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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Froggatt v LEP International Ltd [2002] EWCA Civ 600 (17 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/600.html Cite as: [2002] EWCA Civ 600

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
MANCHESTER COUNTY COURT
(Mr Recorder Scholes)

		The Royal Courts of Justice The Strand London Wednesday 17 April 2002

Wednesday 17 April 2002

1. LORD JUSTICE PILL: This is an appeal by LEP International ("LEP") against a judgment of Mr Recorder Scholes QC given at the Manchester County Court on 7 February 2001. In a personal injury action the judge made an award of damages to Mr WG Froggatt (the claimant) in the sum of £110,650.87, including interest.
2. The claimant was employed by the defendants as a cargo handler at their premises at Trafford Park, Manchester. It was comparatively heavy work which included climbing ladders, clambouring around and driving a forklift truck. In the course of his employment on 4 January 1997 a bar weighing just over a ton fell on the claimant's foot. He sustained a fracture of two toes, from which he recovered rapidly, and a crush injury which gave rise to what Mr R McGivney, consultant orthopaedic surgeon, described as a chronic pain syndrome. Liability to pay damages was admitted before trial.
3. The judge had before him written and oral evidence from two consultant orthopaedic surgeons, Mr McGivney and Mr M G Norris. There was psychiatric evidence in writing from Dr D Longson and Professor G Wilkinson, who also produced a joint report.
4. The judge awarded a sum of £10,000 by way of damages for pain, suffering and loss of amenity. He awarded damages under other heads, to which reference need not be made save that they include a figure for loss of pension rights. He awarded the claimant his full loss of earnings for the four-year period between the date of the accident and the date of trial, a sum of £48,822. The judge ordered a further two years' loss of earnings by way of future loss which, at the rate at which he by then would have been earning with the defendants, gave a total of £26,000. It is those two figures, £48,822 and £26,000, which are challenged by the defendants. There was also an award of £10,000 under the Smith v Manchester Corporation principle. That is not challenged as such. The arithmetic on the figures I have mentioned as being in issue is not challenged.
5. The claimant had an excellent work record. He had been employed by the defendants for about two years. The basic point taken on behalf of the defendants is that the claimant made no sufficient efforts to mitigate the loss which he had sustained by his inability, on the judge's findings, to return his pre-accident work. There is no doubt that in the period immediately after the accident the claimant did make efforts to obtain alternative employment. There came a point, however, when, discouraged by those efforts and perhaps for other reasons, he ceased to try, and he was still not working at the time of the trial.
6. The judge recorded his findings on the medical evidence when considering the appropriate award for pain, suffering and loss of amenity. In relation to the crush injury he stated (page 3D of the judgment):

"I find on the evidence as to the orthopaedic aspects that the claimant has continued to have symptoms to the present time as a result of the crush injury caused by the accident. The only other possibility that was vaguely put forward by Mr Norris was constitutional changes. He said in terms on each time that he mentioned that, 'it is only a possibility', and he did not really seem to me to have any real faith in that. It was just that that was the only other possibility he could think about.

In the future the orthopaedic injuries it seems will now remain roughly static. The claimant will be unable to go to work involving a lot of walking, prolonged standing, climbing, but there are many other jobs that he will be able to undertake. He also, it seems, should avoid work involving a lot of use of a pedal of a vehicle, including a forklift truck."

7. With the help of counsel we have been referred to the evidence of Mr Norris, who was the defendants' witness. He was asked by counsel then appearing for the defendants (not Mr Cooper, who appears for them today) about his examinations of the claimant. On page 65:

"Question: And you saw him for the first time in November 1998. You saw him again just under two years later in July of last year.

Answer: Yes.

Question: Would you say that between the two reports his condition apparently worsened?

Answer: It certainly appears to have, yes."

8. Later, at page 69, having expressed the opinion that in normal circumstances Mr Norris would expect a recovery within about twelve months:

"Question: But this man, you accept, does not appear to have made full recovery?

