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In this article Solicitor Advocate Frank Maguire, of Thompsons Solicitors, discusses the changes made by the Family Law (Scotland) Act 2006 to those relatives qualifying for damages under S1(4) of the Damages (Scotland) Act 1976.

There have been recent amendments to the Damages (Scotland) Act 1976 which extends, and in some cases, restricts, the categories of relatives who are entitled to a claim under Section 1(4) of the Act. These changes follow upon the Scottish Law Commission Report of August 2002 (“Report on title to Sue for Non Patrimonial Loss” Scot Law Com No. 187).

Section 1(4) provides for claims for the deceased’s immediate family for their distress and anxiety endured by them in contemplation of the suffering of the deceased before death, grief and sorrow caused by the deceased’s death and loss of society and guidance.

The definition of immediate family is to be found in Section 10(2) of the 1976 Act which in turn refers to categories of persons in terms of Schedule 1 of the Act. An immediate relative prior to amendment was any person immediately before the deceased’s death who was the spouse of the deceased, a person not being the spouse of the deceased who cohabited with the deceased immediately before his death, any person who was a parent or child of the deceased and any person who was accepted by the deceased as a child of his family.

An extension of the relatives who qualify for Section 1(4) is affected by Section 35 (5) of the Family Law (Scotland) Act 2006. The relevant provisions are to be applied to claims for relatives arising out of a death which occurred on or after 4 May 2006 (Regulation 8, Statutory Instrument The Family Law (Scotland) Act 2006 (Commencement, Transitional Provisions and Savings) Order 2006).

Immediate family is now to include a brother or sister. The absence of brothers and sisters as qualifying for non patrimonial loss was the subject of judicial criticism in Quinn –v- Reid 1981 SLT (Note) 117 (see also comment in Inner House Monteith –v- Cape Insulation 1999 SLT page 116 at 120) and Damages Scotland Act 1993 (F Maguire) 1993 SLT Articles p245 at p248). The issue of siblings was also the catalyst which caused the then Justice Minister, Jim Wallace to refer the issue of Section 1(4) claims to the Scottish Law Commission on 22 March 2001 after he received a letter from an aggrieved sibling. The Commission in its Report found that the vast majority of consultees took the view that such claims should be competent. A close bond may in fact exist between siblings. There are circumstances where one can envisage a particular loss for a sibling such as where they are living together in old age or where the siblings are twins.

There is also provision in the section for a de facto sibling where a person was brought up in the same household as the deceased and who was accepted as a child of the family in which the deceased was a child (Section 35 (5)(b) of the Act).

The next category of cases is the inclusion of grandparents or grandchildren of the deceased. Again the Law Commission found that the vast majority of consultees took the view that they should be included and that it is common for a strong and effective relationship to arise between grandparents and grandchildren.

Section 35 as recommended by the Commission also takes the opportunity of curing the apparent anomaly arising in Paragraph 1(c) of Schedule 1 of the 1976 Act. Paragraph (b) provided for immediate relatives to include any person who was a parent or child of the deceased. Paragraph 1(c) additionally allowed inclusion of a person accepted by the deceased as a child of his family. This would mean that someone who is accepted as a child of the family of a deceased could claim for Section 1(4) in respect of the death of that deceased. However surprisingly paragraph (c) did not allow the converse, that is a claim by a person who accepted the deceased as a child of the family (Moodie (1993) 38JLS 212 at p213)). Such a person now falls within the category of immediate relatives (Section 35 (5)(b) of the 2006 Act).

The second set of amendments extending the category of relatives is to be found in Schedule 2 of the 2006 Act.

Paragraph 2 of the Schedule provides that a civil partner falls within the definition of immediate family in an equivalent way to a spouse whether that be a civil partner or in a relationship which had the characteristics of a relationship between civil partners. The inclusion of civil partners in the definition of immediate relatives is long overdue and reflective of the status given to such relationships especially in terms of the Civil Partnership Act 2004. An attempt had been previously made to argue that civil partners in any event should be included as immediate relatives having regard to the Human Rights Act 1998 ( Telfer –v- Kellock 2004 SLT 1290). However the case did not turn on the provisions of the 1998 Act because it was agreed that the Act was not retrospective and therefore did not cover the case. The argument however that where there is ambiguity the interpretation of a statutory provision should be in accordance with the Convention was rejected on the basis that Schedule 1 of the 1976 Act was not ambiguous. The language plainly denoted a biological heterosexual definition.

