Constance v (1) MOD (2) Portsmouth Hospitals University NHS Trust [2020] EWHC 3029 (QB)

The Facts

Mr David Lock QC sitting as a deputy Judge of the High Court held the Ministry of Defence and an NHS Trust to be liable to a former soldier whose hearing loss had been negligently diagnosed as being noise-induced hearing loss, which was not treatable, rather than otosclerosis, which was largely curable by surgery. If he had been appropriately treated earlier, he would not have been medically discharged. The court calculated his damages for hearing loss, psychiatric injury, loss of congenial employment, and loss of earnings, pension and other benefits.

Conductive Hearing Loss

Unusually for MOD hearing loss claims, the Claimant suffered from conductive loss caused by otosclerosis, rather than sensorineural loss caused by exposure to loud noise (NIHL). The Claimant was left with the impression by the military clinician who initially treated him that he suffered from NIHL, and that subsequently formed the basis of his medical discharge. However, he had in fact correctly been diagnosed with conductive hearing loss, albeit negligently not informed that there was a surgical treatment option. The Medical Board discharged the Claimant on the mistaken basis that he suffered from NIHL and therefore should not be exposed to further loud noise as it could cause further hearing loss. A clinician employed by the Defendant Trust also negligently failed to inform the Claimant that there was a surgical option. The judge concluded at [71] that damages against the MOD had to be assessed on the basis of what would have happened had he been initially told that there was a surgical option. Damages against the Trust had to be assessed on the basis of the events that would have happened if he had been properly advised by the Trust clinician Mr Ahmed. Damages against the MOD could also arise on the basis of the events that would have happened if the Medical Boards from January 2006 onwards had appreciated that the Claimant suffered from conductive hearing loss as opposed to suffering from NIHL. The MOD and the Trust were held jointly liable for the damages suffered from the point after which the Trust’s negligence could have affected the Claimant’s prospects of remaining in the Army.

Evidential Assessment

The judge noted in respect of his evidential findings that he was required to consider events of 10 or even 15 years prior. He noted at [3] “I am conscious of the need to adopt a proper approach to the balance between the evidence of accounts of events as set out in the documents and an individual’s recollections of things that happened a long time ago. That is an even greater problem where witnesses are attempting to give evidence about what would have happened in projected scenarios, relating to things which ought to have happened but, in the event, did not happen.” He referred to the comments of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 :

“16…Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.”

19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence to one side of the dispute. A desire to assist, or at least not prejudice, the party who called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to record. The statement may go through several iterations before it is finalised. Then, usually, months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”

The need for caution was particularly relevant with regards to resolving any conflicts as how decisions were in practice made, and what ought to have happened according to relevant policies. He concluded at [9] that “evidence from a person who attempts to argue that the same decision would have been made even if a mistake had not been made should be looked at carefully and assessed within the context of all the surrounding evidence, including the evidence in contemporaneous documents, before it is accepted.” This was particularly relevant when considering evidence given by a retired Army occupational health physician as to whether or not the Claimant would have been discharged in any event following successful surgery. The judge rejected his evidence on the basis that: he had retired 8 years ago and was giving evidence on how the Army approached the relevant decisions 12 years ago; there was no documentary evidence to support his alleged approach to soldiers in the same position as the Claimant; was reluctant to accept there had been any errors made by the Medical Boards in question; and there was no published medical evidence to support his point of view.

Special Damages

As is usual in MOD personal injury claims, the judge considered employment expert evidence as to the Claimant’s likely career length and promotion trajectory, and awarded damages for loss of earnings and also for loss of congenial employment. Interestingly, the Defendants sought to argue that they should not have to pay damages based on ‘lifestyle choices’ if the Claimant’s residual earnings were lower by choosing to work as a transport manager rather than as a postman. This submission was based on a combination of South Australia Asset Management Corporation v York [1997] AC 191 and Khan v Meadows [2019] 4 WLR 26 – i.e. that a tortfeasor is only liable in damages for a type of loss which falls within the scope of the appellant’s duty. The judge held at [146] that

“the “type of loss claimed” is loss of earnings following an early discharge from the Army where that early discharge arose as a consequence of the negligent advice Mr Constance was given by Mr Caldera and Mr Ahmed. That, in my judgment, is a “type of loss” where there is an adequate link between the breach of duty and the loss. In simple terms, if Mr Caldera or Mr Ahmed had provided Mr Constance with the advice that he should have received, it is likely that he would have had the stapedectomy operation by September 2006 and then been able to continue his military career and serve as a soldier until January 2017 as opposed to being medically discharged in August 2011. Thus his loss of earnings in the period between August 2011 and January 2017 arise directly as a result of the negligence and within the scope of the type of losses for which the Defendants are liable.”

The judge further considered the context of the Claimant’s initial career choice after his discharge from the MOD and held that it was reasonable to take an initially low stress job as a postman. However, the Defendants were not liable for any losses resulting from his subsequent ‘lifestyle’ decision to move to Padstow.


The judgment is currently subject to a pending appeal application on grounds including that the judge reversed the burden of proof in his assessment of the evidence of what would have happened in the counter factual scenario and made findings infringing the principle in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14.