Thursday, September 17th, 2026
Section 4(3)(a) of the Damages (Scotland) Act 2011: Can one inherit the goose and still claim to have been deprived of the eggs?
In the recent case of Buckley v. Budzynski [2026] CSOH 87, Lord Malcolm held that where a spouse inherited the deceased’s income-producing investments in a fatal claim, she had not suffered a loss of financial support.
The deceased was a retired airline pilot. He held substantial investments in a pension which were managed by the fund manager, and from which he drew a regular income to support himself and his family. His surviving spouse, the pursuer, inherited the investments and claimed a loss of support in respect of the income from that source. The insurer contended that she was receiving the same income from the same source, and there had been no loss of support. The pursuer argued that the investments were a “patrimonial gain or advantage which has accrued by way of succession from [her late husband]”, and so no account should be taken of them under s. 8(1)(a) of the 2011 Act.
The insurer argued that the 2011 Act (and its predecessor 1976 Act) had developed alongside the English Fatal Accidents Act 1976, with similar equivalent provisions. It relied on the case of Rix v. Paramount Shopfitting Co Ltd [2021] 4 WLR 109, for the proposition that “one first has to determine what loss the dependants have suffered; and if they have inherited the source of the income upon which they were dependent, they have not lost it.” (Wood v. Bentall Simplex Ltd [1992] PIQR P332).
As Staughton LJ put it: can one inherit the goose and still claim to have been deprived of the eggs? Lord Malcolm held that under s. 4(3(a) there has been no loss of support, and therefore no compensation is required.
Lord Malcolm also provided useful guidance on the operation of the “manifestly and materially unfair” test in section 7(2) of the 2011 Act for circumstances in which the 75% figure should be substituted for a lesser proportion.
This is the first reported decision on the operation of s. 8(1) of the 2011 Act and will be of importance to personal injury practitioners.A copy of the judgment can be found here.
The insurer was represented by Craig Murray K.C.
