Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 84
PD1790/09	OPINION OF LORD PENTLAND in the cause ROSLYN EVELYN MYKOLIW AND OTHERS Pursuers; against ARTHUR JAMES BOTTERILL Defender: and TULLOCH TRANSPORT LIMITED Third Party: _______________

Pursuers: Milligan Q.C.; Digby Brown LLP (For 1^st, 2^nd, 8^th, 9^th, 10^th, 11^th and 12^th Pursuers)

Milligan Q.C.; Allan McDougall (for 3^rd, 4^th and 5^th Pursuers

Christine; Lawford Kidd (for 6^th and 7^th Pursuers)

Defender: Galbraith; Andersons LLP

Third Party: Doherty; HBM Sayers

6 July 2010

Introduction

[1] In August 2002 the Scottish Law Commission ("the Commission") submitted to the Minister for Justice its report on title to sue for non-patrimonial loss (Scot Law Com No 187). The Commission had been asked, in March 2001, to consider the provisions of the Damages (Scotland) Act ("the 1976 Act") relating to the rights of relatives of a deceased person to sue for such loss and to make recommendations as to possible changes in the law. The Commission explained in its report that, in making its recommendations, its policy aims were that (a) the concept of the deceased's "immediate family" should be retained; (b) it should consist of those relatives who are likely to have had a close tie of love and affection with the deceased in the context of contemporary family structures; (c) appropriate weight should be given to relationships which can arise between persons who have lived and/or been brought up in the same household and; (d) relationships by affinity should be excluded (paragraph 2.11).

[2] In furtherance of these aims, one of the Commission's recommendations was that any person (including a step-parent) who had accepted the deceased as a child of the family should be entitled to sue for non-patrimonial loss (as well as patrimonial loss), but that a step-parent as such should not any longer be entitled to sue for non-patrimonial loss. In explaining why it considered that a step-parent should no longer have title to sue solely on the basis of having that particular relationship with the deceased, the Commission pointed out that there could be cases where a step-parent had married the deceased's parent by the time when the deceased was an adult and had played no part in the deceased's upbringing. In such a case it would be inappropriate to treat the step-parent as a member of the deceased's immediate family and to confer on him the automatic right to sue for non-patrimonial loss (paragraphs 2.38 to 2.40). So in place of step-parents, the 1976 Act should be amended, the Commission proposed, to provide that anyone who has accepted a child as a child of that family should have title to sue for non-patrimonial loss as a consequence of the death of that child. Such an amendment would tie in with the existing rule that a person accepted by the deceased as a child of the family should continue to be entitled to sue for non-patrimonial loss. This would "complete the symmetry of the provisions" (paragraph 2.39). The Commission's view was that a person (whatever their relationship to the deceased) who voluntarily accepts a child as a child of the family has sufficiently close ties with the child to be entitled to sue as a member of the child's immediate family.

[3] In an appendix to its report, the Commission set out a draft Bill amending the 1976 Act in a way which would have given effect to its recommendations. The proposed amendments were of some intricacy because it was necessary to redefine membership of the class referred to as the deceased's "relatives" and its sub-set of "immediate family" by a series of somewhat complex alterations to the 1976 Act.

[4] The Scottish Government decided to accept the Commission's recommendations in regard to the substance of the proposed reforms. In particular, the recommendations affecting step-parents were accepted. The Commission's draft Damages Bill was not adopted, however. Instead, amendments were brought forward (it seems at somewhat short notice) at Stage 2 of the Family Law (Scotland) Bill (later enacted as the Family Law (Scotland) Act 2006). They were considered at a meeting of the Justice 1 Committee on 30 November 2005. A member of the Committee, Mrs Margaret Mitchell MSP, presciently observed that "bringing in the amendments at this stage has not given the Committee a chance to look underneath to see whether there are any problems and fully satisfy itself that there is none" (Col 2403). The amendments were, however, agreed to without any further detailed explanation by the Deputy Justice Minister or examination by the Committee.

