What changed on 1st October 2013

For most of the twentieth century the quickest route for an injured worker was breach of statutory duty. The Factories Acts and the regulations that replaced them imposed detailed obligations on employers, many of them absolute, and section 47(2) of the Health and Safety at Work etc. Act 1974 made breach of health and safety regulations actionable in civil proceedings unless the regulations themselves said otherwise. A worker who could show that the guard was off the machine did not also have to show that a careful employer would have fitted one.

Section 69 of the Enterprise and Regulatory Reform Act 2013 reversed that default. Section 47(2) of the 1974 Act now provides that breach of a duty imposed by a statutory instrument containing health and safety regulations is not actionable except to the extent that regulations under that section so provide, and section 47(2A) says the same of the older provisions the Act calls existing statutory provisions. Almost nothing has been made under that power. For practical purposes the civil route through the regulations is closed.

The change took effect on 1st October 2013, under article 2 of the Enterprise and Regulatory Reform Act 2013 (Commencement No. 3, Transitional Provisions and Savings) Order 2013. A claim for an accident at work in Scotland is now, in almost every case, a claim in common law negligence.

One date matters more than the rest. Section 69(10) ties the question to when the breach occurred, not to when the action is raised. An accident before 1st October 2013 is still judged by the old law, and so is exposure before that date in a disease claim. Where exposure ran across the date, part of the claim may sit on each side of the line.

The regulations still decide most cases

It would be a serious mistake to read section 69 as making the regulations irrelevant. Section 47(4) of the 1974 Act preserves any right of action existing apart from the Act, so the common law claim is untouched, and the common law standard is not set in a vacuum. The Provision and Use of Work Equipment Regulations 1998, the Work at Height Regulations 2005, the Manual Handling Operations Regulations 1992 and the rest describe what a competent employer in that industry is expected to do. Where an employer has failed to do it, that failure is powerful evidence that reasonable care was not taken, and in practice it is usually the evidence the case turns on.

The difference is one of route rather than destination. Before 2013 the breach was the claim. Since 2013 the breach is the proof. What the change actually costs a worker is strictness: where a regulation imposed an absolute duty, the employer used to be liable whether or not it had been careful, and now the employer is entitled to answer that it did everything a reasonable employer would have done.

There is one exception, and it is almost never mentioned. The Health and Safety at Work etc. Act 1974 (Civil Liability) (Exceptions) Regulations 2013 came into force on the same day as section 69 and preserved civil liability for breach of the duties owed to new and expectant mothers under regulations 16, 16A, 17 and 17A of the Management of Health and Safety at Work Regulations 1999. A pregnant worker whose employer failed to assess or act on a risk to her therefore still has an actionable breach of statutory duty.

What you have to prove

Three things: that the employer owed you a duty to take reasonable care, that it failed to take that care, and that the failure caused the injury you are claiming for. The first is rarely disputed, because an employer owes every employee duties to provide competent fellow workers, adequate plant and equipment, a safe place of work and a safe system of working. The argument is almost always about the second and the third.

The employer is also answerable for the negligence of your colleagues. If a forklift driver reversed into you, the claim is made against the employer rather than the driver, and the employer’s insurers meet it.

Contributory negligence is the defence to expect. If the employer can show that you contributed to your own injury by ignoring training, removing a guard or not wearing what you were given, the award is reduced by the proportion the court considers just and equitable. It is a reduction, not a defeat, and a court asked to judge a moment of inattention in a workplace the employer designed has traditionally been slow to be harsh about it.

Who pays, and what happens when nobody is insured

You are not claiming against your employer’s own money. Every employer carrying on business in Great Britain must insure against liability for injury to its employees under section 1 of the Employers’ Liability (Compulsory Insurance) Act 1969, which extends to Scotland, and the minimum cover required by regulation 3 of the Employers’ Liability (Compulsory Insurance) Regulations 1998 is five million pounds. Failing to insure is a criminal offence under section 5 of the 1969 Act, punishable by a fine at level 4 on the standard scale, and a director or manager who consented to or connived at the failure commits the offence personally.

