Where a person suffers injury or disease through the fault or negligence of another, and dies either instantaneously or after a period of time, certain rights arise on the death: (a) relatives' rights: the deceased's relatives may be entitled to claim damages in respect of distress, grief, loss of society, loss of support, loss of services and funeral expenses, if the death resulted from the negligence and not from extraneous causes; (b) executor's rights: the deceased's executor is entitled to recover damages in respect of solatium for pain and suffering experienced by the deceased during the period prior to death, and patrimonial loss such as loss of wages, loss of pension, expenses and outlays, suffered by the deceased during the period prior to death . Any payment of damages made in terms of section 1 of the Damages (Scotland) Act 1976 is exempt from CRU recovery.
The Damages (Scotland) Act 1976 substantially modified the law relating to claims in respect of the death of a relative. Both the categories of persons entitled to sue and the principles upon which claims are relevantly made were altered.
The Damages (Scotland) Act 1976 as amended provides:
1. - "Rights of relatives of a deceased person
(1) Where a person dies in consequence of personal injuries sustained by him as a result of an act or omission of another person, being an act or omission giving rise to liability to pay damages to the injured person or his executor, then, subject to the following provisions of this Act, the person liable to pay those damages (in this section referred to as 'the responsible person') shall also be liable to pay damages in accordance with this section to any relative of the deceased being a relative within the meaning of Schedule 1 to this Act .
(2) No liability shall arise under this section if the liability to the deceased or his executor in respect of the act or omission has been excluded or discharged (whether by antecedent agreement or otherwise) by the deceased before his death, or is excluded by virtue of any enactment.
(3) The damages which the responsible person shall be liable to pay to a relative of a deceased under this section shall (subject to the provisions of this Act) be such as will compensate the relative for any LOSS OF SUPPORT suffered by him since the date of the deceased's death or likely to be suffered by him as a result of the act or omission in question, together with any reasonable expense incurred by him in connection with the deceased's FUNERAL.
(4) If the relative is a member of the deceased's immediate family (within the meaning of section 10(2) of this Act there shall be awarded, without prejudice to any claim under subsection (3) above, such sum of damages, if any, as the court thinks just by way of compensation for all or any of the following -
(a) DISTRESS AND ANXIETY endured by the relative in contemplation of the suffering of the deceased before his death;
(b) GRIEF AND SORROW of the relative caused by the deceased's death;
(c) The LOSS OF such non-patrimonial benefit as the relative might have been expected to derive from the deceased's SOCIETY and guidance if the deceased had not died,
And the court in making an award under this subsection shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) above)
(5) Subject to subsection (5A) below, in assessing for the purposes of this section the amount of any loss of support suffered by a relative of a deceased no account shall be taken of -
(a) Any patrimonial gain or advantage which has accrued or will or may accrue to the relative from the deceased or from any other person by way of succession or settlement;
(b) Any insurance money, benefit, pension or gratuity which has been, or will be or may be, paid as a result of the deceased's death; and in this subsection -
(5A) Where a deceased has been awarded a provisional award of damages under section 12(2) of the Administration of Justice Act 1982, the making of that award does not prevent liability from arising under this section but in assessing for the purposes of this section the amount of any loss of support suffered by a relative of the deceased the court shall take into account such part of the provisional award relating to future patrimonial loss as was intended to compensate the deceased for a period beyond the date on which he died.
(6) In order to establish loss of support for the purposes of this section it shall not be essential for a claimant to show that the deceased was, or might have become, subject to a duty in law to provide or contribute to the support of the claimant; but if any such fact is established it may be taken into account in determining whether, and if so to what extent, the deceased, if he had not died, would have been likely to provide or contribute to such support.
(7) Except as provided in this section or in Part II of the Administration of Justice Act 1982 or under section 1 of the International Transport Conventions Act 1983, no person shall be entitled by reason of relationship to damages (including damages by way of solatium) in respect of the death of another person."
The Damages (Scotland) Act 1976 originally provided that relatives were to be entitled to a "loss of society award", defined as "the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if he had not died. " The Damages (Scotland) Act 1993 replaced that definition with a broader, more flexible, concept incorporating several elements, namely distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death; grief and sorrow of the relative caused by the deceased's death; and the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died. The court is not required to allocate damages to one or other of the elements, but may do so if it thinks fit. The award is no longer called a "loss of society award". Nevertheless existing decisions on loss of society may continue to provide guidance.
