(first) Brenda Gray And Others Against The Advocate General For Scotland

JurisdictionScotland
CourtCourt of Session
JudgeJudge Mulholland QC
Neutral Citation[2016] CSOH 166
Date01 December 2016
Published date01 December 2016
Docket NumberPD2711/15

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 166

PD2711/15

OPINION OF FRANK MULHOLLAND QC

(Sitting as a Temporary Judge)

in the cause

(FIRST) BRENDA GRAY, Executrix Nominate of the Late Ian Hunter and as an individual; (SECOND) GARRY GRAY; (THIRD) GARRY GRAY as legal representative of RACHEL GRAY; (FOURTH) DANIELLE GRAY; (FIFTH) SHARON MacDONALD; (SIXTH) JODIE McDERMID and (SEVENTH) SHARLEEN DEWAR

Pursuers

against

THE ADVOCATE GENERAL FOR SCOTLAND
as representing the Ministry of Defence in Scotland

Defender

Pursuers: Di Rollo QC, Ross; Digby Brown LLP
Defender: Wilson; Morton Fraser LLP

1 December 2016

Introduction
[1] The defender seeks dismissal of the action in so far as brought by the second, fifth and seventh pursuers as irrelevant, they having no title to sue in terms of the Damages (Scotland) Act 2011.

[2] This claim was initially brought by Ian Hunter who sought damages following being diagnosed with mesothelioma. For his entire working life he was employed at Rosyth Dockyard. It is averred that he was exposed to considerable quantities of asbestos whilst working there on ships. Liability and quantum are disputed. Shortly after the action was raised Mr Hunter died on 12 December 2015. Subsequently the current pursuers were sisted as pursuers in the action. The first pursuer seeks damages as executrix nominate of the late Mr Hunter and in addition damages are sought by each of the first to seventh pursuers in terms of the Damages (Scotland) Act 2011.

[3] The first pursuer was the partner of the deceased. The second and fifth pursuers are the son and daughter respectively of the first pursuer, both from a previous marriage. The second pursuer was born on 15 June 1968 and the fifth pursuer on 18 December 1964. The remaining pursuers are the grandchildren of the first pursuer. The children and grandchildren are included in the action in terms of section 4(3)(b) of the Damages (Scotland) Act 2011. The defender challenges the relevancy of the claims of the children of the first pursuer, Garry and Sharon (second and fifth pursuers respectively) and one of the grandchildren, Sharleen, (seventh pursuer). Sharleen was born on 8 September 1981. The defender does not challenge the relevancy of the claims of the first pursuer or the other three grandchildren (third, fourth and sixth pursuers).

[4] The second and fifth pursuers assert 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 Damages (Scotland) Act 2011. Similarly, the seventh pursuer asserts 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.

[5] The averments on behalf of the second, fifth and seventh pursuers in support of their contention that they were accepted by the deceased as children of his family or as his grandchild, are set out at Statement of Claim 8 of the Record. It reads as follows:

“The deceased accepted the second and fifth pursuers as children of his family. The deceased accepted the third, fourth, sixth and seventh pursuers as his grandchildren. The deceased and the first pursuer met in or about March 2001. They formed a relationship and became close. They moved in together in or around July 2001. The deceased quickly became part of the pursuer’s family. The deceased has no other children. He has no other close family relatives. The deceased assumed the position of, husband to the first pursuer, parent to second and fifth pursuers and grandparent to their children. He developed a close bond with them. The family was particularly close. It came together often and regularly for visits, meals, activities, outings, discussions and, other activities of family life. Apart from the sixth pursuer, who latterly lived abroad, the second to seventh pursuers lived close by to the first pursuer and the deceased. The deceased fulfilled the role of father and grandfather within the family. He provided practical and emotional support, advice, guidance, companionship and affection to each of the second to seventh pursuers. During his illness, the second and fifth pursuers assisted the first pursuer in caring for the deceased, as averred. The second pursuer accompanied the deceased to his medical appointments, including the consultation at the Victoria Hospital on 3 September 2015 at which he was informed that his diagnosis had been confirmed. The second pursuer introduced himself as and is referred to in the medical notes attendance as the deceased’s step son. In his Will, dated 6 October 2015 the deceased bequeathed his whole estate to the first pursuer and appointed her to be his sole Executrix. The deceased granted a destination over to the second pursuer and fifth pursuer, whom failing their issue, the third, fourth, sixth and seventh pursuers. 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. They have lost his companionship, counselling and guidance. They accordingly claim under section 4(3)(b) of the Damages (Scotland) Act 2011.