[5] The purpose of the amendments was inter alia to give effect to the Commission's recommendations about step-parents and persons who had accepted a child as a member of the family, which I have already summarised. The structure, approach and terms of the amendments did not, however, follow the carefully worked out provisions formulated by the Commission. The Government decided (for reasons which were not explained at the Procedure Roll debate) to take a different course with regard to the drafting of the amendments. The main issue in the present case is whether the amendments can be read as giving effect to their intended purpose or whether they have failed to do so. Putting the matter in practical terms, the sharp point which arises is what the court should 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 legislature in fact intended to confer. The defender and the third party argue that the court's hands are tightly bound by what they submitted was a strict rule of literal construction and that the knot can only be cut by the legislature changing the law; in the meantime, those who are disadvantaged by such an interpretation must suffer. Counsel for the defender and third party did not shrink from the proposition that only the legislature could provide a solution because the provision was entirely clear and unambiguous; the Court, it was argued, had simply no room for manoeuvre.

The Eighth Pursuer's Case
[6] The question which I have attempted to formulate in general terms in the preceding paragraphs arose in an action which came before me on the Procedure Roll on the motion of the defender and the third party for dismissal of the claim brought by the eighth pursuer, Mr James Marshall. In the event that Mr Marshall's claim was not to be dismissed, the defender and third party contended that special cause existed to withhold the case from trial by jury.

[7] Following two amendments to the pleadings (the second lodged after the hearing), it is now averred that the eighth pursuer was the stepfather of the late Kevin Michael Mykoliw ("the deceased") who was born on 2 March 1971 and who died in an accident in the course of his employment on 17 October 2008. The eighth pursuer is married to the deceased's mother, who is the ninth pursuer. The accident is averred to have occurred when a passenger coach, in which the deceased was travelling in the course of his employment with D & E Coaches Limited, collided with a stationary flat bed trailer parked on Longman Drive in Inverness. The eighth pursuer, along with a number of other relatives of the deceased, sues the driver of the coach for damages arising from the deceased's death on the basis that the accident in which the deceased died was caused by the driver's fault and negligence. It is averred and admitted that the defender pled guilty to a charge of causing death by careless driving arising from the accident. The defender has convened the third party, Tulloch Transport Limited, the owners of the trailer, on the basis that the third party's driver was wholly or at least partly to blame for the accident because he left the trailer parked in a dangerous position on the night before the accident.

[8] The amended averments made by the eighth pursuer to sustain his title to sue in respect of the deceased's death and the nature and extent of the loss he claims to have suffered as a result thereof may be summarised as follows. The eighth pursuer avers that he had an extremely close relationship with the deceased and accepted him as a child of his family. The averments (as now amended) go on to allege that the eighth and ninth pursuer started co-habiting in about 1986. From that time until his 16th birthday, the deceased would spend every fortnight with the eighth and ninth pursuers. There follows a series of averments describing various interests and activities which the eighth pursuer and the deceased are said to have shared together. The eighth pursuer, it is then averred, provided for the deceased financially and treated him like a son. As soon as he was able to, on the day of his 16^th birthday, the deceased chose to come and live with the eighth and ninth pursuers. He is averred to have referred to the eighth pursuer as "dad". The amended averments then go on to allege that between about 1989 and 1993 the deceased worked with the eighth pursuer in their own window cleaning business. Before that, they went to college together at the Jewel & Esk Valley College. It is averred that even after he left home and got married, the deceased still remained in regular contact with the eighth pursuer, right up to his death.

[9] According to the pleadings, the deceased lived with the eighth and ninth pursuers in their family home from the age of 16 until the age of 26. It is averred that the eighth pursuer was extremely distressed by the deceased's death and that he was in close contact with the deceased until the time of his death; he enjoyed a close, loving relationship with the deceased, according to the averments. In the circumstances, the eighth pursuer seeks damages under and in terms of section 1(4) of the 1976 Act because he has suffered grief and distress at the loss of the deceased's society, companionship and guidance.