Answer: That is true.

Question: And you cannot understand at the moment why that is so?

Answer: I cannot give an answer to that based on my examination of him, and his records.

Question: But he does not appear as though he is consciously exaggerating in any way?

Answer: He doesn't, your Honour.

Question: So for some reason he has continuing disabilities and you just cannot explain why?

Answer: That is right, your Honour."

9. Shortly afterwards:

"Question: What is your view on causation in terms of tying these symptoms to the accident? Do you credit these symptoms as having been caused by the accident or not?

Answer: He has had pain ever since the accident. I do not think there is any doubt about that at all."

10. The judge found that, in the light of that evidence from the defendants' witness, there was little between the orthopaedic witnesses. In my judgment the judge was entitled to make the findings he did about the orthopaedic condition on the basis of the evidence given to him. It follows that there was a loss of earning capacity in the claimant. He had a history of comparatively heavy manual work in his excellent work record and the type of job open to him was seriously limited as a result of the accident. He was at the time of trial 51 years old.
11. As to the psychiatric condition, the judge found (page 4):

"They both [that is both psychiatric witnesses] agree that the claimant developed a mixed anxiety and depressive disorder of minor to moderate clinical severity as a result of the accident. They agree that the claimant could have genuine heightened sensitively to pain as a result of his anxiety and depressive disorder. They agree also that the claimant could be expected to recover from this mixed anxiety and depressive disorder within 6-12 months of Professor Wilkinson examination in March 2000. It is clear that he has not recovered as of yet, and nearly the full year has elapsed. In the future they agree that the claimant has been rendered slightly more vulnerable to mixed anxiety and depressive disorder."

12. The judge also formed a very favourable view -- and it was one which on the evidence he was entitled to form -- of the claimant's credibility and of his wish to work. The judge stated, at page 6B:

"I accept that if the claimant felt that he was fit to work physically and psychologically he would want to work and that is going to be the situation in the future."

13. The judge added:

"In relation to the preaccident work record, I note that many of the jobs involved driving a forklift truck. The claimant told me that he was authorised to do that, although that authorisation looks as though it will have lapsed now. I accept that in the future he will probably never get a job involving driving a forklift truck for lengthy periods of time, though he may be able to manage to drive a forklift truck on more limited occasions."

14. The judge then went on to deal with the question of loss of earnings between the date of the accident and the date of trial. The judge stated (6E):

"The claimant has never worked since the accident. In 1997 at a relatively early stage after the accident he started making job applications. As I indicated in the course of argument, I feel that that was because he was a man who wanted to work. He did not want to work for LEP again and he was trying to get a job as soon as possible to go with another employer. It is quite clear that he was being considerably over-optimistic in thinking that he was fit for work at that period of time."

15. We have been referred to a job application which was made by the claimant in the course of 1997. It was with Siemens and made on 3 September. The documents have survived. The claimant wrote:

"I have informed my employer and am awaiting communication from them. I know there are no jobs with lighter duties which they could offer me. Therefore this is the reason I find I am in pursuit of a change in my career."

16. The judge then went on to consider a point which had achieved prominence at the trial by reason of the content of the cross-examination of the claimant on behalf of the defendants. The judge stated (6G):

"Mr Hilton [counsel then appearing for the defendants] points out to me that in more recent times the claimant accepts that he is never employed for work and he says this is a failure to mitigate his loss. I do not accept that in the circumstances that I have heard. I consider as I said in the course of the evidence, that to some extent this claimant has been left between the devil and the deep blue sea. His employment has never been terminated by LEP, perhaps for good reasons in that he has continued to benefit under their pension policy arrangements. What is clear is that LEP have never attempted to consider any alternative work for the claimant. I accept that they have made no attempt to contact him, that they have never discussed his job situation with him, that they have just left him there in limbo and that is part of his resentment against them. He told me, 'I was locked in a situation because the job centre said I was employed by LEP'. Therefore he was technically still employed so far as the job centre was concerned, and they would not send him for retraining. But LEP never got in contact with him in any way to assist him.

