02 February 2017
In the case of SD V Graham’s Dairies Ltd [2016] CSOH 151 the Court recently considered a point of statutory interpretation when determining whether the Pursuer’s partner was entitled to a claim for services.
The case arose out of an accident at work in August 2014. Whilst delivering milk to a supermarket, the Pursuer was trapped against the side wall of his lorry by 9 or 10 wheeled cages which were loaded with cartons of milk. The circumstances of the accident were largely admitted and the Proof was restricted to causation and quantum.
Whilst the main issue in the case was the causation of injury, in assessing quantum, the Court considered whether the Pursuer’s partner qualified as a ‘relative’ for the purposes of a services claim under section 8 of the Administration of Justice Act 1982 (the 1982 Act).
In terms of s.8 of the 1982 Act a claim can be made for ‘reasonable remuneration’ for ‘necessary services’ provided by a ‘relative’ to an injured person as a consequence of their injuries (i.e. assistance with domestic and personal tasks). The 1982 Act defines a relative in s.13(1) as “any person, not being the spouse of the injured person, who was, at the time of the act or omission giving rise to liability in the responsible person, living with the injured person as husband or wife”.
At the time of the accident, and indeed the Proof, the Pursuer was married, but separated from his wife. He had a partner with whom he had been in a relationship since around November 2012. The Pursuer and his partner had a daughter together who was born in November 2013. The Pursuer and his partner did not live together. The reason for this was his partner’s decision to accommodate the wishes of her daughter, aged 10 years, from her previous relationship.
The question in this case was whether the Pursuer’s partner could properly be defined as a relative for the purposes of the 1982 Act. In order to do so, the court had to determine whether the Pursuer’s partner was ‘living with the injured person as husband or wife’.
The Defender’s argument was that the claim for services ought to be rejected on the basis that the parties did not live together and the Pursuer’s partner could therefore not fall within the definition of a relative. Reference was made to the case of Lawrie v Lanarkshire Health Board 1994 SLT 633 in which the Court had refused a claim for services on the basis that the Pursuer’s girlfriend did not live with him. It ought to be pointed out though that in Lawrie the Court did not consider this issue in any great depth.
The Court analysed the quality of the Pursuer and his partner’s relationship. The factors taken into account by the Court included the manner in which they lived together and their reason for doing so; the extent to which the couple were committed to the relationship and the amount of time spent together; social and financial interdependence; and the presence of children. The Court was satisfied that the above factors were present and held that the Pursuer’s partner qualified as a ‘relative’ in terms of the 1982 Act. The Court held that the issue had to be assessed against a background of social norms and modern living. The Pursuer was awarded £7,686 plus interest for this head of claim.
On its facts one may have anticipated the Court would hold that the Pursuer’s partner did not fall within the definition of a relative given the couple did not live together. However, the case may be indicative of the Court being willing to take a more modern approach to the definition of ‘living as husband and wife’. The case provides examples of the type of factors the Court will take into account when determining whether a Pursuer’s partner falls within the definition of a relative for the purposes of the 1982 Act.
A final point to take away is that the judgment may be of a wider application and on the face of it could also apply to claims for the loss of personal services made under s.9 of the 1982 Act which is drawn sharply into focus in fatal claims. Whilst each case would turn upon its own facts, it is a point to bear in mind when considering the potential value of a services claim.
Contact:
Catherine Currie, Partner & Solicitor Advocate, E: ccr@bto.co.uk / T:0141 221 8012