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Summary of Recent Cases, December 2020

15/12/20. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

Summary of Recent Cases - Substantive Law

Constance v Ministry of Defence & Anor [2020] EWHC 3029 (QB)

Introduction

The Defendant argued that the Claimant's loss of earnings claim should be reduced because of a "lifestyle decision" to work in a lower paid role that would otherwise have been possible. Although this submission was rejected on its facts, because the decision was explicable by the Claimant's mental health issues, the High Court appears to have left it open for such an argument to succeed in a future case.

The facts

The Claimant claimed damages as a result of the failure of two MoD doctors to advise him that his hearing problems could be cured by surgery. Rather, they treated his hearing loss as permanent. As a result he left the army, which meant that he lost out on the chance of continuing a successful career there, and therefore lost earnings as well as congenial employment. He had been a mess manager in the army. After leaving the army he took a job as a postman.
The submission by the Defendant

The Defendant submitted that the Claimant could have taken up employment in the transport industry, and would have then had the potential to rise to a junior management position in this industry. The Defendant characterised this decision as a "lifestyle choice".

It is important to appreciate the legal basis for this submission. The submission could not have been put on the basis of failure to mitigate loss, because then the Defendant would have had to have proved it. Rather, it was submitted that losses occurring as a result of a "lifestyle choice" do not fall within the scope of the Defendant's duty which was breached.

The Court's assessment of the submission

David Lock QC (sitting as a High Court judge) concluded that the Defendant's submission failed on its facts. However, it is clear that he considered that the submission was theoretically correct as a matter of law. Indeed, the Claimant later moved to Padstow. The Court directly stated that any losses directly arising out of this "lifestyle choice" do not sound in damages. I quote the relevant segments of paragraphs 146-147:

The...

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