There is much that is interesting to read in the judgment of David Lock QC (sitting as a High Court Judge) in Constance v Ministry of Defence & Anor [2020] EWHC 3029 (QB). One interesting point is the defendant’s interesting, but unsuccessful, attempt to sidestep an argument in relation to mitigation of loss.



The claimant had been a serving soldier. He suffered injuries to his hearing and the judge found that this arose from the negligence of the defendants.  The judge then had to assess damages, including a claim for loss of earnings.


The injuries caused the claimant to leave the army and take up work as a postman.  The defendants argued that he could have earned more and, therefore, reduced his loss of earnings.  However the defendants disavowed the view that they were thereby attempting to argue a failure to mitigate loss.   The defendants difficulty being, I assume, that the burden in proving a failure to mitigate loss lies with the defendant.  In any event the defendants argument did not find favour with the judge.


Loss of congenial employment.
    1. The Claimant claims £10,000 damages for loss of congenial employment between 2005 and 2013. The MoD defend the claim on the basis that Mr Constance would have been in the same role but for the negligence of Mr Caldera and the Medical Board. I have rejected that case but nonetheless do not accept that the initial move to Mess Manager was the result of Mr Caldera’s negligence because that happened during his hearing aid trial period. Any award for loss of congenial employment can only start in early 2008 when Mr Constance would have moved back into operational duties when he transferred from his role as Mess Manager to work as a UAV instructor in Israel.
    2. In Hale v London Underground Ltd. [1993] PIQR Q30 Otton J said regarding loss of congenial employment “It is now well recognised that this is a separate head of damage”. It is 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. Where, as here, that loss of satisfaction results in a psychiatric illness, there is a danger of an overlap between the two heads of damage because they are both compensating a person for similar areas of loss. However, that argument was rejected by Mr David Foskett QC (prior to his appointment to become Mr Justice Foskett) in Keith Pratt v Collie Smith [Unreported – 19th December 2002] at §63.
    3. The period of loss of congenial employment in this case depends on the period during which Mr Constance would have remained in the Army and the extent to which his Army role would have been more congenial than his role as a postman, the job he took up after leaving the Army in 2011. I consider that Mr Constance is entitled to an award of loss of congenial employment for the period from 2008 to 2011 when he was required to work as Mess Manager and, to a lesser extent, for the period when he worked as a postman after 2011 and up until 2017 when he would have had to leave the Army in any event. Having regard to the award in the cases referred to above and taking account of inflation, I award Mr Constance £1500 per year for the years 2008 to 2011 and a lower sum of £500 per year between 2011 and 2017, making a total award under this head of £7,500.
Loss of earnings.
    1. I have found that, if Mr Constance had not been the victim of negligence, he would have returned to active duty as a soldier or, as an alternative, would have pursued his career in the Army as a UAV instructor or in one of the other roles identified in his performance appraisals.
    2. The Claimant and the Defendant both called employment experts who were highly experienced former Army officers who were able to provide evidence as to the likely career path that Mr Constance would have followed if he had had a stapedectomy operation and been returned to active service or had been able to work in another area outside of his role as Mess Manager. The Claimant’s expert was Mr Ian Stafford of DJ Fox and Associates and the Defendant called Mr Alasdair Cameron of HJS Personnel Services. I am grateful to both experts for their careful reports. There was, in reality, relatively little difference between them.
    3. Based on these reports and bearing in mind the overall evidence in the case, I accept the evidence of the joint experts as follows:
i) It is likely that Mr Constance would have remained in the Army and completed his 22 year commission;
ii) It is likely that he would have been promoted from being a Staff Serjeant to being Warrant Officer 2 but it is not likely that he would have been promoted to Warrant Officer 1;
iii) It is likely that he would have been offered the opportunity to transfer to VEng (Full) career post and thus been able to extend his period of military service until January 2017; and
iv) Mr Constance would have left the Army in January 2017 and would have pursued a civilian employment post at that point.
