MoD’s motion to dismiss asbestos-related damages claim by deceased dockyard worker’s stepchildren rejected

A judge in the Court of Session allowed the claim to proceed to a proof after rejecting the defender’s argument that the pursuers had “no title to sue”.

Judge Frank Mulholland QC heard that the action was initially brought by Ian Hunter, who sought damages after being diagnosed with mesothelioma.

For his entire working life he was employed at Rosyth dockyard, where it was averred that he was exposed to “considerable quantities of asbestos” while working on ships.

But shortly after the action was raised Mr Hunter died in 2015 and now Brenda Gray (first pursuer), who was the late Mr Hunter’s partner, is seeking damages as executrix nominate.

In addition damages are sought by each of the first to seventh pursuers in terms of the Damages (Scotland) Act 2011.

Garry and Sharon (second and fifth pursuers respectively), the son and daughter of the first pursuer from a previous marriage, asserted title to sue on the basis that each was “accepted by the deceased as a child of the deceased’s family” in terms of section 14(1)(b) of the 2011 Act.

Similarly, one of the grandchildren, Sharleen, (seventh pursuer) asserted title to sue on the basis that she was “accepted by the deceased as a grandchild of the deceased” in terms of section 14(1)(d) of the said Act.

It was averred that the deceased assumed the position of, husband to the first pursuer, parent to second and fifth pursuers and grandparent to their children, and developed a “close bond” with them.

The court was told that each of the second to seventh pursuers was part of the close and loving family of the deceased and each suffered “considerable distress and anxiety” in contemplation of his suffering and “loss and grief” on his death.

Liability and quantum are disputed and the defender challenged the relevancy of the claims of the second, fifth and seventh pursuer, on the basis of the respective ages.

The defender’s position was that whatever their relationship was with the deceased, neither Garry nor Sharon could be said to have been accepted by him as “a child of his family” and likewise Sharleen could not be said to have been accepted by him as “a grandchild of his family”.

The second pursuer was 33 when his mother moved in with the deceased, while the fifth pursuer was 36 and the seventh pursuer was 19 when her grandmother (first pursuer) moved in with the deceased in 2001, so none of them could be described as a “child” in the normal sense in which that word is used.

The defender submitted that as there is no age definition of “child” in terms of section 14(1) of the Act, the age by which a person ceases to be a “child” is to be determined by the principles of family law.

However, the three pursuers submitted that it was open to them to prove that they were each “accepted” by the deceased as children and grandchildren of the deceased’s family.

It was argued that they were not disqualified from doing so on the basis of their ages at the time the deceased started cohabiting with the first pursuer.

“Child” for the purposes of section 4(3)(b) and 14(1) of the Act was defined as correlative of relationship and was “not age restricted”.

The words in the statute “accepted by the deceased as a child of the deceased’s family” and “accepted by the deceased as a grandchild of the deceased” included a person who is an adult at the time the acceptance took place – and whether such acceptance took place was a question of fact for determination at the proof.

The judge observed that the fact there was no definition of “child” in terms of section 4(3)(b) and 14(1) in the Act and the absence of an age-related definition were “correlative of a relationship with the deceased”.

In a written opinion, Judge Mulholland said: “All these factors taken individually and collectively all point in favour of a definition defined by relationship and not age.

“The defender submits that the answer is to be found in family law. I cannot, however, agree with this submission. Family law is a broad term which covers many different areas of law under this general umbrella…There is therefore no ready and consistent answer in ‘family law’ to who is a child. It depends on the subject matter and the law applicable.”

He added that a “fundamental principle” of statutory interpretation is that words should be given their “ordinary and natural meaning”.

Lord Mulholland said: “In the present case defining ‘child’ by reference to relationship (and not age) will not strain the meaning and produce injustice, absurdity, anomaly or contradiction, in fact quite the opposite.

“Such a definition is consistent with every day usage, dictionary definition, a recognised approach in case law and most importantly appears to be what Parliament intended given the absence of an age based restriction.

“It seems to me that to read into the definition of ‘child’ an age based restriction would be to thwart Parliament’s clear intention and lead to difficulty in interpretation if the broad concept of family law was the source of the applicable age restriction.”

He added: “For the reasons set out above I refuse the defender’s motion for dismissal in respect of the second, fifth and seventh pursuers. The claims of all seven pursuers can be determined at proof.”