Medical Negligence vs Accident at Work Claims Scotland
Medical negligence and accident at work are both personal injury claims under Scots law, but they differ significantly in how breach of duty is proved, who defends the claim and how long they take to resolve. Medical negligence claims are generally harder to prove and take longer.
Key Points — Quick Summary
- ✓Both are personal injury claims under Scots law but the legal tests for breach differ significantly.
- ✓Medical negligence uses the Hunter v Hanley standard — not the English Bolam test.
- ✓Accident at work claims rely on employer health and safety duties and are often easier to evidence.
- ✓NHS Scotland claims are defended by the Central Legal Office — not NHS Resolution (England).
- ✓Medical negligence claims typically take longer and require more expert evidence to succeed.
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Medical negligence and accident at work claims both compensate for injuries caused by another party's negligence under Scots law. Medical negligence claims require independent expert evidence that the standard of care fell below that of a reasonably competent practitioner (the Hunter v Hanley test). Accident at work claims rely on employer health and safety duties and tend to be more straightforwardly evidenced.
Medical Negligence — The Hunter v Hanley Test
In Scotland, the test for breach of duty in medical negligence cases is established by Hunter v Hanley (1955 SC 200). A pursuer must show that the practitioner's conduct fell below the standard of the ordinary skilled person exercising and professing to have that special skill. This is Scotland's equivalent of the English Bolam test — but it is a Scots law test, not an English one. Independent expert medical evidence from a practitioner in the same specialty is essential.
Accident at Work — Employer's Duty of Care
Employers in Scotland have a common law duty of care to their employees, reinforced by health and safety legislation including the Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999 and various specific regulations. Evidence of breach typically includes accident book entries, CCTV footage, RIDDOR reports, risk assessments, training records and witness statements.
Side-by-Side Comparison
| Factor | Medical Negligence | Accident at Work |
|---|---|---|
| Who can be sued | NHS boards, hospitals, GPs, private clinics, dentists | Employer, occupier, equipment manufacturer, third party contractor |
| Legal test for breach | Hunter v Hanley — standard of reasonably competent practitioner in that specialty | Employer duty of care + health and safety legislation breach |
| Expert evidence required | Yes — independent medical expert in the relevant specialty is essential | Often less expert-heavy; accident reports, CCTV, RIDDOR records |
| Time limit start point | Date of negligent treatment OR date of knowledge (whichever is later) | Date of accident (or date of knowledge for industrial disease) |
| Who defends NHS claims | Central Legal Office (Scotland) | Employer's liability insurer |
| Difficulty of proof | High — causation and breach both require expert evidence | Moderate — often clearer documentary evidence |
| Average time to resolve | 3–6 years for complex cases | 1–3 years for most claims |
| Typical compensation range | Wide — minor to several million for birth injuries/catastrophic cases | Wide — soft tissue injuries to catastrophic workplace accidents |
| RIDDOR relevance | Not applicable | Yes — serious workplace accidents must be reported to HSE |
Frequently Asked Questions
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