Life, loss and lost time
Losing a loved one is always a difficult time. When medical negligence may have contributed to shortening that life, understanding your family’s rights can feel daunting. This article explores two Scottish decisions that demonstrate how the law recognises lost time and close family relationships.
No compensation can replace the loss of someone close to you. Scots Law does, however allow relatives to seek compensation to recognise the significant emotional impact that bereavement can have on families for the loss of a loved one's support.
Understanding the starting point: fatal claims in England
Under the Fatal Accidents Act 1976, claims for compensation are only available to a limited category of relatives and are paid at a fixed statutory amount. Consequently, the award doesn’t consider the nature of the relationship between the deceased and their relatives or the individual impact of the loss. This can be especially tricky when it comes to non-traditional family structures.
In contrast, Scots Law provides a more personalised approach, allowing the courts to recognise the true impact of the loss of a loved one.
Recognising the individual loss: Scotland’s approach
Under the Damages (Scotland) Act 2011, eligible relatives can seek compensation for: any loss of support resulting from the death of a loved one; the distress and anxiety endured in anticipation of their suffering and the grief and sorrow caused by their death.
These claims are assessed individually, with the courts placing significant weight on the nature of the relationship between the person who died and their relatives, together with the loss suffered. Rather than applying a fixed bereavement award, the Scottish approach generally results in more substantial awards for bereaved families.
Recognising lost time: Lever and Others v Ayrshire and Arran Health Board
Through his decision on 18 September 2026, Lord Harrower reinforces the courts’ willingness to recognise the real impact that death has on families, especially those that are premature in cases of medical negligence.
Roy Lever sadly passed away from renal cancer on 26 November 2022. Although his illness was incurable, his family believed that a delay in diagnosis accelerated Mr Lever’s death and ultimately deprived them of valuable time with him. As a result, they brought claims under the Damages (Scotland) Act 2011 seeking compensation for their loss.
The defender argued that because the illness was terminal, and ultimately what caused Mr Lever’s death, the family should not be awarded a compensation claim.
Lord Harrower disagreed. With a reminder that, “death comes to us all” he held that the legislation is concerned not only with the fact of death, but also with regards to its timing.
For bereaved families, that distinction matters. Losing valuable time with a loved one is a genuine loss and one which deserves to be compensated.
Recognising family bonds: CD and Others v Grampian NHS Board
Lord Arthurson’s decision of 17 September 2026 underscores the value of family relationships while reinforcing the statutory limits on who may recover compensation for the loss of a loved one.
Grampian NHS Board accepted that there had been a negligent delay in the appropriate care and treatment for E, who at just five years old, sadly passed due to a brain tumour and haemorrhage. While assessing the claims for compensation, Lord Arthurson remained bound by the statutory definition of "relative" contained within the Damages (Scotland) Act 2011. This example illustrates how difficult that definition can be to apply to blended families and other modern family relationships.
The court awarded substantial damages to E’s father and stepmother who both fell within the statutory definition. However, an adult stepsister’s claim to compensation failed, despite Lord Arthurson acknowledging the substantial bond between her and E. She wasn’t brought up in the same household as E, meaning she did not satisfy the Act’s definition of "relative".
This demonstrates that a deeply felt loss is not always the same as legal eligibility. Not qualifying for compensation does not make an individual’s grief any less significant, however, our courts are still bound by specific criteria.
How we can help
If you have any queries relating to a claim for loss of a loved one in Scotland, our Medical Negligence and Catastrophic Personal Injury teams are very well placed to assist. Please contact Robbie Wilson for more information.
This article was written by Trainee Solicitor Farrah Shams.