McKay v Scottish Airways Ltd 1948 SC 254
Citation: McKay v Scottish Airways Ltd 1948 SC 254
Rule of thumb: If a person has suffered a personal injury, and then later dies in an unrelated incident independent of their injuries, can the person’s relatives make the personal injury claim & have this damages sum added to the will? In some circumstances yes, although this is based upon common law and the position requires careful research.
Judgment:
The right of a person’s relatives to claim for damages is based upon legislation rather than based upon common law principles – although case law from throughout the UK will be persuasive throughout all parts of the UK caution has to be exercised to ensure that the law in different parts of the UK does not diverge slightly due to the statutory frameworks being slightly different, ‘…the relatives' right of action is not wholly and in every sense independent of the right of action in the deceased himself. Both rights depend upon the same wrong, and the fact that the deceased suffered an actionable wrong is the foundation and, in my opinion, the indispensable foundation of any right of action vesting in the relatives." Lord Mackintosh, "Upon the assumption that the conditions would have excluded a claim by the deceased, it remains to consider whether by necessary consequence they also exclude a claim by his relatives. The efforts of counsel were mainly directed to discovering a basis in principle for the established incidents of the right of certain relatives to recover solatium or patrimonial loss for the death of a person killed by the fault of a third party. This quest is a forlorn hope. Though dimly foreshadowed by Stair, the right only clearly emerged in the beginning of the nineteenth century, and was then developed in a series of decisions which 'trench somewhat closely upon the province of the Legislature...’ Lord President Cooper
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.