Recent discussion took place within the Litigation Department about a question to which we all thought we knew the answer:

Can a baby born AFTER the death of a relative sue the party responsible for the death for the loss of that person?

Various views were voiced -

  • No - you have to be a legal person to sue (and a child in utero is not regarded as a person until born alive)
  • Yes
  • Yes, if the baby was conceived by the time of the death
  • Yes, if as above, and the deceased knew of the pregnancy
  • Yes, if as above, and the baby was subsequently born alive
  • Yes, if the baby is born anytime within 3 years of the death, i.e. within the timebar period that would apply to anyone who was alive at the time of the death.

Research reveals:

The basic principle is derived from Roman Law and is known as the "Nasciturus Doctrine" - "nasciturus pro iam nato habetur quotiens de eius commodo agitur" - which is generally understood to mean that, if it is subsequently born alive, then a childin utero should be regarded in law as having already been born, whenever so to regard it is to its advantage.

General principles would also suggest that the fact that the negligence occurred when the person seeking the right to sue did not exist should not be a bar to action. House of Lords decisions such as Donoghue v Stevenson and Watson v Fram Reinforced Concrete advise that the ground of any action based on negligence is concurrence of breach of duty and damage.

It is suggested that the Scottish Courts would and do accept that, when a child is born alive, this allows the concurrence of fault and damage - the wrong is complete and the injury is suffered.

The Scottish Law Commission in its 1973 report on Liability for Antenatal Injury suggested

"The existing law of Scotland is adequate …..to afford a remedy to a child in respect of antenatal injury"

but also advised that if legislation were contemplated it might provide - for the avoidance of doubt - that if a person who is born alive sustains damage as the result of the death, before his birth, of anyone in respect of whose death he would ordinarily have a right to sue, he should be entitled to recover reparation as if the damage had been sustained after his birth."

Legislation

Damages (Scotland) Act 2011 esp sections 4 and 14

Damages (Scotland) Act 1976 (as amended) esp Schedule 1

Case Law

Moorcraft v W Alexander & Sons 1946 SC 466

The case included a claim by a widow on behalf of her son born posthumously. An award of £400 for loss of support was made with the comment that "plainly nothing can be given as solatium for pain and suffering".

Leadbetter v National Coal Board 1952 SC 19

A case in which damages were awarded to a widow, a child who was 3 at the time of her father's death and, without comment, a child born posthumously. Of interest is the fact that the court awarded a greater sum to the posthumous child than to the 3 year old - £1000 and £800 respectively.

Riddell v J Longmuir and Sons 1971 SLT (Notes) 33

The case concerned the death of a 41 year old man and included a claim by his posthumous daughter. The case failed on liability but comment was made that, "fairly generous awards of solatium would have been justified, with modifications in the case of the 3 daughters and, in particular of the posthumous child, who has nevertheless been deprived of the influence in the family home of one who appears to have been a good husband and father."

Cohen v Shaw 1992 SLT 1022

A widow raised an action for herself and her son born posthumously and a jury trial was awarded in the face of argument that the son had no title to sue as he was not a relative in terms of schedule 1 of the Damages (S) Act 1976. It was held that thenasciturusdoctrine applied and that the Act did not distinguish/exclude posthumous children.

Stuart v Reid 2014 Rep LR 107

A decision of Lord Woolman in which he awarded damages to members of the deceased's family including a grandson, born 5 months after the death, who was awarded £14,000.  Observations were made that the deceased had enjoyed very close bonds of love and affection with his grandchildren, that he had a material involvement in their upbringing and that he would have enjoyed a similar relationship with his posthumous grandson.

In conclusion, it seems clear that children conceived but not yet born at the time of the death of a relative will have a claim as long as they are subsequently born alive. Given the most recent award and the general trend for increasing damages, it is a claim well worth considering.