The Cost of Lost Time: Lever and Loss of Society Claims

The recent case of Susan Lever & Other v Ayrshire & Arran Health Board [2026] CSOH 89 considered the scope of section 4(3)(b) of the Damages (Scotland) Act 2011. In particular, it considered whether relatives could be eligible for a claim for loss of society if a death was not caused ‘in consequence’ of another’s negligence.

The Facts 

The pursuers were the immediate family of the late Mr Lever, who died in November 2022 from incurable renal cancer. It was alleged that the cancer should have been identified during an ultrasound examination in July 2021. Although the scan was reported as normal, the pursuers maintained that it contained features suggestive of malignancy which ought to have been recognised by the sonographer. The pursuers’ position was that had the cancer been diagnosed earlier, Mr Lever would have received treatment and would have survived for a further 12 months. Importantly, both parties agreed that the cancer would have remained incurable even with an earlier diagnosis.

Mr Lever’s widow, children, grandchild and brother brought claims against the Health Board for the loss of society which they suffered as a result of his accelerated death. The claim for transmissible solatium was settled separately.

The Issue 

The 2011 Act allows close relatives to claim damages where a death results from negligence. Section 4(3)(b) of the Act allows eligible family members to claim for (i) distress and anxiety; (ii) grief and sorrow; and/or (iii) loss of guidance following a relative’s death. Together these claims are known as ‘loss of society.’ 

Section 3 of the Act provides that claims for loss of society may only be made when:

“a person (“A”) dies in consequence of suffering personal injuries as the result of the act or omission of another person (“B”) and the act or omission ––

• a) gives rise to liability to pay damages to A (or to A's executor), or
• b) would have given rise to such liability but for A's death."

The question for the court was whether Mr Lever died ‘in consequence of’ the actions of the sonographer.

The defenders submitted that the wording of the Act ought to be read plainly. Mr Lever died from renal cancer. The injury caused to him was the additional pain and suffering during his accelerated death. This formed part of the transmissible solatium claim which had already settled.

The pursuers submitted that the negligent act materially contributed to the death, specifically by accelerating the death. They relied upon the purpose of the Act which was to “pay damages for the loss of life expectancy (section 1) and for the relatives’ distress and anxiety caused in contemplation of the deceased suffering before he died (section 4(3)(b)(i))”.

The Decision 

The Court allowed the action to proceed. Lord Harrower held that it was sufficient for family members to prove that the death would not have occurred when it did. ‘In consequence of’ did not require the deceased to have died as a direct cause of another’s act or omission. Material contribution was enough to constitute a claim for loss of society.

The Impact

Claims for loss of society are a routine feature of fatal claims in Scotland. Awards vary significantly depending upon factors such as the nature of the relationship between the deceased and the claimant, the closeness of that relationship and the particular circumstances of the death.

The decision in Lever confirms that a claim for loss of society may be available even where the negligence did not cause the underlying fatal condition but simply accelerated death. The decision leaves open important questions as to valuation. Where negligence has merely accelerated a death that would inevitably have occurred from an underlying condition, it remains to be seen whether, and to what extent, that fact will be reflected in the level of any award for loss of society.

Lever is the first time section 3 has received judicial consideration. Those acting in fatal claims, particularly in the medical negligence sphere, will need to account for losses arising even where, but for the negligence, death was still the inevitable outcome. It is enough where the negligence materially contributed to a person’s death occurring earlier than it otherwise would have. There is then a separate question as to how to quantify that loss of society.

Clyde & Co's healthcare group is recognised for its extensive industry knowledge, offering a range of legal services covering public and private sectors as well as inquests, advocacy, professional regulation, product liability and pharmaceuticals/life sciences. Should we be able to assist you, please do contact one of our experts.