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House of Lords
Session 2003 - 04
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Judgments

Judgments - Simmons (Respondent) v. British Steel plc (Appellants) Scotland

HOUSE OF LORDS

SESSION 2003-04
[2004] UKHL 20

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Simmons (Respondent)

v.

British Steel plc (Appellants) (Scotland)

ON

THURSDAY 29 APRIL 2004

The Appellate Committee comprised:

Lord Steyn

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Baroness Hale of Richmond


HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Simmons (Respondent) v. British Steel plc (Appellants) (Scotland)

[2004] UKHL 20

LORD STEYN

My Lords,

    1.  I have read the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. I agree with them. I would also dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    2.  In my opinion the pursuer is entitled to payment of the full amount of £498,221.77 that has been awarded to him as damages, but not for the reasons which were given by their Lordships of the Second Division (the Lord Justice-Clerk (Gill), Lord Kingarth and Lord Caplan) in the Inner House when they recalled the interlocutor of the Lord Ordinary: 2003 SLT 62.

    3.  The pursuer sustained injuries on 13 May 1996 in the course of his employment as a burner at Clyde Bridge Steel Works, Cambuslang. He tripped and fell from the burning table and struck his head on a metal stanchion. There was a severe impact, but fortunately the pursuer was wearing protective head gear. So his head injury was not as serious as it might have been. Nevertheless he sustained a severe blow to the head. He was dazed and shaking, and developed a swelling on the right side of his head. This was accompanied by headaches, disturbance to his eyesight and suppuration from his right ear. The Lord Ordinary (Lord Hardie) held, for various reasons which are no longer in issue, that the accident was caused by the fault of the defenders. He awarded the pursuer the sum of £3,000, with interest, as solatium for these physical injuries: 2002 SLT 711.

    4.  But the consequences of the accident were not confined to the physical injuries for which the Lord Ordinary awarded damages. After the accident the pursuer experienced an exacerbation of a pre-existing skin condition, and he developed a change in his personality which has resulted in a severe depressive illness. He has not returned to work since the accident. While there has been some improvement in his condition, it is likely to be several years before he is fit to do so. These further consequences have turned out to be much more serious than the immediate effects of the head injury. The Lord Ordinary found that the pursuer's pre-existing skin condition was exacerbated and that he was suffering from a depressive illness and a complete change in his personality. But he was not satisfied that the pursuer had proved on balance of probabilities that either of these consequences had been caused by the accident.

    5.  The question whether the pursuer is entitled to damages for these consequences was the subject of the reclaiming motion in the Inner House and of the appeal from the Inner House to your Lordships. It raises issues of law about the tests to be applied in awards of damages which do not seem to have been fully explored in the courts below and were, unfortunately, touched on only briefly in their opinions.

    6.  The key to the Lord Ordinary's decision lies in his findings that the pursuer became angry after the accident and that it was his anger that led to the exacerbation of the skin condition and to the depressive mental illness. He said that he regarded the circumstances of the case as similar to those in Graham v David A Hall Ltd 1996 SLT 596, where it was held that the pursuer's symptoms, other than some initial bruising to her back resulting from her fall, were caused not by the accident but by the defenders' treatment of her afterwards including their refusal to acknowledge liability for it and to give her light work. Having carefully reviewed all the medical evidence, the Lord Ordinary said that he considered it more probable that some time after the accident the pursuer's anger at the defenders' treatment of him exacerbated his skin condition causing him to be absent from work, and that his prolonged absence from work accompanied by his preoccupation with the accident and his anger resulted in the deterioration of his mental state and the eventual mental illness.

    7.  The Lord Ordinary said that, while he had considerable sympathy for the predicament of the pursuer and his family, his medical condition had not been established to be sufficiently causally connected to the accident to justify an award of damages: 2002 SLT 711, 714, para 21. Although he did not say so in as many words, it appears that his decision was based on the view that damage due to these additional consequences was too remote from the accident to be recoverable.

The decision of the Inner House

    8.  The Inner House reversed the Lord Ordinary because they took a different view of the case on the facts. They held that the reasons which the Lord Ordinary gave for his conclusions were unsatisfactory, that they were in as good a position as he was to reach a conclusion on the evidence and that the proper conclusion to be drawn upon a consideration of the whole evidence was that all three aspects of the medical consequences suffered by the pursuer were directly caused by the accident.

