27 October 2019

Relatives in Scotland are entitled to damages for their distress, grief and loss of society upon the loss of their relative in an accident caused by the fault of someone else. Section 4(3) of the Damages (Scotland) Act 2011 entitles the immediate family of a deceased to make such a claim.

Section 14 of that Act defines a relative to include spouse, civil partner (or those living with the deceased in such a relationship at the time of death), parent, child, brother, sister, grandchild (and those accepted as such a relative by the deceased or in the case of a child, accepted by his family to be such a relative) and finally grandparents. Whilst this definition of ‘relative’ appears to be quite definitive, not infrequently uncertainty arises as to whether an intended pursuer falls within it.

In 2016, the Scottish courts were asked to assess the eligibility of a biological half-brother and half-sister of a deceased who had been adopted to sue. This was in the case of Amanda Foreman and Others v The Advocate General for Scotland [2016] CSOH 94. The biological family members argued that they qualify as a member of the deceased’s family because the Act does not distinguish between the biological and non-biological. The court dismissed this argument being guided by the relevant adoption legislation which states that an adopted child where, the parents are a married couple, is to be treated in law as if he had been born as a child of the marriage, and as if he were not the child of a person other than the parties to the marriage. It is, therefore, now clear that biological members of the family of an adopted deceased have no title to sue. 

Another consideration is whether an unborn child has title to sue on the death of their relative. In the case of Cohen v Shaw 1992 SLT 1022, the court held that a child whose father had been killed in a road traffic accident before his birth had title to sue under the predecessor legislation, the Damages (Scotland) Act 1976. The court applied what is known as the nasciturus doctrine; provided he is born alive, a child in utero is treated as though he had already been born. This doctrine is traditionally applied in a succession context, but the judges in Cohen considered that it ought to apply in the context of a claim for damages for the death of a parent.

There has been one reported case since the 2011 Act on this point; Stuart v Reid 2014 Rep LR 107. Damages were awarded to a posthumous grandchild, but the amount of the damages was reduced (only marginally) by the court to reflect the fact that there was no relationship between the deceased and the child and thus no distress and grief on the part of the child. It is only the unborn child’s future loss of society with its relative that is being compensated.

It is important to note that it is only a child in utero, i.e. in the woman’s uterus, at the time of the relative’s death who is entitled to make such a claim. If a child were conceived at some point close to but after the death of their ‘relative’, then there is a good argument that the child has no title to sue. There is, however, no judicial authority on this point.

Whilst an estranged relative may have title to sue, a question that arises infrequently is whether such a relative should be entitled to an award of damages. The phrase “you can choose your friends but you can’t choose your family” illustrates the disharmony that all too often exists in many families. In the defence of fatal claims, does such disharmony necessarily translate into a saving for the insurers? Unfortunately not! The argument is habitually made by estranged relatives that they have suffered significant distress and grief due to regret for their failure to rekindle the relationship and the lost opportunity for them now to do so. There has been no judicial consideration of the appropriate award to be made to such an estranged relative, but the cases do follow a trend that the closer the relationship, the greater the distress and grief and the higher the award.

Careful scrutiny thus requires to be given by defenders upon intimation of a fatal damages claim as to whether the relatives claiming are entitled to sue. It is important that such enquiries are undertaken cautiously and tactfully given the distress that the family have already encountered upon the loss of their loved one.

Contact: Joanne Farrell Senior Associate jfa@bto.co.uk T. 0141 221 8012