Taking into account the medical findings that I have made in this matter on the evidence before me, I consider that the claimant has been reasonable in his attitude to the present time. I do not accept that it was for him to go along and ask for his employment to be terminated. I have no doubt that this claimant has been reasonable and will be reasonable in the future. It follows that he is entitled to the total past loss of earnings claim which is agreed in the sum of £48,822.15."

17. Mr Cooper, for the defendants, challenges that finding on the basis that it was not justified on the medical evidence and on the basis that the claimant has failed to take reasonable steps to mitigate his loss. After the initial period following the accident, when he did make job applications, he did nothing. Mr Cooper submits that the defendants have, on the evidence, discharged the burden of establishing that reasonable steps have not been taken by the claimant to mitigate his loss. The amount of damages for past loss of earnings should have been modest in that on the medical evidence, the claimant ought to have obtained other employment long before the trial.
18. To consider that submission it is necessary to refer to the evidence which led to the judge's emphasis upon the fact that, on the books at any rate, the claimant was still employed by the defendants. What is clear is that the defendants did not, and did not intend, ever to offer re-employment on a new basis to the claimant, but it is also clear from documents which have been produced to the court that the defendants still regarded the claimant as employed by them. Whether the documents were seen by the judge we do not know, and counsel have been unable to help us.
19. In the course of the cross-examination of the claimant the following exchange occurred (page 23 of the smaller transcript):

"Question: Your period of service with LEP came to an end in January 1997.

Answer: That's correct.

Question: You felt I think very strongly for whatever reason that you would not wish to go back there and I think you have also told us that you did not think you could go back there, to the same kind of work that you had been doing for the previous 19 months.

Answer: Yes.

Question: You made some attempts to find alternative work in the period of seven or eight months after the accident.

Answer: Yes.

Question: And then you stopped and you have not really taken up the cudgel since? Yes, that is true, is it not?

Answer: I went down the job center. I asked for government retraining. Their reply was, which is in part of the statement, I am very sorry, Mr Froggatt, technically you are still technically employed by LEP, so therefore the job center or any retraining you would have to be on the dole for six months before you could pursue any retraining, so, yes, in a way I have applied for jobs after that, but I was shut out by the fact that LEP are still my contractual employer.

Question: Well, there is an easy way to get round that, is there not, why do you not just give notice under your contract? You can terminate your job there, can you not?

Answer: Why should I? LEP injured me, I didn't go out and injure LEP.

Question: If you are saying, Mr Froggatt, that being tied to the books with LEP is something that is stopping you from getting a job then why do you not just cut the tie?

Answer: Because I am also tied into a pension plan like you say.

Question: So it does not suit you to terminate your contract with LEP?

Answer: Not at the moment in time, no. It didn't. They have done very little for me in all the time I have been off, and yes, they did to pay me 17½% but they paid it, 17½% into my pension fund and that was all they were doing for me.

Question: So it doesn't suit you to terminate employment with LEP at the moment because -

Answer: It wouldn't have done at the time. I am so - Now I would dearly love just to go back to a normal lifestyle, normal work.

Question: And are you going to start making job applications when this case is over?

Answer: Oh, yes."

20. In a later answer the claimant said:

"Answer: With four years on the sick. I am like a leper. If I go to an employer and you have young kids out there that are younger than me, that have never had a day off ill in their life and they take one look at job application form that I hand in, they are sure as heck not going to employ me. They are going to go for the guy that's still got years to go in and never had any industrial injury or anything."

21. Later upon further questioning the claimant repeated his reference to the Job Centre (page 27):

"Question: And the position after that was effectively you gave up trying I think to get a job?

Answer: I gave up trying because by then the realisation had come on me that I was not going to be able ever without some sort of retraining to attain a position anywhere and I can't get retraining because the job centres where I would be provided by the job center was locked out of me by LEP who still maintained my contract of employment. I was in a position where I had no money, and if I had wanted to go and finance retraining I just did not have the money to finance it.

