Roslyn Evelyn Mykoliw and Others v. Arthur James Botterill and Tulloch Transport Ltd [2010] CSOH 84

In this Procedure Roll Motion, the defender and third party sought dismissal of the claim brought by the eighth pursuer, on grounds that his claim for non-patrimonial loss for death of his step-child, was excluded by s1(4A) of the Family Law (Scotland) Act 2006, amending the Damages (Scotland) Act 1976.
The defender and third party contended the pursuer was excluded from the notion of “immediate” family of a deceased, because of his relationship being one of “affinity”, as a step-parent.

The court summarized the background to the amended provisions, noting that in August 2002, the Scottish Law Commission submitted their Report on title to sue for non-patrimonial loss (Scot Law Com No. 187) recommending that any person (including a step-parent) who had accepted the deceased a child of the family should be entitled to sue for non-patrimonial loss, as part of the deceased's “immediate family”.

The Scottish Government accepted the Commission's recommendations however, the resulting ambiguous amendments made by the Family Law (Scotland) Act 2006 clearly did not reflect this intention.

The question for the court was whether these amendments could be read as giving effect to their intended purpose, or if they did not, what should the court do when it has to interpret a statutory provision in circumstances where a strict, or literal, reading of it would deny a right which the legislation clearly intended to confer?

The defender and third party argued that the court must employ a strict literal construction, with only the legislature able to provide a solution to the unclear and ambiguous amended provisions.

The court roundly rejected this submission, noting this would lead to an absurd result and much injustice, in discriminating against step-parents merely as a result of their married status. The court illustrated the absurdity of the result of literal interpretation, by reference to cohabitants, who could claim under the Act (provided they were deemed to have had sufficient close ties of love and affection with the deceased), but step-parents could not, merely as a result of their martial status.

When literal interpretation of a provision produces such an absurd result, the court noted it will seek to avoid such an interpretation, because it is unlikely to have been intended by Parliament. The court should look at the context of the provision, and in this instance, noted that Parliament had clearly intended that persons who have accepted the deceased as a child of their family should be entitled to sue for non-patrimonial loss because of the closeness of the emotional bond likely to have been created between such immediate family members.

Lord Ordinary noted that the “only sensible interpretation” which could be given to s1(4A) is to hold that the exclusion has effect only where there is nothing more than a relationship of affinity between the claimant and the deceased. Where, however, there is a relationship of affinity over and above the fact that the claimant had accepted the deceased as a member of his family, the relationship of affinity does not defeat the entitlement to claim for non-patrimonial loss.

Furthermore, the court noted that Article 8, guaranteeing respect for family life, would be undermined by the literal interpretation of this exclusion and s3 of the Human Rights Act 1998 requires the court to read and give effect to legislation in a way that is compatible with Convention rights. Found the pursuers had title to sue under s1(4A) of the 1976 Act and repelled the Motion to strike out the claims on grounds of irrelevancy. Motion refused.