[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacIntosh v Findlay & Anor [2000] ScotCS 39 (11 February 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/39.html Cite as: [2000] ScotCS 39

[New search] [Help]

[1] On 5 September 1995, Matthew Jackson (a merchant seaman, then aged 19) was a passenger in a car driven by Stuart Findlay. The car crossed over to the opposite side of the carriageway and collided with a lorry. Both Matthew Jackson and Stuart Findlay were killed. The defenders are the parents and only known next-of-kin of Stuart Findlay.

[2] The present action is a claim for damages arising out of the accident. It is made by a posthumous child, Liam Matthew Jackson MacIntosh, who was born on 22 April 1996. His mother Lynsey MacIntosh was engaged to Matthew Jackson. It is not disputed that the driver, Stuart Findlay, was at fault. The only issues are entitlement to and quantum of damages.

[3] At debate, the pursuer sought a jury trial. The defenders argued that there was special cause rendering the case unsuitable for a jury. As the case is an enumerated action within s.11 of the Court of Session Act 1988, the pursuer is prima facie entitled to a jury trial, and the onus rests on the defenders to establish special cause.

[4] Liam Matthew Jackson MacIntosh was born on 22 April 1996, some eight months after the accident. He lives with his mother Lynsey MacIntosh at 23 Kinghorn Street, Arbroath. In the action, Lynsey MacIntosh sues on his behalf. She avers in Articles 1 and 4 of Condescendence that -

There follow averments specifying the deceased's employment and earnings as at the date of death. It is not averred whether the deceased was aware of the pregnancy, which must have been in its early stages at the time of the deceased's death.

[5] Liam's mother, Lynsey MacIntosh, makes no claim on her own behalf, either in this action or in any other action. That in itself makes the present action rather unusual, as in more standard fatal claims the surviving partner, whether spouse or cohabitee, usually seeks damages of some sort, whether in respect of distress, grief and loss of society, loss of support, loss of services, or expenditure incurred. One obvious inference might be that Miss MacIntosh does not qualify as a "relative" within Schedule 1 of the Damages (Scotland) Act 1976 as amended, in that she was not a person "who was, immediately before the deceased's death, living with the deceased as [his] wife": see para.1(aa) of Schedule 1 of the 1976 Act as amended.

[6] Liam's claim for damages is in respect of grief, loss of society, and loss of support, all in terms of s.1 of the 1976 Act.

Section 1 of the 1976 Act provides inter alia:

1. distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death;
2. grief and sorrow of the relative caused by the deceased's death;
3. 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,

Section 10 and Schedule 1 of the 1976 Act define "relative" as including "any person who was a ... child of the deceased". Paragraph 2 of Schedule 1 provides that "in deducing any relationship ... section 1(1) of the Law Reform (Parent and Child)(Scotland) Act 1986 shall apply; and any reference (however expressed) in this Act to a relative shall be construed accordingly". Section 1(1) of the 1986 Act provides:

[7] Section 8 of the 1986 Act defines parent as including "natural parent", and the commentary by D. I. Nichols in Current Law Statutes notes: "For the avoidance of doubt the term parent expressly includes a parent who is not or was not married to the other parent". Section 1(1) of the 1986 was not amended or repealed by the Children (Scotland) Act 1995. Section 15 of the 1995 Act defines "parent" as "someone, of whatever age, who is that person's genetic father or mother."

[8] Counsel for the defenders accepted that a child who was truly the posthumous child of Matthew Jackson could in law claim damages in respect of grief, loss of society, and loss of support. A claim by a child who had been in utero at the time of the accident was a relevant one. Reference was made to Cohen v Shaw, 1992 S.L.T. 1022, and to the wording of s.1(3), (4) and (6) of the 1976 Act which was sufficiently wide to cover a claim by a posthumous child in respect of grief, loss of society and loss of support. Counsel's only contention was that there was special cause arising from a number of factors peculiar to the case making it unsuitable for jury trial.

[9] Counsel for the defenders contended that the following factors might cause a jury difficulty and confusion. Firstly, Liam's parents were not married. Although it was averred that they were engaged to be married, it was speculative whether the couple would remain together in some sort of relationship, whether they would ever set up house together, and whether any marriage would indeed take place. Secondly, there would be difficulties assessing how much financial support, if any, the deceased would have given the child, bearing in mind inter alia the unanswered questions outlined above. Thirdly, there was a lack of specification about the deceased's career and earning capacity. Fourthly, there was a possibility that, if they were to marry, the couple might have more children, and therefore that any assessment relating to financial support might become inaccurate.

