Constance v Ministry of Defence & Anor

A claimant must prove, on the balance of probabilities, the position he would have occupied absent negligence. In assessing a counterfactual career and earnings claim, the court should evaluate the evidence as a whole, including contemporaneous records, expert evidence and the claimant’s likely response to medical advice.

Under the PULHHEEMS system, a medical condition does not itself require a soldier to receive a restricted grading. The relevant question is whether the condition is likely to affect the soldier’s ability to perform normal military duties. A substantial level of risk must be established before a fully fit grading is withheld. Alternative career routes need not be pleaded as wholly different heads of loss where they arise from the same pleaded loss of career caused by the negligence.

The claimant was a serving soldier whose conductive hearing loss was repeatedly treated as noise-induced hearing loss. Doctors failed to explain that otosclerosis could be treated by stapedectomy, and Army medical decision-makers imposed restrictions on the erroneous assumption that he had permanent noise-induced hearing loss.

The claimant later underwent successful surgery and claimed damages for the career, earnings, pension and other losses allegedly caused by the medical and administrative negligence. The principal issues were what would probably have happened if proper advice had been given, whether he would have remained in service, how the PULHHEEMS grading system would have operated, and whether alternative military career paths were open on the pleaded case.

1. Liability. The claimant was not advised that surgery was an option for treating his otosclerosis. The Ministry of Defence was vicariously liable for the negligence of its doctor, and the Trust was liable for the negligence of its ENT consultant in 2007 and 2008. The MoD also accepted negligence in the Army’s repeated treatment of the claimant as suffering from noise-induced hearing loss.
2. Counterfactual causation. Damages were to be assessed by reference to the position the claimant would probably have occupied without the relevant negligence. The claimant bore the burden of proving the counterfactual on the balance of probabilities. He would probably have sought further advice by late 2005, undergone stapedectomy by about September 2006, and regained functionally adequate hearing without hearing aids.
3. PULHHEEMS. The PULHHEEMS Administrative Pamphlet required an assessment of whether a condition was likely to affect the soldier’s ability to perform normal military duties. The existence of a medical condition did not automatically justify a P7 grading. The evidence did not establish an accepted or evidence-based practice of automatically grading post-stapedectomy soldiers as P7. Proper application of the system would probably have resulted in a P2 grading, or, if P7 were imposed, a successful appeal.
4. Career and pleading. The claimant would probably have remained in the Army, progressed to WO2, completed his commission and served until January 2017. His likely deployment or training roles were not a wholly different kind of loss requiring separate pleading. The reasoning in Domsalla v Barr and Perestrello e Companhia Limitada v United Paint Co Ltd did not require alternative military career paths to be separately pleaded.
5. Scope and assessment of loss. Loss of earnings after medical discharge was within the scope of the doctors’ duty. The claimant had not acted unreasonably by becoming a postman while recovering from negligence-related psychiatric symptoms. The MoD was liable for the full assessed damages of £171,615.12. The Trust was jointly liable with the MoD for £162,022.12, reflecting the later period for which its negligence contributed to the loss. Further submissions on interest were invited.