Title to Sue for Non-Patrimonial Loss [2002] SLC 187 (Report) (August 2002)

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Scottish Law Commission (Reports)

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SCOTTISH LAW COMMISSION

(Scot Law Com No 187)

Report on Title to Sue for Non-Patrimonial Loss

Report on a reference under section 3(1)(e) of the Law Commissions Act 1965

Laid before the Scottish Parliament by the Scottish Ministers

August 2002

SE/2002/179

EDINBURGH: TSO Scotland

£…….

The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965^[1] for the purpose of promoting the reform of the law of Scotland. The Commissioners are:

The Honourable Lord Eassie, Chairman
Patrick S Hodge, QC
Professor Gerard Maher
Professor Kenneth G C Reid
Professor Joseph M Thomson

The Secretary of the Commission is Miss Jane L McLeod. Its offices are at 140 Causewayside, Edinburgh EH9 1PR

The text of this Report is available on the Internet at:

http:/ /www.scotlawcom.gov.uk

SCOTTISH LAW COMMISSION

Report on a reference under section 3(1)(e) of the Law Commissions Act 1965

Report on Title to Sue for Non-Patrimonial Loss

To: Jim Wallace Esq QC MSP, Deputy First Minister and Minister for Justice

We have the honour to submit to the Scottish Ministers our Report on Title to Sue for Non-Patrimonial Loss

(Signed)RONALD D MACKAY, Chairman
PATRICK S HODGE
GERARD MAHER
KENNETH G C REID
JOSEPH M THOMSON

Jane L McLeod, Secretary

August 2002

	Paragraph
PART 1 INTRODUCTION
Terms of reference	1.1
The scheme of the Damages (Scotland) Act 1976	1.5
Patrimonial loss	1.6
Non-patrimonial loss	1.7
Structure of the report	1.11
Legislative competence	1.12

PART 2 RECOMMENDATIONS FOR REFORM
Introduction	2.1
Background	2.4
Judicial discretion	2.7
Policy aims	2.11
The present members of the deceased's immediate family	2.12
Surviving spouse	2.13
Surviving opposite-sex cohabitants	2.16
Parents	2.21
Parental rights and responsibilities	2.22
Biological parents of a child	2.24
Adoptive parents of a child	2.25
Biological parents of an adopted child	2.26
Parents-in-law	2.33
Step-parents	2.36
Children	2.42
Expanding the concept of the deceased's immediate family	2.48
Brothers and sisters	2.49
Brothers-in-law and sisters-in-law	2.51
De facto brothers and sisters	2.52
Grandparents and grandchildren	2.55
Same-sex cohabitants	2.57
Other relationships	2.66
Former spouse	2.67
Engaged couples	2.69
Uncles and aunts	2.76
Nieces, nephews and cousins	2.78
De facto grandparents and grandchildren	2.79
Application and commencement	2.82


PART 3 LIST OF RECOMMENDATIONS	Part 3

APPENDIX A	Appendix A
Draft Damages (Scotland) Bill 2002

APPENDIX B	Appendix B
Title to sue for non-patrimonial loss under the Damages (Scotland) Act 1976 at present and following our Bill

APPENDIX C	Appendix C
List of consultees who submitted written comments on Discussion Paper No 116

Part 1 Introduction

Terms of reference

On 22 March 2001 we received the following reference from Scottish Ministers:

"To consider the provisions of the Damages (Scotland) Act 1976 ^[2] that set out which relatives of a deceased person can claim non-patrimonial damages; and to make recommendations as to possible changes in the law."

Our remit is limited in that we have not been asked to consider possible changes to the law in relation to title to sue for patrimonial damages under the 1976 Act. However, in Part 2 of this report we explain why the effect of some of our recommendations would be to amend the 1976 Act in relation to patrimonial damages as well as non-patrimonial damages.

1.3

In October 2001 we published our Discussion Paper on Title to Sue for Non-Patrimonial Loss.

^[3]

Quinn

Reed

^[4]

Monteith

Cape Insulation

^[5]

We distributed our discussion paper widely and we are grateful to those consultees who submitted responses.

^[6]

The scheme of the Damages (Scotland) Act 1976

The 1976 Act provides that, where a person dies as a result of personal injuries caused by another person's delictual conduct, the deceased's family may be entitled to claim damages under the Act. The Act allows claims for damages under two heads - patrimonial loss (loss of financial support) and non-patrimonial loss (grief, distress, sorrow and other intangible losses).

1.6

Patrimonial loss. Under section 1(3) of the 1976 Act relatives of the deceased are entitled to sue for patrimonial loss. In order to sue, the pursuer must be a "relative" of the deceased within the meaning of Schedule 1, paragraph 1(a) to (f) of the Act, as read with paragraph 2 of the Schedule:

"1. In this Act 'relative' in relation to a deceased person includes –

(a) any person who immediately before the deceased's death was the spouse of the deceased;

(aa) any person, not being the spouse of the deceased, who was, immediately before the deceased's death, living with the deceased as husband or wife;

(b) any person who was a parent or child of the deceased;

(c) any person not falling within paragraph (b) above who was accepted by the deceased as a child of his family;

(d) any person who was an ascendant or descendant (other than a parent or child) of the deceased;

(e) any person who was, or was the issue of, a brother, sister, uncle or aunt of the deceased; and

(f) any person who, having been a spouse of the deceased, had ceased to be so by virtue of a divorce;

but does not include any other person.

2. In deducing any relationship for the purposes of the foregoing paragraph –

(a) any relationship by affinity ^[7] shall be treated as a relationship by consanguinity; any relationship of the half blood shall be treated as a relationship of the whole blood; and the step-child of any person shall be treated as his child; and

(b) section 1(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 shall apply; and any reference (however expressed) in this Act to a relative shall be construed accordingly."^[8]

Non-patrimonial loss. Under section 1(4) of the 1976 Act certain relatives of the deceased - the deceased's "immediate family" within the meaning of section 10(2) of the Act - can claim damages for all or any of the following:

"(a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death;

(b) grief and sorrow of the relative caused by the deceased's death;

(c) the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died".

1.8

Section 10(2) provides that the deceased's "immediate family" are those relatives falling within paragraphs 1(a), (aa), (b) and (c) of Schedule 1:

"(a) any person who immediately before the deceased's death was the spouse of the deceased;

(aa) any person, not being the spouse of the deceased, who was, immediately before the deceased's death, living with the deceased as husband or wife;

(b) any person who was a parent or child of the deceased;

(c) any person not falling within paragraph (b) above who was accepted by the deceased as a child of his family;".^[9]

Thus the deceased's immediate family is a sub-set of the deceased's relatives. Members of the immediate family are entitled to sue for patrimonial loss as well as non-patrimonial loss. But not all those relatives who are entitled to sue for patrimonial loss can sue for non-patrimonial loss. Thus title to sue for non-patrimonial loss is inextricably linked with title to sue for patrimonial loss.

1.10

The preliminary view expressed in our discussion paper

^[10]

Structure of the report

In Part 2 we set out our recommendations for amendments to the 1976 Act. Part 3 contains a list of the recommendations. A draft Bill which would give effect to our recommendations is contained in Appendix A. Appendix B shows the changes in title to sue for non-patrimonial damages if our draft Bill is implemented. A list of consultees who submitted responses to the discussion paper is in Appendix C.

Legislative competence

1.12

The recommendations in this report relate to the law of damages in Scotland. That is not a matter which is reserved to the Westminster Parliament under Schedule 5 to the Scotland Act 1998.

^[11]

A further aspect of the legislative competence of the Scottish Parliament is that any Act of the Parliament must be compatible with the European Convention on Human Rights.

