Impact of ‘Lifestyle Choices’ on Loss of Earnings Calculations: Constance v Ministry of Defence & Anor [2020] EWHC 3029 (QB)

On 11 November 2020, the High Court handed down judgment in the case of Constance v Ministry of Defence & Anor [2020] EWHC 3029 (QB).

This regarded a claim in negligence, brought by a former Royal Artillery soldier who had suffered hearing impairment, and dealt with issues surrounding quantum of damages – most intriguingly discussing the duty to mitigate losses when compensation for loss of earnings is sought.

Having initially noticed that his auditory function was deteriorating in 2001, the claimant in Constance first reported concerns to his Medical Officer, in 2004. He was subsequently referred to see a consultant otolaryngologist on multiple occasions, in 2005, followed by various other GPs and an Ear, Nose and Throat (ENT) surgeon thereafter.

Despite the fact that clinicians had correctly identified that the claimant was suffering from conductive hearing loss, caused by otosclerosis, when his case was presented to the Army Medical Board, it was clear that the Board members were under the impression (albeit in the face of inconsistent audiograms) that he had developed permanent and untreatable sensorineural hearing loss as a result of excessive noise exposure. Further, that hearing aids were not alleviating his condition.

Illustrating this misunderstanding, in 2006, the Board concluded that the claimant, who was in the process of being transferred from his role as Unmanned Aerial Vehicle (UAV) Mission Controller to working as a Mess Manager, should be ‘restricted from noise exposure and firing weapons’. Board meetings, which later took place in 2008, maintained a ‘prognosis … of chronic noise induced hearing loss with low mood associated’.

False diagnostics, based on an erroneous assumption, ultimately led to the claimant’s discharge from the Army on medical grounds, in August 2011. Thereafter, he worked as a postman.

It was only in 2012 that the claimant came to fully understand that his hearing loss was conductive, i.e. not caused by his employment.

What is more, it was not until this time that the claimant learned that hearing aids were not the only way to address his otosclerosis. It was ‘quite a shock’ for him to discover that a stapedectomy operation (where a small piston is inserted into the bones of the middle ear) could in fact cure him:

‘… it seems … likely that the fact that his hearing loss was caused by a defect in the bones in his middle ear was never discussed with him in a way that he was able to understand. If it was never explained to him that the problem with his hearing was changes to the bone structure in his middle ear, it seems likely that he was never advised that these bone structures could be corrected by surgery as an alternative to struggling on with hearing aids’.

The claimant went on to have surgery in 2013, which abated both his otological condition and his psychiatric condition (linked to his hearing loss). But for the defendants’ negligence, this same procedure would have been carried out by September 2006, at the latest.

Undertaking a counterfactual analysis, sitting Deputy High Court Judge, David Lock QC, reasoned that the claimant’s post-operative hearing would have been, ‘for all practical purposes, entirely adequate and he would not have needed to rely on hearing aids’. Further, that he would not have been ‘at any greater risk of further ear damage from rapid changes in air pressure or blasts than anyone else’, had he been re-deployed to military combat, in 2008.

On balance, it was likely that the claimant’s army career would have been ‘different’ with a timely stapedectomy [more opportunities (e.g. becoming a UAV instructor), more progression (promotion from Sergeant to Staff Sergeant) and more years of service (completing his 22-year commission in January 2017)].

Having addressed this hypothetical alternate version of events, it was then necessary for the judge to consider the claim for loss of congenial employment. Such a claim was payable where, ‘as a result of the negligence of the Defendant, a Claimant loses out on a role which has given him purpose and fulfilment and instead undertakes a job which provides him with less job satisfaction’.

Per Otton J, in Hale v London Underground Ltd. [1993] PIQR Q30, this type of loss is ‘well recognised’ as a ‘separate head of damage’.

Thanks to David Foskett QC, in Pratt v Collie Smith [Unreported, 2002], it has also been confirmed that compensating loss of congenial employment is uncompromised by the prospect of double compensation.

In the present case, it was therefore open for Mr. Lock QC to award damages for the claimant’s loss of employment satisfaction resulting in psychiatric illness, even though there was some overlap with his distinct order of £9,000 to compensate the pain, suffering and loss of amenity (general damages) brought about by psychiatric injury (100% paid by the 1st defendant and 78% paid by 2nd defendant).

From 2008 to 2011, when the claimant took up his ‘unfulfilling’, non-career Mess Manager post, and from 2011 to 2017, when the claimant was hired as a postman, there were 2 distinguishable levels of congeniality experienced. The former period commanded damages of £1,500-per-year and the latter period commanded damages of £500-per-year – a total of £7,500 under this head of loss (100% paid by the 1st defendant and 67% paid by 2nd defendant).

The judge then moved on to discuss the claim for loss of earnings, between the date of the claimant’s early discharge from the Army (10 August 2011) until the date he would have left the army in any event (17 January 2017).

The defendants’ bone of contention, here, was that they should not be held responsible for the claimant’s ‘lifestyle choice’ to become a postman, earning a lesser salary than he could have brokered had he chosen to work as an HGV driver and realised his potential to rise to a junior management position in the transport industry. Essentially, the defendants' case was that the claimant had ‘failed to mitigate his losses’ and that they should not pay damages for earnings which he had depressed of his own volition.

Pursuant to South Australia Asset Management Corp v York Montague Ltd [1996] UKHL 10 and Khan v Meadows [2019] EWCA Civ 152, a tortfeasor is only liable for a particular type of loss claimed if there is an ‘adequate link’ to the identified breach of duty. The tortfeasor will then be liable for all the ‘reasonably foreseeable consequences’.

Irrespective of the fact that the claimant did not maximise his earning opportunities, Mr. Lock QC ultimately found that his lost earnings arose ‘directly as a result of the negligence’ and within the scope of the type of losses for which the defendants were liable:

‘I accept Mr Constance's evidence that his job choices were made at a time when he was recovering from a period when he had suffered fragile mental health, and that that fragile mental health was brought on by the negligence for which the Defendants are liable. In those circumstances, I do not accept that Mr Constance acted unreasonably in deciding to take a job as a postman when he left the Army in August 2011 or that he made the decision solely as a "lifestyle choice". At that stage his mental health was fragile and the job with the Post Office offered him the opportunity to work in a reasonably low-stress environment and thus rebuild his confidence after his experiences of the past few years. I reject the submission that his damages should be discounted because he should be treated as someone who ought to have chosen a career path after being medically discharged which would have led to him securing a higher paid role.

Full text judgment can be accessed here.