Manton supplied a forklift truck to Ash through a finance company. Manton had been to Ash's premises, taken measurements and recommended two models. It turned out that the truck was too big to fit round Ash's premises. By the terms of the finance lease, Ash had to pay the finance company in full, so instead it claimed an indemnity from Manton. Manton refused to take away the truck and proposed instead a "cut and shunt" to reduce its size. Ash refused to accept this because it had health and safety concerns and because it did not think the alterations would be acceptable to the manufacturer for warranty purposes or approved by the finance company. Manton provide no further detail. Ash sued and Manton counter-claimed that Ash had failed to mitigate.
The Court of Appeal held that a victim of a wrong was only required to act reasonably and the standard of reasonableness was not high. Manton had offered nothing by way of independent confirmation that the modification proposal would have been acceptable to the manufacturer or would have complied with relevant legislation. Ash had plainly not acted unreasonably in rejecting such offer. There had been nothing to prevent Manton from putting forward a detailed proposal supported by independent material from the manufacturer dealing with the issues. It was not unreasonable that Ash should view with scepticism unparticularised proposals to modify the forklift truck without reference to the actual manufacturer or without reference to the owners of the vehicle without whose consent it could not have been modified. Comment. This case shows some limit on a victim's obligations to mitigate loss.
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