^[12]

Part 2 Recommendations for Reform

Introduction

As we mentioned in Part 1, our terms of reference are relatively narrow.

^[13]

We have therefore approached the matter on the basis that this link should be preserved and that the basic structure of the 1976 Act should not be changed. Our approach was supported by many of our consultees who took the view that title to sue for non-patrimonial loss should continue to be restricted to a sub-set of the deceased's relatives known as the immediate family.

^[14]

As a consequence, any person whom we recommend should have title to sue for non-patrimonial loss should also have title to sue for patrimonial loss, even if that person is not entitled to do so at present. We recognise that in this respect some of our recommendations go beyond the strict terms of our remit. However, we consider that this approach is justifiable in order to retain the structure of the 1976 Act.

Background

2.4

It is a fundamental principle of Scots law that delictual liability does not arise in respect of losses indirectly sustained by the pursuer as a result of harm suffered by another person. Thus, for example, if A is injured by B with the result that A cannot fulfil a contract with C, C cannot sue B in delict for the loss he has sustained.

^[15]

^[16]

^[17]

The 1976 Act also constitutes an important exception to the principle of non-liability for grief and suffering by allowing a small group of persons, the deceased's immediate family, to sue for non-patrimonial losses arising from the death of a relative. The membership of the group is not large

^[18]

^[19]

Judicial discretion

In our discussion paper we mentioned the possibility of introducing a system whereby anyone claiming interest could apply to the court to show in the particular circumstances of the case that he or she should be entitled to sue for non-patrimonial loss.

^[20]

First, we take the view that normal grief and suffering should continue to be regarded as non-reparable interests. However, we recognise that title to sue for damages for non-patrimonial loss under the 1976 Act has an important symbolic role. It recognises that a death arising from personal injuries is not merely a wrong against the deceased but also a wrong against those who have been closest to the deceased. As in the example of the schoolteacher, a person's death may bring grief and sorrow to a large number of people who knew the deceased. Yet they do not suffer the sense of outrage at the wrong experienced by the family of the victim which the 1976 Act recognises by allowing damages for non-patrimonial loss. In our view, those most likely to experience the intangible losses which form the basis of the claim will be close members of the deceased's family. These are persons who, due to their relationship, have loved the deceased or have been emotionally close to the deceased because they were brought up together in the same household. Provided the definition of the deceased's immediate family reflects accurately the family structures in contemporary Scotland, the persons who automatically have title to sue for non-patrimonial loss will also be the persons who are most likely in fact to have suffered such losses.

2.9

Second, some consultees argued that there could be exceptional situations where persons outwith the deceased's immediate family, such as teachers, neighbours or friends, could in fact suffer such losses. However, in our view the possibility of an exceptional situation does not justify the introduction of a judicial discretion to allow such claims. There would have to be some criterion which the court could use to identify such persons. Almost inevitably this would involve the question whether or not there was a close relationship of love and affection between the claimant and the deceased. This could result in prolonged and potentially embarrassing litigation in order to prove his or her loss.

^[21]

^[22]

It cannot be overemphasised that the right to seek damages on the death of a relative is, for the reasons discussed above,

^[23]

Policy Aims

In light of consultation and further discussion, our overall policy aims are to:

(a) retain the concept of the deceased's immediate family;

(b) ensure that it consists of those relatives who are likely to have had a close tie of love and affection with the deceased in the context of contemporary family structures;

(c) give appropriate weight to relationships which can arise between persons who have lived and/or been brought up in the same household; and

(d) exclude relationships by affinity.^[24]

The present members of the deceased's immediate family

In our discussion paper, we invited consultees to comment on whether existing members of the deceased's immediate family, as set out in Schedule 1 to the 1976 Act, should continue to have title to sue for non-patrimonial damages under section 1(4) of the Act. In general, consultees took the view that those presently entitled should continue to be able to sue. We consider the present members of the deceased's immediate family in the following paragraphs.

2.13

Surviving spouse. At present a surviving spouse of the deceased can sue for non-patrimonial damages.

It should be noted that the pursuer must have been married to the deceased immediately before the death. This means that a former spouse does not have title to sue. On the other hand, a spouse who has separated from, but not yet divorced, the deceased at the time of death retains title to sue. We have considered whether such a spouse should continue to have such title. In theory, the fact that the marriage was breaking down could be reflected in the damages awarded: in practice, an insurance company is usually prepared to settle once it is established that the complainant is the surviving spouse of the deceased. However, the number of cases where the parties have separated but not divorced, and where the spouse dies, is likely to be few. Accordingly, we do not feel that it is necessary to overcomplicate the 1976 Act by making a specific exception for a spouse who was separated from the deceased at the date of death.

2.15

We therefore recommend that:

1. Any person who, immediately before the deceased's death, was the spouse of the deceased should continue to be entitled to sue for non-patrimonial loss.

(Draft Bill, section 1(4)(b), [new para 1A(a)])

2.16

Surviving opposite-sex cohabitants. At present an opposite-sex cohabitant of the deceased has title to sue for non-patrimonial damages.

^[30]

^[31]

Opposite-sex cohabitants are generally entitled to sue for non-patrimonial damages in jurisdictions with wrongful death legislation. Often, however, the couple have had to live together for a minimum period before there is title to sue. For example, Irish law demands the couple have cohabited as husband and wife for a continuous period of not less than three years.

de facto

bona fide

In their Report on Claims for Wrongful Death,

^[36]

The 1976 Act makes no provision for a minimum time limit, but this does not appear to have caused any difficulties in practice. Accordingly, we do not recommend any change to the Act in this respect. A minimum time limit would be arbitrary. Before an applicant has title to sue, the court must be satisfied that the opposite-sex couple were in fact living together as husband and wife. While this concept is difficult to define, it does involve an element of stability in the relationship. It is ultimately a question of fact. In practice, the claimant would probably only require to prove that he or she was living with the deceased. To add an arbitrary time limit would bring an element of artificiality to the process and be productive of the inevitable "hard case" where the couple fail to satisfy the requirement by a narrow margin.

2.20

Accordingly, we recommend that:

2. Any person who, immediately before the deceased's death, was the opposite-sex cohabitant of the deceased should continue to be entitled to sue for non-patrimonial damages.

(Draft Bill, section 1(4)(b), [new para 1A(b)])

2.21

Parents. At present under the 1976 Act parents are entitled to sue for non-patrimonial damages. Paragraph 1(b) of Schedule 1 defines the immediate family for the purposes of section 1(4) of the Act to include "any person who was a parent of the deceased". "Parent" is not defined. However, it includes the deceased's biological mother and father,

Monteith

Cape Insulation

^[42]

^[43]

Parental rights and responsibilities. At present a person who was accepted by a deceased as a child of the family is treated as a member of the deceased's immediate family.

^[44]

In the discussion paper we suggested that a solution would be to re-define "parent" as "any person who had parental rights and responsibilities in relation to the deceased". For this purpose, parental rights and responsibilities would include the obligation to aliment the deceased.

^[45]

^[46]

^[47]

Biological parents of a child. As mentioned above, the deceased's biological parents can sue for non-patrimonial loss.

^[48]

^[49]

^[50]

Adoptive parents of a child. Adoptive parents are entitled to sue for non-patrimonial loss. Following consultation we do not recommend any change to the 1976 Act in this respect.

2.26

Biological parents of an adopted child. At present the biological parents of an adopted child cannot sue for non-patrimonial loss.

^[51]

^[52]

Accordingly, we sought the views of consultees as to whether the 1976 Act should be amended to allow biological mothers to sue.