Question: Well, we have been round this, I think, Mr Froggatt. It suited you I think at the time not to terminate your employment with LEP while you remained a member of the pension scheme.

Answer: Not only that. There was still hope that they may give me a job offer of light duties but they never have. I have give them every opportunity. I have complied with every wish they have ever asked of me.

Question: Did they ever actually tell you that there were no jobs they had for you?

Answer: They have never even been in contact with me."

22. On the face of it this appeared to be a perfectly ordinary personal injury case, and it ends up as such. But there is raised by that cross-examination, and by the judge's emphasis upon the point arising from it, an unusual point which, put in general terms, is that the fact that the claimant remains formally in the employment of the defendants whom he is suing is a relevant factor, and as it appears to the judge a very important factor, in considering the question of mitigation.
23. That he was so employed by the defendants is confirmed by the letters to which I referred earlier. On 23 November the defendants wrote to the Secretary to the Trustees of their pension plan:

". . . payroll have confirmed that Mr Froggatt is still on payroll and is employed by the company, however he is not currently receiving any pay from [them], he is receiving statutory sick pay from DSS."

24. On 17 December 1998 the defendants wrote to the claimant:

"... I am writing to confirm that you are currently a member of the ... Pension Plan. Your service since 3rd April 1995 is pensionable and will be counted in the calculation of your retirement pension at age 65 years."

25. The court is left, as was the judge, in ignorance as to how much money the company has paid into the pension fund on the claimant's behalf and there is doubt -- and in saying this I am not doubting Mr O'Brien's attempt to help us on the limited information he has -- as to how long payments went on and whether they are still going on. The scheme rules apparently provide (as appears from the letter of 23 November 1998) that:

"... a member can be temporarily absent for up to 3 years provided there is a definite expectation of return to work and his service will be classed as pensionable unless the company determines otherwise."

26. Mr Cooper submits that the claimant's approach to this question was an unreasonable one. He should have terminated his employment if that continued employment was in any way an obstacle to his obtaining other work. It was not reasonable to decline to seek other work merely because the claimant was still on the books of the defendants, even if the defendants were paying a pension contribution on his behalf.
27. It must be said that the present point was in no way in the forefront of the claimant's case at the trial. Mr O'Brien has told the court that the case was put on a more conventional basis and he did not seek to place reliance on the point that the claimant was still on the defendants' books. No notice of the point raised in the cross-examination had been given to the claimant. The point attained the prominence it did because of the cross-examination to which I have referred.
28. However, now that the point has arisen, the court has to consider the reasonableness of the claimant's action, though in my judgment the decision in the appeal need not turn upon it. The claimant's case is that he acted reasonably in remaining on the books of the defendants. The advantage in doing so was that he was getting a prospective benefit in the defendants' pension fund. He could not obtain retraining while he was on their books but he was, as the judge put it, between the devil and the deep blue sea. It was not reasonable to require him to give up his position with the company in order to obtain retraining and the prospect, the reality of which could not be assessed, of obtaining other employment.
29. It is a conspicuous feature of the evidence in this case that no evidence was called on behalf of the defendants as to alternative work which the claimant might have obtained. That was acknowledged by counsel then acting in his closing submissions (page 6):

"There is a host of other economic activities that he [the claimant] could do, it is just that they have not been explored."

