Fatal claims for loss of society

Last month, a judgment issued by the Court of Session in the case of (PD2711/15 Brenda Gray & Others v Advocate General for Scotland [2016] CSOH 166) clarified further the categories of relative who can claim for the loss of a loved one in a fatal damages claim under s.1(4) of the Damages (Scotland) Act 2011.

In terms of this legal provision, an individual who has been “accepted by the deceased as a child (or grandchild) of the deceased’s family” in terms of s.14(1)(b) and (d) of the 2011 Act, may claim damages for the loss of their loved one.

In this case, the first pursuer, Brenda Gray began cohabiting with Ian Hunter in 2001. Mr Hunter had no children of his own or close family relatives. Brenda Gray already had two children from a previous relationship who, by 2001, were 37 and 33 years of age, and four grandchildren, the oldest of whom was 20 years old by this time. The deceased took on the role of parent/grandparent to these children and they were a very close family.

Mr Hunter developed mesothelioma (an asbestos-related illness contracted in the course of his employment with the MOD) and later died. Brenda Gray, her two adult children and four grandchildren (one adult and three younger) all made claims for compensation against Mr Hunter’s former employer in respect of their loss of society of the deceased.

Ms Gray's children each sued for damages as “having been accepted by the deceased as a child of the deceased’s family” in terms of s 14(1)(b) of the 2011 Act, and the oldest grandchild as having been “accepted by the deceased as a grandchild of the deceased” in terms of s 14(1)(d).

The defenders in this court action sought to have the claims of the two adult children and that of the adult grandchild dismissed at debate on the basis, they argued that, at the time Mr Hunter’s relationship began with Ms Gray, none of them could be described as a “child” in terms of the Act

However, Temporary Judge Frank Mulholland QC ruled that these three claims could go to proof (civil trial) along with those of Ms Gray and three younger grandchildren. He found that “Child” was defined by reference to age, personal status and the element of “bringing up”. If a person did not have all these qualifications, he or she would not be a child of the family and had no title to sue under the Act. As there was no age definition of “child” in s 14(1), the age by which a person ceased to be a “child” was to be determined by the principles of family law. He considered Parliament’s intentions when creating the legislation and took the view that, had Parliament intended to restrict the category of “child” by age, it could have done so. However, it had not. He, therefore, considered that the relevant factor to consider was a definition defined by relationship, not age. This was, he held, consistent with approach in the English case of In re Callaghan decd [1985] Fam.1,5

He said: “In the present case defining 'child' by reference to relationship (and not age) will not strain the meaning and produce injustice, absurdity, anomaly or contradiction; in fact quite the opposite. Such a definition is consistent with everyday usage, dictionary definition, a recognised approach in case law and most importantly appears to be what Parliament intended given the absence of an age based restriction.”