01 February 2017
The case of Brenda Gray and Others v The Advocate General for Scotland raises an interesting issue over the considerations to be applied when determining whether a Pursuer fits within the definition of a child for the purposes of the Damages (Scotland) Act 2011 (the 2011 Act). The case was taken to debate by the Defender on a technical point over whether three of the Pursuers had title to sue.
By way of background, the Pursuers were the family members of the late Ian Hunter, who died shortly after raising proceedings due to his being diagnosed with mesothelioma as a consequence of his employment as a dock worker. The family sought damages for ‘loss of society’ under s.4 (3) of the 2011 Act.
The First Pursuer (the deceased’s partner) and the deceased met in March 2001 and moved in together in July 2001. The First Pursuer’s son and daughter (who were also Pursuers in the case) were aged 33 and 36 respectively at this point. Moreover, another of the Pursuers (the First Pursuer’s grandchild) was 19 years old. The Pursuers’ propositions were that they had been accepted by the deceased as a child/grandchild in terms of s.14 (1) (b) and (d) of the 2011 Act.
The Defender challenged the relevancy of the claims of these Pursuers on the basis of their ages. It was argued that given their ages at the time the First Pursuer and the deceased met, they could not be described as a ‘child’ in the normal sense of the word. The Defender submitted that the definition of ‘child’ in terms of s. 14(1) (b) and (d) of the 2011 Act was defined by reference to age, personal status and the element of ‘bringing up.’ Their argument was that as there was no age definition of ‘child’ in the 2011 Act, the age a person ceases to be a child ought to be determined by the principles of Family Law.
The Pursuers argued that the definition of ‘child’ is not age restrictive. The wording of the 2011 Act – ‘accepted by the deceased as a child of the deceased’s family’ - includes a person who may be an adult at the time the acceptance takes place.
The case raised a novel issue. The Court considered that ‘Family Law’ was a broad term and within various Family Law statutes a child could mean a 16 year old, an 18 year old, or even in certain circumstances, a 25 year old. The Defender’s proposition that the point at which a person ceases to be a child should be determined by reference to Family Law therefore provided no assistance to the Court.
Furthermore, the Court held that if an age restriction was to apply, it would also apply to natural children, disqualifying them from claiming damages where the death of the parent occurred beyond the age cut off point. That would seem inherently unfair. In any event, the Court observed that the important date for determination of the issue was not the date that the First Pursuer moved in with the deceased, it was the date of the death of the deceased.
Ultimately, the Court held that the definition of what is meant by a ‘child’ for the purposes of the 2011 Act is not age restrictive. It is correlative of relationship, which is a matter of fact. In light of this, the Defender’s motion for dismissal was refused and all the Pursuers’ claims allowed to proceed to proof on their merits.
The Court favoured the argument that no matter how old you are you will always be someone’s child. Whilst the Defender’s argument that a ‘child’ is defined by reference to age, personal status and the element of ‘bringing up’ was not accepted, these are factors which will undoubtedly be important in determining the true nature of the relationship of the Pursuers with the deceased, and whether they were indeed ‘accepted’ as a child or grandchild. However, evidence will be required on these factors, and so whilst the Defender failed in their motion for dismissal, it is still open to them to argue at proof that the Pursuers were not ‘accepted’ as children/grandchildren of the deceased.
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Catherine Currie |