30. Where in circumstances such as the present defendants are seeking to show unreasonableness in the claimant, it is customary to produce evidence, in one way or another, as to alternative employments which are open to him and for which he could have applied. There is a conspicuous lack of any such evidence in this case and in his judgment the judge, understandably in that event, makes no reference to the types of work which would have been open to the claimant, or to his prospects in the Manchester area of obtaining such lighter work. There is no suggestion that the claimant had any technical or clerical skills which would have made him readily suitable for sedentary work of that kind.
31. In my judgment, treating this point in isolation, there is force in the claimant's argument. His perception was that he should remain on the books of the defendants because some benefit would accrue from that. Other possibilities, by the time his early job applications had failed, must have appeared remote to him, and understandably so. I find force in the point that the defendants have not established that he was unreasonable in declining expressly to terminate his contract with the defendants, especially in view of their own conduct, which was not to offer him alternative work but apparently, and for reasons we do not know, to keep the contract of employment alive.
32. However, I should not wish to place emphasis upon this aspect of the claimant's case. I have referred to it in detail because the judge himself did so. I see no logical fault whatever in the way the claimant's case on this point is put, but in my judgment it should be recognised how difficult it would be for a claimant to rely on the point alone to show that he has acted reasonably, having regard to the misfortune which he has suffered.
33. From the answers he gave in cross-examination, it does appear that the pension fund consideration was not the only one in the claimant's mind. He was clearly angry with the defendants for the way he believed that they had treated him. The court does not know what pension benefits he was in fact receiving. He had a percentage figure: we do not know of what total that figure is a percentage or what benefit is likely to accrue to the claimant when he reaches retirement age as a result of the continuing contributions. There is no further evidence as to what retraining the claimant had in mind or, as it appears to me from his evidence, whether retraining was in fact in the forefront of his mind. There is no evidence to indicate whether the unavailable retraining would have been helpful to a man in his 50s in the position he was.
34. I should not wish it to be seen as a general principle that by remaining nominally on the books of a defendant who is being sued in damages, a claimant can ordinarily expect to be in a more advantageous position on mitigation. On the facts of this case there may be force in the point although, in my judgment, if it was to form the central feature of a judgment, the entire question and the factors I have just mentioned should have been explored in considerably more detail.
35. In my judgment, the case does not turn on this point. The judge did, in the passage which I have cited, refer to the fact that he had had regard to his findings on the medical evidence. He was entitled, upon those findings, to reach the conclusion that the claimant was entitled to his full loss of earnings from the date of the accident to the date of trial. The judge would no doubt also have had in mind the age of the claimant, the extent of difficulty of obtaining work in the relevant area, of which he could be expected to have knowledge, the fact that the claimant had had rejections and would be likely to be discouraged, and the fact that the longer he remained out of work, the more difficult it was likely to be to obtain lighter employment. I would not have placed the emphasis upon the formal employment position that the judge did. However, he was in my judgment entitled to reach the conclusion he did and the award of £48,822.15 should stand.
36. As to future loss, the approach of the judge was as follows (page 8):

"There is an element of guesswork in making an award as to future loss of earnings. There must be in all the circumstances since, of course, I do not have the ability to look into the future. I must do the best I can to be fair to both the claimant and the defendant on the evidence that is before me. Trying to do that balancing act I think that the proper award to take into account the immediate period of time when he is likely to need retraining and will have difficulty in getting employment in the initial stages is to allow something like two years loss of earnings. That gives the figure in round terms of £26,000 for that period of time."

