability (Scotland) Act 1960

Where the injury is caused by the state of the site itself rather than by the way work was carried out, there is a second and distinctly Scottish route. Section 2(1) of the 1960 Act requires an occupier to show towards a person entering on the premises such care as is in all the circumstances reasonable to see that the person will not suffer injury from dangers due to the state of the premises.

Two features of the Scottish Act are worth knowing. First, “occupier” is defined in section 1(1) as a person occupying or having control of land or other premises, so a principal contractor in control of a site can be an occupier without owning anything. Second, section 1(3) extends the duty to any fixed or moveable structure, including any vessel, vehicle or aircraft, which brings scaffolding, plant and site vehicles within it.

Scotland has a single Act imposing one duty of reasonable care towards everyone who enters. England splits this across two statutes with a materially different and lower duty for people who are not lawful visitors. Anything you read citing the Occupiers’ Liability Act 1957 or 1984, or drawing a distinction between visitors and trespassers, is English and does not apply here.

The regulations that set the standard

The Construction (Design and Management) Regulations 2015 came into force on 6th April 2015 and apply throughout Great Britain. They allocate duties to the client, the designer, the principal designer, the principal contractor and each contractor. The principal contractor must plan, manage and monitor the construction phase and coordinate the contractors on site. Regulation 8 requires that anyone appointed has the necessary skills, knowledge and experience, and imposes duties to cooperate and to share information.

The Work at Height Regulations 2005 set a hierarchy which is the framework most falls cases are argued within. Regulation 6(2) requires that work is not carried out at height at all where it is reasonably practicable to do it safely otherwise. Where it must be done at height, regulation 6(3) requires suitable and sufficient measures to prevent a fall so far as is reasonably practicable, with collective protection preferred. Only where a risk remains does regulation 6(5) permit measures that minimise the distance and consequences of a fall. A defender who reached straight for a harness without asking whether the work needed to be done at height at all has skipped two steps.

That hierarchy is not academic. Across the five years to 2025/26 falls from height accounted for more than half of all deaths in construction, averaging nineteen a year.

The scale of it

In 2025/26, provisionally, one hundred and twenty-six workers were killed in work-related accidents in Great Britain. Twenty-five of those were in construction, the highest of any industry. An estimated fifty thousand construction workers report a non-fatal workplace injury each year, on the annual average for the three years to 2024/25.

Scotland’s overall rate of fatal injury at work is higher than the Great Britain average and has been consistently: 0.73 per hundred thousand workers against 0.4 on the five-year average, a gap that persists after adjusting for the mix of industries. The Health and Safety Executive does not publish a Scotland-specific construction figure, so any site quoting you one has derived it.

The time limit

Three years, under section 17 of the Prescription and Limitation (Scotland) Act 1973, running from the date of the injury or, if later, the date on which you became aware or could reasonably have become aware that the injury was serious enough to justify an action, that it was attributable to an act or omission, and who was responsible. That second limb matters in construction, where a back injury or a hearing loss may not be attributed to work for years.

Section 19A gives the court a discretion to allow a time-barred action to proceed where it seems equitable. It is a discretion, not a right, and it is not something to plan around.

What happens before court

A compulsory pre-action protocol applies in the sheriff court, but its scope is narrower than most people assume. It applies only where the claim is reasonably estimated at twenty-five thousand pounds or less exclusive of interest and expenses, and only where the claimant is legally represented. It does not apply to accidents before 28th November 2016, and it expressly excludes clinical negligence, professional negligence and disease claims. So a serious construction injury valued above twenty-five thousand pounds falls outside it, and so does every hand-arm vibration, hearing loss, asbestos, dermatitis and silicosis claim regardless of value.

What to do now

Report the accident and make sure it goes in the accident book. Photograph the location, the equipment and any defect before the site is tidied, because construction sites change daily and the scene you saw will not exist next week. Get the names of anybody who saw it, including agency workers who may not be there next month. Ask whether the Health and Safety Executive was notified, because a RIDDOR report and any subsequent investigation produce documents that are extremely useful. And see a doctor, so that the injury is recorded contemporaneously.

Sources

• Enterprise and Regulatory Reform Act 2013, section 69, legislation.gov.uk
• Health and Safety at Work etc. Act 1974, section 47, legislation.gov.uk
• Construction (Design and Management) Regulations 2015, legislation.gov.uk
• Work at Height Regulations 2005, regulation 6, legislation.gov.uk
• Occupiers’ Liability (Scotland) Act 1960, section 2, legislation.gov.uk
• Work-related fatal injuries in Great Britain, Health and Safety Executive
• Act of Sederunt (Personal Injury Pre-Action Protocol) 2016, legislation.gov.uk

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.