Morris v Richards

Loss of a replacement job does not automatically make subsequent loss too remote or self-inflicted where the original employment was lost because of a tort. The court should ask whether it is just for the claimant to recover, considering whether the claimant was at fault and recognising that the tort caused the need to find new employment. Absent fault, recovery will generally follow. The claimant’s conduct should not be judged too harshly. Where the trial judge has made positive factual findings, it is unnecessary to resolve an abstract dispute about remoteness, mitigation and the burden of proof.

Following a traffic accident that ended the claimant’s career as a radiographer, she obtained a better-paid marketing position with Toshiba. She later resigned after alleging discrimination and remained unemployed at trial. The District Judge awarded future loss of earnings, finding that the Toshiba position was beyond her capabilities and that leaving it was reasonable.

On appeal from Basingstoke County Court, the appellant argued that loss after the Toshiba employment was too remote and that there was insufficient evidence for the judge’s findings. The central issues were the proper characterisation of the loss and whether the factual findings were open to the trial judge.

The appeal was dismissed. Schiemann LJ delivered the principal judgment, with which Keene LJ agreed.

1. The court declined to resolve the abstract question whether leaving replacement employment should be analysed as remoteness of damage or mitigation of loss. Where the evidence enables the trial judge to decide where the truth lies, the burden of proof need not determine the result.
2. The proper starting point is that the tort caused the claimant to lose employment for which she was trained and placed her in the position of needing a new job. Obtaining and then losing replacement employment does not automatically disqualify recovery for the later period. The crucial inquiry is whether, having regard to the claimant’s conduct, it is just that she should recover from the tortfeasor. Fault in losing the new job will make recovery difficult; absent fault, recovery will generally follow. The claimant should not be judged too harshly.
3. The District Judge was entitled to find that the claimant was unsuited to the Toshiba position. The correspondence between the parties and Toshiba did not prevent that finding, and the absence of a transcript meant that the appellate court should not interfere where the conclusion was open on the evidence.
4. The claimant’s resignation was a reasonable attempt to mitigate loss, and the later loss remained sufficiently connected with the original accident. The approach was consistent with The Metagama (1927) 29 Ll LR 253 and Melia v Key Terrain Ltd (1969) No 155B.

The capital sum of £40,000 was to be paid to the respondent’s solicitors, accrued interest to the appellant’s solicitors, and the appellant was ordered to pay the respondent’s appeal costs on the standard basis after detailed assessment if not agreed.

• Court of Appeal (Civil Division): On 27 February 2003, the court dismissed the appeal. [2003] EWCA Civ 232
• Basingstoke County Court: District Judge Carney awarded damages, including future loss of earnings after the claimant left Toshiba.