'Immediate family' redefined for purposes of compensation
The distress and grief of same-sex partners, grandparents, grandchildren and siblings who lose a relative is to be recognised by an amendment through the Family Law (Scotland) Bill proposed today.
The amendment seeks to update the Damages (Scotland) Act 1976 by expanding the definition of immediate family for the purposes of compensation payments.
Currently the Act defines immediate family as a remaining spouse, opposite-sex co-habitant, parent, step-parent or step-child, parent-in-law or child-in-law or any person who was accepted by the deceased as a child of his/her family.
Deputy Justice Minister Hugh Henry said:
"Nothing can compensate for the loss of a loved one, but where there is fault - a payment can at least allow families some tangible acknowledgement of their suffering.
"But the shape of families in Scotland is changing. It is time to update the law to ensure that the family members closest to the deceased have their relationships recognised.
"We are seeking to ensure that if a person is, for example, killed as a result of dangerous driving - those with close emotional ties have the right to seek damages.
"These are common sense reforms, which together with the proposals already outlined in the Family Law bill, can help to deliver legal services and safeguards for the way we live today."
The 1976 Damages (Scotland) Act provides that where a person dies as a result of personal injury the deceased's immediate family may be entitled to claim damages for patrimonial loss (loss of financial support) and/or non-patrimonial loss (compensation for distress and grief or for the loss of the deceased's society). Only the 'immediate family' is entitled to sue for non-patrimonial loss.
Amendments proposed by the Executive extend the definition of immediate family to include any person who had accepted the deceased as a child of the family, the brother or sister of the deceased, any person brought up in the same household as a child and who was him/herself accepted as a child of the family, the same sex partner of the deceased, or any person who was the grandparent or grandchild of the deceased.
The amendments also address the present anomalies that siblings are unable to sue for non-patrimonial loss under the 1976 Act while relatives by affinity (such as father-in-law or son-in-law) can and that a step-child or step-parent is entitled to sue for non-patrimonial loss even when the marriage has taken place after the child has become an adult. It is, however, important to bear in mind that where a step-child or step-parent was accepted by the deceased as a child of the family or accepted the deceased as a child of the family - they will continue to have an entitlement to sue for non-patrimonial loss.
The proposed amendments reflect the recommendations of the Scottish Law Commission's report on Title to Sue for Non-Patrimonial Loss published in August 2002.