    9.  The reasons which the Second Division gave for this decision seem to me, with respect, to be unconvincing. Their criticisms of the Lord Ordinary do not stand up to examination, as Mr Smith QC for the defenders pointed out when he was opening the appeal. They seem not to have appreciated that the advantage which the Lord Ordinary had because he saw and heard the witnesses was not confined to an assessment of their credibility. As Lord Shaw of Dunfermline pointed out in Clarke v Edinburgh and District Tramways Co Ltd 1919 SC (HL) 35, 37, the privileges enjoyed by a trial judge extend not only to questions of credibility: see also Thomas v Thomas 1947 SC (HL) 45, 55 per Lord Thankerton. In this case there were questions of reliability too that had to be considered, especially in regard to the crucial issue as to the timing of the appearance of the pursuer's symptoms after the accident. As everyone knows, the personality and demeanour of witnesses which printed words alone cannot capture plays a large part in an assessment of their reliability. It was the duty of the appellate court to defer to the Lord Ordinary's judgment on the issue of timing, unless the conclusion which he came to was plainly wrong.

    10.  The pursuer and his wife gave different accounts. The pursuer's evidence was, for wholly understandable reasons, at times confused and emotional. The Lord Ordinary decided to accept his wife's version, which was consistently to the effect that the pursuer's skin condition deteriorated "several weeks after the accident": 2002 SLT 711, 712, para 13. This finding lay at the heart of the view which he took on the issues of causation and remoteness. The Second Division, on the other hand, said that the skin condition began to worsen "within a matter of days": 2003 SLT 62, 65, para 24. This was what the pursuer said, although he appeared to contradict himself later in his evidence when he said that this happened weeks afterwards. No explanation is given by the Second Division for their decision to adopt this version of events in preference to that which, basing himself on the evidence of the pursuer's wife in preference to that of the pursuer, was accepted by the Lord Ordinary.

    11.  Building on their assumption that the exacerbation of the skin condition happened within a matter of days, the Second Division contrasted this case with Graham v David A Hall Ltd 1996 SLT 596 on the ground that the pursuer's dermatological and psychiatric conditions had "from the outset" been constituent parts of a developing illness that began to manifest itself "almost immediately" after the accident: 2003 SLT 62, 67, para 35. This view of the evidence enabled the court to hold that these conditions were directly caused by the accident, although the symptoms were intensified by the defenders' treatment of the pursuer afterwards: see p 66, para 26. But the case was not that simple, as the Lord Ordinary appreciated.

    12.  The longer the interval between the accident and the dermatological condition which preceded the depressive mental illness the more difficult it becomes to ignore the possibility that there was a break in the chain of causation and to avoid the conclusion that these consequences were too remote to sound in damages. This, plainly, was what exercised the Lord Ordinary. So he subjected the evidence of the pursuer and his wife and of the medical witnesses to close and careful scrutiny. I would hold that the findings of fact which are set out in his careful judgment were findings that he was entitled to make in the light of all the evidence, and that the Second Division were in error when they interfered with them.

    13.  But this leaves open the question whether the Lord Ordinary's decision was sound in law. The Second Division said that an examination of the question as to the principles governing remoteness of damage was unnecessary for the resolution of the case: 2003 SLT 62, 65, para 21. In my opinion the question whether the Lord Ordinary was right on the issue of remoteness needs to be answered if, as I would hold, his version of the facts is to be accepted.

The "grand rule"

    14.  Mr Smith said that the question in this case was not whether the accident caused or materially contributed to the pursuer's skin condition and his depressive mental illness but whether these conditions were reasonably foreseeable. He submitted that test to be applied in order to determine whether loss and damage attributable to these conditions was recoverable was to be found in Lord Kinloch's dictum in Allan v Barclay (1864) 2 M 873, 874 when he said:

    "The grand rule on the subject of damages is, that none can be claimed except such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrongdoer. Tried by this test, the present claim appears to fail. The personal injuries of the individual himself will be properly held to have been in the contemplation of the wrongdoer. But he cannot be held bound to have surmised the secondary injuries done to all holding relations with the individual, whether that of a master, or any other."