The Damages (Scotland) Act 1976, as amended by the Family Law (Scotland) Act 2006

[10] The argument advanced for the defender and the third party was that the eighth pursuer's claim was excluded by the terms of section 1(4A) of the 1976 Act. In order to understand this line of argument, it is necessary first to set out the terms of section 1(4) of the 1976 Act, as amended by section 35 of the Family Law (Scotland) Act 2006 ("the 2006 Act"). This provides as follows:

"Subject to subsection (4A), if the relative is a member of the deceased's immediate family within the meaning of section 10(2) of this Act there shall be awarded, without prejudice to any claim under subsection (3) above, such sum of damages, if any, as the court thinks just by way of compensation for all or any of the following -

(a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death;

(b) grief and sorrow of the relative caused by the deceased's death;

(c) 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,

and the court in making an award under this subsection shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) above".

[11] Section 10(2) of the 1976 Act (again as amended by the 2006 Act) explains who is to be regarded, for the purposes of the legislation, as a member of the deceased's "immediate family". It is in the following terms:

"References in this Act to a member of the deceased's immediate family are references to any relative of his who falls within any of sub-paragraphs (a) to (cc) of paragraph 1 of Schedule 1 to this Act".

[12] This takes one then to paragraph 1 of Schedule 1 to the 1976 Act which, insofar as relevant for present purposes, is in the following terms (again it was amended by section 35 of the 2006 Act):

"In this Act 'relative' in relation to a deceased person includes -

(a) any person who immediately before the deceased's death was the spouse or civil partner of the deceased;

(aa) any person, not being the spouse or civil partner of the deceased, who was, immediately before the deceased's death, living with the deceased as husband or wife or in a relationship which had the characteristics of the relationship between civil partners;

(b) any person who was a parent or child of the deceased;

(c) any person not falling within sub-paragraph (b) above who was accepted by the deceased as a child of his family;

(ca) any person not falling within sub-paragraph (b) above who accepted the deceased as a child of the person's family;

(cb) any person who -

(i) was the brother or sister of the deceased; or

(ii) was brought up in the same household as the deceased and who was accepted as a child of the family in which the deceased was a child;

(cc) any person who was a grandparent or grandchild of the deceased;"

[13] In the present case, as has been seen from his averments, the eighth pursuer contends that he qualifies as a member of the deceased's "immediate family" because he accepted the deceased as a member of his family. He maintains that he falls within the class of persons identified in subparagraph (ca) of paragraph 1 of Schedule 1 to the 1976 Act since he is not a parent of the deceased, but is a person who accepted the deceased as a member of his own family. It is clear that the eighth pursuer's title to sue is not based on his status as a step-parent of the deceased.

[14] As I have already explained, section 1(4) of the 1976 Act states that the right to sue for damages conferred on relatives who are members of the deceased's immediate family is to be subject to subsection (4A). This subsection was inserted by section 35(3) of the 2006 Act. It is in the following terms:

"Notwithstanding section 10(2) of, and Schedule 1 to, this Act, no award of damages under subsection (4) above shall be made to a person related by affinity to the deceased".

[15] I should refer next to subsection (4B) (also inserted by section 35(3) of the 2006 Act) because it explains that a person related by affinity to the deceased includes:

"(a) A stepchild, step-parent, stepbrother or stepsister of the deceased; and

(b) Any person who was an ascendant or descendant of any of the step-relatives mentioned in paragraph (a)".

[16] Finally, it is necessary to mention paragraph 2(a) of Schedule 1 to the 1976 Act, which provides as follows:

"In deducing any relationship for the purposes of (paragraph 1 of Schedule 1) -

(a) any relationship by affinity shall be treated as a relationship by consanguinity; any relationship of the half blood shall be treated as a relationship of the whole blood; and the stepchild of any person shall be treated as his child."

