A claim for loss of society will often be made in a fatal case by a relative following the death of a loved one. The basis of such an award is Section 1(4) of the Damages ( Scotland ) Act 1976. This provides for an award to the deceased’s “immediate family” as compensation for (a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before death (b) grief and sorrow caused by the death and (c) the loss of the deceased’s society and guidance.
There have been recent developments in relation to fatal cases and in particular with regards to loss of society awards both in terms of statutory provisions and case law.
With regard to statutory provisions, the law in Scotland in relation to fatal claims changed when the Family Law ( Scotland ) Act 2006 came into force earlier this year on 4th May.
This Act changed the category of relative who could make a claim for a loss of society award in terms of Section 1(4) of the Damages ( Scotland ) Act 1976 as amended.
One important change to digest is that relationships through marriage will no longer be classed as blood relationships and it therefore follows that children-in-law and parents-in-law can not now claim for loss of society as a result of this change in the law.
A second is that the Act introduced new categories of relatives who may claim. Since it came in to force the following persons are now entitled to bring claims for loss of society:
- Any person who accepted the deceased as a child of their family.
- Any sibling of the deceased.
- Any person who was brought up in the same household as the deceased and who was accepted as a sibling of the deceased.
- Any grandparent or grandchild of the deceased.
In terms of the Act civil partners will also now be treated effectively as spouses and homosexual co-habiting relationships will be treated the same as heterosexual co-habiting relationships, the effect being that such people can now claim for loss of society (and loss of support) upon the death of a partner.
With regards to developments in case law, the Court of Session case of Audrey Weir -v- Robertson Group (Construction) Limited (July 2006) provided useful guidance in relation to loss of society awards.
In the case of Weir Lord Glennie took the opportunity to make general comments about the level of loss of society awards which have been a bone of contention between Pursuers and Defenders in recent years, not least because of fluctuating levels of awards. In reviewing the awards made to widows in cases where the deceased has suffered a long and debilitating illness he commented that awards made to elderly widows would be less than those made to younger widows in sudden death cases. Lord Glennie also commented that awards made to other relatives should reflect their age and vulnerability. So in cases where a young child has lost a parent one might expect an award to be higher than that of an older child who was perhaps less dependent on the deceased parent. Other recent case law has illustrated that the courts will place significance on any evidence suggesting a close and happy relationship between the claimant and the deceased. It is anticipated that this guidance will be applied in determining the appropriate awards for the new categories of claimants now introduced by statute.
We await with interest the first decisions following upon the changes implemented by the Family Law ( Scotland ) Act 2006 and in particular the level of awards for the new categories of claimant such as siblings and grandchildren. It seems possible that loss of society claims may continue to be a matter of contention and controversy for some time.
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Jill Setterington
(Information posted in September 2006 and may not have been updated at time of reading).