Jim Herd: Fatal cases - loss of society claims

Jim Herd

In fatal damages claims, blood relatives have always been entitled to claim solatium (loss of society) for the loss of the relationship. The current legislation, however, produces some interesting and surprising results where claims for loss of society are made by non-blood relatives, writes Jim Herd.

Only the “immediate family” of the deceased can claim, defined as a person who either immediately before the death is the:

  • deceased’s spouse or civil partner;
  • or is living with the deceased as if married to, or in a civil partnership with, the deceased;
  • or are parents, grandparents, children, grandchildren and brothers and sisters of the deceased.

Step-parents and step-grandparents

Excluded from the entitlement to claim damages is any person whose relationship with the deceased person is a “step-relationship”, being one acquired by virtue of marriage. Being in a “step-relationship” without a close personal relationship is not enough. There is, however an alternative category of entitlement: “acceptance” of an equivalent relationship to a blood relationship. To have a valid claim the person must show, if a parent/grandparent that he/she accepted the deceased as a child/grandchild of the person’s family or, if the claimant is a child/grandchild that he/she was accepted by the deceased as a child/grandchild of the deceased’s family. Whether the necessary “acceptance” exists, in any given case, will depend on the evidence.

It is a question, first and foremost, of attitude. How did the family member regard the deceased person, or how did the deceased regard the relative? What evidence exists to show acceptance as a family member? Because the law only focuses upon the attitude of the adult towards the child the situation could potentially arise where, even though a deceased child never accepted the adult in an equivalent position to a parent, nevertheless the parent could succeed in a claim by proving his/her unilateral acceptance of the child into the family. Similarly a child could potentially prove that he/she was accepted by a deceased parent even though the child denied the existence of such a close connection.

Step-brothers and step-sisters

Where the claimant is a step-brother/sister of the deceased there is a different requirement. The provisions require that a step-sibling must show that he/she “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”. This can be difficult to show, especially in relation to older children. Here, evidence is required that both the claimant step-child and the deceased were both accepted as children of the family. The sibling must prove that he/she was “brought up” in the same household as the deceased.

Can a child be brought up in two homes and how much time and what quality of contact is required to constitute being brought up? There appears to be no reason why a child cannot be brought up in two locations over the same period but as matters stand there is a lack of clarity around this area. If the deceased child of a separated couple lived between both parents’ homes, and if each parent now lived with a new partner and each new couple had their own children could that potentially lead to valid claims by not only blood parents and grandparents but also by step-parents and step-grandparents as well as by step brothers and step sisters?

Again, If a couple with children and grandchildren separated and each met a new partner, formed new family homes and had children with their new partners then, upon one of the couple dying as a result of someone’s negligence could that potentially lead to valid claims being made not only by their blood children and grandchildren but also by their step children and step grandchildren? It appears to be the case that such claims are within the terms of the Act’s provisions.


So what we have is a complex system where there is lack of precision. Future judicial decisions will be required to fully clarify its scope and application. As the law stands however, there appears to be scope for a wider circle of “immediate family” claimants than might appear at first sight. The question posed is whether or not such a complex approach should be abandoned and an alternative approach sought which is less focused on family connections but rather looks at the quality of the connection. A radical change and a difficult proposition to encapsulate but perhaps the time is ripe to look at this afresh.

Jim Herd is a senior associate at Morton Fraser

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