Dependants loss of earnings not recoverable in fatal accident claim
The decision of Mr Justice Jay in the case of Rupasinghe -v- West Hertfordshire Hospitals NHS Trust [2016] EWHC 2848 (QB) provides a helpful reminder and illustration of the principle that a dependant’s loss of earnings are not a recoverable head of loss in a fatal accident claim.
The claim arose from the death of the deceased in November 2010, aged 33, as the result of the Defendant’s admitted breaches of duty. A claim was pursued by the wife of the deceased on behalf of the estate.
The couple were of Sri Lankan origin, but moved to the UK in 2006 to pursue their careers. They subsequently had two children who were born in 2007 and 2010.
Following the death of the deceased, his wife took the decision to relocate back to Sri Lanka with her young children, in order that she was closer to her parents and wider family, who would be able to support her.
At trial, most of the heads of loss had been agreed; however, the parties were in dispute as to the alleged loss of earnings of the deceased’s wife.
Prior to moving to the UK, the deceased’s wife had completed the first part of her medical training in Sri Lanka. It was intended that, after the birth of the couple’s second child, she would have returned to speciality training, probably in the field of general medicine, with a view to qualifying as a consultant in 2019.
It was argued on behalf of the Claimants that the deceased’s wife had sustained a loss of income which had necessarily arisen as the result of the need to relocate to Sri Lanka to access family support.
Jay J reiterated that it is well established by case law that a free standing claim in respect of a dependant’s loss of earnings falls outside of the scope of Fatal Accidents Act 1976. The legislation only allows an award of damages in respect of benefits which would have accrued to the dependants had the deceased survived.
The Court deemed that the claim advanced on behalf of the Claimants was properly considered part of the claim for dependency on services (which had already been concluded).
Jay J commented:
‘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 [other] appropriate situations, the court values the services formerly provided by the deceased with reference to the earnings foregone by the claimant in order now to furnish these services herself or himself. This is not a claim for loss of earnings in the strict sense; it is a claim for loss of services but using the surviving partner's earnings as a proxy or surrogate measure for the value of the services foregone.’
Therefore, whilst the courts may sometimes utilise loss of earnings to evaluate a claim for dependency on services, this is merely a method of quantifying the value of services which have been lost. There is no separate claim for loss of earnings.
In the instant case, because the head of loss relating to dependency on services had already been compromised by prior agreement, accordingly, no further sum was awarded.
This judgment is a useful reminder of these important principles for practitioners.
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