[10] Counsel for the pursuer argued that the case was suitable for a jury. No special cause had been demonstrated. He disposed of the defenders' third point by offering to amend, (and the proposed amendment was accepted by Mr. Clarke as answering the criticisms directed to specification). In relation to the other points, counsel for the pursuer argued that a formal marriage was irrelevant. Many partners remained unmarried and yet in a stable cohabiting relationship, while many married couples were virtually separated or on the verge of separation at the relevant date. In relation to the amount of financial support which might be given to Liam, jurors, as men and women of the world, were well able to assess the needs of a young child, and might be in a better position than a judge to estimate the expense involved. In relation to the possibility that the couple might have had more children but for the death, such a possibility always existed in fatal claims, and, using Wilson v Chief Constable, Lothian & Borders Constabulary 1989 S.L.T. 97 at p.106 as an illustration, counsel pointed out that every court's decision about apportionment of damages amongst family members could be rendered inaccurate if one postulated that the deceased might have lived and that another child might have been born.

[11] I am persuaded that there is no force in Mr. Clarke's argument about the possible birth of other children. However, I am of opinion that there is some force in the first two arguments. In standard fatal cases, the court, whether judge or jury, is usually presented with evidence demonstrating not only how much the deceased was earning at the date of death, but also how much of that income he or she was in fact willing and able to devote to the maintenance of the family: cf. dicta in Graham v Associated Electrical Industries 1966 S.L.T. (Notes) 27. Such evidence enables the court fairly easily to assess the dependency or annual sum which the deceased was able and willing to spend on his family, whatever that might comprise. Thereafter a multiplier has to be ascertained, using the Ogden Tables modified to reflect the fact that there are two life expectancies to be considered (the deceased's and the widow/widower/partner/cohabitee's) and not merely one life expectancy as in non-fatal personal injuries cases: see McManus' Exrx. v Babcock Energy Ltd. 1999 S.C. 569, at p.586. Once a lump sum is ascertained, an apportionment is carried out and the damages for loss of support attributable to a particular child can be ascertained: cf. Wilson v Chief Constable, cit. sup.

[12] Cases involving quantification of loss of support suffered by a posthumous child can present more difficulty, as, for obvious reasons, there is no evidence demonstrating the actual level of support afforded to that child, or to the family unit including that child, during the deceased's lifetime. Nevertheless, where there is in existence a family unit of some sort, of which the posthumous child becomes a member after the deceased's death, there may be sufficient material for a judge or jury to make an assessment: cf. Riddell v Longmuir & Sons Ltd. 1971 S.L.T. (Notes) 33; Leadbetter v National Coal Board 1952 S.L.T. 179 (both pre-1976 Act decisions).

[13] However, in the present case there is a combination of facts which in my opinion renders it unsuitable for jury trial. The posthumous child is the first born child of Lynsey MacIntosh. Miss MacIntosh was, on the averments, engaged to the deceased, but was apparently not living with him as his wife, or being financially supported by him. It is not clear from the averments whether the deceased knew about the pregnancy. The presumption pater est quem nuptiae demonstrant cannot assist in the present case, and the onus of proof will rest upon the pursuer to establish that, on a balance of probabilities, the deceased was the "parent" or "genetic father" of Liam. Satisfying that onus may give rise to questions of mixed fact and law, requiring the leading of evidence and submissions thereon. That alone makes the case unsuitable for jury trial.

[14] However there is in my opinion a further reason for withholding the case from a jury. The pursuer does not offer to prove an established level of financial support which the deceased was able and willing to devote to a family unit which he accepted as being dependent upon him. Whether the deceased would have continued in a relationship with Miss MacIntosh, and whether and to what extent he would have been willing to make a financial contribution to Liam's upbringing, are questions which, on the averments, may not be easy to answer. It is not so much the expense of bringing up a young child which is in issue (and no doubt a jury would be well qualified in that context): rather it is how properly to approach the unknown factors outlined above. In my view the exercise of quantifying damages in this rather unusual case is too difficult and speculative for a jury.

[15] For these reasons, I was satisfied that the defenders had demonstrated special cause for withholding the case from jury trial. In the result, I refused the pursuer's motion for issues, and sustained the defenders' first plea-in-law.