^[53]

We recognise that there may be situations where a child and biological parent maintain a close relationship through open adoption, or develop such a relationship through later contact. However, after further discussion, we take the view that the 1976 Act should not be amended to allow biological parents of an adopted child to sue for non-patrimonial or patrimonial loss. We have found this issue very difficult to decide. We have reached this conclusion for the following reasons.

2.29

First, to allow biological parents to sue constitutes a significant departure from the existing principle that adoption terminates the legal relationship between child and biological parent. This principle is based on the view that adoption is intended to produce a permanent result and to create a legally and emotionally secure relationship between the child and his adoptive parents.

^[54]

Second, if, as well as the adoptive parents, the biological parents are entitled to sue, there is potential for unpleasant interactions between the parties in some cases. The loss of a child is distressing enough for an adoptive parent without adding the risk of unwanted contact with a biological parent who in every other respect has lost all legal responsibilities and rights in connection with the child.

2.31

There is also the question of where to draw the line in relation to the biological family's entitlement to sue. If biological parents of an adopted child were to be allowed to sue for non-patrimonial loss, the question could arise as to whether biological brothers, sisters and grandparents of an adopted child should become similarly entitled.

2.32

Above all, our policy is to restrict title to sue for non-patrimonial loss to close members of the deceased's immediate family, and to those who immediately before the deceased's death were living with the deceased. We take the view that it is adoptive parents who are most likely to have been living in such a close familial relationship with the child. We therefore consider that adoptive parents should be regarded as the closest family members for the purposes of entitlement to sue for non-patrimonial loss. Accordingly, we do not recommend that the 1976 Act should be amended to allow biological parents to sue for non-patrimonial loss on the death of their adopted child.

2.33

Parents-in-law. At present a deceased's parents-in-law can sue for non-patrimonial loss. Paragraph 2(a) of Schedule 1 to the 1976 Act provides that, in determining any relationship for the purposes of the list of persons in paragraph 1, any relationship by affinity shall be treated as a relationship by consanguinity. Paragraph 2(a) applies in determining the relatives who are entitled to sue for patrimonial loss and also the members of the sub-set of those relatives (the deceased's immediate family) who are entitled to sue for non-patrimonial loss.

2.34

In Appendix II to our Report on The Law Relating to Damages for Injuries Causing Death,

^[55]

^[56]

^[57]

Monteith

Cape Insulation

^[58]

We asked consultees whether parents-in-law and other relationships by affinity should be entitled to sue for non-patrimonial loss.

^[59]

^[60]

Step-parents. As mentioned above, a step-parent is included in the meaning of "parent"

^[61]

On the one hand the concept of step-parent is wide. It includes any person who is married to the biological or adoptive parent of the deceased. We have no difficulty in regarding a step-parent as a member of the deceased's immediate family when he or she has played a part in the upbringing of the deceased child. But that will not always be the case, particularly where the step-parent's marriage took place when the child was an adult.

2.38

On the other hand, the concept is narrow, as the relationship is only constituted by marriage. In modern family structures, a person can often play a major role in a child's upbringing even although he or she does not marry the child's biological or adoptive parent.

2.39

We take the view that step-parents as such should no longer be entitled to sue for non-patrimonial damages under the 1976 Act. However, they should continue to be entitled to sue for patrimonial loss as the deceased may have been supporting them financially.

^[62]

^[63]

The effect of the amendment would be to include those step-parents who in fact accept a child as a child of the family. It would also have the effect of including the biological parent's unmarried partner who accepts the child as a child of the family and also anyone who does so even where he or she has had no relationship with the biological parent of the deceased child.

^[64]

^[65]

Accordingly, we make the following recommendations:

3. Any person who was a parent of the deceased should continue to be entitled to sue for non-patrimonial loss. For this purpose "parent" should continue to include any person who was -

(a) a biological parent of the deceased, except where the deceased was adopted;

(b) an adoptive parent of the deceased;

(c) a parent of the deceased by virtue of a parental order.

(Draft Bill, section 1(4)(b), [new para 1A(d)])

4. The 1976 Act should be amended to provide that -

(a) any person who had accepted the deceased as a child of the family should be entitled to sue for non-patrimonial and patrimonial loss; and

(b) "parent" (for the purpose of title to sue for non-patrimonial loss) should not include step-parent and parent-in-law.

(Draft Bill, section 1(4)(a)(ii), 1(4)(b), [new para 1A(e)], and 1(4)(c)(ii) and (d))

2.42

Children. At present a child of the deceased has title to sue for non-patrimonial loss. Paragraph 1(b) of Schedule 1 defines the immediate family for the purposes of section 1(4) of the 1976 Act to include "any person who was a child of the deceased". At present "child" is not specifically defined. However, it has an extended meaning for the purposes of the Act. It includes the deceased's biological child,

^[69]

We asked consultees whether a child should continue to be entitled to sue for non-patrimonial loss.

^[72]

^[73]

^[74]

Following consultation, it is our view that, as the relationship between parent and child corresponds, our recommendations concerning the deceased's child should correspond with our recommendations concerning the deceased's parents. Thus a person should not be entitled to sue for non-patrimonial loss merely because he or she is a step-child of the deceased.

^[75]

^[76]

For the reasons discussed above in relation to parents, we think that, where a child has been adopted, he or she should not be entitled to sue for non-patrimonial loss in the event of the death of his or her biological parent.

2.46

Many of our consultees were in favour of children-in-law having title to sue for non-patrimonial loss. However, as we recommend in relation to parents-in-law, we remain of the view that relatives by affinity are too remote to be treated as members of the deceased's immediate family. Accordingly, children-in-law should not be entitled to sue for non-patrimonial loss. However, they should continue to be entitled to sue for patrimonial loss as the deceased may have been supporting them financially.

^[77]

Accordingly, we make the following recommendations:

5. Any person who was a child of the deceased should continue to be entitled to sue for non-patrimonial loss. For this purpose "child" should continue to include any person who was -

(a) a biological child of the deceased, except where the child was adopted;

(b) an adopted child of the deceased;

(c) a child of the deceased by virtue of a parental order.

(Draft Bill, section 1(4)(b), [new para 1A(d)])

6. Any person who was accepted by the deceased as a child of the family should continue to be entitled to sue for non-patrimonial and patrimonial loss.

(Draft Bill, section 1(4)(a)(ii) and (b), [new para 1A(e)])

7. The 1976 Act should be amended to provide that "child" (for the purpose of title to sue for non-patrimonial loss) should not include step-child and child-in-law.

(Draft Bill, section 1(4)(c)(ii) and (d))

Expanding the concept of the deceased's immediate family

2.48

There have been considerable changes in family structures in Scotland since the 1976 Act was enacted. These include increasing diversity as a consequence of a multicultural society; the decline in marriage as the dominant legal regime for opposite-sex couples; and changing attitudes towards same-sex relationships. We therefore agree with our consultees that the current list of the deceased's immediate family should be expanded to take account of these social changes and to include some relatives who at present are not entitled to sue for non-patrimonial loss.

2.49

Brothers and sisters. At present brothers and sisters of the deceased are not included in the list of the deceased's immediate family in Schedule 1 to the 1976 Act and thus they are not entitled to sue for non-patrimonial loss.

^[78]

Quinn

Reed

^[79]

"It seems unrealistic to my mind that brothers and sisters could in certain circumstances claim for loss of support,^[80] but never in any circumstances for loss of society."^[81]

In our discussion paper we asked consultees whether brothers and sisters of the deceased should be entitled to sue for non-patrimonial loss.

Brothers-in-law and sisters-in-law. At present, because brothers and sisters cannot sue for non-patrimonial loss, neither can their relatives by affinity, namely brothers-in-law and sisters-in-law.

