Mykoliw & Ors v Botterill & Anor [2010] ScotCS CSOH_84 (06 July 2010)

Mykoliw & Ors v Botterill & Anor [2010] ScotCS CSOH_84 (06 July 2010)

Section 1(4A) of the Damages (Scotland) Act 1976, as amended, must be interpreted purposively so that the exclusion of persons related by affinity applies only where there is nothing more than a relationship of affinity. Where a step-parent has accepted the deceased as a child of the family, the relationship of affinity does not bar the claim. This construction avoids absurdity, injustice, and discrimination, and gives effect to the clear legislative intent and ECHR rights. The eighth pursuer's pleadings are sufficiently specific and there is no special cause to withhold jury trial.

Citation
[2010] ScotCS CSOH_84
Parties
Pursuers: Roslyn Evelyn Mykoliw and Others; Defender: Arthur James Botterill; Third Party: Tulloch Transport Limited
Jurisdiction
Scotland
Judgment Date
06 July 2010
Procedural Posture
Civil Damages (fatal Accident) / Procedure Roll (preliminary Legal Issues)
Outcome
Eighth pursuer's claim allowed to proceed; issues allowed for jury trial; all questions of expenses reserved.
Legal Topics
Damages for Wrongful Death, Title to Sue for Non Patrimonial Loss, Interpretation of Damages (scotland) Act 1976 as Amended, Relationship by Affinity and Consanguinity, Human Rights Act 1998 ECHR Articles 8 and 14, Jury Trial in Civil Claims
Tort Law Family Law Statutory Interpretation Human Rights Damages for Wrongful Death Title to Sue for Non Patrimonial Loss Interpretation of Damages (scotland) Act 1976 as Amended Relationship by Affinity and Consanguinity +2 more

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Parties

Roslyn Evelyn Mykoliw and Others

Pursuers

Arthur James Botterill

Defender

Tulloch Transport Limited

Third Party

Procedural Posture

Civil Damages (fatal Accident) / Procedure Roll (preliminary Legal Issues)

Legal Issues

  1. 1 Whether a step-parent who accepted the deceased as a child of the family is entitled to claim non-patrimonial damages under section 1(4) of the Damages (Scotland) Act 1976 as amended, notwithstanding section 1(4A) excluding persons related by affinity.
  2. 2 Whether a literal interpretation of section 1(4A) produces absurdity, injustice, or discrimination contrary to legislative intent and ECHR rights.
  3. 3 Whether the pleadings are sufficiently specific and whether special cause exists to withhold the case from jury trial.

Ratio Decidendi

Section 1(4A) of the Damages (Scotland) Act 1976, as amended, must be interpreted purposively so that the exclusion of persons related by affinity applies only where there is nothing more than a relationship of affinity. Where a step-parent has accepted the deceased as a child of the family, the relationship of affinity does not bar the claim. This construction avoids absurdity, injustice, and discrimination, and gives effect to the clear legislative intent and ECHR rights. The eighth pursuer's pleadings are sufficiently specific and there is no special cause to withhold jury trial.

Court Disposition

Eighth pursuer's claim allowed to proceed; issues allowed for jury trial; all questions of expenses reserved.

Orders

  • Motion to dismiss eighth pursuer's claim refused.
  • Issues allowed for jury trial.