The Damages (Scotland) Act 2011 recognises spouses, civil partners, parents, grandparents, children, grandchildren and siblings as qualifying relatives entitled to make a claim following the wrongful death of their loved one. Step-relatives and other family members may also qualify, but only if they satisfy specific statutory requirements. The principles governing these claims are explained here.
1. The facts
E was born in August 2014 and died in September 2019 following a brain tumour and haemorrhage. Following her death, NHS Grampian carried out a Significant Adverse Event Review which identified failures in her medical treatment. Grampian NHS Board subsequently admitted breach of duty and causation.
Although six pursuers initially raised proceedings, three claims settled extra-judicially. Remaining for determination by the court were claims brought by E's father, stepmother and stepsister.
The court considered:
Whether E's stepsister qualified as a relative under the 2011 Act and was entitled to damages for loss of society; and
Whether the claims of E's father and stepmother were time-barred under the Prescription and Limitation (Scotland) Act 1973.
2. Was the stepsister a qualifying relative?
Although E's stepsister did not give evidence herself, her mother (Pursuer 4) spoke to the nature of the relationship between the two children. It was established that they shared a substantial bond, with E's stepsister maintaining a bedroom at the family home and spending time with her during contact visits.
However, a close emotional relationship alone is insufficient. Under the 2011 Act, a stepsibling only qualifies as a relative if they:
Were brought up in the same household as the deceased; and
Were accepted as a child of the family in which the deceased was a child.
The court accepted that the second requirement was met but concluded that the first was not. The stepsister had been brought up in a different household and therefore failed to satisfy the statutory test. As a result, she was not entitled to damages for loss of society.
The position of E's stepmother was different. Although not challenged by the defenders, her status as a qualifying relative also depended on meeting a statutory requirement, namely that E had been accepted by her as a child of her family. The evidence demonstrated a significant parental role in E's life. E stayed with her father and stepmother every second weekend and the stepmother assisted with day-to-day care, including toilet training, mealtimes and general upbringing.
As such, the court was satisfied that the statutory test had been met and that the stepmother qualified as a relative. The comparison is noteworthy. Both the stepmother and stepsister had strong emotional relationships with E, yet only the stepmother satisfied the statutory criteria. The decision highlights that an emotional bond alone will not establish entitlement to loss of society damages unless the legislative requirements are met.
3. Time bar
The second issue concerned whether the claims of E's father and stepmother had been raised within the three-year limitation period.
Generally, the limitation period begins on the date of death. However, the 1973 Act provides that the limitation period may begin later where a pursuer was unaware that the death was attributable to an act or omission giving rise to a claim.
The defenders argued that the pursuers had sufficient knowledge of the relevant circumstances before E's death, relying on medical records referring to discussions concerning E's condition in August 2019. On that basis, they contended that the limitation period began on the date of death and that the claims, having been raised 32 days after expiry of the triennium, were time-barred.
The pursuers maintained that they first became aware of a potential clinical negligence claim in September 2022 when the summons was intimated to them. They had not been informed of the Significant Adverse Event Review and were estranged from E's mother, who had received information from NHS Grampian concerning the investigation and failures.
The court accepted the pursuers' evidence and held that the relevant date of awareness was 13 September 2022, when the summons was intimated. As that date triggered the limitation period, the claims had been raised in time and were not time-barred. In the event that the claims were technically time-barred, the court indicated that it would have exercised its discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the claims to proceed in the interests of fairness.
4. Decision
The Court of Session held that the stepsister did not qualify as a relative under the 2011 Act and was therefore not entitled to damages for loss of society. The father and stepmother were found to be qualifying relatives and their claims were held not to be time-barred.
The court awarded significant damages of £150,000 to E's father and £75,000 to her stepmother.
In assessing these awards, the court took into account the following:
Previous court decisions on bereavement damages, particularly Paterson v Lanarkshire Health Board [2023] CSOH 1, which the court used as a benchmark for awards to bereaved parents.
The death of a very young child in these circumstances, which warranted an uplift on that benchmark.
A broad but fact-sensitive approach to assessing each claimant's loss. The court considered the close family relationship, the stepmother's involvement in the child's upbringing and the circumstances surrounding the child's final illness.
McArthur v Timberbush Tours Ltd [2021] CSOH 75, which the court referred to specifically when assessing the stepmother's award.
By way of comparison, in Paterson v Lanarkshire Health Board [2023] CSOH 1, the deceased's mother received £100,000. In McArthur v Timberbush Tours Ltd [2021] CSOH 75, each parent received £100,000 and the deceased's stepfather received £70,000. The father's award in the present case is therefore notably higher than those earlier parental awards, while the stepmother's award is closer to the award to the stepfather in McArthur.
CD v Grampian NHS Board underlines the substantial damages available for loss of society claims and suggests that awards in comparable cases may be increasing.
5. Key takeaways
The decision provides a useful reminder that eligibility for loss of society damages depends on meeting the statutory definition of relative, regardless of the strength of the emotional relationship involved. It also demonstrates the court's willingness to examine carefully when a pursuer first became aware of the facts giving rise to a claim when assessing limitation issues.
