England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BASINGSTOKE COUNTY COURT
(DISTRICT JUDGE CARNEY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th February 2003

Lord Justice Schiemann :

1. In October 1996 Sharon Morris was involved in a traffic accident. It was Mr Clifford's fault. She sued him for damages which were assessed by DJ Carney who gave a very careful reserved judgement most of which is not under attack. However, Mr Clifford appeals to this court in relation to one aspect of the assessment of special damages for future losses.
2. The problem arises in this way. Ms Morris was employed as a radiographer at the Radcliffe hospital in Oxford. Three years after the accident it became clear that because of the injuries she had sustained she could not continue to work as a radiographer. She was put on sick leave whilst thought was given as to what she could do next. In April 2000 she found herself another job with Toshiba which was much better paid than the job which she had had with the Radcliffe and resigned from the Radcliffe. Had matters continued thus there would have been no claim in respect of financial losses after taking the job with Toshiba.
3. However, in November 2000 she resigned from Toshiba alleging that she had been discriminated against. She had still not found another job by the time of trial which was in October 2001. The judge found that had she tried as hard as she should have done then she would have found one by then at £17,500 per year. He found that she should be able to reach the earnings level of her comparator within 4 years.
4. The judge's award of general damages and special damages up to the time that she took the job with Toshiba is not challenged. What gives rise to this appeal is his finding that she can recover damages in respect of the time after she resigned from Toshiba. The defendant appellants submit that the judge was not entitled to make this award since these damages were too remote. Should that submission be rejected they do not quarrel with the judge's assessment of the amount of those damages which was about £30,000.
5. Miss Susan Rodway Q.C. who appears for the defendant submits that the Judge misdirected himself in finding that the issue was to be analysed as one relating to mitigation rather than remoteness of loss. The potential importance of the conceptual analysis she submits is this: it is for the claimant to prove that the damage which she suffered has been caused by the tortfeasor and is not too remote, whereas it is for the defendant to prove that the claimant failed to mitigate her loss.
6. The following passages from the judgment under appeal set out the Judge's reasoning:

"25.1. Remoteness and New Intervening Cause

It cannot be the law than an injured person loses all right to recovery on the grounds of remoteness, as soon as she finds another job, however short the duration of that job may be. It must be the case that the Court of trial can consider whether the Claimant's claim for loss of earnings survives if the replacement job proves of short duration. If that was not the case, the law would be seriously deficient in leaving uncompensated a person whose replacement job was of short, possibly very short duration. In my view, it is a matter of fact and degree and often crucially of duration, as to whether the replacement employment itself triggers the application of remoteness as new intervening cause. I find that the accident was a sufficiently direct cause of the loss of earnings both before and after the Claimant's employment with Toshiba. The Claimant was still, in effect, in the grip of the accident in that her lack of capacity for employment was caused by the accident. The test of reasonableness then applies to eliminate unmeritorious cases ….

25.2. Remoteness and Mitigation

25.2.1. I find assistance in the case before me in the test to distinguish between remoteness and mitigation set out at paragraph 123 of McGregor on Damages. ["It remains to distinguish between remoteness and mitigation : this is also difficult. It is suggested that damage in this context may be too remote if the conduct of the plaintiff subsequent to the wrong separately increases the original damage as opposed to failing to reduce the future loss which would flow from the original damage."] Applying that test, I do not consider the Claimant's conduct in leaving Toshiba separately increased the original damage. I find that starting the job at Toshiba was a reasonable step taken in mitigating the Claimant's loss. If it had succeeded it would have eliminated the Claimant's claim for future loss of earnings. When it failed, the reduction of the future loss ceased and the loss continued in principle as it did before Toshiba. I find this is the proper analysis.

