Boy sues over loss of father

The case has been brought at the Court of Session

A little boy has begun a rare £150,000 damages claim for the loss of his father, who died in a car crash before he was born.

Liam MacIntosh was born eight months after merchant seaman Matthew Jackson died when the car he was in hit a lorry.

Liam's mother, Lynsey, who was engaged to Mr Jackson, has now raised an action at the Court of Session in Edinburgh on behalf of her son.

It is claimed that the boy, who is four on Saturday and whose full name is Liam Matthew Jackson MacIntosh, has been "deprived of the guidance and company of his father which he would have enjoyed but for the crash".

The action also states that the boy will suffer grief and sorrow when he is old enough to understand the circumstances of his father's death.

Miss MacIntosh, who lives with Liam in Arbroath, said he had also been deprived of financial support.

Drivers parents sued

The action has been brought against the parents of the Stuart Findlay, 19, who was driving the car in which Mr Jackson was a passenger.

Mr Findlay was also killed in the accident, which happened when the car crossed onto the opposite carriageway on the Chapleton to Arbroath road in September, 1995.

Lady Paton, who heard a legal debate in the action, said it was not disputed that the car driver was at fault and the only issues in the case were whether Liam was entitled to damages and if so, how much.

Lady Paton ruled out a jury

She pointed out it was not stated whether Mr Jackson was aware of his fiancée¿s pregnancy, which must have been in its early stages when he died.

Lawyers acting for Liam wanted the case to be heard by a civil jury but that was contested by counsel for Mr and Mrs Findlay, who argued that the action involved factors which might cause confusion and difficulty to jurors.

In a written decision, Lady Paton said that Miss MacIntosh had made no claim for damages on her own behalf.

"That in itself makes the present action rather unusual, as in more standard fatal claims the surviving partner, whether spouse or cohabitee, usually seeks damages of some sort."

'Genetic father'

The Damages (Scotland) Act includes the definition of a relative who could receive compensation as "any person who was a child of the deceased".

It was accepted that a child who was truly the posthumous offspring of Mr Jackson could claim damages in law and that a claim by such a child who was a baby in the womb was relevant.

"The onus of proof will rest upon Miss MacIntosh to establish that, on a balance of probabilities, the deceased was the 'parent' or 'genetic father' of Liam," said Lady Paton.

She said she considered the case to be unsuitable for a jury to hear and that evidence should be assessed by a judge sitting alone.

An historic Scots legal case in which an expectant mother sued for damages on behalf of her unborn child after the death of the father, was settled out of court in 1992.

Yehudit Cohen, the widow of Rabbi Benjamin Cohen, sued for her son Benjamin, who was born two weeks after his father died in an accident on the Stirling to Perth road.

It was the first case of its kind where a judge allowed an unborn child to be included in a damages action.