37. I repeat that the judge had no assistance by way of evidence as to the availability of such light work as the claimant was able to do and, furthermore, no help as to what advantage in obtaining work the claimant may get from retraining.
38. The judge went on to award £10,000 under the Smith v Manchester head on the basis that the claimant was "still at a disadvantage compared with somebody who has not been injured as he has." Mr O'Brien had not invited the judge to approach future loss in that way. Mr O'Brien's approach was to claim a total loss of earnings for the entire future period, the continuing loss being £13,000, and, alternatively, a partial loss out of that sum applying a multiplier of 11, which we are told in accordance with the current Ogden table should be one of 12. It may be that the judge did not accede to that approach because of the absence of evidence as to the rate of continuing loss and in the absence of evidence as to what work was likely to be available. I see the judge's difficulty.
39. I agree with the judge that it was appropriate to allow a period of time post-trial in which it is unlikely that work will be obtained. In my judgment, in his discretion and upon his assessment of the evidence, a figure of two years was not unreasonable. I bear in mind also the factors to which I have referred on the loss pre-trial. I consider the reasonableness of the overall figure of £36,000 (that is, £26,000 plus £10,000 for the Smith v Manchester award) in the light of a valuation on the basis of a partial continuing loss. Applying a multiplier of 12, one would only have to have a partial loss of £3,000 a year to reach the same figure. I would leave the reasoning of the judge as it stands on the basis that it was a tenable approach to the question. In my judgment, the better approach would have been to consider it by way of a partial continuing loss following a short period of time in which work was to be obtained. But checking the one approach against the other indicates that the sum is a reasonable one and that no injustice has been done to the defendants in the judge following the approach and reaching the figure he did.
40. For the reasons I have given I would dismiss this appeal.
41. LORD JUSTICE CHADWICK: The judgment in favour of the claimant includes an amount (£48,822) in respect of loss of earnings for the period of some four years from the date of the claimant's injury until the date of trial. That sum represents the full amount of the earnings lost by the claimant over that period.
42. The principal issue on this appeal is whether the judge was wrong to reach the conclusion, as he did, that the claimant had acted reasonably in not seeking alternative employment over the last three years of that four-year period; and that, accordingly, he had not failed to take reasonable steps to mitigate his loss. It said that in the light of the claimant's own evidence and the agreed medical evidence, the judge should have found that the claimant was fit to undertake light work within one year of the accident: see ground 3 in the appellant's grounds of appeal.
43. It is trite law, and it is not in dispute, that it was for the defendant to establish that defence of failure to mitigate. That is to say, it was for the defendant to establish by evidence that the claimant had not acted reasonably in failing to seek alternative employment in lighter work.
44. If it were to be the defendant's case that the judge should have found that the claimant was fit to undertake light work within one year of his injury and had acted unreasonably in failing to seek such work from an alternative employer, it would have made the task of the judge -- and the task of this court on an appeal -- that much easier if that contention had been identified in some document in advance of the trial so that the claimant and the judge would know with some degree of specificity what was the case that the claimant had to meet. That was not done. There is no indication in the pleadings in this case that any such contention was going to be advanced. There is a statement in a counter schedule of loss, served on 18 January 2001, that the defendant will contend that the claimant was fit to return his pre-accident work, or similar work, by 4 January 1998: that is, one year from the date of the accident. But there is no hint there that what was going to be said was that, if the claimant was not fit to return to the work that he had been doing before his injury, he was nevertheless fit to return to some other (and, if so, what other) work; as is now said to be the case.
45. It is a curious feature of this case that the claimant has remained, following his injury, and is still today, an employee of the defendant company. There was plainly, a deliberate decision on the part of the defendant company that the claimant should remain an employee. On 14 December 1998 the defendant company's Human Resources Director replied to an enquiry by the Pension Administrator in these terms:

"I am concerned that his pension plan membership could ever be questioned as my understanding of the Trust Deed and Rules is that membership of the pension plan, once accepted, means an employee remains a member of the plan until he or she leaves the company's employment or their employment is terminated.

In terms of employment legislation this is a very important point. (ie Mr Froggatt remains a full member of the pension plan irrespective of his sickness absence until his employment is terminated by the Company or he resigns)."

