Rupasinghe v West Hertfordshire Hospitals NHS Trust

Under section 3 of the Fatal Accidents Act 1976, a dependant cannot recover a free-standing loss-of-earnings claim. Recoverable loss must represent the pecuniary value of a benefit which would have flowed from the deceased’s life and relationship with the dependant.

Loss of earnings may, in an appropriate case, operate as a proxy for the value of services formerly provided by the deceased where the surviving partner gives up work to provide those services. That approach does not permit an additional career-loss claim where the services dependency has already been fully valued through commercial and gratuitous care.

The claimant brought claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 following the admitted negligence causing her husband’s death. Most claims were settled. The remaining claims concerned past and future loss of the claimant’s earnings and pension after she returned to Sri Lanka and obtained less remunerative employment while caring for the children.

The defendant argued that the claims were irrecoverable losses of earnings, rather than dependency losses, and that the services dependency claims had already been comprehensively pleaded and compromised. The central issue was whether the disputed earnings and pension claims could form part of the claimant’s services dependency claim.

1. The court found for the defendant on the disputed items. Subject to court approval, judgment was entered for the claimant in the agreed sum of £335,000.

2. Section 3(1) of the Fatal Accidents Act 1976 permits recovery for the pecuniary benefit which would have accrued to the dependant from the deceased had the deceased survived. A free-standing claim for the claimant’s own loss of earnings falls outside the section because it is not loss of a benefit flowing from the deceased’s acts during life: Malyon v Plummer [1964] 1 QB 330.

3. Where the surviving partner gives up work to provide services formerly supplied by the deceased, lost earnings may be used as a proxy for the value of those services. The claim remains one for services dependency.

4. The claimant’s services dependency claim already covered commercial and gratuitous childcare and related services. The disputed items did not value services personally provided by her in substitution for the deceased’s services. They were therefore an independent claim for loss of earnings.

5. The court rejected apportionment between earnings and services. It did not rule out simultaneous direct and proxy claims on different facts, but held that they were unavailable where the direct care claim covered the whole conceivable ground.

This was a first-instance decision of the High Court. No prior appellate decision is stated in the judgment.