Readers of the Post Magazine will be aware of an article
appearing a few weeks ago in which one of the writer's partners
drew attention to the marked distinction between damages payable in
Scotland and in England in fatal claims with higher awards being
made north of the border.
That trend continues with the coming into force today of Section
35 of the Family Law (Scotland) Act 2006. The Act, in general,
makes modernising changes to family law and Section 35 seeks to
carry those changes through to the awards of damages to relatives
of anyone killed through fault of another. The Commencement Order
makes it clear, however, by paragraph 8, that the changes do not
apply to any death occurring before 4th May 2006. In other words
the Act is not retrospective.
The alterations are to the definition of immediate family being
the family members entitled to the lump sum award for what is still
commonly termed Loss of Society despite that term being statutorily
abolished! Those persons are entitled to an award to compensate for
distress contemplating the deceased's suffering before death; grief
and sorrow caused by the death and loss of the deceased's Society
and guidance in the future.
The immediate family group is now expanded from the deceased's
spouse, co-habitee, parents and children and those accepted by the
deceased as a child of his family to include :
1.Any person who accepted the deceased as a child of his
family.
2.Brothers and sisters of the deceased or those brought up in
the same household and accepted as if brother or sister.
3.Grand-parents or grand-children of the deceased.
4.Co-habitants of the same sex.
In addition, however, Section 35 excludes as from today any
claims made by reason of affinity i.e. marriage so that the present
absurdity of the mother-in-law having a claim but the brother,
sister, grand-parent or grand-child not being entitled is
reversed.
However, it should be noted that the removal of the claim by
affinity has been undertaken in such a way that where affinity is
involved the claim is barred even if the Claimant might otherwise
qualify. For example, a parent with child remarries and the new
partner accepts the child into her family, but on the child's
death, notwithstanding the acceptance, has no claim because
affinity operates as a bar. It is doubted whether this was what was
actually intended and amending legislation may be required should
the Courts interpret the wording properly?- or strictly.
In the meantime, the most important question is what sums are
likely to be awarded and correspondingly what sums should be
reserved for the additional groups of claimants. Brothers' and
sisters' claims are likely to arise most immediately and
frequently, followed by claims by grandparents and grandchildren.
So far as the latter are concerned, much may turn on the actual
relationship and the extent to which the grandparent and grandchild
are in regular contact. For example it will matter whether the
grandparent was involved in the child care arrangements or visited
only on birthdays. Some guidance may be obtained from awards
currently given to parents with some discount to reflect the more
distant relationship and its more limited duration.
By contrast so far as brothers and sisters are concerned a new
tariff will have to be established. We currently anticipate that
awards will be less than those for a spouse or co-habitee (of
either sex) but the fact that the length of the relationship
between brother and sister might prevail, but for death, for many
years may point to significantly more than nominal awards. At the
end of the day the level of damages in such circumstances is
clearly a Jury question ?and unfortunately in Scotland it is the
Jury of 12 of Edinburgh's Citizens who may well actually make that
decision.
We will monitor developments carefully but if in the meantime
you would like further information on this matter, or indeed on any
of the intricacies of fatal claims in Scotland then please contact
Michael Wood.
Michael Wood