Mr Rupasinghe ‘the deceased’ was killed as a result of the defendant’s (admitted) negligence. Consequently his wife, Dr Rupasinghe claimed for damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.
The deceased died on 9th November 2010 at the age of 33. Subsequently, faced with what Mr Justice Jay termed ‘a range of unpalatable options’, the claimant decided to return with her two young children to Sri Lanka to be closer to her family.
Proceedings were issued shortly after and claims were advanced under the 1934 Act and the 1976 Act. All bar three of the claims were agreed which were as follows:
Item 2.6 is a claim for "Past Earnings Dependency (the Claimant's loss of earnings)". It is pleaded that "as a result of his death, the Claimant has had to make substantial changes to her career and has suffered a loss of earnings and pension as a result". Instead of being able to pursue a relatively remunerative career as a doctor in the UK, leading to a consultant position in the fullness of time, the Claimant has had to accept much less valuable employment in Sri Lanka. Under item 2.6 of the Schedule, the claim is for the difference. The Schedule pleads a loss of £118,503.19.
Item 2.7 is a claim for "Future Earnings Dependency (the Claimant's loss of earnings)". Analytically, this case proceeds on the same basis as item 2.6, and takes the position from the date of trial to the date of the Claimant's notional retirement as a doctor in the UK. The Schedule pleads a loss of £1,257,678.73.
Item 2.8 is a claim for "Future Pension Dependency (the Claimant's loss of pension)". The claim under this rubric is in respect of pension loss from the date of notional retirement over the balance of the Claimant's life expectancy. The Schedule pleads a loss of £437,260.59.
As such, the claimant was arguing that her loss of income (which would not be recoverable under normal fatal accident principles), had arisen due to her need to move to Sri Lanka to get support from her family which would not have been the case had the deceased not have died.
The judge rejected this claim and stated at para 47:
‘It is axiomatic, and in any event well established by cases such as Malyon v Plummer (see paragraph 25 above), that a free-standing claim for loss of earnings falls outside the scope of section 3 of the Fatal Accidents Act 1976. This is because such a claim does not relate to the loss of a benefit which would have accrued to the Claimant had the Deceased survived. The Act is only concerned with losses which flow from what the Deceased did when alive: either by the making of a financial contribution to the household, or by providing childcare and similar services (capable, under the common law, of being accorded a financial value)’.
He went on to say:
‘The key issue, in my judgment, is whether on the particular facts of this case the disputed items do form part of the services dependency claim’.
In doing so he pointed out that that:
‘Ordinarily, the court approaches the quantification of a services dependency claim by considering the cost of replacing the services formerly provided by the Deceased. In some situations, it is appropriate to approach this exercise by looking to the cost of furnishing commercial care in the form of nannies, au pairs, child-minders or the like. In other situations, the claim is in essence one for gratuitous care, and the authorities make clear that commercial rates fall to be discounted to reflect that. In the instant case, the Claimant is claiming for commercial care and for gratuitous care, albeit the latter is not being provided by herself. It is being provided by other family members, in particular by her parents’.
However, Justice J concluded that the items claimed for were not an attempt to value the loss of the deceased’s services but rather a broader endeavour predicated on the fact that the claimant had lost her career because of her husband’s death. Whilst he conceded that this was ‘correct as a matter of fact’ he did not accept that it benefitted her as a matter of law. As such, the items claimed for were found to be for loss of earnings and not attributable to any need to replace a service that the deceased had formerly been providing.
The disputed items were found to irrecoverable due to the fact that the claimant had already advanced a comprehensive services dependency claim which left no room for supplementation and the items of loss claimed for, therefore constituted an independent claim for loss of earnings.
Interestingly, Justice J did point out that he was not ruling out the possibility of bringing simultaneous direct and proxy claims but was deciding this case on the facts before him.
The full judgment can be accessed here.