[6] To have a claim for damages in terms of section 4(3)(b) of the Damages (Scotland) Act 2011 an individual must come within the definition of a relative of (the deceased) who is a member of (the deceased’s) immediate family. In terms of section 4(5)(a) of the said Act those are the individuals identified in paragraphs (a) to (d) of the definition of relatives set out in section 14(1) of the Act. In relation to the second and fifth pursuers the relevant paragraph is paragraph (b) which provides that “relative” includes a person who “is a parent or child of the deceased, accepted the deceased as a child of the person’s family or was accepted by the deceased as a child of the deceased’s family”. Paragraph (d) provides that “relative” includes a person who “is a grandparent or grandchild of the deceased, accepted the deceased as a grandchild of the person or was accepted by the deceased as a grandchild of the deceased”.

[7] The second and fifth pursuers averred that they were each accepted by the deceased as a child of the deceased’s family. The defender’s position is that whatever their relationship was with the deceased, neither of them could be said to have been accepted by him as “a child of his family”. The seventh pursuer avers that she was accepted by the deceased as a grandchild of the deceased’s family. The defender’s position is that whatever their relationship was with the deceased she could not be said to have been accepted by him as a grandchild of his family.

[8] The basis for the defender’s challenge is age related. The second pursuer was 33 years of age when his mother (first pursuer) moved in with the deceased. The fifth pursuer was 36½ years of age and the seventh pursuer was 19 years and 10 months when her grandmother (first pursuer) moved in with the deceased. It is argued and is the basis for the relevancy challenge that given their ages at the time none of them can be described as a “child” in the normal sense in which that word is used.

Submissions for the Defender
[9] The defender submits that “child” in terms of section 14(1)(b) and (d) of the Act is defined by reference to age, personal status and the element of “bringing up”. If a person does not have all these qualifications, then he or she will not be a child of the family and will have no title to sue in terms of section 4(3)(b) of the Damages (Scotland) Act 2011. 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. In respect of the second, fifth and seventh pursuers as they were aged 33, 36½ and 19 years and 10 months of age respectively when the first pursuer moved in with the deceased, they are not children [grandchild for the seventh pursuer] for the purposes of section 4(3)(b) and 14(1) of the Act. “Child” for the purposes of the Act is not correlative of parent or grandparent. This is clear applying the principles of statutory interpretation.

Submissions for the Pursuer
[10] The second and fifth pursuers submit that it is open to them to prove that they were each accepted by the deceased as a child of the deceased’s family and the seventh pursuer was accepted by the deceased as a grandchild of the deceased’s family. They are 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 is defined as correlative of relationship and is not age restricted. This is clear applying the principles of statutory interpretation. “Child” is not defined for the purposes of section 4(3)(b) and 14(1) and therefore is not defined by reference to age. This is clear from the ordinary and natural meaning of the word. If Parliament wanted to define “child” by reference to age it would have expressly done so as it has done in other Acts and in another section of the Act (in another context). Applying the principles of family law to define a child would not provide an age at which a person ceases to become a child. In Acts of Parliament and the common law where a child is defined by reference to age there is no consistency of approach. It depends on the subject matter and circumstances. Therefore 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” includes a person who is an adult at the time the acceptance takes place. Whether such acceptance took place is a question of fact for determination at the proof.

Decision
[11] To determine what a child means in the context of section 4(3)(b) and 14(1) of the Act is an exercise in
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