Andrew Gilmour on a complex case involving a settlement after a fatal crash

Beyond the immediate grief and tragedy of losing a loved one in a fatal accident, there are often a wide range of practical implications for the family of the deceased, which can include the loss of ongoing financial support. Although there are well-established rules regarding how such loss is usually calculated, issues can arise in exceptional circumstances, as seen in the case of Buckley and Others v Budzynski and Anor.

David Buckley was killed in a collision in 2024. Liability was accepted and all of the losses sought were agreed, except one.

Prior to his death, Mr Buckley had invested sums in a retirement account, which was a personal pension scheme. He was able to draw regular income from the funds and occasionally withdrew lump sums. He used the income from the account to support himself and his family.

Complexities can arise in what may seem a straightforward case, says Andrew Gilmour

placeholder image — Complexities can arise in what may seem a straightforward case, says Andrew Gilmour

Arrangements had been made for the account to pass to Gail Buckley upon her husband’s death, without entering his estate and therefore free of inheritance tax. Since then, Mrs Buckley had left the sums invested in a different type of product, with the same access to the funds. She had not withdrawn the savings in full, nor taken any income or lump sums.

It was claimed on behalf of Mrs Buckley that the transfer of the retirement account should be ignored when determining whether she had sustained a loss of financial support. Although she had access to the funds, it was argued Section 8(1)(a) of the Damages (Scotland) Act 2011 precludes the consideration of any “patrimonial gain or advantage which has accrued… by way of succession or settlement, from (her husband)”.

Mr Buckley was supporting his family from his investments prior to his death. But for the accident, he would have continued to do so. It was said damages ought to be calculated by reference to the sums Mr Buckley was regularly withdrawing to support his family, allowing for usual life expectancy assumptions.

The defenders argued there was, as a matter of fact, no loss of support. The full investment funds were transferred to Mrs Buckley. She could choose how to utilise them. The choice not to withdraw regular income as Mr Buckley had was not a financial loss. It was one of a number of options available regarding how to deploy the funds.

The court acknowledged that, for many years “benefits” accruing because of a death had been gradually excluded from calculating whether someone had lost financial support following a fatality. For example, the payment of life assurance triggered by the death of a party will not be deducted when assessing loss of financial support previously provided.

However, the court decided the starting point must be if there has in fact been a loss of financial support. The claim presented was that Mrs Buckley was deprived of the benefit of Mr Buckley’s withdrawals from the funds invested. It was held this was not the case.

There had been a “seamless” transfer of the financial product. The “passive investments” involved were not dependent upon the skill or actions of Mr Buckley. The same sums and potential returns were available. It was not proved any loss had been sustained.

This action is a striking example of the complexities which can arise when applying what, on the face of it, is relatively clear legislation to real-life scenarios. The decision was ultimately underpinned by what the court considered was the reality of the financial position.

Andrew Gilmour is a Partner, HF