Relatives who may claim in terms of section 1(4) are the deceased's immediate family, viz. spouse, cohabite, parent, child, and someone who was accepted by the deceased as a child of his family. Neither the remarriage of a widow nor her prospects of remarriage are relevant considerations. The claim in respect of the death may be held relevant although the spouse who died was already known to be suffering from a terminal illness at the date of the parties' marriage An older bereaved spouse will not necessarily receive a smaller award than a younger person, as there may be enhanced grief from bereavement after a longer married life. Where a baby with a congenital heart condition sustained severe brain damage at seven months and died just over a year later, it was held that any award would be restricted in view of the baby's short life expectancy. It has been held that the death of a baby as a result of antenatal injuries entitles the parents to damages in terms of s.1 (1) and (4) of the 1976 Act. The proportion of the award allocated to the past attracts interests, usually at a rate of about one-half of the judicial rate If the relative entitled to the award himself dies, his right to damages transmits to his executors. An award of damages in terms of s.1 of the 1976 Act is exempt from CRU recovery in terms of the Social Security (Recovery of Benefits) Act 1997.
Relatives entitled to claim in respect of loss of support are: the deceased's spouse, divorced spouse, cohabite, parent, child person accepted by the deceased as a child of his family, other ascendant or descendant, brother, sister, uncle, aunt, and any issue of a brother, sister uncle or aunt. Neither the remarriage of a widow, nor her prospects of remarriage, are relevant considerations when assessing her claim for the death of her husband. A claim for loss of support may be held to be relevant although the spouse who died was already known to be suffering from a terminal illness at the date of the parties' marriage. Damages for loss of support may reflect not only the loss of the deceased's earnings, but also the loss of his or her retirement pension. Much of the pre-1976 Act common law applicable to loss of support claims is thought still to be relevant. It has been held that a widow's substantial private means should not be taken into account. Awards are made upon the basis of what support had actually been afforded by the victim while in life. No account is to be taken of any benefit accruing to the relative by way of succession or settlement, nor of any insurance money, benefit, pension or gratuity paid to the relative as a result of the deceased's death. Loss of support includes the loss of free accommodation, which had been provided by the deceased's employer. An award of damages in terms of s.1 of the 1976 Act is exempt from CRU recovery in terms of the Social Security (Recovery of Benefits) Act 1997. Where the deceased had claimed benefits without disclosing that he was working and earning ("moon-lighting") his relatives might be unable to recover damages in respect of loss of support.
The dependency or annual financial support has to be properly proved. It is necessary to calculate the deceased's net wage or net income and then to establish in evidence what proportion had been used to support the family. Net income may include fringe benefits such as provision for medical and dental care; pension provisions; life insurance provisions; and investment plan provisions. Private drawings from the deceased's business may not provide a reliable guide to the proportion of income expended on the family. In some cases both spouses are earning and contributing to the household. Where the deceased had paid wages to a partially sighted son who had not in fact contributed to the business, the wages and other benefits paid fell to be added to the dependency. Increases in the cost of living, the possibility of promotion, and increases in salary, which the deceased would have received between the date of death and the date of the proof, should be taken into account. It may be advisable to calculate past loss of support before calculating future loss of support. Past loss of support attracts interest usually at a rate of about one-half the judicial rate.
He annual net figure representing the dependency (the multiplicand) has to be multiplied by a figure calculated inter alia according to the ages of the parties (the multiplier). If past loss of support has already been calculated, the balance of the multiplier is used for future loss of support. Where children require support until a specific age, such as 16 or 18 or 21, the court may make adjustments when applying the multiplier.
He total sum for loss of support has to be apportioned among members of the family. In practice the major part of an award for loss of support is allocated to the widow, often as much as 75 or 80 per cent, although lower proportions have been noted. The balance is apportioned among the children, a greater proportion being allocated to younger children who need support for a longer period than older children who will soon be self-supporting.
If a relative, entitled to a loss of support claim, himself dies, his claim for loss of support transmits to his executor.
Section 9(2) of the Administration of Justice Act 1982 provides:
"Where the injured person has died, any relative of his entitled to damages in respect of loss of support under section 1(3) of the Damages (Scotland) Act 1976 shall be entitled to include as a head of damage under that section a reasonable sum in respect of the loss to him of the personal services mentioned in subsection (3) below”.
In terms of section 1(3) of the Damages (Scotland) Act 1976 the deceased's relatives are entitled to recover any "reasonable expense incurred ... in connection with the deceased's funeral". Reasonable expense has been held to include the cost of erecting a memorial headstone.
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