25.2.2. I am fortified in this interpretation by the illustrations in the applicable case law. The resignation from the Toshiba post was not the sustaining of an additional injury such as a second collision (in the shipping cases); a collision on the way to the hospital after a road traffic accident (Scrutton LJ's illustration) in The San Onofre [1922] P 243), or falling down a staircase due to an injury sustained in a previous accident (as in McKew –V- Holland and Hannen and Cubitts (1969 3 All ER 1621). The resignation was part of a chain of events which began with the accident causing the injury which caused the loss of the radiographer's career, in turn causing the duty to mitigate, resulting in the search for a new career, the commencement of the job at Toshiba, the job proving in service her incapacity for that second career and her losing the job (as I find as fact) through that incapacity. The only thing that can break the chain of causation in mitigation is if the Claimant's conduct were considered to be objectively unreasonable. I find no such unreasonable conduct in her behaviour in that chain of events.

25.2.3. Accordingly, I find that remoteness is not the category to describe or apply to the Claimant's leaving Toshiba. I find the correct categorisation of that act to be one relating to mitigation of loss. On that finding, the burden of proving a failure to mitigate falls on the Defendant. I further find that the Defendant has not satisfied that the burden of proof.

25.6. … The Claimant resigned earlier than she could have done but she only jumped because she was about to be pushed. By so doing she preserved her record for the future that she had resigned and had not been sacked. That is itself a reasonable step in mitigating the loss to her future career. That step also, eventually, occasioned a substantial compensation payment of £10,000 exceeding the amount (as I find to be the case) that she would have received by way of earnings if she had waited for Toshiba to dismiss her.

25.7. Where the Defendant's wrongful act causes the Claimant to act in a way that safeguards her interest and therefore the Claimant suffers damage, the Claimant can recover the damage from the Defendant (paragraph 180 of McGregor). In Ms Morris's case, the proximity is not so great in time between the collision and the new act as it was in The Metagama (1927) 29 Ll LR 253. But it is instructive to observe that this was her first permanent job since leaving radiography at the John Radcliffe. Paraphrasing Lord Haldane in The Metagama: "mistaken judgment may be a natural consequence for which (the Defendant)….is responsible … . Reasonable human conduct is part of the ordinary course of things, which extends to the reasonable conduct of those who have sustained the damage and who are seeking to save further loss" (in this case by getting another job at Toshiba).

25.8. The job failed. I find that the Claimant did not have the required qualities for it. It was not her fault that she made a false start on a new career. Many persons at the outset of a new career on leaving school, college or university make a false start. Originally, in choosing radiography Ms Morris made the correct choice first time. In being forced by the accident to choose a second career, the chances of making a false start are if anything magnified. It was reasonable for her to choose the Toshiba job and it was reasonable for to leave it when it proved to be beyond her capabilities. The capability was not physical. I find that she was just not a commercial person capable of operating at this level in that marketing job at the time.

25.9. Accordingly the cases of unreasonable conduct at paragraph 188 of McGregor are not relevant to this enquiry because I find the Claimant's conduct was reasonable. Even though she could have persisted in the job until her employers dismissed her, I still consider it reasonable in her circumstance (including the circumstances of her vulnerability due to the accident) for her to have resigned from Toshiba before she was pushed out. I find also that there was insufficient time for her to find another job before leaving Toshiba.

25.10. The most instructive reference I have found in McGregor is that of Scrutton LJ in The San Onofre to the effect that the question whether damage is a sufficiently direct consequence of negligence to be recoverable, or is too remote, is rather a question of first impression. I regard this issue as a matter of impression on the particular facts. My carefully considered finding here is that the occasion of the Claimant's loss in leaving Toshiba is sufficiently caused by the accident. She was at Toshiba because she could no longer work as a radiographer. She would never have left radiography but for the accident. She left Toshiba because she was incapable of doing the job to her employer's reasonable satisfaction. It was a false start but a reasonable false start.