The Section 35 amendments also deal with the categories of relatives who are excluded from the definition of immediate family.

In terms of Section 35(3) relationships by affinity to a deceased are entirely excluded for the purposes of Section 1(4) claims. This in fact fulfils the original intention of the Law Commission giving rise to the 1976 Act which indicated that relationships by affinity were not to be included for the purposes of title to sue for loss of society (Appendix 11, “The Law Relating to Damages for Injuries Causing Death”, Scot Law Com No. 31 Page 43). Despite this indication the subsequent 1976 Act did not exclude such claims. This is because of the terms of Paragraph 2(a) of Schedule 1 to the 1976 Act. It stated that any relationship by affinity for the purposes of Schedule 1 shall be treated as a relationship by consanguinity (see Article 1993 p245 at 248 above). This was confirmed in the case of McAllister –v- Imperial Chemical Industries plc 1997 SLT 351 where the daughter in law was held to qualify for Section 1(4). This interpretation received more authoritive approval from the Inner House in Monteith –v- Cape Insulation 1998 SC 903 where the mother in law was held to qualify. The foregoing gave rise to the irony that the grandparents, grandchildren, brother and sister were excluded but a son in law or daughter in law or mother in law or father in law were included. From experience, although relationships by affinity can be close, surprise was often exhibited and at times embarrassment, even from those who were entitled, when families were advised of their rights.

Section 35(3) also makes it clear that exclusion for affinity also includes exclusion of step relationships, whether they be step child, step parent, step brother or step sister of the deceased or any descendent of any step relatives (see Note 2(a) of Schedule 1 of the 1976 Act which provides for a step child of any person to be treated as their child).

However, there are possible exceptions to the foregoing. There is firstly the definition of siblings which we have seen, includes someone who is not a brother or sister of the deceased but who was brought up in the same household as the deceased and was accepted as a child of the family in which the deceased was a child. That would quite clearly potentially cover a step brother or step sister. Secondly there is then the provision where a person who was not a parent or child of a deceased but who was accepted as such. Again that could include a step parent or step child. It is noticeable that this second definition relates to acceptance and is not tied to living in the same household.

It perhaps should not be forgotten that there is impliedly an extension of relatives who are entitled to claim for patrimonial loss, and not just Section 1(4). This is because in extending the definition of “immediate relative” the definition of “relative” is thereby extended and it is this latter definition which gives rise to entitlement to patrimonial loss. It should also be noted that the exclusion of relatives for Section 1(4) does not exclude them as relatives for the purposes of patrimonial loss. In other words persons related to the deceased by affinity might also claim for loss of support and loss of services (Section 1(3) of the 1976 Act Sections 8, 13 and 9(2) of the Administration of Justice Act 1982).

