The adult children and a grandchild of a woman who became the partner of a man who subsequently died of mesothelioma, have been held to have a relevant claim under s 1(4) of the Damages (Scotland) Act 2011 in respect of the death.

Temporary Judge Frank Mulholland QC gave the ruling in allowing the three claims to go to proof along with those of the partner and three younger grandchildren, in an action against the Ministry of Defence as the former employer of Ian Hunter, who died in December 2015.

The pursuers averred that the deceased's partner, Brenda Gray, moved in with the deceased in July 2001. At the time she had two children, born in 1964 and 1968. The deceased, who had no other children or close family relatives, assumed the position of husband to Ms Gray, parent to her children and grandparent to their children, the oldest of whom was born in September 1981. He developed a close bond and the family was particularly close.

Ms Gray's children each sued as “having been accepted by the deceased as a child of the deceased’s family” in terms of s 14(1)(b) of the 2011 Act, and the oldest grandchild as having been “accepted by the deceased as a grandchild of the deceased” in terms of s 14(1)(d). For the defenders it was argued that given their ages at the time Ms Gray's relationship with the deceased began, none of them could be described as a “child” in terms of the Act.

“Child”, it was said, was defined by reference to age, personal status and the element of “bringing up”. If a person did not have all these qualifications, he or she would not be a child of the family and had no title to sue under the Act. As there was no age definition of “child” in s 14(1), the age by which a person ceased to be a “child” was to be determined by the principles of family law.

Judge Mulholland said that in discerning the Parliament's intention on this point, relevant factors were that there was no definition of “child” in s 4 or 14; that “child was defined in s 7 in the context of “dependent child”, which was clearly intended to be age restricted, and if the Parliament had intended a similar restriction in relation to the s 14 definition it would have said so; that “relative” in s 14 was defined with regard to relationship rather than age, and acceptance as a specified relative, to be consistent, should also be so regarded; that there was no age restriction in relation to the definition of “stepchild”; but in treating as a brother or sister of the deceased a person who was not such, there had to be an element of having been brought up somewhere.

“All these factors taken individually and collectively all point in favour of a definition defined by relationship and not age”, he continued.

The judge also did not agree, having regard to various enactments, that there was a single age recognised by family law at which a person ceased to be a child.

He added: “In the present case defining 'child' by reference to relationship (and not age) will not strain the meaning and produce injustice, absurdity, anomaly or contradiction; in fact quite the opposite. Such a definition is consistent with everyday usage, dictionary definition, a recognised approach in case law and most importantly appears to be what Parliament intended given the absence of an age based restriction.”

The other elements desired by the defenders would also strain the definition and lead to anomalies.

It was also of interest that an English case dealing with wording that was not materially different had reached a similar conclusion. “This to my mind is supportive of the approach which I have taken in determining what is meant by 'child' in the present case”, Judge Mulholland concluded. “In my view it is not age restricted. It is correlative of relationship which is a matter of proof.”

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