[17] There was some discussion at the hearing about the meaning of the word "affinity" where it appears in subsections (4A) and (4B) and in paragraph 2(a) of Schedule 1. In particular, counsel for the eighth pursuer argued that the term was ambiguous, in the context of these provisions, because it could be read as extending to the relationship between spouses and this was not its ordinary meaning. I disagree. The Oxford English Dictionary defines affinity as meaning: "relationship by marriage; as opposed to consanguinity" and as "relations by marriage". It seems to me that a relationship by affinity is one that has been created through marriage, such as brothers-in-law and sisters-in-law or parents-in-law or indeed step-parents. I note that the 1976 Act does not treat spouses as being related by affinity to one another. Otherwise, the effect of subsection (4A) would be to exclude one spouse from claiming damages for non-patrimonial loss arising from the death of the other; clearly that cannot have been what was intended. Accordingly, I do not consider that there is any ambiguity in the meaning of the word "affinity" as it is used in the 1976 Act.

Is the eighth pursuer entitled to claim?
[18] Counsel for the defender (supported by counsel for the third party) argued that the meaning of subsection (4A) of section 1 was clear and straightforward. It expressly ruled out the making of an award of damages under subsection (4) to anyone who was related by affinity to the deceased. Since the eighth pursuer was a person who was related by affinity to the deceased (by virtue of being his step-father), he could not claim damages under subsection (4), even if he could establish that he had accepted the deceased as a member of his family.

[19] In my opinion, the argument advanced on behalf of the defender and the third party must be rejected. If it were right the result would be absurd and would give rise to injustice. It would mean, for example, that where a stepchild is killed in an accident, his step-parent could not claim damages under section 1(4) because of (and only because of) the relationship of affinity which existed between them, even though the step-parent had accepted the deceased as a member of his family. The barrier which would come down to block a step-parent from having title to sue in such circumstances would be constituted merely by the fact of the step-parent's marriage to the deceased's parent. Contrast the position of a person who chose to cohabit with one of the deceased's parents and who accepted the deceased as a member of that family; he or she would have title to sue (not being related by affinity to the deceased) and would, in that respect, enjoy greater rights than a step-parent who had accepted the deceased as a family member. Such discrimination against step-parents on the sole ground of their married status seems to me to offend against common sense and to be devoid of any rationality. I understood counsel for the defender and the third party to accept that their argument would give rise to injustice, but that, they said, was unavoidable since the meaning of the subsection was clear.

[20] It is well-established that where a literal interpretation of a statutory provision would produce an absurd result, the Court seeks to avoid such an interpretation because this is unlikely to have been intended by Parliament. The approach of the courts towards the importance of avoiding absurdity was encapsulated by Lord Millet in R (on the application of Edison First Power Ltd) v Central Valuation Officer and another [2003] 4 All ER 209 at [116], [117] where his Lordship said this:

"The Courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless. But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it ..."

[21] The so-called "golden rule" of statutory construction was set out, in its modern form, by Lord Penrose in Barratt Scotland Ltd v Keith 1993 SC142 at 148A-B in this way:

"... the words of the statute must, prima facie, be given their natural and ordinary meaning, in their context, and according to the appropriate linguistic register, without addition or subtraction, unless that meaning produces injustice, absurdity, anomaly or contradiction."

[22] In my opinion, there can be no doubt that the literal construction of section 1(4A) of the 1976 Act contended for by the defender and third party would give rise to injustice, absurdity, anomaly and contradiction. Indeed it is a somewhat remarkable feature of the case that counsel for those parties did not demur to the proposition that this would be so. The injustice, absurdity, anomaly and contradiction would arise because of the discriminatory effect which the literal construction argued for by the defender and third party would have. As I have already explained, that interpretation would exclude from the class of persons entitled to sue for the death of a person accepted into their family those who were related to the deceased by affinity, whilst allowing claims to be brought by those who were not so related. This would be an absurd outcome which cannot, in my opinion, have been intended by Parliament.

