Telfer & Ors v. Kellock [2004] ScotCS 245 (10 November 2004)

Telfer & Ors v. Kellock [2004] ScotCS 245 (10 November 2004)

The statutory language of the Damages (Scotland) Act 1976, specifically Schedule 1, paragraph 1(aa), does not extend to same-sex cohabitants, as the words 'husband or wife' are gender-specific and Parliament did not intend to include same-sex partners. However, the term 'family' in paragraph 1(c) is sufficiently broad to include a child accepted by the deceased as a child of her family, regardless of the sexual orientation or relationship status of the adults in the household.

Citation
[2004] ScotCS 245
Parties
Pursuers: Jack Telfer and Others; Defender: Alan Shields Kellock
Jurisdiction
Scotland
Judgment Date
10 November 2004
Procedural Posture
Civil Damages Claim Under Damages (scotland) Act 1976 / Preliminary Issues on Relevancy (statutory Interpretation)
Outcome
Third pursuer's claim dismissed; fourth pursuer's claim allowed to proceed to proof before answer.
Legal Topics
Damages for Wrongful Death, Definition of 'relative' Under Damages (scotland) Act 1976, Same Sex Cohabitation and Statutory Rights, Children Accepted as Family, Retrospective Effect of Human Rights Act 1998
Tort Family Law Statutory Interpretation Damages for Wrongful Death Definition of 'relative' Under Damages (scotland) Act 1976 Same Sex Cohabitation and Statutory Rights Children Accepted as Family Retrospective Effect of Human Rights Act 1998

Case Brief

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Parties

Jack Telfer and Others

Pursuers

Alan Shields Kellock

Defender

Procedural Posture

Civil Damages Claim Under Damages (scotland) Act 1976 / Preliminary Issues on Relevancy (statutory Interpretation)

Legal Issues

  1. 1 Whether a same-sex cohabitant qualifies as a 'relative' under Schedule 1 of the Damages (Scotland) Act 1976 for the purposes of claiming damages for wrongful death
  2. 2 Whether a child accepted by the deceased as a child of her family qualifies as a 'relative' under the same Act

Ratio Decidendi

The statutory language of the Damages (Scotland) Act 1976, specifically Schedule 1, paragraph 1(aa), does not extend to same-sex cohabitants, as the words 'husband or wife' are gender-specific and Parliament did not intend to include same-sex partners. However, the term 'family' in paragraph 1(c) is sufficiently broad to include a child accepted by the deceased as a child of her family, regardless of the sexual orientation or relationship status of the adults in the household.

Court Disposition

Third pursuer's claim dismissed; fourth pursuer's claim allowed to proceed to proof before answer.

Orders

  • Sustain defender's first plea in law as it relates to the third pursuer and dismiss her action.
  • Repel defender's first plea in law as it relates to the fourth pursuer and allow proof before answer.