Froggatt v LEP International Ltd

In a claim for loss of earnings, the defendant bears the burden of proving that the claimant acted unreasonably in failing to mitigate loss. The court must assess reasonableness in the claimant’s actual circumstances, including medical limitations, age, work history, failed applications, the availability of alternative work and any practical obstacles to retraining. A claimant’s continued formal employment with the defendant may be relevant, but it is not a general principle that remaining on the employer’s books ordinarily improves the claimant’s position on mitigation. Evidence should ordinarily be given of the alternative employment said to have been available. A trial judge’s assessment of future loss may be upheld where the resulting award is reasonable, even if a partial continuing-loss approach would have been preferable.

William Froggatt was injured while employed by LEP International Ltd as a cargo handler. Liability was admitted. The county court awarded damages including four years’ full loss of earnings, two years’ future loss of earnings and a Smith v Manchester award.

LEP appealed, principally contending that Mr Froggatt had failed to mitigate his loss because he had stopped seeking alternative employment after the initial months following the accident. The appeal also challenged the approach to future loss. The central issues were whether the claimant’s conduct was unreasonable and whether the awards were justified on the evidence.

1. Appeal dismissed. The awards for past and future loss of earnings stood, with costs.
2. The burden was on LEP to establish by evidence that Mr Froggatt had acted unreasonably in failing to seek alternative employment. The medical evidence supported the finding that he could not return to his former heavy work and that his available work was seriously limited.
3. The claimant’s continuing formal employment was a relevant circumstance. He remained on LEP’s books, retained a prospective pension benefit and could not obtain government retraining while technically employed. LEP had neither offered suitable alternative work nor produced evidence identifying alternative employment which the claimant could reasonably have obtained.
4. Lord Justice Pill considered that the claimant’s formal employment status had force as part of the circumstances, but cautioned that it should not become a general principle that a claimant can ordinarily rely on remaining nominally employed by the defendant to establish reasonable mitigation. The appeal did not turn on that point alone.
5. Lord Justice Chadwick held that, on the evidence before the trial judge, the claimant was plainly entitled to be found reasonable. LEP had not established either that his belief about the need to terminate employment and retrain was unreasonable or that it was unreasonable not to terminate his employment.
6. The two-year award for post-trial loss was not unreasonable. Although a partial continuing-loss approach would have been preferable, comparison with the Smith v Manchester award showed that the overall figure was reasonable and caused no injustice.

• Court of Appeal (Civil Division): appeal from the judgment of Mr Recorder Scholes in the Manchester County Court on 7 February 2001 dismissed with costs.