Having regard to the changes the question inevitably arises as to what values might be awarded to these extended categories for Section 1(4). The interpretation of and values for immediate relatives prior to these changes have been the subject of much comment and development. There was the Scottish Law Commission Report “Report on the Law Relating to Damages for Injuries Causing Death” (Scot Law Com No. 31) which was implemented by the 1976 Act, judicial interpretation of it thereafter, at times contradictory (Dingwall –v- Walter Alexander & Sons (Midland) Ltd 1982 SC (HL) 179 as against Donald –v- Strathclyde Passenger Transport Executive 1986 SLT 625), a careful judicial analysis of the Scottish Law Commission Report “The Effect of Death on Damages” (Scot Law Com No. 134) and Section 1(4) in 1999 by Lord Kingarth (McManus Executrix –v- Babcock Energy Limited 1999 SC 569), thereafter jury awards highlighting a disparity between those awards and judicial awards, further consideration of values in Shaher –v- British Aerospace Flying College Ltd 2003 SC 540 (see also “Changing Values: Bereavement Awards in the Post-Shaher World” (A.M. Hajducki QC) 2003 SLT Articles page 189) and then latterly McLean –v- William Denny & Bros Ltd 2004 SC 656 and also Murray’s Executors –v- Greenock Dockyard Co 2004 SLT 1104. What might be said after McLean is that with some categories of relatives there is less of a disparity between judicial and jury awards such as spouses. Following this and more recent authorities there might just be discernible a hierarchy of values. The spouse is certainly at the top of that hierarchy. Then there may be younger children losing a parent and/or parent losing a younger child (see Shaher and Warnock –v- Clark Contracts Lord Wheatley and Jury 18th November 2004) and an equivalence between an adult child and an elderly parent (See Murray and Cruickshank –v- Fairfield Rowan Limited 2005 SLT 462 but see also Gillies –v- Lynch Lady Clark and Jury 24 March 2006 and under appeal ). With the new amendments one can see civil partners being equivalent to a spouse. It is more difficult to determine where a grandparent or grandchild will fit. In today’s society relationships between a grandchild and grandparent can be extremely close often arising out of care being taken over in the absence of the parents at work. One can see how that might be equivalent to a child losing a parent or a parent losing a child. It cannot be presumed that a brother and sister relationship would fall into a category lower down the hierarchy. What for example would be the position regarding a twin and if a twin how would that differ from siblings who are close in age and have continued to be emotionally close?

Parties may also look in more detail at the evidence of relationships given the greater potential for emotional variance, on the face of it, in some of these extended categories for example brothers and sisters. Furthermore just because the court indicated that it would be invidious to delve into Section 1(4) circumstances of spouses that might not be the case for more remote categories (Murray’s Executors at 1106).

On the practical side pursuer’s agents will require to explore more extensively the family network to ascertain possible Section 1(4) claims. There may be a large number of individual instructions to obtain and instances will be much longer. Where there are no instructions intimation to a relative will require to be given in terms of the Rule of Court (Rule of Court 43.14). It cannot be presumed as with a relative who does not qualify for loss of support or loss of services, that the claim will be less than £200.

There might be some scope for defenders in cases of diminished life expectancy, and indeed an impetus, to seek to limit the cumulative effect of Section 1(4) by seeking to settle the injured persons claim as quickly as possible to extinguish any rights of relatives in terms of Section 1(2) of the 1976 Act. In respect of mesothelioma cases that possibility is now being foreclosed by the Rights of Relatives (Damages) (Mesothelioma) (Scotland) Bill which removes Section 1(2) for such cases. The Scottish Executive have announced that it will apply to cases which have not settled or been resolved by 20 December 2006 (Scottish Parliament Justice 1 Committee Minutes of Proceedings 13/12/06 Col. 4164).

It is this last measure which has recently caused Scottish Ministers to ask the Commission to review damages recovered in respect of deaths caused by personal injury and damages recoverable by relatives and the injured person. One of the questions will obviously be whether the Rights of Relatives Bill should be extended to cases of diminished life expectancy other than mesothelioma. However, the Commission’s remit is much wider. The Commission would be very unlikely to overturn its previous report on Section 1(4) and indeed politicians are unlikely to agree to go back on the changes in the Family (Scotland) Act 2006 or the Rights of Relatives Bill. There are however other issues in fatal damages which may require examination. For example lost years in terms of Section 9 of the 1976 Act has no case authority in Scotland (Farrelly –v- Yarrow Shipbuilders Ltd, 1994 SLT 1349; 1994 SCLR 407 where Section 9 was not addressed. English authority is Harris –v- Empress Motors Ltd [1984] 1 WLR 212; [1983] All ER 561 CA). Many practitioners on both the pursuers’ and defenders’ side would like to see this clarified. It may also bear comparison with loss of support. Loss of support itself may also be an issue. Lord Glennie in Audrey Weir and Others –v- The Robertson Group (Construction) Limited and Others [2006] CSOH 107 questioned the correctness of the line of authority on the method of calculating loss of support and in particular in the Inner House case of Brown –v- Ferguson 1990 SLT 274. The Law Commission hope to issue a Discussion Paper in the summer of 2007.

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