Roslyn Evelyn Mykoliw v Arthur James Botterill - [2010]
CSOH 84
Avid readers of Simpson and Marwick publications will no doubt
recollect that in a Breaking News article in May 2006, Michael Wood
commented upon section 35 of the Family Law (Scotland) Act.
That Act expanded the definition of "immediate family" - the
family members that are entitled to claim a lump sum award for
non-patrimonial loss following a wrongful death. In particular,
section 35 expanded the group to include any person who accepted
the deceased as a child of his family but excluded any claims made
by reason of affinity - that is, a step-relative. Mike commented
that the wording of the section meant that a claim could be barred
even if the claimant might otherwise qualify. For example, where a
parent remarries and the new partner accepts the child into his
family, the new partner has no claim on the child's death,
notwithstanding that acceptance. Mike doubted that this is what was
intended and noted that amending legislation may be required should
the courts interpret that wording strictly.
The facts
Exactly this situation was before Lord Pentland in Roslyn
Evelyn Mykoliw v Arthur James Botterill.
Kevin Mykoliw (the deceased) died in an accident at work on 17
October 2008. A total of 12 relatives raised claims. The eighth
pursuer was the step-father of the deceased. He started cohabiting
with the deceased's mother from around the time the deceased was
15. Until his 16th birthday the deceased visited them every
fortnight. However, when he turned 16 he chose to live with his
mother and step-father.
The court was told that the deceased and his step-father worked
together in their own window cleaning business and attended college
together. It seems that the deceased lived at home until he was 26
and only left to get married. It was said that the step-father was
extremely distressed by the death, that he was in close contact
with the deceased enjoying a close, loving relationship and on that
basis sought the damages in terms of section 1(4) of the 1976
Act.
The law
The court had to decide whether the step-father of a deceased
was entitled to present a claim for non-patrimonial loss in the
face of section 1(4A) of the Damages (Scotland) Act 1976, which is
in the following terms:
"Notwithstanding section 10(2) of and Schedule 1 to this Act, no
award of damages under subsection (4) above shall be made to the
person related by affinity to the deceased."
And subsection (4B) which explains that a person related by
affinity to the deceased includes:-
"(a) step-child, step-parent, step-brother or step-sister of the
deceased; and
(b) any person who was an ascendant or descendant or any of the
step-relatives mentioned in paragraph (a)."
The defenders argued that subsection (4A) excluded the claim on
the basis that he was a step-parent. The step-father argued that he
qualified as a member of the deceased's immediate family because he
accepted the deceased as a member of his family.
Lord Pentland held that, if the defenders' argument was right,
it would mean that it would give rise to injustice. It would mean
that where a step-child was killed in an accident his step-parent
could not claim because of (and only because of) the relationship
of affinity even though the step-parent had accepted the deceased
as a member of his family. That could be contrasted with a person
who chose to cohabit with one of the deceased's parents and
accepted the deceased as a member of that family. That person could
make a claim. The judge said that such discrimination against
step-parents on the sole ground of their marriage status would
offend against common sense and be devoid of any rationality. The
defenders argued that may be so but the conclusion was unavoidable
because the meaning of the subsection was clear.
In addition the judge found that if section 1 (4A) was
interpreted as the defenders contended then it would discriminate
against married step-parents solely on the ground of their married
status which would breach Article 8 of the European Convention on
Human Rights which enshrines the respect for family life.
Comment
In reaching this decision the judge has avoided the need for yet
more legislation and confirmed earlier doubts as to whether the
legislation, if interpreted strictly, reflected Parliament's
intentions. Step-parents are back on the list of potential
claimants - if they accepted the deceased into their family.
Contributed by Catriona Stewart