That system usually works. When it does not, three situations need to be told apart.

The employer is trading but uninsured. The claim proceeds against the company itself and any award is enforced against its assets. Unlike motor claims, there is no industry-funded body of last resort for employers’ liability in general, so the practical worth of the claim depends on what the employer has. This is one of the few situations in which a solicitor may tell you early that a claim is not worth pursuing, and it is far better to be told that at the start than after two years.

The employer is insolvent. Insolvency does not destroy the claim. Under the Third Parties (Rights against Insurers) Act 2010, which contains its own provisions for establishing liability in Scotland, the insured employer’s rights against its insurer transfer to the injured person, who may then proceed directly against the insurer.

The employer has been dissolved and struck off the register. This is the one most people assume is fatal, and it is not. Section 1029 of the Companies Act 2006 allows an application to the court to restore a company to the register, and section 1029(2)(f) expressly lists any person with a potential legal claim against the company among those who may apply. Section 1030(1)(a) provides that an application made for the purpose of bringing proceedings for damages for personal injury may be made at any time, so the ordinary six-year limit on restoration applications does not apply to an injured worker. Once the company is restored it is treated as having continued in existence, and the employers’ liability policy it held at the time is available to meet the claim. The court may also direct under section 1032(3) that the period of dissolution is not to count towards the limitation period.

Where the employer existed but the policy cannot be found, tracing services maintained by the insurance industry can sometimes identify the insurer from the employer’s name and the years worked. That is routine work in old disease claims and it is worth asking about rather than assuming the trail is cold.

How long you have

Three years, under section 17 of the Prescription and Limitation (Scotland) Act 1973. The three years run from the date on which the injuries were sustained or, where the act or omission was a continuing one, from the date on which it ceased, whichever is later.

Section 17(2)(b) provides the alternative that matters most in workplace cases. Where it is later, the three years run instead from the date on which the injured person first became aware, or on which it would have been reasonably practicable to become aware, of three things: that the injuries were sufficiently serious to justify bringing an action, that they were attributable in whole or in part to an act or omission, and that the defender was the person responsible or that person’s employer.

This is why an industrial disease claim runs from knowledge and not from exposure. A joiner who breathed asbestos dust in 1978 and is diagnosed with mesothelioma in 2026 has three years from the diagnosis, not from the dust. A machine operator whose hearing has gone has three years from the point at which a reasonable person in that position would have connected the deafness with the work, which is usually an audiology appointment rather than the first missed conversation. The fear that grips workers with long-latency conditions, that they must be decades too late, is generally unfounded.

Two further rules. Section 17(3) disregards any period during which the injured person was under legal disability by reason of nonage or unsoundness of mind. In Scotland nonage ends at sixteen rather than eighteen, so an apprentice injured at fifteen has ordinarily until age 19. Where capacity is lost and never regained, the clock may never start at all. Section 19A separately allows a court to permit a late action where it seems to the court equitable to do so, but that is a discretion to be argued for and not a right to be relied on. That is the ordinary case. The three-year period can start later under section 17(2)(b) where the relevant facts were not known.

The pre-action protocol, and what it leaves out

Scotland has a compulsory pre-action protocol for personal injury claims, given force by the Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016, which came into force on 28th November 2016. Where it applies it sets a timetable: the claim is intimated, the defender is given a period to investigate and to say whether liability is admitted, medical evidence and vouching are exchanged, and the parties are expected to try to settle before an action is raised.

Its scope is much narrower than most pages admit. It applies only where the claim is reasonably estimated at twenty-five thousand pounds or less, exclusive of interest and expenses; only where the accident happened on or after 28th November 2016; and only where the claimant is legally represented throughout. It expressly excludes clinical negligence and professional negligence, and it excludes disease claims, defining disease widely enough to catch any illness or disorder other than a physical or psychological injury caused solely by an accident or other similar single event.