[23] If the strictly literal interpretation favoured by the defender and the third party is not to be adopted, how then should section 1(4A) be construed? It seems to me that this task should be approached by looking at the provisions governing the rights of relatives to sue for the wrongful death of a family member as a whole and in their proper context. The context is that the rules were clearly intended by Parliament to be a self-contained and coherent scheme setting out a modern code regulating entitlement to sue for death of a family member. From the terms of paragraph 1(ca) of Schedule 1 read with section 1(4), it can be seen that Parliament has thought it right to recognise that persons (other than the parents of the deceased) 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. This right to sue in the case of persons who have accepted a child as a family member has nothing to do with whether there is a relationship of affinity between the de facto parent and the accepted child. There may or there may not be a relationship of affinity between them; for present purposes it does not matter whether the de facto parent was married to the natural parent. It would run counter to the express creation of such an entitlement for there then to be a blanket exclusion of claims simply because of the fact that there happened to be a relationship of affinity between the claimant and the deceased. If section 1(4A) were to be read in that sense it would mean that the legislature had conferred the right in clear terms in section 1(4) (when read with section 10(2) and paragraph 1(ca) of Schedule 1) only to sweep it away in the very next breath in section 1(4A) and to do so on an entirely anomalous and nonsensical basis. In my opinion, the only sensible interpretation which can be given to section 1(4A), when the legislation is read as a whole, is to hold that the exclusion has effect only where there is nothing more than a relationship of affinity between claimant and 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. When one reads subsections 4, (4A) and (4B) of section 1 together, it is clear that this is what was intended, although the drafting is unsatisfactory. In the present case since the eighth pursuer avers and offers to prove that he had accepted the deceased as a member of his family, it follows that he is entitled to sue for non-patrimonial loss.

[24] In my view, the absurdity and injustice of the position contended for by the defender and the third party is underlined when one recalls that the clear purpose of subsection (4A) of section 1 (read with subsection (4B)) was to exclude claims by persons who could establish a relationship to the deceased by nothing more than affinity, such as step-parents or step-children. As I have already mentioned, the matter was considered in detail by the Scottish Law Commission in its Report on Title to Sue for Non-Patrimonial Loss (Scot Law Com No. 187). It is worth quoting paragraph 2.40 of the Commission's report:

"The effect of the amendment would be to include those step-parents who in fact accept a child as a child of the family. It would also have the effect of including the biological parent's unmarried partner who accepts the child as a child of the family and also anyone who does so even where he or she has had no relationship with the biological parent of the deceased child. It would also include the deceased's foster parents who have accepted the child as a child of the family. We take the view that a person who voluntarily accepts a child as a child of the family has sufficiently close ties with the child to be treated as a member of the child's immediate family".

[25] All this seems to me (with respect) to be very clear and sensible. The difficulty which has come to the surface in the present case has arisen from what happened when the recommendations were sought to be implemented in the Scottish Parliament; as I have already explained, this was intended to be achieved by section 35 of the Family Law (Scotland) Act 2006, but it appears that those responsible for drafting the provision at this stage cannot have appreciated the difficulty to which a strictly literal reading of the clauses which became subsections (4A) and (4B) would give rise. The potential problem was highlighted in an illuminating commentary by Professor Kenneth Norrie entitled Rushed Law and Wrongful Death published in the Journal of the Law Society of Scotland in April 2006. Counsel for the defender and the third party accepted that a mistake had evidently been made in the drafting of the provision, but they said that this simply had to be ignored and the matter left to Parliament to sort out by further legislation. I do not agree. In my view, section 1(4A) can be interpreted in a way which avoids producing absurd results. I have already explained my reasoning on that. Moreover, it seems to me that where, as in the present case, the intention of Parliament is so clear, it would be wrong for the Courts to defeat it by adopting an interpretation with nothing to commend it except a slavish adherence to literalism. Where it is clear (as it is in the present case) that a strictly literal meaning would not accord with the legislative purpose then it is the responsibility of the Court, in my opinion, to interpret the measure in a way which gives effect to that purpose. This is now firmly established, but if authority for it is needed it can be found, for example, in what Lord Steyn said in A-G's Reference (No 5 of 2002) [2005] 1 AC 167 at [31]:

