Loss of Society: Compensation for the Death of a Loved One

In Scotland, if a person dies as a result of personal injury, including medical negligence, certain close relatives have a right to claim compensation for what is known as loss of society under section 4 (3) of the Damages (Scotland) Act 2011. This is a sum of damages meant to compensate for the feelings of distress and anxiety for a loved one’s suffering, grief at their death, and a loss of guidance. 

But what happens if the person’s death is not caused by the negligence, but instead is accelerated by the lack of care? This is the question of that the Court of Session was recently asked to address in the case of Susan Lever and Ors v NHS Ayrshire and Arran.

In July 2021, Roy Lever underwent an ultrasound of his kidneys and bladder. Unfortunately, the Health Board’s radiographer negligently failed to identify signs of a tumour during that scan. Mr Lever sadly died of renal cancer in November 2022. It was agreed by parties that even in July 2021, his cancer was incurable, but if it had been identified sooner, Mr Lever would have had more treatment options and would have survived another 12 months.

Mr Lever’s family made a claim against the Health Board seeking damages for loss of society. The case called at a Debate - this is a court hearing focussing solely on legal arguments, in which the court was asked to interpret the statutory definition of death occurring "as a result of personal injury".

The Defenders argued that did not cause the death of Mr Lever, and that he had died as a result of his renal cancer. His death may have been accelerated, but his cause of death had not changed. The only "injury" to the deceased was any additional pain and suffering in consequence of his awareness of his reduced life expectancy. 

Essentially, they argued that as they had not caused Mr Lever any "personal injury" then the family had no right to claim for loss of society.

The Court did not accept this argument. Adopting a very broad definition, the judge considered that a delay in the diagnosis of cancer would in principle result in an impaired physical condition amounting to "personal injury". In failing to detect signs of Mr Lever’s renal cancer, the Health Board had also materially contributed to his death occurring at that time. They held that the Pursuers were not required to show that he would not have died, but that it was enough to prove that he would not have died at that time. The Court also considered that the family’s distress and anxiety may have been enhanced by the very fact that his death was accelerated by the Health Board’s negligence. 

The case will now proceed to a full hearing on the facts. 

How Can We Help?

The loss of a loved one as a result of medical negligence is of course a very distressing time for families. At Drummond Miller our litigation solicitors endeavour to provide the best service possible to all of our clients, taking a holistic approach and providing compassionate advice.

If you or a loved one has been involved in an accident, or suffered injury as a result of clinical negligence in the past three years, please contact our litigation department and one of our experienced solicitors will be able to assist you.