The consequence deserves stating plainly. An ordinary employers’ liability accident worth twenty-five thousand pounds or less is inside the protocol. Noise-induced hearing loss, hand-arm vibration syndrome, occupational dermatitis, silicosis and every asbestos claim are outside it whatever they are worth, and so is any workplace accident valued above twenty-five thousand pounds. If you have been told that a rigid timetable applies to your deafness claim, you have been told something that is not so.

Which court hears it

Most workplace claims are raised in the sheriff court. Section 39 of the Courts Reform (Scotland) Act 2014 gives the sheriff court exclusive competence in civil proceedings where the total value sought, exclusive of interest and expenses, does not exceed one hundred thousand pounds, so a claim below that figure cannot be raised in the Court of Session at all. Above it, the pursuer may choose between the Court of Session and the sheriff court.

Since 2015 there has also been a specialist national court. The All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015 gives a sheriff sitting at Edinburgh jurisdiction extending throughout Scotland for actions of damages for personal injury. It is known as the National Personal Injury Court, it sits in Edinburgh, and its sheriffs hear nothing else. Its threshold is lower for workplace claims than for other injuries: article 5 allows an action concerning an accident at work to be raised there where the sum sought exceeds one thousand pounds, while other personal injury actions must exceed five thousand pounds under article 4. A worker with a modest claim therefore has access to a specialist court that a person injured in a shop does not.

Reporting, RIDDOR, and what the Health and Safety Executive will not do

Reporting an accident at work is the employer’s duty and not yours. Under regulation 4 of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 the responsible person must report specified injuries to a worker, a list that includes fractures other than to fingers, thumbs and toes, amputations, injuries causing permanent or reduced sight, crush injuries, serious burns, scalpings, loss of consciousness from head injury or asphyxia, and injuries arising from work in an enclosed space. The same regulation requires a report where a worker is incapacitated for routine work for more than seven consecutive days, excluding the day of the accident, and that report must be made within fifteen days of the accident.

A RIDDOR report helps a claim because it fixes the date, creates a contemporaneous record and may prompt an investigation that generates documents. It is not a claim, and neither is anything that follows from it.

This is where Scotland genuinely differs, and where the difference is regularly misdescribed. The Health and Safety Executive investigates, but it does not prosecute in Scotland. It reports the matter, with its recommendations, to the procurator fiscal, and the Crown Office and Procurator Fiscal Service decides independently what action to take; the fiscal is not bound to follow the Executive’s recommendation. Where a worker has died, the Work Related Death Protocol for Scotland governs the joint investigation and a fatal accident inquiry may follow.

Whatever the outcome, none of it compensates you. The Executive’s own guidance states that neither it nor local authorities enforce civil law, and a fine imposed on an employer in the criminal courts is paid to the Crown, not to the injured worker. A conviction can be useful evidence in a civil claim, but the claim still has to be made, and the three-year clock runs while the criminal process takes its course.

Head injury at work claims

A head injury at work can happen in many ways. Common causes include a fall from height, whether from a ladder, scaffold, platform or unguarded edge; an object falling onto someone below; contact with moving machinery or with a load being lifted or carried; and a collision with a vehicle in a yard, warehouse or on a site. A damages claim follows the same general principles as any other accident at work, including the ordinary rules on the three-year limitation period, but head injuries can create particular problems of evidence and capacity which are worth considering separately.