De facto brothers and sisters. We are recommending that the deceased's brothers and sisters should have title to sue because there can be very close emotional ties between them. One of the reasons why they can be so close is that usually they will have been brought up in the same household. Today it has become quite common for children to be brought up by one of their parents along with the parent's spouse or cohabitant. The question therefore arises whether a child of the spouse or cohabitant should have title to sue if he or she was raised in the same household as the deceased.

2.53

If our recommendations are accepted, half-brothers and half-sisters will have title to sue on the death of a sibling.

^[90]

de facto

^[91]

Accordingly we recommend that:

8. The 1976 Act should be amended to provide that –

(a) any person who was the brother or sister of the deceased should be entitled to sue for non-patrimonial loss;

(b) "brother" and "sister" (for the purposes of title to sue for non-patrimonial and patrimonial loss) should include any person who was brought up in the same household and as a child of the same family as the deceased; and

(c) "brother" and "sister" (for the purpose of title to sue for non-patrimonial loss) should not include brother-in-law or sister-in-law.

(Draft Bill, section 1(4)(b), [new para 1A(f)], and 1(4)(c)(ii) and (d))

2.55

Grandparents and grandchildren. At present grandparents and grandchildren of a deceased are not included in the list of the deceased's immediate family in Schedule 1 to the 1976 Act. They are therefore not entitled to sue for non-patrimonial loss.

We therefore recommend that:

9. The 1976 Act should be amended to provide that any person who was the grandparent or grandchild of the deceased should be entitled to sue for non-patrimonial loss.

(Draft Bill, section 1(4)(b), [new para 1A(f)])

2.57

Same-sex cohabitants. At present the list of the deceased's immediate family does not include the deceased's same-sex cohabitant, who is therefore not entitled to sue for non-patrimonial loss.

^[97]

We asked consultees whether the 1976 Act should be amended to allow same-sex cohabitants to sue for non-patrimonial loss.

^[98]

^[99]

^[100]

Over the last twenty years or so, there has been increasing social and legal recognition of same-sex relationships. They have been recognised in recent legislation of the Scottish Parliament, such as the Adults with Incapacity (Scotland) Act 2000.

^[101]

Fitzpatrick

Sterling Housing Association Ltd

^[102]

T, Petitioner

^[103]

^[104]

Some consultees commented that the continued exclusion of the deceased's same-sex cohabitant from the list of those entitled to sue for non-patrimonial loss could be held to be a breach of the European Convention on Human Rights. In Salgueiro da Silva Mouta v Portugal,

^[105]

de facto

In some other jurisdictions same-sex cohabitants are entitled to sue for non-patrimonial loss. For example, in Australia, the definition of "de facto relationship" in the New South Wales legislation extends to same-sex cohabitation.

^[106]

For these reasons it appears that the exclusion of same-sex cohabitants from the 1976 Act can no longer be justified. We therefore agree with consultees that same-sex cohabitants should be entitled to sue for non-patrimonial loss. We explained above

^[107]

As mentioned above, in our view the position of same-sex cohabitants should be the same as opposite-sex cohabitants. In order to qualify, the claimant must have been cohabiting with the deceased immediately before the deceased's death. Former cohabitants should not have title to sue and there should be no minimum period of cohabitation. However, as in the case of opposite-sex cohabitation, same-sex cohabitation should involve some degree of stability and commitment in order to qualify. Our draft Bill therefore defines a same-sex cohabitant as "any person of the same sex as the deceased who was living with the deceased in a relationship which had the characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife."

^[108]

Accordingly we recommend that:

10. The 1976 Act should be amended to provide that –

(a) any person who, immediately before the deceased's death, was the same-sex cohabitant of the deceased should be entitled to sue for patrimonial and non-patrimonial loss; and

(b) "same-sex cohabitant" (for the purposes of title to sue for non-patrimonial and patrimonial loss) should mean any person who was living with the deceased in a relationship which had the characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife.

(Draft Bill, section 1(4)(a)(i) and (b) [new para 1A(c)])

Other relationships

2.66

In our discussion paper we sought the views of consultees on whether the list of the deceased's immediate family should be expanded to include certain other relationships. We discuss these in the following paragraphs.

2.67

Former spouse. Paragraph 1(f) of Schedule 1 provides that "relative" for the purpose of title to sue for patrimonial damages includes "any person who, having been a spouse of the deceased, had ceased to be so by virtue of a divorce". However, former spouses of the deceased are not included in the sub-set of relatives comprising the deceased's immediate family. Thus they are not entitled to sue for non-patrimonial damages.

2.68

In response to the question in our discussion paper,

Engaged couples. At present the deceased's fiancé(e) has no title to sue for non-patrimonial loss.

^[113]

^[114]

The arguments in favour of allowing engaged couples title to sue for non-patrimonial loss are as follows. First, it is to be expected that engaged couples will have close ties of love and affection. As stated above,

^[115]

Second, engaged couples should be treated in the same way as cohabiting couples. Many couples do not cohabit prior to marriage for religious and other reasons. As noted by one consultee, by continuing to exclude engaged couples, we would be denying recognition of their grief simply because of the way they approach their commitment.

2.72

The counter-arguments are as follows. First, under section 1(1) of the Law Reform (Husband and Wife) (Scotland) Act 1984

^[116]

Second, it can be argued that there is no inconsistency if opposite-sex cohabitants continue to be included, and engaged couples remain excluded, from the deceased's immediate family. Before they have title to sue opposite-sex cohabitants must have lived together as husband and wife: simply to have a sexual relationship does not suffice. There is therefore a level of commitment as well as the fact of living in the same household. A close tie of love and affection between persons is not enough to establish title to sue. Thus a couple who intend to set up a home together but without marrying have no title to sue. It is difficult to see how their position differs from that of an engaged couple, given that engagement has no legal effect and that either party can terminate it with impunity should he or she decide not to marry. Moreover, opposite-sex cohabitants have had title to sue under the 1976 Act for twenty years.

^[117]

Third, there is the problem of what constitutes engagement. The status of engagement would have to be defined and determined.

^[118]

^[119]

It is clear that there are strong arguments both for and against engaged couples having title to sue for non-patrimonial loss. However, on balance, we are inclined to the view that we should not make an exception to the policy inherent in the 1984 Act. Accordingly, engaged couples should not be entitled to sue for non-patrimonial (or patrimonial) loss and there should be no change to the 1976 Act in this respect.

2.76

Uncles and aunts. At present uncles and aunts of the deceased are not included in the list of the deceased's immediate family in Schedule 1 to the 1976 Act and so they cannot sue for non-patrimonial loss.

^[120]

^[121]

Generally, other jurisdictions do not include uncles and aunts in statutory lists comprising relations entitled to sue for non-patrimonial loss.

^[122]

^[123]

^[124]

Nieces, nephews, and cousins. At present nieces, nephews and cousins are not included in the deceased's immediate family and therefore they are not entitled to sue for non-patrimonial loss.

^[125]

^[126]

De facto grandparents and grandchildren. Parents of a person who has accepted the deceased as a child of the family (the de facto grandparents) are not at present entitled to sue for damages under the 1976 Act. Similarly, a child who has been accepted as a child of the family by a child of the deceased (the de facto grandchild) is not entitled to sue for such damages.

2.80

We asked consultees whether de facto grandparents and de facto grandchildren should be entitled to sue for non-patrimonial loss.

^[127]

^[128]

de facto

Our policy is to restrict the right to sue for non-patrimonial damages to those relatives of the deceased who are most likely to have suffered grief and loss because of the close ties of love and affection between them. We think that such a relationship is less likely to exist between the deceased and de facto grandparents/de facto grandchildren and therefore we see no need to change the 1976 Act in this respect.