25.11. The Claimant acted reasonably in mitigating her loss on leaving Toshiba. …

25.12. In argument the Defendant posed a conundrum. Either the Claimant's behaviour was reasonable in leaving Toshiba because they hade breached her contract or it was not. If she was reasonable, Toshiba or her employment lawyers are liable. If she was not behaving reasonably, she was liable for leaving when she should have stayed. I answer that conundrum by stating that these are not the only possibilities. A third possibility is this: it emerged that, despite her best efforts, she was incapable of holding down the post at Toshiba. I find on a balance of probabilities on the evidence that this third view is the correct one."

7. Miss Rodway's main submission is that there was no evidence upon which the Judge was entitled to find that the claimant was about to be dismissed and that, if so, this was because she was incapable of doing the job which she was employed to do by Toshiba.
8. She submits that the case ought to be approached as one involving remoteness of damage and that it was for the claimant to show these things. She submits that if one looks at the material before the judge it does not substantiate the claimant's case.
9. Both parties relied on correspondence passing between the claimant's lawyers and Toshiba's following her resignation. Her lawyers alleged that she had been discriminated against and that she had been forced out of her job. Her lawyers did not allege that she was incapable of doing the job. Toshiba's lawyers referred to her "inability to perform or conduct herself to the standard required by our client or its staff" and said that she could have been dismissed for poor performance. Toshiba's management indicated that their view was that she could have tried harder but had failed to. The managing director said in correspondence with her that "… it may well be that you are better suited to the World of Medicine than that of Commerce."
10. For my part I regard that correspondence as carrying us little further. Each side was understandably jockeying for a favourable position in a difficult situation. It is wholly unrealistic to hold against the claimant in the present proceedings her solicitors' failure to suggest, during her dispute with Toshiba, that the job was more than she could manage. As for the allegations on the part of Toshiba, they were not repeated in evidence before the Judge. No one from Toshiba was called. The unexamined assertions in correspondence cannot be regarded as preventing the Judge from coming to the conclusion to which he came.
11. Miss Rodway understandably stressed that the defendants were in a difficult situation. They had no knowledge of what had gone wrong as between the claimant and Toshiba. Endeavouring to call a witness from Toshiba would have been a tricky exercise in the light of Toshiba's involvement and in the light of the settlement terms which had been reached between Toshiba and the claimant. This is no doubt so and I well understand why neither side thought it wise to embark upon that uncertain path.
12. That however left the Judge to do the best he could on the evidence which he did have. This included evidence from the claimant. We have not been provided with a transcript of what was said. In those circumstances it would in general be wrong for this Court to find that the Judge was not entitled to come to the conclusion to which he came, namely, that she was unsuited for the Toshiba job. It was by no means an inevitable conclusion but there is nothing in his reasoning which entitles us to find that it was not one which was open to him.
13. Miss Rodway asserted, and Mr Sanderson for the claimant did not dispute, that the claimant had not emphasised the claimant's lack of suitability before the Judge nor had it been pleaded. However, Miss Rodway did not submit that the Judge acted unfairly in any way by not giving her an opportunity to deal with a case which had never been suggested. As it seems to me that course really was not open to her in the light of the claimant's assertion in her written statement which was in evidence that "I believe that the job at Toshiba demanded levels of skill and experience I did not have …"
14. For my part I am reluctant to embark upon an analysis at a high level of abstraction of the circumstances in which action or inaction by a claimant is properly characterised as a failure to mitigate rather than as producing a situation in which the damage suffered by the claimant is characterised as too remote.
15. Further, while cases can arise where all may depend on who has the burden of proof, where evidence has been given and the judge has formed a view as to where the truth lies it will usually not be necessary to fall back on the burden of proof in order to decide the case. The case was argued by the defendant in front of the Judge as though it depended on the burden of proof. The Judge decided that the burden of proof was on the defendant. However, the judgment does not give one the impression that the burden of proof was critical in the Judge's mind. He does not express his findings as ones conditioned by the burden of proof.
16. The proper approach in a case such as the present is to start from the now undisputed facts that the defendant was to blame for the injuries suffered by the claimant and that by reason of the defendant's wrongful action she lost the job which she liked and for which she was trained. The fact that she obtained another job and then lost it will not automatically disqualify her from recovering from the tortfeasor damages in respect of the period after the loss of her new job ("the period in issue"). The crucial question is whether, in respect of the period in issue, it is just that she should recover damages from the tortfeasor. If she was at fault in losing her new job then she will have difficulty in recovering for the period in issue. If she was not at fault then in general she will recover. The question whether she was at fault is one which in principle the trial judge should resolve bearing in mind that it was the wrongful act of the defendant which put the claimant in the position of having to find a new job and that therefore she should not be judged too harshly. Such an approach seems consistent with two shipping cases which were cited to us – "The Metagama" and The Fritz Thyssen, the former a House of Lords case and the latter a first instance judgment affirmed in this court – and also with the approach of this court in Melia v Key Terrain Ltd (1969) No 155B cited in Kemp & Kemp The Quantum of Damages para. 13-007. That was a case where the injured man had, after the accident, been offered two jobs - one paid £3 a week less than the other. He had taken the more congenial but worse paid job and the tortfeasors submitted that this part of the loss was self-inflicted and should therefore not be borne by them. Rejecting this submission, Sachs LJ, with whom Karminski J agreed, said this:

"The question for consideration is whether the claimant should have mitigated the damage he suffered by taking a job which would have brought him in an extra £3 a week but would have involved him in night work on alternate weeks. He has never in his life before done night work and has a strong distaste for it. It also involved repetitive work of a type of which he had not previous experience and to which many people are averse.

As between a claimant and a tortfeasor the onus is on the latter to show that the former has unreasonably neglected to mitigate the damages. The standard of reasonable conduct required must take into account that a claimant in such circumstances is not to be unduly pressed at the instance of the tortfeasor. …the claimant's conduct ought not to be weighed in nice scales at the instance of the party which occasioned the difficulty. "

17. This is the approach which, as it seems to me the Judge adopted, and I would therefore dismiss this appeal.

Lord Justice Keene :

18. I agree. It may be that the claimant is right in her contention that, in circumstances such as those in the present case, the issue is to be treated as one of mitigation of damage, rather than as one of remoteness of damage. If so, that would mean that the burden of proof rested on the defendant. But it is unnecessary to resolve this abstruse dispute, since this case did not turn on where the burden of proof lay. The trial judge made a positive finding that the claimant did not have the required qualities for the Toshiba job. That finding clearly did not result merely from the defendant failing to discharge a burden of proof.
19. In the end, this appeal depends on the defendant establishing, as Miss Rodway asserts, that there was insufficient evidence for the judge's findings that the claimant was not really capable of doing the Toshiba job. Yet the judge had before him evidence from the claimant that she found the work at Toshiba very hard, that her boss told her that he did not think that she was suited to working in a commercial environment and that:

"Looking retrospectively, I believe that the job at Toshiba demanded levels of skill and experience that I did not have."

20. Given the background, namely that this job was that of Marketing Manager for Toshiba Medical Systems, that the claimant had previously been a radiographer without direct experience of management or marketing, and that although she had started a marketing course before taking this job she had not completed the course, I can see no reason why the judge could not properly accept the claimant's evidence to which I have referred. Certainly, as Schiemann LJ has emphasised, the correspondence between her solicitors and those acting for Toshiba provides no such reason.
21. Once the position is reached that the judge was entitled to make the findings which he did, this appeal cannot succeed. The liability of a tortfeasor is not to be reduced because the injured party, having lost employment because of the injury, takes a different job in an attempt to mitigate his or her damage but loses that job because it is beyond his or her capabilities. I too would dismiss this appeal.
Order: Appeal dismissed; there is to be payment forthwith of the capital sum of £40,000 currently standing in court to the respondent's solicitors; there should be payment of all interest accrued on the moneys in court to the appellant's solicitors and the appellant shall pay the respondents costs of the appeal on a standard basis after detailed if not agreed. (Order does not form part of the approved judgment)