"No explanation for resorting to a purposive construction is necessary. One can confidently assume that Parliament intends its legislation to be interpreted not in the way of a black-letter lawyer, but in a meaningful and purposeful way giving effect to the basic objectives of the legislation."

[26] One might refer also to the well-known speech of Lord Bingham of Cornhill in R(Quintaville) v Secretary of State for Health [2003] 2 WLR 692 where his Lordship observed that the basic task of the Court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. Lord Bingham went on to say that confining attention to a literal interpretation of particular provisions not only creates the risk of encouraging prolixity in drafting, but also may lead to frustration of the will of Parliament. Undue concentration on the minutiae of the measure (under the banner of loyalty to the will of Parliament) may lead the Court to neglect the purpose which Parliament intended to achieve when it enacted the statute. These observations (obviously of the highest authority) seem to me to be pertinent in the present case.

[27] In Monteith v Cape Insulation Ltd 1998 SLT 456 the Lord Ordinary (Lord Nimmo Smith) expressed the view (at 460E-F) that he could find no support in the authorities referred to before him for the proposition that reference may be made to a Scottish Law Commission Report where the provisions of the statute under construction are clear and unambiguous. A similar view was taken when the case reached the Inner House (see 1998 SC 903). His Lordship's dictum was relied upon by counsel for the defender and the third party, but it seems to me that it has to be understood in its proper context; and this differs significantly from the context of the present case. In Montieth the Lord Ordinary was not convinced that there was a clear statement in the Commission's report supporting the interpretation contended for by the defenders. The defenders' argument in Montieth was presented on the basis that the intention of Parliament was to implement the report. But since the report was unclear on the point in issue the Court could derive no assistance from it; it followed that the intention of Parliament could only be inferred from the language used in the statutory provision.

[28] In a number of important respects the present case is different. Firstly, there was no dispute at the hearing before me about the recommendations made by the Scottish Law Commission. From the passages in the Commission's report, to which I have already referred, it is entirely clear that the Commission considered that a step-parent, who accepted a child as a member of his family, should be entitled to claim non-patrimonial loss. The existence of a relationship of affinity between step-parent and stepchild was not to bar such a claim. So, unlike in Montieth, the views of the Scottish Law Commission on the point in issue are clear in the present case. Secondly, counsel for the defender and the third party accepted that the intention of Parliament had been to amend the law so as to give effect to the Commission's recommendation. In these circumstances, counsel for the defender and third party were driven to adopt what they frankly acknowledged to be an unattractive position: there had been drafting errors, as a result of which the intention of Parliament had not been faithfully reflected in the language used in the statutory provision, if strictly read: the Court was powerless to deal with the problem, however. In my opinion, this argument is unsound because it fails to acknowledge that the Court should not only construe legislation so as to avoid absurdity, but also (and more generally) so as to give effect to clear Parliamentary intention. As is pointed out in the latest edition of Craies on Legislation (9^th edition, 2008), in practice the argument between literal and purposive interpretation may never have had much substance, except as a purely academic exercise, and it is now probably wholly futile. The present editor goes on to observe that recent developments combine both to produce and reflect a situation in which it is now beyond doubt that the courts will go to any sensible length to discern and give effect to the underlying policy intention of the legislature, and that in construing a statute they will use all kinds of material available to them as tools to discover that intention (paragraph 18.1.3). All this seems to me to be particularly apt in the circumstances of the present case.

