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Losing a loved one has always and will always be a horrible experience. Losing a loved one when it could have been avoided is a tragedy. When you and your family lose a loved one due to negligence which caused an accident, injury or disease you have the right to make a compensation claim under Scots Law through the Damages (Scotland) Act 2011.

Under Scottish law, the time limit for settling such a claim or raising it in the court within three years of the date of accident or death. If a child has a claim for damages, the time limit for raising such an action is three years from the date that they turn 16 years old - i.e. when they turn 19 years old.

The Act gives the definition of a relative and thus those who have a right to make a bereavement claim. The list is extensive and includes spouses or civil partners, parents, children, siblings, grandchildren, grandparents and those treated by the Deceased or those who treated the Deceased as such member of their households so this can include family members like stepchildren.

Under the section 4(3)(b) of the Act, relatives are entitled to claim compensation for:

  1. distress and anxiety endured by the relative in contemplation of the suffering of the loved ones death before they died
  2. grief and sorrow of the relative caused by the death,
  3. the loss of such non-patrimonial benefit as the relative might have been expected to derive from Deceased’s society and guidance if they had not died.

When making a claim in respect of bereavement, evidence of the relationship between the relative and the Deceased has to be obtained. This will show the nature of the relationship between the Deceased and the relative, the emotional and psychiatric impact of the loss. The ages of the Deceased and the relative is also all taken into account. At Thompson Solicitors, we obtain this by asking the relative to provide a handwritten statement or taking the statement ourselves. 

The right for a family to make a compensation scheme is nothing new although it is important that each relative of the Deceased is aware of their right to claim compensation. However, the previous law limited who could make a claim.

In addition to a relatives’ right to claim compensation for bereavement under section 4(3)(b), some relatives also have a right to claim compensation for loss of support and funeral expenses. The previous law in this area was based on a model from a previous era when families typically only had one member in employment, discriminating against modern families where both partners worked.

Since then, changes have been made through the introduction of the Damages (Scotland) Act 2011 which was campaigned for by the late Frank Maguire, the Joint Managing Partner of Thompsons Solicitors. He realised that there was a real need for change regarding the rules on the level of financial support that families were entitled through the compensation process.

The value of each claim will always be based on its own individual merit and the circumstances of each individual case.

Compensation can never replace a loved one and such claims are not always the easiest claim to make for the relatives. However, by making a civil compensation claim you can hold the negligent individual or company to account. We are at Thompsons Solicitors will do everything we can to ensure that making such a claim is as easy as possible.

Blog by Nathan McHardy

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