    1. Although Mr Constance received good annual appraisals, both Mr Cameron and Mr Stafford agree that he did not progress as quickly up the ranks of NCOs as an average non-commissioned officer in the Army. The experts accept that it is likely that he would have made it to WO2, but they disagree as to when this would happen. I prefer the analysis of the Defendant’s expert, Mr Cameron, on this point for the reasons set out in his report. I therefore conclude that it is likely that Mr Constance would have been promoted to WO2 by January 2016, and would have served a further 12 months in that rank prior to his discharge in January 2017. During the period when Mr Constance was working as Mess Manager, he achieved a promotion from Sergeant to Staff Sergeant. I do not accept that he is able to prove that it is likely that he would have achieved this promotion more quickly if he had been back undertaking operational duties.
    2. When Mr Constance left the Army he became a postman. He remained in that position until after January 2017 when he would have left the Army in any event. I consider that Mr Constance is entitled to an award of damages for loss of earnings between the date when he was discharged from the Army on medical grounds, namely 10 August 2011 until the date when he would have left in any event, namely 17 January 2017. I find that he would probably have served as a Staff Sergeant during this period until 1 January 2016 when he would have been promoted to WO2.
    3. The Defendants led evidence that, after his early discharge from the military, Mr Constance could have earned a higher salary by choosing to work in the transport industry as opposed to working as a postman. The Defendants submitted, as set out at §32 of Ms McArdle’s Skeleton Argument, that Mr Constance had made a “lifestyle choice” to become a postman and that his post-military earnings level was not depressed as a consequence of any negligence for which the Defendants are responsible. I raised in argument whether the Defendants’ case was that Mr Constance failed to mitigate his losses by taking a job as a postman but, as I understand matters, the case was not put on that basis.
    4. Instead it was not suggested that whilst his initial earnings as an HGV driver would have been higher than his earnings as a postman, if he had chosen to work in the transport industry rather than becoming a postman, he would have had the potential to rise to a junior management position in the transport industry and thus would have increased his earnings. Thus, it was argued that the Defendants should not have to pay damages based on his lifestyle choices.
    5. This submission was based on a combination of South Australia Asset Management Corporation v York [1997] AC 191 and Khan v Meadows [2019] 4 WLR 26. The key issue arising from those cases is that a tortfeasor is only liable in damages for a type of loss which falls within the scope of the appellant’s duty, and is not liable for losses of a type which fall outside the scope of the duty. That principle was set out Nicola Davies LJ at §29 in Khan where she said:
“The SAAMCO test requires there to be an adequate link between the breach of duty and the particular type of loss claimed. It is insufficient for the court to find that there is a link between the breach and the stage in the chain of causation, in this case the pregnancy itself, and thereafter to conclude that the appellant is liable for all the reasonably foreseeable consequences of that pregnancy”
  1. In this case the “type of loss claimed” is loss of earnings following an early discharge from the Army where that early discharge arose as a consequence of the negligent advice Mr Constance was given by Mr Caldera and Mr Ahmed. That, in my judgment, is a “type of loss” where there is an adequate link between the breach of duty and the loss. In simple terms, if Mr Caldera or Mr Ahmed had provided Mr Constance with the advice that he should have received, it is likely that he would have had the stapedectomy operation by September 2006 and then been able to continue his military career and serve as a soldier until January 2017 as opposed to being medically discharged in August 2011. Thus his loss of earnings in the period between August 2011 and January 2017 arise directly as a result of the negligence and within the scope of the type of losses for which the Defendants are liable.
  2. 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. However, I accept that his decision to move to Padstow in 2019 was a lifestyle decision. I thus accept that any losses that flow from his decision to leave his role as a postman in Amesbury and to move to Padstow are not losses which sound in damages for which the Defendants are liable.
  3. Any damages paid to the Claimant will not attract income tax. Accordingly, damages need to be calculated on the basis of the Claimant’s net loss of earnings