This case dealt with the claims for damages under section 4 of the Damages (Scotland) Act 2011 by the three grandchildren of a man who died in a road traffic accident. The level of damages awarded to his two youngest grandchildren (they were 3 years old and in utero at the time of their grandfather's death) to compensate them for the loss of his society and guidance were significantly higher than previous awards in cases like this. The grandchildren who was 3 years old at the time of death was awarded £16,000 and the one unborn then was awarded £14,000.
Given this significant increase in the damages awarded to grandchildren, pursuers may well consider arguing in a fatal case that a child of a child of the victim, conceived after the victim's death, is a grandchild of the deceased under the 2011 Act and so entitled to damages for loss of society and guidance. Such a claimant would, of course, need to be born during the period that the deceased would have been expected to survive until, had the breach of duty leading to the death not occurred.
One can well imagine that any legal argument by a "grandchild" conceived after the death of the deceased would be prefaced by the point that it would simply be unfair for unborn "grandchildren" to lose out, when those in utero at the time of death are entitled to damages. Pursuers could benefit from section 14 of the 2011 Act which defines the categories of relative entitled to section 4 damages, including a person who is a grandchild. This is potentially significant as the forerunner to the 2011 Act, the Damages (Scotland) Act 1976 (as amended) merely included within the definition of a relative entitled to this type of damages someone who was a grandchild of the deceased. The use of "was" in the 1976 Act indicated that the grandchild had to have been conceived (and then gone on to be born) when the fatality took place. Cohen v Shaw 1992 SLT 1022 supports this interpretation. Section 14 of the 2011 Act, in including spouses and civil partners amongst the categories of relative entitled to damages, says spouses and civil partners must be so "immediately before the death". This "immediately before the death" wording is absent when the other categories of relative are described in section 14. This point too would support the case of a "grandchild" conceived after death.
A defender's response to these points would no doubt be that a line has to be drawn somewhere on grounds of policy, and, for a person to be classed as a "grandchild", the grandparent would need to have been alive at the time of conception. One can see the attraction of this argument. Is it right to call someone a "grandchild" of a deceased person when the death took place before the child came into being, and there was never a point in time when their respective existences overlapped? The "policy" argument here is bolstered by section 29(3B) of the Human Fertilisation and Embryology Act 1990. This provides that a child born as a result of conception by artificial methods, and after his father's death, is only his child in law for the purposes of birth registration.
Were section 11 interpreted in a way favourable to unborn "grandchildren", the other categories of relative (such as siblings, aunts, uncles, nephews and nieces) entitled to compensation under section 4 of the Act who were conceived, and then born, after the date of death, would also be entitled to compensation.
We suspect that in the right fatal case (i.e. one where the deceased left a large family including children who both conceived and had a number of children after the date of death), it may well be argued that these children of the deceased's children are grandchildren also entitled to damages under section 4 of the 2011 Act.
We shall see…