The statutory framework depends on how the accident happened. Falls from height may engage the Work at Height Regulations 2005. Machinery and other work equipment may engage the Provision and Use of Work Equipment Regulations 1998, while lifting operations may also engage the Lifting Operations and Lifting Equipment Regulations 1998. The Workplace (Health, Safety and Welfare) Regulations 1992 contain requirements concerning matters such as traffic routes in many workplaces, although they do not generally apply to construction work on construction sites, where the Construction (Design and Management) Regulations 2015 may instead be relevant. Where suitable head protection should have been provided, the Personal Protective Equipment at Work Regulations 1992, as amended, may also apply. Regulation 3 of the Management of Health and Safety at Work Regulations 1999 requires an employer to make a suitable and sufficient assessment of the risks to employees. Breach of a health and safety regulation does not now, by itself, create a civil claim unless the legislation provides otherwise, but the statutory duties and the risk assessment can still be important when the court considers whether the employer took reasonable care.

Evidence can be particularly important in a head injury at work claim because the injured person may have little or no memory of the accident. Relevant material can include the accident book entry, any RIDDOR report, the names of witnesses, site CCTV, records showing whether suitable head protection was issued, training and toolbox-talk records, and the ambulance and hospital records. Where a work-related accident causes any loss of consciousness as a result of a head injury, that is a specified injury which must be reported under RIDDOR by the responsible person to the relevant enforcing authority, however short the period of unconsciousness. CCTV retention periods vary and footage can be overwritten quickly, so a written request that relevant footage be preserved should be made as soon as possible.

Two points on timing are important. Under section 17 of the Prescription and Limitation (Scotland) Act 1973, the three-year period normally runs from the date on which the injuries were sustained, or from the later date provided for by section 17(2)(b) where it was not reasonably practicable for the injured person to be aware of the necessary facts: that the injuries were sufficiently serious to justify an action, that they were attributable in whole or in part to an act or omission, and that the defender was the person responsible or the employer or principal of that person. Separately, section 17(3) provides that, when the three-year period is calculated, any time during which the injured person was under legal disability by reason of nonage or unsoundness of mind is disregarded. A serious brain injury does not automatically stop the limitation clock, but this provision can become important where the injury actually leaves the person under a legal disability of that kind. Where the injury is a lasting brain injury rather than a concussion which resolves, the medical evidence and the assessment of damages are dealt with more fully on our page about brain injury claims in Scotland.

Can you be treated badly for claiming?

This is asked more often than anything else, and the honest answer has two halves. In law, the claim is met by the employer’s insurers, the insurers conduct the defence, and an employer who dismisses or victimises somebody for pursuing a claim creates a separate and expensive problem for itself in the employment tribunal. In practice, what most people are worried about is atmosphere rather than dismissal, and that worry is reasonable rather than foolish.

If something does happen, whether a dismissal, a sudden change of duties or a disciplinary process that appears from nowhere, it belongs to a different area of law with far shorter time limits, measured in months rather than years. It is dealt with separately on challenging a dismissal and, where the treatment relates to a disability caused by the injury, on discrimination at work. Raise it early, because those time limits are unforgiving.

What to do now

Make sure the accident is written in the accident book and ask for a copy of the entry. Photograph the machine, the floor, the load or the defect before it is repaired or tidied away. Take the names of anyone who saw what happened, including agency workers who may not be there next month. Ask whether the accident was reported under RIDDOR. See a doctor, so that the injury and its date sit on a medical record rather than in your memory. Keep payslips from before and after, because loss of earnings is proved by documents and not by recollection.

If the injury built up over years rather than happening in a moment, apply the same discipline to your employment history: every employer, the years, the job, and what you worked with or breathed. In a disease claim that history is the case. There is more on those claims on industrial disease and asbestos, and on how claims are funded on no win, no fee and what happens if you lose.

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
• Health and Safety at Work etc. Act 1974 (Civil Liability) (Exceptions) Regulations 2013, legislation.gov.uk
• Employers’ Liability (Compulsory Insurance) Act 1969, legislation.gov.uk
• Companies Act 2006, section 1030, legislation.gov.uk
• Prescription and Limitation (Scotland) Act 1973, section 17, legislation.gov.uk
• Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016, legislation.gov.uk
• All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015, legislation.gov.uk
• Crown Office and Procurator Fiscal Service and the Police, Health and Safety Executive

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