Application and commencement

2.82

In our view, the Bill amending the 1976 Act should apply to the Crown as the 1976 Act does. It should also apply in relation to deaths which occur on or after the date of commencement of the provisions. As the Bill amends the 1976 Act and as there is no reason to delay commencement, we think that the Bill should come into force immediately on Royal Assent.

2.83

Accordingly we recommend that:

11. The Bill giving effect to our recommendations should -

(a) apply to the Crown;

(b) apply in relation to deaths which occur on or after the date of commencement; and

(c) come into force on Royal Assent.

(Draft Bill, section 2(2) and (3)).

Part 3 List of recommendations

1. Any person who, immediately before the deceased's death, was the spouse of the deceased should continue to be entitled to sue for non-patrimonial loss.

Para 2.15

2. Any person who, immediately before the deceased's death, was the opposite-sex cohabitant of the deceased should continue to be entitled to sue for non-patrimonial damages.

Para 2.20

3. Any person who was a parent of the deceased should continue to be entitled to sue for non-patrimonial loss. For this purpose "parent" should continue to include any person who was -

(a) a biological parent of the deceased, except where the deceased was adopted;

(b) an adoptive parent of the deceased;

(c) a parent of the deceased by virtue of a parental order.

Para 2.41

4. The 1976 Act should be amended to provide that -

(a) any person who had accepted the deceased as a child of the family should be entitled to sue for non-patrimonial and patrimonial loss; and

(b) "parent" (for the purpose of title to sue for non-patrimonial loss) should not include step-parent and parent-in-law.

Para 2.41

5. Any person who was a child of the deceased should continue to be entitled to sue for non-patrimonial loss. For this purpose "child" should continue to include any person who was -

(a) a biological child of the deceased, except where the child was adopted;

(b) an adopted child of the deceased;

(c) a child of the deceased by virtue of a parental order.

Para 2.47

6. Any person who was accepted by the deceased as a child of the family should continue to be entitled to sue for non-patrimonial and patrimonial loss.

Para 2.47

7. The 1976 Act should be amended to provide that "child" (for the purpose of title to sue for non-patrimonial loss) should not include step-child and child-in-law.

Para 2.47

8. The 1976 Act should be amended to provide that –

(a) any person who was the brother or sister of the deceased should be entitled to sue for non-patrimonial loss;

(b) "brother" and "sister" (for the purposes of title to sue for non-patrimonial and patrimonial loss) should include any person who was brought up in the same household and as a child of the same family as the deceased; and

(c) "brother" and "sister" (for the purpose of title to sue for non-patrimonial loss) should not include brother-in-law or sister-in-law.

Para 2.54

9. The 1976 Act should be amended to provide that any person who was the grandparent or grandchild of the deceased should be entitled to sue for non-patrimonial loss.

Para 2.56

10. The 1976 Act should be amended to provide that –

(a) any person who, immediately before the deceased's death, was the same-sex cohabitant of the deceased should be entitled to sue for patrimonial and non-patrimonial loss; and

(b) "same-sex cohabitant" (for the purposes of title to sue for non-patrimonial and patrimonial loss) should mean any person who was living with the deceased in a relationship which had the characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife.

Para 2.65

11. The Bill giving effect to our recommendations should -

(a) apply to the Crown;

(b) apply in relation to deaths which occur on or after the date of commencement; and

(c) come into force on Royal Assent.

Para 2.83

Appendix A

DAMAGES (SCOTLAND) BILL

[DRAFT]

An Act of the Scottish Parliament to amend the Damages (Scotland) Act 1976 to further define the relatives of a deceased person who can claim damages.

1 Definition of "relative" and "immediate family"

(1) The Damages (Scotland) Act 1976 (c.13) is amended as follows.

(2) In section 1(4) (rights of the deceased's immediate family), for the words "section 10(2) of" there is substituted "Schedule 1 to".

(3) In section 10 (interpretation)—

(a) in subsection (1), before the definition of "personal injuries", there is inserted—

""immediate family", in relation to a deceased person, has the meaning assigned to it by Schedule 1 to this Act;" and

(b) subsection (2) is repealed.

(4) In Schedule 1 (definition of "relative")—

(a) in paragraph 1,

(i) after sub-paragraph (aa) there is inserted--

"(ab) any person of the same sex as the deceased, who was, immediately before the deceased's death, living with the deceased in a relationship which had the characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife;";

(ii) in sub-paragraph (c), for the words "was accepted by" there is substituted "had accepted, or was accepted by,";

EXPLANATORY NOTES

The overall effect of section 1 is to amend Schedule 1 to the Damages (Scotland) Act 1976. At present paragraph 1 of Schedule 1 to the Act defines "relative" for the purposes of title to sue for patrimonial loss. A sub-set of those relatives, namely those listed in sub-paragraphs (a), (aa), (b) and (c) are members of the deceased's "immediate family" for the purposes of title to sue for non-patrimonial loss.

Section 1 amends the Schedule so that in future paragraph 1 list the relatives who are entitled to sue for patrimonial loss and a new paragraph 1A lists the members of the immediate family who are entitled to sue for non-patrimonial loss. The individual amendments are explained below.

Subsection (2) amends section 1(4) of the Damages (Scotland) Act 1976 (in these notes referred to as the 1976 Act). Section 1(4) of the 1976 Act provides that any relative of a deceased who is a member of the deceased's immediate family within the meaning of section 10(2) is entitled to claim damages for non-patrimonial loss. Subsection (2) substitutes reference to "Schedule 1" in place of "section 10(2)".

Subsection (3)(a) amends section 10 (interpretation) of the 1976 Act to insert a new reference to the definition of immediate family in Schedule 1 to the 1976 Act.

Subsection (3)(b) repeals section 10(2) of the 1976 Act, as this is no longer necessary following the amendment made by subsection (3)(a).

Subsection (4)(a) amends Schedule 1 to the 1976 Act in relation to the meaning of relative for the purpose of title to sue for patrimonial loss.

Subsection (4)(a)(i) implements recommendation 10 in relation to patrimonial loss. It amends paragraph 1 of Schedule 1 to the 1976 Act to extend the meaning of relative to include the deceased's same-sex cohabitant. The cohabitant must have been cohabiting with the deceased immediately before the deceased's death. The effect of this amendment is to entitle a person's same-sex cohabitant to sue for patrimonial loss on that person's death.

Subsection (4)(a)(ii) implements recommendation 4(a) in relation to patrimonial loss. It amends sub-paragraph (c) of Schedule 1 to the 1976 Act, which provides that relative includes any person who was accepted by the deceased as a child of his family. The effect of the amendment is to extend the meaning of relative to include any person who had accepted the deceased as a child of his or her family. Thus a person who accepted a child as a child of his or her family, for example, a foster parent or step parent, will be entitled to sue for patrimonial loss on the death of that child. Conversely, a child who was accepted by the deceased as a child of his or her family will continue to be entitled to sue for patrimonial loss.

(b) before paragraph 2, there is inserted—

"DEFINITION OF "IMMEDIATE FAMILY"

1A. In this Act, "immediate family" in relation to a deceased person includes—

(a) any person who immediately before the deceased's death was the spouse of the deceased;

(b) any person, not being the spouse of the deceased, who was, immediately before the deceased's death, living with the deceased as husband or wife;

(c) any person of the same sex as the deceased, who was, immediately before the deceased's death, living with the deceased in a relationship which had the characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife;

(d) any person who was a parent or child of the deceased;

(e) any person, not falling within sub-paragraph (d) above, who had accepted, or was accepted by, the deceased as a child of his family;

(f) any person who was a brother, sister, grandparent or grandchild of the deceased;

but does not include any other person.";

Subsection (4)(b) inserts a new paragraph 1A into Schedule 1 to the 1976 Act. The new paragraph lists those relatives of a deceased who are members of the deceased's immediate family and who therefore are entitled to sue for non-patrimonial damages.

