What the claim is actually for

Solatium — the Scottish term for compensation for the pain, suffering and loss of amenity — is rarely the largest element of an amputation claim. The bulk of the value sits in what follows from the amputation over a lifetime.

The heads that matter are the cost of prosthetic limbs and their repeated replacement, the physiotherapy and rehabilitation that make a prosthesis usable, care and assistance including the help family members give without being asked, loss of earnings and loss of pension where the work can no longer be done, retraining, adaptations to the house or the cost of moving to one that can be adapted, an adapted vehicle, and the ordinary running costs of a disability that never go away. There is also the secondary injury question: an above-knee amputee will very often develop problems in the remaining limb and the back over time, and a claim that ignores that has undervalued itself.

Prosthetics

NHS Scotland provides prosthetic limbs through two specialist centres — WestMARC at the Queen Elizabeth University Hospital in Glasgow, and SMART at the Astley Ainslie Hospital in Edinburgh. The Scottish Specialist Prosthetics Service, run by NHS National Services Scotland, can provide advanced prosthetics including microprocessor-controlled knees, advanced upper limbs, specialised foot and ankle joints and sporting limbs, though access to that specialist service is subject to eligibility criteria.

In a claim, prosthetics are normally a substantial head of loss for two reasons. A prosthesis has a limited service life and has to be replaced repeatedly across a lifetime, so a single figure is multiplied many times over. And the limb an injured person actually needs in order to work, to walk any distance, or to look after their own children may not be one that the specialist service will provide to them.

We do not publish figures for what a prosthesis costs or how often it is replaced, and you should be sceptical of any site that does. Those numbers are expert evidence in an individual case — they come from a prosthetist’s report and a care expert’s report, applied to the particular person, their occupation and their life expectancy. A number taken off a website is not a valuation.

Provisional damages

This is the most useful and least understood tool in a Scottish amputation claim.

Section 12 of the Administration of Justice Act 1982 — the section headed for Scotland — allows a court, on the application of the injured person, to award damages on the assumption that a particular future deterioration will not happen, while preserving the right to come back for more if it does.

Two conditions have to be met. There must be proved or admitted a risk that at some definite or indefinite time in the future the injured person will, as a result of the act or omission, develop some serious disease or suffer some serious deterioration in their physical or mental condition. And the person responsible must be a public authority, a public corporation, or insured or otherwise indemnified in respect of the claim — which in practice covers nearly every defender in an injury claim.

Where it is granted, the court may specify a period within which any further application must be made. The point of it in an amputation case is straightforward: rather than being paid now for a risk that may never materialise, at a discount reflecting the chance, the injured person is paid properly for the position as it stands and retains the right to return if the anticipated deterioration occurs.

Periodical payments, and why Scotland is different

The practical consequence is that in Scotland a lifetime claim is ordinarily settled as a lump sum, and how that lump sum is calculated therefore matters more here than it does south of the border. Future losses are converted using a discount rate set by the Government Actuary under the Damages Act 1996 as amended by the 2019 Act. It was set at plus 0.5 per cent in September 2024, following changes to the review parameters made in 2024 which lengthened the notional investment period to forty-three years and prescribed average weekly earnings rather than the retail prices index as the inflation measure. The next statutory review must begin on 1st July 2029.

Who you claim against

Traumatic amputations in Scotland come predominantly from a small number of settings. Workplace machinery and construction plant, where the claim is against the employer, the principal contractor or the site occupier. Road traffic collisions, particularly involving motorcyclists and cyclists, where the claim runs through the driver’s compulsory insurance. Agricultural and forestry machinery, which produces a disproportionate share of serious injury in rural Scotland. And clinical settings, where a delayed diagnosis of sepsis, of compartment syndrome or of a vascular occlusion has led to a limb being lost that would otherwise have been saved — a claim which in Scotland runs against the health board.

Where the amputation follows a workplace accident, note that for accidents on or after 1st October 2013 proving a breach of health and safety regulations is not by itself enough. Section 69 of the Enterprise and Regulatory Reform Act 2013 removed civil liability for breach of most health and safety regulations, and it does apply in Scotland. Common law negligence must be proved, with the regulations standing as evidence of the standard of care.

The time limit

Three years under section 17 of the Prescription and Limitation (Scotland) Act 1973, from the date of the injury or from the later date of knowledge. Where the amputation followed a clinical failure, the date of knowledge provision in section 17(2)(b) frequently matters, because a patient may not know for some time that the loss of the limb was attributable to an act or omission rather than to the underlying condition.

Where the injured person is under sixteen, time does not begin to run until the sixteenth birthday, so the period expires on the nineteenth. That is the Scottish rule and it differs from England by two years. That is the ordinary case rather than an invariable one. Section 17(2)(b) starts the three years on the later of the date of the injury and the date on which the injured person knew, or could reasonably practicably have become aware, of the facts the section specifies, so where the failings that led to an amputation only came to light later the period can expire after the nineteenth birthday. Section 19A allows the court to let a late action proceed where it considers it equitable, but that is a contested application decided case by case rather than a safety net, and an action entertained only by virtue of section 19A cannot be tried by jury.

How these claims are funded

Success fee agreements under section 6 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 are the usual route. Nothing is payable in fees or outlays if the claim fails. If it succeeds the fee is capped in personal injury claims at twenty per cent of the first one hundred thousand pounds, ten per cent of the next four hundred thousand pounds, and two and a half per cent of anything above five hundred thousand pounds. On a claim of this size the difference between capped bands and an uncapped arrangement is very large, and it is worth reading the agreement rather than signing it.

Qualified one-way costs shifting under section 8 of the same Act has been in force since 30th June 2021 and generally protects a pursuer who conducts the case properly from paying the other side’s expenses if the claim does not succeed.

Sources

• Administration of Justice Act 1982, section 12 — provisional damages, Scotland, legislation.gov.uk
• Damages Act 1996, section 2 — consent orders for periodical payments, legislation.gov.uk
• Damages (Investment Returns and Periodical Payments) (Scotland) Act 2019, legislation.gov.uk
• Scottish Specialist Prosthetics Service, NHS National Services Scotland
• Prescription and Limitation (Scotland) Act 1973, section 17, legislation.gov.uk
• Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, section 6, 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.