Loss of society claims by family members following the death of a loved one are nothing new. This year, however, the Scottish courts have been presented with a very unusual case; the claims in question raised by half-siblings of a man who had been adopted into another family at the age of five, prior to the births of the half-siblings. In early July, it was decided by Lord Reid that the two claimants did not have title to sue, and their claims were dismissed accordingly.

The reasoning behind this decision can be boiled down to the fact that, upon adoption, an adopted child is to be treated by the law as though he had been born as a child of his parents and had never been the child of any other person. Essentially, as far as the law was concerned, the deceased had never had any relation to the claimants irrespective of the biological fact of their shared parentage.

One notable feature of the decision is that the judge did not consider whether or not the claimants had an active relationship with the deceased. This area of the law is governed by statute, the Damages (Scotland) Act 2011, which states that damages for loss of society are only available to members of the deceased's "immediate family"'. The definition of "immediate family" is based purely on degrees of relationship, ignoring any characteristics of that relationship. Therefore, if a claimant is not related to the deceased, it does not matter that they were particularly close to one another; they will not be able to claim damages following the death. Of course, it is possible to challenge the value of the claims based on the closeness or otherwise of the relationship. Unlike bereavement damages there is no tariff as such.

It is worthwhile listing the class of relatives who count as "immediate family" and are entitled under section 4(3) of the 2011 Act to what is still referred to as loss of society:

  • spouse or civil partner;
  • living with the deceased as if married to or in civil partnership at the time of the death. There is no prescribed length of time for which the claimant and deceased must have been cohabiting;
  • parents, step-parents, children and step-children;
  • randparents, step-grandparents, grandchildren and step-grandchildren;
  • a person accepted by the deceased as a parent, step-parent, child or grandchild; and
  • siblings, half siblings or brought up in the same household where both accepted as children of the family.

As noted at the start of this article, this is a very unusual case. Even if the claimants had succeeded, it is unlikely that we would have seen a sudden influx of similar claims. It is worth keeping mind, however, that awards of damages upon death are predicated, in the first instance, upon the claimant's legal relationship to the deceased. If they do not fall into the bracket of 'immediate family', even where they have a close biological relationship to the deceased, then their claim cannot succeed. Just two years after an unborn grandchild successfully claimed for loss of society,it is at least comforting to note that the Scottish Courts are willing to draw the line somewhere.

For more information please get in touch with your usual Brodies contact.


Laura McMillan

Partner & Director of Advocacy