New paragraph 1A(a) implements recommendation 1. It re-enacts paragraph 1(a) of Schedule 1 to the 1976 Act in relation to non-patrimonial loss. It provides that the immediate family includes the deceased's spouse. The spouse must have been married to the deceased immediately before the deceased's death. A former spouse is not included. The reference to spouse includes spouses of a polygamous marriage.

New paragraph 1A(b) implements recommendation 2. It re-enacts paragraph 1(b) of Schedule 1 to the 1976 Act in relation to non-patrimonial loss. It provides that the immediate family includes the deceased's opposite-sex cohabitant. The cohabitant must have been living with the deceased as husband and wife immediately before the deceased's death.

New paragraph 1A(c) implements recommendation 10 in relation to non-patrimonial loss. It amends the 1976 Act to allow same-sex cohabitants to sue for non-patrimonial loss. The same-sex cohabitant must have been living with the deceased immediately before the deceased's death in a relationship which had the characteristics of the relationship of husband and wife, apart from the fact that a husband and wife are of the opposite sex.

New paragraph 1A(d) implements recommendations 3 and 5. It re-enacts paragraph 1(b) of Schedule 1 to the 1976 Act in relation to non-patrimonial loss. It provides that the immediate family includes the deceased's parent or child.

New paragraph 1A(e) implements recommendations 4(a) in relation to non-patrimonial loss and 6. It re-enacts, with an amendment, paragraph 1(c) of Schedule 1 to the 1976 Act in relation to non-patrimonial loss. Thus any person who was accepted by the deceased as a child of the family can continue to sue for non-patrimonial loss. It also amends the 1976 Act to provide that immediate family includes any person who accepted the deceased as a child of his family, thus enabling such persons to sue for non-patrimonial loss. The provision has been drafted in gender specific language to correspond with the 1976 Act. However, as a matter of statutory construction the reference to "his" includes a reference to "her".

New paragraph 1A(f) implements recommendations 8(a) and (b) and 9. It provides that immediate family includes the deceased's brother, sister, grandparent or grandchild who thus are entitled to sue for non-patrimonial loss. By contrast with paragraph 1(d) of Schedule 1 in relation to patrimonial loss, this provision refers to "grandparent" and "grandchild". Remoter ascendants and descendants are not included and so cannot sue for non-patrimonial loss.

(c) in paragraph 2—

(i) for the words "the foregoing paragraph", there is substituted "paragraphs 1 and 1A above";

(ii) in sub-paragraph (a), the words "any relationship by affinity shall be treated as a relationship by consanguinity;" and "and the stepchild of any person shall be treated as his child; and" are repealed;

(iii) after sub-paragraph (b), there is inserted—

"(c) any person who was brought up in the same household and as a child of the same family as the deceased shall be treated as the brother or sister of the deceased."; and

(d) after paragraph 2, there is inserted—

"3. In deducing any relationship for the purpose of paragraph 1 above, any relationship by affinity shall be treated as a relationship by consanguinity; and the stepchild of any person shall be treated as his child."

2 Short title, application to the Crown and commencement

(1) This Act may be cited as the Damages (Scotland) Act 2002.

(2) This Act binds the Crown.

(3) This Act shall have effect in relation to deaths occurring on or after its commencement.

Subsection (4)(c) amends paragraph 2 of Schedule 1 to the 1976 Act.

Subsection (4)(c)(i) amends paragraph 2 of Schedule 1 to substitute reference to "paragraph 1 and 1A above" in place of "the foregoing paragraph". As a result paragraph 2 applies to both paragraph 1 of the Schedule (definition of "relative" for the purpose of title to sue for patrimonial loss) and to the new paragraph 1A of the Schedule (definition of "immediate family" for the purpose of title to sue for non-patrimonial loss).

Subsection (4)(c)(ii) implements recommendations 4(b), 7 and 8(c). It repeals part of paragraph 2(a) of Schedule 1 to the 1976 Act. However, this provision is re-inserted for the purpose of title to sue for patrimonial loss, by virtue of subsection (4)(d) below.

Subsection (4)(c)(iii) implements recommendation 8(b). It amends paragraph 2 of Schedule 1 to the 1976 Act to add a new sub-paragraph (c). The new sub-paragraph (c) provides that any person who was brought up in the same household as the deceased and as a child of the same family as the deceased shall be treated as the brother or sister of the deceased.

Subsection (4)(d) adds a new paragraph to Schedule 1 to the 1976 Act. The new paragraph 3 reinstates the provision of paragraph 2(a) with regard to relationships by affinity and step-children, which subsection (4)(c)(ii) of the Bill repeals. Taken together the effect of these two provisions is that relatives of the deceased by affinity and step-children are not entitled to sue for non-patrimonial loss, but continue to be entitled to sue for patrimonial loss.

Section 2

This section implements recommendation 11. It provides for the short title and application of the Act. No specific provision is made for commencement because the Bill is intended to come into force on Royal Assent. It will be noted that the amendments to the 1976 Act made by the Bill are only to apply to deaths that occur on or after commencement and not to actions which have started but have not been completed. The Bill applies to the Crown in the same way as the 1976 Act does.

Appendix B - Title to sue for non-patrimonial loss under the Damages (Scotland) Act 1976

"Relative"^[129]	1976 Act - at present	1976 Act – following our Bill^[130]
Surviving spouse^[131]	Yes	Yes
Former spouse	No	No
Surviving opposite-sex cohabitant	Yes	Yes
Surviving same-sex cohabitant	No	Yes
Biological parent and child^[132]	Yes	Yes
Adoptive parent and child	Yes	Yes
Parent and child by virtue of a parental order	Yes	Yes
Step-parent and step-child	Yes	No
Any person who accepted the deceased as a child of his or her family	No	Yes
Any person who was accepted by the deceased as a child of his or her family	Yes	Yes
Parent-in-law and child-in-law	Yes	No
Other relations by affinity	No	No
Brother and sister	No	Yes
De facto brother and sister	No	Yes
Grandparent and grandchild	No	Yes
Further ascendant and descendant	No	No
De facto grandparent and grandchild	No	No
Uncle, aunt, niece, nephew and cousin	No	No

Appendix C - Consultees who submitted written comments

On Discussion Paper No 116

Association of Personal Injury Lawyers

Mrs Louise Chisholm

Faculty of Advocates

Rhoda Grant MSP

Law Society of Scotland

Professor Kenneth McK Norrie

Outright Scotland

Royal Faculty of Procurators in Glasgow

Scottish Law Agents Society

Sheriffs' Association

John B Stirling WS

Elaine E Sutherland

Note 1   Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (S.I. 1999/1820). iii    [Back]

Note 2   (c 13). Referred to subsequently in this report as "the 1976 Act".    [Back]

Note 3   DP No 116.    [Back]

Note 4   1981 SLT (Notes) 117.    [Back]

Note 5   1998 SC 903.    [Back]

Note 6   Appendix C lists the consultees who submitted responses to the discussion paper.    [Back]

Note 7   A relationship by affinity is one created through marriage. The law assumes that affinity survives the marriage that created it, even if the marriage ends by death or divorce.    [Back]

