Outer House awards £225,000 to father and his wife following death of five-year-old girl after NHS negligence

About this case:

• Citation:
  [2026] CSOH 92
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Arthurson

Lord Arthurson held that the two pursuers had not become aware of the circumstances potentially giving rise to a claim until September 2022, almost three years after the child’s death. A separate claim brought by the wife’s adult daughter was dismissed on the basis that she was not an eligible relative under the Damages (Scotland) Act 2011 and that her claim was also time-barred.

The action arose from the death of E, who was born in August 2014 and died in September 2019 following a brain tumour and haemorrhage. Grampian NHS Board admitted breach of duty and causation in relation to her death, accepting that there had been negligent delay in providing appropriate care and treatment.

Six relatives originally pursued claims under the 2011 Act. Three were settled extra-judicially, leaving the claims of E’s father, his wife and her adult daughter to be determined.

The case was heard by Lord Arthurson, with Love KC and Markie, instructed by Jones Whyte LLP, appearing for the pursuers and McConnell KC, instructed by NHS Central Legal Office, appearing for the defender.

Unaware of negligent treatment

E’s parents had separated before her death. Her father later married the fourth pursuer in August 2020. The sixth pursuer was the fourth pursuer’s elder daughter. The court heard that E and her sister stayed with their father and his partner every second weekend. The fourth pursuer had been closely involved in E’s upbringing, while the sixth pursuer maintained a bedroom at the family home during contact periods and had formed a substantial bond with E.

Lord Arthurson heard evidence from E’s father and his wife, both of whom he found credible and, subject to the pressures they had faced, reliable. At the time of E’s deterioration, they had been on holiday in Greece and returned as soon as possible. They then travelled to Edinburgh to be at her bedside before she was transferred to a hospice in Kinross, where she died.

The judge found that they had effectively been excluded from information about the background to E’s treatment. Neither knew that the health board had conducted a Significant Adverse Event Review, and discussions with medical staff had focused on prognosis rather than the history of her care and admission.

They first became aware that there might have been failings in E’s care when a copy of the summons raised on behalf of E’s mother and others was served on them on 13 September 2022, nine days before expiry of the original three-year limitation period. After obtaining legal representation, they intimated a minute seeking to join the action on 27 October 2022.

Limitation period began on discovery

The main issue was whether the limitation period under the Prescription and Limitation (Scotland) Act 1973 had begun with E’s death in 2019 or when her father and his wife became aware of facts potentially giving rise to a claim.

Lord Arthurson accepted that they had no actual or constructive knowledge of negligent treatment before September 2022. He described the first indication that concerns existed about E’s care as arriving “like a bolt out of the blue” when they received the summons.

The judge emphasised that they had returned from abroad and been confronted with E’s critical condition in an atmosphere of conflict with her mother. They had been told about prognosis, but not about the relevant history of admission and treatment. He said: “Having no reason even to suspect that E’s care had been sub-optimal, they in my opinion had no basis for or onus upon them in respect of the making of subsequent enquiry.”

Their understanding, he added, had been that E had a fatal brain tumour and that her deterioration and death resulted from the progression of that condition, rather than from any failure in treatment. Lord Arthurson concluded that they had “no actual or constructive awareness of the relevant section 18 statutory facts until 13 September 2022,” when they first learned that anything might have gone wrong with E’s treatment and that her death might be attributable to an act or omission by the defenders.

The limitation period therefore began on that date and their subsequent amendment and sist procedure was timeous.

Adult daughter not an eligible relative

The sixth pursuer’s position was different. It was argued on her behalf that, because her mother was E’s stepmother, she and E should be treated as sisters under the 2011 Act. Lord Arthurson described that as an “attractive submission” but held that the statutory wording required the claimant to have been brought up in the same household as the deceased and accepted as a child of the family.

Although the sixth pursuer had stayed at the family home during contact periods and had a substantial bond with E, she had been brought up in a different household. The judge accepted that this produced an “unattractive result, particularly in a case of this nature”, but held that she did not fall within the statutory definition of an eligible relative.

Her claim also failed on limitation. She had not given evidence, and her statement did not address the issue. Lord Arthurson rejected the argument that the three remaining pursuers should simply be treated as a single family unit for limitation purposes.

‘Windfall benefit’

Lord Arthurson also considered section 19A of the 1973 Act in case his conclusion on the father’s and his wife’s date of awareness was wrong. The parties agreed that their solicitor had failed to join them to the action before the original limitation period expired. The judge also acknowledged that allowing their claims to continue would deprive the health board of a limitation defence.

However, the principal action had been raised in time and investigated by the defenders, who had admitted liability and settled three of the six claims. Any delay in joining the remaining pursuers amounted to only a matter of weeks. Lord Arthurson said: “To uphold the defenders’ position on section 19A would be to confer upon them in terms a windfall benefit.”

He therefore held that, if necessary, the balance of equities would favour exercising the court’s discretion to allow the claims to proceed.

£225,000 awarded

Turning to quantum, Lord Arthurson said that the death of a very young child in such circumstances required an uplift from the level he had previously adopted as a benchmark for parental bereavement in Paterson v Lanarkshire Health Board.

He described the evidence of E’s father and his wife as thoughtful and at times highly emotional, and noted the particularly close family relationship spoken to in evidence. Taking what he described as a “broad but I trust a fact-sensitive approach,” Lord Arthurson awarded the father £150,000, inclusive of interest to date, and his wife £75,000, also inclusive of interest.

Decree was pronounced in those sums, with expenses to follow success except insofar as already dealt with.