Following the recent case of Mykoliw v Bottorill heard in the Outer House of the Court of Session (Scotland’s highest civil court of first instance), step-parents in fatal cases who have accepted the deceased as a child of their family are now likely to receive compensation awards in terms of section 1(4) of the Damages (Scotland) Act 1976 for distress and anxiety in contemplation of the deceased’s suffering, grief and sorrow and the loss of the deceased’s society. The position was unclear prior to this decision.
A literal interpretation of the Damages (Scotland) Act 1976, as amended by the Family Law (Scotland) Act 2006, precludes step-parents from obtaining compensation in this context. However, in Mykoliw the Court ruled that such a result was plainly absurd, contrary to what the Scottish Parliament wanted to do and also contrary to the European Convention on Human Rights. An individual who is married to the parent of a deceased and who has accepted the deceased as their child, is clearly entitled to seek compensation here.