Dr Kumudu Kumari Rupasinghe (Suing on her own Behalf and as Administratrix of the Estate of Rohan Rupasinghe Deceased) v West Hertfordshire Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 09 November 2016 |
| Neutral Citation | [2016] EWHC 2848 (QB) |
| Court | Queen's Bench Division |
| Date | 09 November 2016 |
| Docket Number | Case No: HQ13X05334 |
[2016] EWHC 2848 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: HQ13X05334
Gordon Bebb QC and Harry Trusted (instructed by Irwin Mitchell) for the Claimant
Clodagh Bradley QC (instructed by Capsticks) for the Defendant
Hearing date: 8 th November 2016
Introduction
In this action, Dr Kumari Rupasinghe ("the Claimant") claims damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 in consequence of the death of her husband, Mr Rohan Rupasinghe ("the Deceased"), which was caused by the admitted negligence of the Defendant.
Both the Claimant and the Deceased were born and brought up in Sri Lanka. They were married in 2004 and were a loving and intellectually brilliant couple. I will deal with the detail in due course, but for these present, introductory purposes I need simply state that, from 2006, the Claimant and the Deceased were both in this country and were looking forward to a warm and tightly-knit family life, with children, as well as successful careers in their respective fields of medicine and engineering. Two children were born: Hesara, on 24 th April 2007; and Senugi, on 13 th June 2010. By May 2010 both the Claimant and the Deceased had obtained British passports, and it is apparent to me that their future was here in the UK rather than in Sri Lanka.
Tragically, on 9 th November 2010 the Deceased died as a result of the Defendant's admitted breaches of duty. He was only 33.
Faced with a range of unpalatable options, the Claimant chose the one which was likely to be the least painful and costly; and she decided to return with her very young family to Sri Lanka, where she could look to the physical and moral support of her parents as well as her wider family.
Proceedings were issued in due course, and the usual claims advanced under the 1934 Act and the 1976 Act. All bar three of these claims have been agreed, but the Claimant's Schedule warrants some analysis. Specifically:
(i) 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 [misspelt in the Schedule] 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.
(ii) 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.
(iii) 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.
It should also be noted that the Schedule advances the standard claims for Loss of Dependency on the Deceased's Income (items 2.9 and 2.10) and for Loss of Dependency on Services (items 2.11 and 2.12), referable to the childcare services provided by the Deceased to the children.
By a Memorandum of Agreement, signed by the parties' counsel:
"It is agreed by the parties that all heads of claim claimed in the Schedule other than those set out [there is a typographical error in the original] below are to be settled in the sum of £335,000 (subject to Court approval insofar as the claims relate to the minors Hesara and Senugi Rupasinghe).
The Schedule items not included in the agreement are items 2.6, 2.7, and 2.8."
The Defendant's Counter-Schedule had placed these items in dispute, primarily on the basis that they are irrecoverable in law. It is this dispute that I am now required to resolve.
At the commencement of the trial, Miss Clodagh Bradley QC for the Defendant invited me to resolve the issue as a pure point of law, without hearing oral evidence. I declined to take that course. I ruled that I should hear oral evidence from the Claimant herself, and receive as agreed evidence the witness statements of Kamal and Seetha Munasinghe (the Claimant's parents), Sujith Munasinghe (her brother), Winitha Rupasinghe (the Deceased's mother), Dr Sibaratnam Sivakumeran and Ms Julie Bregulla.
After the Claimant had given her evidence, and was closely (but entirely appropriately and fairly) cross-examined by Miss Bradley, I invited submissions on the law before deciding whether to delve into the more complex aspects of the quantification of the disputed claims requiring expert evidence. This seemed to me to be a proportionate exercise of my case management powers, and the parties did not disagree.
My expectation was that, in the event that I acceded to the submissions advanced by Mr Gordon Bebb QC for the Claimant on the law, the parties' experts would probably be able to agree the quantum of the remaining heads of claim; and if they did not, there would be sufficient time for me to receive their evidence and hear further submissions in the three days set aside for the trial of this action.
The Evidence
The Deceased moved to the UK in 2003, having qualified as an engineer in Sri Lanka, to take up employment with BRE, based in Watford. In February 2010 he started a four-year PhD course at Brunel University, sponsored by his employer. The evidence is that BRE is a child-friendly employer and that crèche facilities were available, which the Deceased indeed used for Hesara.
The Claimant completed the first stage of her medical training in Sri Lanka and joined her husband here in 2006. There were difficulties in obtaining suitable locum posts which had nothing to do with her abilities, skills and qualifications, but were of a practical nature.
By May 2010 both the Claimant and the Deceased had obtained British passports. Having heard the Claimant's evidence, I am satisfied that, had all been well, they would have lived together in the United Kingdom on an indefinite basis.
After the birth of her second daughter, the plan was for the Claimant to return to work in March 2011 and to begin her specialty training, probably in general medicine, in August 2011. Her evidence is that she would have qualified as a consultant in 2019 and have undertaken some private practice. I do not have to reach a concluded view upon the timing and feasibility of these matters at this stage.
Following her husband's untimely death, all these plans required radical revision. According to the Claimant's written evidence, which I accept, she could not continue to work as a junior doctor and bring up her very young children. She did not want to entrust their care to a stranger, particularly in circumstances where she would be required to work nights and weekends on a rota basis, as junior doctors do. For all sorts of reasons, all of which I understand and accept, her parents could not relocate to the UK to look after the children. It follows that the only realistic option open to her was to move back to Sri Lanka and find far less remunerative employment as a very junior doctor, naturally at lower rates of pay because doctors are less well rewarded in that country.
Miss Bradley explored a number of matters with the Claimant in cross-examination. These were, in very broad outline: (i) probable delay in securing a consultant post in the field of general medicine; (ii) the unlikelihood of securing any significant earnings in private practice as a consultant, given the demands of a full-time position in the NHS; (iii) the much lower cost of living in Sri Lanka; and (iv) that, in essence, the Claimant made a "lifestyle choice" in moving back to live with her family in Sri Lanka, and has failed to prove that she has suffered any loss.
In my judgment, it is unnecessary for me to express a concluded view on any of these matters at this juncture. They would become relevant to the quantification of the disputed claims, should the need to do this arise.
Mr Bebb invited me to find as a fact that the Claimant acted reasonably in deciding to return to Sri Lanka in November 2010. Miss Bradley submitted that I should make no such finding, because (a) it was irrelevant as a matter of law, and (b) it would be invidious for me to make it. The submission was that the courts are well placed to opine on the reasonableness of heads of claim, but should not be expected to have to address issues of this sort, particularly at this level of generality and abstraction.
In my judgment, Miss Bradley's submission is overly solicitous, and I reject it. Courts are well-used to having to reach judgments about the reasonableness of actual and hypothetical courses of action, and I have the evidential basis on which to do so in the present case. In my view, looking at this as a cocooned, time-limited question in November 2010 and ignoring all other considerations which may bear on the recoverability of the disputed heads of claim, the Claimant has convincingly explained why she made the decision to return to Sri Lanka in November 2010 in order to be with her immediate and extended family, and I find that she acted reasonably in doing so.
This finding of fact may or may not bear on the...
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