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Missing - Presumed Alive?

Ever since the high profile case of John Darwin faking his own death in an apparent canoeing accident, the issue of proof of death has been brought more sharply into focus, particularly regarding life assurance payments. 

In Scotland, the legal position, where there is doubt, still requires the family to wait 7 years before they may apply to declare a missing person as deceased. 

Where a mariner is thought to have died, providing there is some independent witness evidence of the person’s last whereabouts, the Scottish Courts may be prepared to make a much earlier declaration of death based on this information. 

In England and Wales, the Darwin case has led to a review of the system and the introduction of the Presumption of Death Act 2013 which aims to bring matters into line with Scotland.  There have been many examples of public campaigns in respect of missing persons and the change is therefore to be welcomed.  

Unfortunately, where, as in the fishing industry, crews who are not resident in the UK but have come to work from non-EU/EEA countries, this continues to present difficulties.  

Actions may need to be taken within the missing person’s country of residence.  What is clear is that, without some compelling evidence of the individual being lost at sea, insurers will be reluctant to make payments under life policies.  

On any view, such tragic cases are distressful enough for next of kin without the legal process compounding and delaying matters.  Legal advice should be sought as early as possible with a view to gathering any supporting evidence.  Early intervention may potentially avoid litigation. 

As an aside, recent case law for fatal claims in Scotland shows a marked trend towards larger awards being given to next of kin. 

These are more commonly called “loss of society claims” where relatives have lost the support and guidance from a close deceased family member.  Such claims can also take account of the lost financial support.

Several cases have been brought before civil juries in the Court of Session in 2015/2016 and, despite guidance being provided by Judges on levels that might be awarded for spouses/partners, children, grandparents and grandchildren, the awards seem to demonstrate the emotional sympathy that such cases engender with jurors. 

In the case of Anderson -v- Brig Brae Garage Limited in July 2015, a 33 year old employee was killed in an accident at work.  The jury awarded his widowed partner a sum of £140,000 and his 5 week old daughter £80,000 for the loss.  A similar sum was awarded to the deceased’s father, who was aged 54 at the date of death. 

Whilst no sum of money can ever bring back the loss or adequately compensate for same, this is again an area where it is always important to take appropriate legal advice.

For more information on this, please contact Martin Sinclair or call 01224 632 464.

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