Note 8   Section 1(1) of the 1986 Act provides that the fact that a person's parents are not or have not been married to one another shall not be taken into account in establishing the relationship between the person and any other person.    [Back]

Note 9   Again, paragraph 2 of Schedule 1 applies; see para 1.6 above.    [Back]

Note 10   DP No 116, paras 1.3 and 3.5.    [Back]

Note 11   (c 46).    [Back]

Note 12   Scotland Act 1998, (c 46) ss 29(2)(d), 126(1); Human Rights Act 1998 (c 42 ) s 1(1).    [Back]

Note 13   See para 1.1 above.    [Back]

Note 14   DP No 116, question 1(a), para 3.8.    [Back]

Note 15   Reavis v Clan Line Steamers Ltd 1925 SC 725.    [Back]

Note 16   See for example Bourhill v Young 1942 SC (HL) 78; Robertson v Turnbull 1982 SC (HL) 1.    [Back]

Note 17   Simpson v Imperial Chemical Industries 1983 SLT 601.    [Back]

Note 18   See para 1.8 above.    [Back]

Note 19   DP No 116, Appendix 2 which sets out examples of awards of damages for non-patrimonial loss.     [Back]

Note 20   DP No 116, para 3.5.    [Back]

Note 21   See, for example, Beggs v Motherwell Bridge Fabricators Ltd 1998 SLT 1215 per the Lord Ordinary (Eassie) at 1223 – 1224.    [Back]

Note 22   Of course, the court will still have to make decisions which involve an element of judicial discretion in relation to issues which involve questions of degree, for example, whether a particular couple have been living together as husband and wife.    [Back]

Note 23   See paras 2.4 to 2.6.    [Back]

Note 24   Except in relation to title to sue for patrimonial loss.    [Back]

Note 25   1976 Act, s 1(4) and Sch 1, para 1(a).    [Back]

Note 26   DP No 116, question 2, para 3.12.    [Back]

Note 27   Family Law (Scotland) Act 1985, (c 37) s 1(5) which defines "husband" and "wife" to include parties to a valid polygamous marriage.    [Back]

Note 28   Interpretation Act 1978, (c 30) s 6(c), which re-enacted the Interpretation Act 1889, (c 63) s 1(1)(b). Our draft Bill would be subject to The Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999, SI 1999/1379, article 6 and Sch 1, para 3(c), which provides that in an Act of the Scottish Parliament, words in the singular include the plural unless the contrary intention appears. See also In Re Surrey Leisure Ltd [1999] 2 BCLC 457.    [Back]

Note 29   Iman Din v National Assistance Board [1967] 2 QB 213 at 218.    [Back]

Note 30   1976 Act, s 1(4) and Sch 1, para 1(aa). Sub-paragraph (aa) was added to Schedule 1 to the 1976 Act by the Administration of Justice Act 1982, (c 53) s 14(4). It was added to give recognition to cohabiting opposite-sex couples.    [Back]

Note 31   DP No 116, question 3, para 3.16.    [Back]

Note 32   The Civil Liability Act 1961, s 47(1) as substituted by the Civil Liability Amendment Act 1996, s 1(1)(c).    [Back]

Note 33   Fatal Injuries Act RSNS 1989, s 2.     [Back]

Note 34   Fatal Accidents Act RSA 1980, s 8(2)(a).    [Back]

Note 35   Fatal Accidents Act CCSM 1987, s 3(5).    [Back]

Note 36   (1999) Law Com No 263, para 6.24.    [Back]

Note 37   This includes a person deemed to be the mother or father of the child under the Human Fertilisation and Embryology Act 1990, (c 37), ss 27 and 28. Persons deemed not to be genetic parents under this legislation are excluded. However, where the child has been adopted, the biological mother and father are excluded by virtue of the Adoption (Scotland) Act 1978, (c 28) s 39.    [Back]

Note 38   1976 Act, Sch 1, para 2(b) which applies the Law Reform (Parent and Child) (Scotland) Act 1986, (c 9) s 1(1) to the 1976 Act.     [Back]

Note 39   Adoption (Scotland) Act 1978, (c 28) s 39.     [Back]

Note 40   Under the Human Fertilisation and Embryology Act 1990, (c 37) s 30.    [Back]

Note 41   1976 Act, s 1(3) and Sch 1, paras 1(b) and 2(a).    [Back]

Note 42   1998 SC 903.     [Back]

Note 43   1976 Act, s 1(4) and Sch 1, para 2(a).    [Back]

Note 44   1976 Act, s 1(4) and Sch 1, para 1(c). See discussion at paras 2.34 to 2.40 below.    [Back]

Note 45   DP No 116, question 10, para 3.42.    [Back]

Note 46   For example, a person whose only parental responsibility and right was to act as the legal representative of the child.    [Back]

Note 47   See paras 2.39 and 2.40 below.    [Back]

Note 48   Except where the child has been adopted.    [Back]

Note 49   DP No 116, question 4(a), para 3.20.    [Back]

Note 50   The United Nations Convention on the Rights of the Child regards respect for the parent-child relationship as fundamental.    [Back]

Note 51   Nor can they sue for patrimonial loss.    [Back]

Note 52   Adoption (Scotland) Act 1978, (c 28) s 39.    [Back]

Note 53   DP No 116, question 4(b), para 3.20.    [Back]

Note 54   D v Grampian Regional Council 1995 SLT 519.    [Back]

Note 55   Scot Law Com No 31, p 43.    [Back]

Note 56   The heads of non-patrimonial loss in s 1(4) of the 1976 Act, introduced by the Damages (Scotland) Act 1993, (c 5) s 1(1), replaced the former "loss of society" award.    [Back]

Note 57   1976 Act, Sch 1, para 2(a).    [Back]

Note 58   1998 SC 903.    [Back]

Note 59   DP No 116, questions 4(c), 5(c), 6(b) and 7(b), paras 3.20, 3.23, 3.27 and 3.30.    [Back]

Note 60   Draft Bill, s 1(4)(d).    [Back]

Note 61   1976 Act, s 1(4) and Sch 1, para 1(b) and 2(a).    [Back]

Note 62   Draft Bill, s 1(4)(d).    [Back]

Note 63   Para 2.44.    [Back]

Note 64   A person who has accepted a child as a child of the family owes that child an obligation of aliment under s1(1)(d) of the Family Law (Scotland) Act 1985, (c 37).    [Back]

Note 65   In relation to local authority foster parents, the local authority has the obligation to aliment the child. However, local authority foster parents would be entitled to sue for non-patrimonial loss where they had accepted the child as a child of the family.    [Back]

Note 66   1976 Act, Sch 1, para 2(b), which applies the Law Reform (Parent and Child) (Scotland) Act 1986, (c 9) s 1(1) to the 1976 Act. That section provides that the fact that a person's parents are not or have not been married to one another shall be disregarded. The deceased's biological child who has been adopted is not included. See Adoption (Scotland) Act 1978, (c 28) s 39.    [Back]

Note 67   By virtue of the Adoption (Scotland) Act 1978, (c 28) s 39.    [Back]

Note 68   Under the Human Fertilisation and Embryology Act 1990, (c 37) s 30.    [Back]

Note 69   1976 Act, Sch 1, para 2(a).    [Back]

Note 70   1976 Act, Sch 1, para 1(c).    [Back]

Note 71   1976 Act, Sch 1, para 2(a). See also Monteith vCape Insulation, 1998 SC 903; McAllister v Imperial Chemical Industries plc 1997 SLT 351.    [Back]

Note 72   DP No 116, question 5(a), para 3.23.    [Back]

Note 73   DP No 116, question 5(c), para 3.23.    [Back]