46. On 4 February 2000 the Human Resources Department of the defendant company wrote to the claimant to apologise that he had been sent a P45 Inland Revenue form in error and confirming that he did still remain an employee. Why the company thought it important that it should not be seen to terminate the claimant's employment was not explored at the trial. But that it did think that -- and that it did so for some reason connected with employment legislation which no doubt seemed good to it at the time -- is not in doubt.
47. It is clear, also, that the claimant believed that there was some advantage to him in remaining in the employment of the defendant company unless and until he obtained alternative employment. As he said in an answer to a question put it him (transcript 7 February 2001, page 23B-C) he was "tied in" to the pension plan and so would not readily sever his ties with the defendant company.
48. The advantage was connected in his mind with the terms of the pension plan. He said that he did not cut the tie because he was tied in to the plan. He thought, rightly or wrongly, that the effect of his continued employment was that the company, although paying him no wages or salary, was continuing to make pension contributions on his behalf.
49. If the claimant had been able to obtain alternative employment without terminating his employment with the defendant company and undertaking retraining, his belief that pension contributions were being made and would continue to be made on his behalf of by the defendant company would have been unlikely to cause any difficulty for him. He would have taken the new employment and terminated the old. But his evidence, which the judge accepted, was that alternative employment was not available on that basis. It was put to him, at page 27E of the transcript of proceedings, that by the autumn of 1997 he had effectively given up trying to obtain another job. I find his answer illuminating:

"I gave up trying because by then the realisation had come on me that I was not going to be able ever without some sort of retraining to attain a position anywhere and I can't get retraining because the job centres where I would be provided by the job centre was locked out of me by LEP who still maintained my contract of employment. I was in a position where I had no money, and if I had wanted to go and finance retraining I just did not have the money to finance it."

50. It was put it him in terms that it suited him not to terminate his employment with the defendant company while he remained a member of the pension scheme. He said this:

"Not only that, there was still hope that they may give me a job offer of light duties but they never have."

51. His dilemma may be summarised as follows. (1) He could not return to the work for which he had previously been employed, that of a forklift truck driver, because of the injury to his foot. (2) His employer had not offered him light work which he could have done within the continuing employment. (3) Attempts to obtain employment with another employer had failed. There were at least two possible reasons for that. First, that he had had to disclose to prospective employers that he was still employed by the defendant company and was in receipt of statutory disability benefit. Second, that he could not get a job for which he had not been trained and had no experience without some period of retraining. (4) Retraining under government schemes was not available to him while he continued in the employment of the defendant company; indeed, would not be available until he had been unemployed and in receipt of unemployment benefit for a period of some six months or more. (5) He could not afford to finance retraining out of his own resources. (6) If he gave notice to determine his employment with the defendant company so as to qualify for government retraining schemes, he would lose the benefit of the continued contributions to the pension scheme without any certainty that retraining would lead to an offer of alternative employment.
52. In those circumstances, and in order to establish that the claimant had acted unreasonably in failing to seek alternative work after September 1997, the defendant company had to establish either (i) that the claimant was unreasonable in his conclusion that he could not succeed in obtaining an acceptable job from an alternative employer without first terminating his existing employment and also undertaking retraining under a government scheme; or, (ii) that he was unreasonable in the circumstances in which he found himself in not terminating his existing employment so that he could qualify for retraining under a government scheme.
53. The defendant company made no attempt to establish either of those matters at the trial; other than through questions put to the claimant and in cross-examination. The answers which it received to those questions were of no assistance in that respect. In the light of those answers (which constituted the only evidence before him on the point) the judge was plainly entitled to reach the conclusion that he did. As he put it in the paragraph at page 7A-D of his judgment which Lord Justice Pill has read, the claimant was left "between the devil and the deep blue sea". The defendant company, as the judge observed, never made contact with the claimant in any way to assist him out of that dilemma.
54. The judge had held that, taking into account the medical conclusions that he had reached, on the evidence before him he considered that the claimant had been reasonable in his attitude to the present time. In my view the judge was entitled to reach that conclusion for the reasons that I have given. Indeed, in the circumstances which I have set out, the appellant was and is in no position to criticise that conclusion.
55. It follows that I would dismiss this appeal in relation to the pre-trial earnings. It follows also that the appeal against the judge's award of two years' post-trial earnings must fail also, for the reasons which Lord Justice Pill has given.
56. LORD JUSTICE CLARKE: I agree that this appeal should be dismissed for the reasons given by Lord Justice Pill and Lord Justice Chadwick.
ORDER: Appeal dismissed with costs.