[29] There is another way in which the difficulty could be addressed, in my view. It seems to me that if section 1(4A) of the 1976 Act was to be interpreted as contended for by the defender and third party, this would have the effect of unjustly discriminating against married step-parents solely on the ground of their married status. The right to respect for family life guaranteed under Article 8 of the European Convention on Human Rights ("ECHR") would, I think, be undermined by a system which permits claims to be made for the death of a relative by unmarried de facto parents who had accepted the relative as a member of the family, but at the same time excludes such claims where the accepting parent is married to the natural parent. Counsel for the defender and the third party argued that Article 8 had nothing to do with the rules governing title to sue in death claims, but I do not see why this should be so. It seems to me that the whole purpose of the scheme in the part of the 1976 Act with which this case is concerned is to delimit, in a way which reflects the realities of modern family life, the categories of persons who are considered to have a sufficiently close family tie with a deceased person to entitle them to sue for non-patrimonial loss on his death. Rights to sue of this nature are, as it seems to me, an important aspect of family life even though they can only be exercised after the death of the family member. On this issue I agree with the view expressed by the Lord Ordinary (Lord Brodie) in McGibbon v McAllister 2008 SLT 459 at paragraph [21] to the effect that a tangible expression of the State's recognition of the value of family life is to confer title to sue for damages when a family relationship is wrongfully terminated.

[30] Accordingly, I am satisfied that Article 8 is in play in the present circumstances. I consider also that to deny to persons in the position of the eighth pursuer title to sue for the death of a relative accepted as a family member, but to allow unmarried de facto parents the right to do so would be discriminatory and incompatible with Article 14 of ECHR when read with Article 8.

[31] Section 3 of the Human Rights Act 1998 requires the court to read and give effect to legislation in a way which is compatible with Convention Rights. In order to comply with that duty, I consider that it is necessary for me to read down section 1(4A) of the 1976 Act by construing it in the manner which I have set out earlier in this judgment: that is, by holding that the exclusion in the subsection has effect only where there is nothing more than a relationship of affinity between claimant and deceased.

[32] I should deal also with an argument advanced by counsel for the third party. She drew attention to the terms of sub-paragraph (ca) of paragraph 1 of Schedule 1 to the 1976 Act when read with paragraph 2(a). The argument was this: because paragraph 2(a) says that in deducing any relationship for the purposes of paragraph 1 a relationship by affinity is to be treated as a relationship by consanguinity, a step-parent is to be treated as a parent. Sub-paragraph (ca) begins with the words: "any person not falling within sub-paragraph (b)". It thus excludes from the class of persons who have accepted a child into the family not only natural parents, but also step-parents.

[33] Had the Scottish Parliament elected to follow the drafting proposed by the Commission in their draft Bill, this argument would not have been available because the words "any relationship by affinity shall not be treated as a relationship by consanguinity" were to be deleted insofar as applying to the redefined members of the deceased's immediate family (see draft Bill paragraphs 4(c)(ii) and (d)). This is an illustration of the intricate level of drafting needed when amending complex and interlocking provisions of this type. The point appears to have been overlooked when the amendments now contained in section 35 of the 2006 Act were put before the Justice 1 Committee.

[34] Be that as it may, it seems to me that it would be wrong to give effect to the argument on the point advanced by counsel for the third party. Just as much as in the case of the argument based on a strictly literal reading of subsection (4A), the result of acceding to this argument would be to produce an absurd outcome; the result would also be contrary to the clear intention of the legislature; and it would amount to a violation of the rights guaranteed to the eighth pursuer under Articles 8 and 14 of ECHR. Accordingly, I consider that sub-paragraph (ca) of paragraph 1 of Schedule 1 to the 1976 Act must be read as not excluding step-parents who have accepted a child into the family.

