Child’s Play? Age restrictions & the Damages (Scotland) Act 2011

In the recent case of Brenda Gray & Others v The Advocate General for Scotland [2016] CSOH 166 the Court of Session considered another interesting question of statutory interpretation arising under the Damages (Scotland) Act 2011, this time involving the definition of a “child”.

The claim was initially brought by Ian Hunter who sought damages following a diagnosis of mesothelioma. Unfortunately, shortly after the Action was raised, Mr Hunter died and subsequently various family members were added as Pursuers. The First Pursuer was the partner of the deceased and the Second and Fifth Pursuers were the son and daughter respectively of the First Pursuer, both from a previous marriage. The remaining Pursuers were the grandchildren of the First Pursuer. The children and grandchildren sought damages including awards for loss of society and guidance under Section 4(3) of the 2011 Act.

The Second and Fifth Pursuers asserted their title to sue on the basis that they were accepted by the deceased as a “child of the deceased’s family” in terms of Section 14 1(b) of the Act. Similarly the Seventh Pursuer asserted title to sue on the same basis ie, that she was accepted by the deceased as a grandchild.

The case came before the Court as the Defender challenged the relevancy of the claims of the children of the First Pursuer and of one of the grandchildren.

The basis for the Defenders’ challenge was age related. The Second Pursuer was 33 years of age when his mother, the First Pursuer, moved in with the deceased, the Fifth Pursuer was 36 years 6 months and the Seventh Pursuer, the grandchild of the First Pursuer, was 19 years and 10 months. It was argued that given their ages at the time none of these Pursuers could be described as a child in the normal sense in which that word is used.

In support of their argument, the Defenders submitted that a child in terms of Section 14 (1) (b) and (d) should defined by reference to age, personal status and an element of bringing up. It was accepted that there was no age definition of child in terms of Section 14 (1) of the Act but this should be determined by the principles of family law, applying the principals of statutory interpretation.

In response the Pursuers submitted that it was open to them to prove that they were each accepted by the deceased as a child of his family. A child, for the purposes of the Act, was defined as a correlative of relationship and was not age restricted which was clear when applying the principals of statutory interpretation.

In reaching his decision Judge Frank Mulholland QC said that to determine the meaning of a child in the context of the Act was indeed an exercise in statutory interpretation. It was agreed by the parties that there was no particular cases in point and so to reach his decision Judge Mulholland considered the various sources and authorities which had been brought to his attention by the parties.

He did not agree with the Defender’s submission that the answer could be found in family law, highlighting that family law was a broad term covering many different areas of law. He set out in great detail the lack of any consistent approach in family law as to who was a child.

He highlighted that the Act deliberately did not provide a definition of the word “child” or provide any kind of age based restriction. To read into the definition 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 also highlighted the inconsistency, in that to introduce an age-based restriction would be to imply that this restriction also applied to natural children claiming damages following the death of a parent. Parliament could not have intended that result. If it had been intended it would have been made clear in the Statute.

Judge Mulholland considered various cases brought to his attention by the Defenders, on each occasion finding them not in point. He took some guidance from the case of Leach v Lindeman & Others 1986 CH 226 where the definition of a child in terms of The Inheritance (Provision for Family and Dependants) Act 1975 was considered. In that case the claimant had acquired a Stepmother at the age of 32 and in order to qualify under the Act had to establish she had been treated as a child of the family by the deceased. The Court of Appeal in England and Wales could see no reason why even an adult person might not be capable of qualifying provided the deceased had in the relevant marriage expressly or implicitly assumed the position of a parent towards the applicant.

On that basis Judge Mulholland was simply not persuaded that the term “child” was age restricted, holding it was a correlative of relationship which was a matter for proof. He therefore refused the Defender’s motion for dismissal. To have done otherwise would have required the Court to interpret the Act in such a way as would seem contrary to the intention of Parliament.

This post was written by .

Published .

Posted in: Legal Updates