Note 74   DP No 116, question 5(b), para 3.23.    [Back]

Note 75   However, step-children should continue to be entitled to sue for patrimonial loss as the deceased may have been supporting them financially. Draft Bill, s 1(4)(d).    [Back]

Note 76   1976 Act, Sch 1, para 1(c).    [Back]

Note 77   Draft Bill, s 1(4)(d).    [Back]

Note 78   Brothers and sisters can sue for patrimonial loss under the 1976 Act, s 1(3) and Sch 1, para 1(e).    [Back]

Note 79   1981 SLT (Notes) 117.    [Back]

Note 80   Ie patrimonial loss.    [Back]

Note 81   The heads of non-patrimonial loss in s 1(4) of the 1976 Act introduced by the Damages (Scotland) Act 1993 (c 5), s 1(1), replaced the former "loss of society" award.     [Back]

Note 82   DP No 116, question 7(a), para 3.30.    [Back]

Note 83   These include Ireland, Manitoba and almost all Australian states and territories.    [Back]

Note 84   1976 Act, s 1(3) and Sch 1, paras 1(e), and 2(a) which provides that relationships of the half blood shall be treated as relationships of the whole blood.    [Back]

Note 85   1976 Act, Sch 1, para 2(a).    [Back]

Note 86   Brothers-in-law and sisters-in-law are entitled to sue for patrimonial loss under the 1976 Act, s 1(3) and Sch 1, paras 1(e) and 2(a).    [Back]

Note 87   DP No 116, question 7(b), para 3.30.    [Back]

Note 88   Para 2.35 above.    [Back]

Note 89   However, they should continue to be entitled to sue for patrimonial loss as the deceased may have been supporting them financially. Draft Bill, s 1(4)(d).    [Back]

Note 90   This is because the 1976 Act, Sch 1, para 2(a) provides that relationships of the half blood shall be treated as relationships of the whole blood.    [Back]

Note 91   The marital status of the parent and partner is irrelevant: it is the de facto relationship that is important.    [Back]

Note 92   They are entitled to sue for patrimonial loss under the 1976 Act, s 1(3) and Sch 1, para 1(d).    [Back]

Note 93   DP No 116, question 6(a), para 3.27.    [Back]

Note 94   This includes Ireland, most Canadian provinces and most Australian states and territories.    [Back]

Note 95   For example, great grandparents and great grandchildren.    [Back]

Note 96   As in the 1976 Act, Sch 1, para 1(d).    [Back]

Note 97   At present, same-sex cohabitants are also not entitled to sue for patrimonial loss.    [Back]

Note 98   DP No 116, question 9, para 3.39.    [Back]

Note 99   See para 2.20 above.    [Back]

Note 100   Stair, Institutes I 4.1 – I 4.6. Section 5(4)(e) of the Marriage (Scotland) Act 1977, (c 15) recognises that there is a legal impediment to marriages where parties are of the same sex.    [Back]

Note 101   (asp 4) s 87. See also Mortgage Rights (Scotland) Act 2001, (asp 11) s 1(2)(c).     [Back]

Note 102   [1999] 4 All ER 705.    [Back]

Note 103   1996 SCLR 897.    [Back]

Note 104   Other examples include Tinsley v Milligan [1994] 1 AC 340. In Tinsley a same-sex partner was allowed to claim property from the other, on the basis of a "common intention constructive trust." Similarly, in Wayling v Jones [1995] 2 FLR 1029, the Court of Appeal accepted that the plaintiff could claim a portion of Jones' estate under the English concept of proprietary estoppel.     [Back]

Note 105   2001 Fam LR 2.    [Back]

Note 106   "Spouse" includes a party to a de facto relationship within the Property (Relationships) Act 1984. The Property (Relationships) Legislation Amendment Act 1999 extended the meaning of de facto relationship to include same-sex relationships.    [Back]

Note 107   Para 2.3.    [Back]

Note 108   The definition is adapted from the Adults with Incapacity (Scotland) Act 2000, (asp 4) s 87. See also the Mortgage Rights (Scotland) Act 2001, (asp 11) s 1(2)(c).    [Back]

Note 109   DP No 116, question 8, para 3.33.    [Back]

Note 110   Divorce (Scotland) Act 1976, (c 39) s 1(1).    [Back]

Note 111   (c 37).    [Back]

Note 112   However, a former spouse should continue to be entitled to sue for patrimonial loss.    [Back]

Note 113   Neither can they sue for patrimonial loss.    [Back]

Note 114   DP No 116, question 13, para 3.50.    [Back]

Note 115   Para 2.8.    [Back]

Note 116   (c 15) s 1.    [Back]

Note 117   The Administration of Justice Act 1982, (c 53) s 14(4). This section amended para 1 of Sch 1 to the 1976 Act to include opposite-sex cohabitants. Opposite-sex and same-sex cohabitants are also recognised in other areas of Scots law, whereas engaged couples are not. See for example, the Adults with Incapacity (Scotland) Act 2000, (asp 4) and the Mortgage Rights (Scotland) Act 2001, (asp 11).    [Back]

Note 118   Also, the commitment between engaged couples can vary enormously, particularly in the view of diverse cultural and religious traditions.    [Back]

Note 119   In England and Wales the Family Law Act 1996, (c 27) s 44(2) defines "agreement" and refers to either a gift of a ring or a ceremony.    [Back]

Note 120   However, uncles and aunts can sue for patrimonial loss. See 1976 Act, s 1(3) and Sch 1, para 1(e).    [Back]

Note 121   DP No 116, question 7(a), para 3.30.    [Back]

Note 122   In their report Claims for Wrongful Death (Law Com No 263), para 6.31 the Law Commission did not include uncles and aunts in their suggested statutory list of those entitled to claim damages for bereavement. In Ireland, under the Civil Liability Act 1961 s 47(1), uncles and aunts are not "dependants" for the purposes of claims for mental distress consequent upon the death of the deceased.     [Back]

Note 123   For example if the parents of the niece or nephew die.    [Back]

Note 124   Recommendation 4(a), para 2.41.    [Back]

Note 125   However, nieces, nephews and cousins can sue for patrimonial loss. See 1976 Act, s 1(3) and Sch 1, para 1(e).    [Back]

Note 126   DP No 116, question 7(a), para 3.30.    [Back]

Note 127   DP No 116, questions 11 and 12, paras 3.44 to 3.46.    [Back]

Note 128   See para 2.56.    [Back]

Note 129   Relationships of the half blood are included.    [Back]

Note 130   See Appendix A draft Damages (Scotland) Bill 2002.    [Back]

Note 131   Including the surviving spouses to a valid polygamous marriage.    [Back]

Note 132   Including a parent and child by virtue of the Law Reform (Parent and Child) (Scotland) Act 1986, (c 9) s 1(1); but excluding a parent and child where the child has been adopted by another. See the Adoption (Scotland) Act 1978, (c 28) s 39.    [Back]

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You are here: BAILII >> Databases >> Scottish Law Commission >> Scottish Law Commission (Reports) >> Title to Sue for Non-Patrimonial Loss [2002] SLC 187 (Report) (August 2002) URL: http://www.bailii.org/scot/other/SLC/Report/2002/187.html Cite as: [2002] SLC 187 (Report)

Scottish Law Commission (Reports)

SCOTTISH LAW COMMISSION

(Scot Law Com No 187)

Report on Title to Sue for Non-Patrimonial Loss

Contents

Part 1 Introduction

Part 2 Recommendations for Reform

Part 3 List of recommendations

Appendix A

Appendix B - Title to sue for non-patrimonial loss under the Damages (Scotland) Act 1976

Appendix C - Consultees who submitted written comments