[35] Accordingly, whether the analysis is carried out by seeking to avoid an absurd construction or by adopting a purposive interpretation or by reading down under section 3 of the Human Rights Act, the outcome is the same: the eighth pursuer has title to sue the defenders under section 1(4) of the 1976 Act and his claim should not be struck out on the ground that it is irrelevant.

Pleading Points and Special Cause
[36] That leaves the submissions advanced by the defender and the third party about the adequacy of the eighth pursuer's pleaded case and whether the action as a whole is suitable for jury trial.

[37] Following the hearing on the Procedure Roll, the eighth pursuer lodged a second Minute of Amendment amplifying his averments as to the factual basis on which he contends that he accepted the deceased as a member of the family. The motion to amend was not opposed, the expenses of amendment being conceded. It seems to me that the eighth pursuer's averments on this aspect of the case are now sufficiently specific to justify inquiry.

[38] So far as the form of inquiry is concerned, the defender and the third party argued on a number of grounds that special cause existed to justify withholding the case from jury trial.

[39] Firstly, it was argued that the averments relating to the quality and extent of the relationship between the deceased and his daughter, Shannia Leanne Milne, are lacking in specification. Shannia is the daughter of the deceased and the second pursuer, who sues as her guardian. It was said that the paucity of averments about the amount and regularity of contact between the deceased and Shannia and as to the level of financial support and the extent of personal services which he provided to her made the case unsuitable for a jury; there were, on the present pleadings, likely to be difficulties in quantifying her claims. For example, it was entirely unclear how much she had been receiving as financial support from the deceased. And it was unclear whether she was receiving support from anyone else. There was a risk that a jury might become confused as between her claims and the claims of the first pursuer, the deceased's widow, for loss of support and services for herself and her children. This could be seen when the statements of valuation of claims lodged by the first and second pursuers were compared. The first pursuer's valuation of claim was based on the deceased's annual earnings; these were added to her own earnings and the total was then reduced by 25 per cent to allow for the deceased's living expenses. By contrast, the second pursuer's valuation in respect of Shannia's claims was based on the amount which the deceased paid for her support before his death. That amount had not been taken account of in the calculation of the amount of income available for the support of the first pursuer and her children. Accordingly, there was an element of double counting. Reference was made to Morris v Drysdale 1992 SLT 186.

[40] Then it was argued that the multiplicity of pursuers and their respective claims would only add to the difficulty for a jury in assessing damages.

[41] In reply counsel for the eighth pursuer (who advanced argument on this aspect of the case on behalf of all the pursuers) submitted that the assessment of damages in a case such as this was very much a jury question and there was no reason to suppose that a jury would be unable to carry out their task competently.

[42] In my opinion, none of the supposed difficulties relied upon by the defender and the third party, whether singly or cumulatively, are sufficient to justify the pursuers being denied their statutory right to jury trial. In McKeown v Sir William Arrol & Co. 1974 SC 97 the Inner House was not persuaded that the number of questions which a jury might have to address in a fatal claim brought by on behalf of multiple claimants amounted in itself to special cause. The court warned against underestimating the intelligence of an average jury, who have the advantage of hearing opening and closing speeches as well as directions from the presiding judge. In my opinion, that guidance is particularly apt in the circumstances of the present case. In my view, the difficulties on quantum said by the defender and third party to exist in the present case will, by the time of the trial, turn out to be more theoretical than real. The evidence will no doubt explain the nature of the deceased's relationships with the various claimants and the effect of his untimely death on them, as well as the extent to which he supported and provided services to his children and to the first pursuer. In the circumstances, none of the issues likely to arise on damages seems to me to be of such complexity as to render quantification of the various claims unduly difficult for a properly directed jury. The parties will be able to crystallise their positions on damages in their submissions to the jury; and the trial judge will set out in his charge the questions which the jury has to address and the approach they should take to them in the light of the evidence.

[43] In the result, I shall allow issues.

[44] I shall reserve all questions of expenses.