    15.  As the last sentence of this quotation shows, the issue in that case was one of liability. The pursuer was suing for the loss which he had sustained because he was deprived of the services of his employee, William Hill, who was injured in the accident. It was in the same context that the grand rule made its next appearance in the reports, some 60 years later, in Reavis v Clan Line Steamers Ltd 1925 SC 725. In that case the pursuer was travelling as a passenger on a vessel which sank after colliding with another vessel while on passage from Glasgow to Dublin. It was common ground that she was entitled to damages for the personal injuries which she sustained and any loss attributable to her disability. But she was also seeking to recover loss due to the fact that some members of an orchestra which she had formed were drowned and others injured, resulting in the disbandment of the orchestra and the loss to her of what had been a profitable enterprise. It was held, applying Lord Kinloch's dictum, that while the members of the orchestra had a right of action for their own personal injuries and losses, no action lay at the pursuer's instance for the loss which she had sustained due to the loss of their services.

    16.  The grand rule was mentioned again, and applied, in Steel v Glasgow Iron and Steel Co Ltd 1944 SC 237. That too was an action where the issue was one of liability, as the question was whether the actions of the deceased had broken the chain of causation when he intervened in an attempt to save property. Lord Justice Clerk Cooper said at p 247 that the rule had been restated with minor variations in Scottish textbooks and decisions for 80 years and that it had been reformulated almost in its original form in the speeches of Lord Thankerton and Lord Macmillan in Bourhill v Young 1942 SC (HL) 78 and Muir v Glasgow Corporation 1943 SC (HL) 3; see also Lord Jamieson, at p 267. At p 248 the Lord Justice Clerk added this comment:

    "This rule of the 'reasonable and probable consequence' is a key that opens several locks; for it not only fixes the nature and the measure of the duty to take care, but it may also aid in determining whether the causal nexus is complete and, perhaps, whether the damages claimed are too remote."

    In Cameron v Hamilton's Auction Marts Ltd 1955 SLT (Sh Ct) 74, 78 the Sheriff (Hector McKechnie QC) said:

    "No Scots judge, so far as I know, has ever suggested liability for a consequence of negligence which was not natural and probable in the sense of being foreseeable, subject, of course, to the qualification that a negligent person takes the risk that his victim (and the victim's dependants) may be in poor health."

    17.  As the concluding words in these two quotations indicate, it had by now been appreciated that the foreseeability test which lies at heart of the grand rule had a function to play in questions as to the remoteness of damage as well as to liability. In one of his occasional but always highly authoritative contributions to the literature on this subject, The Analysis of Negligence, 1962 SLT 2, 4, W A Wilson (later Professor W A Wilson) wrote:

    "The foreseeability test for damage is subject to the important qualification that a wrongdoer takes his victim as he finds him. If a foreseeable injury - a slight wound, say - causes death because the victim is a haemophiliac, the defender is liable although he did not know of the susceptibility (per Lord Wright, Bourhill v Young's Executor, [1943 SLT 105] at p 110). The rule, of course, applies only in questions of compensation and not in questions of culpability. There is no negligence, and no liability where an act which would not cause damage to a normal man in fact causes injury to the victim because of an unknown and unforeseen susceptibility.

    Thus, foreseeability enters into actionable negligence not just twice - as was stated by Lord Russell of Killowen in Bourhill (page 107) - but four times. It may be used to determine (a) whether a duty exists; (b) whether an act or omission is a breach of duty; (c) whether reasonable care has been taken (in the guise of probability); and (d) for what damage the defender is liable."

    18.  Two further qualifications to the question of compensation now have to be added to that stated by Professor Wilson in the first paragraph of that quotation in the light of subsequent authority. His qualification that a wrongdoer takes his victim as he finds him was based on the then recent decision of the Court of Appeal in Smith v Leech Brain & Co Ltd [1962] 2 QB 405, which was later to be accepted as in conformity with the law of Scotland by Lord President Clyde in McKillen v Barclay Curle & Co Ltd 1967 SLT 41, 42. There must now be added these further qualifications: (1) that a defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable: Hughes v Lord Advocate 1963 SC (HL) 31, 38 per Lord Reid; and (2) where it is established that physical injury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric injury: Page v Smith [1996] 1 AC 155, 196-197 per Lord Lloyd of Berwick. To these points there must be added a comment on causation. The general rule is that it must be shown that the injury would not have occurred but for the act or omission of the defender. But if a number of factors contributed to the injury it is sufficient that the contribution which the factor attributable to the defender's fault made to the injury was material: Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, 32, per Lord Reid.

    19.  In the light of these developments I would not accept the Second Division's observation, 2003 SLT 62, 65, para 21, that the principles governing remoteness of damage are still not finally resolved in Scots Law. In my opinion the basic principles are well settled. I agree with the way they have been set out in his speech by my noble and learned friend Lord Rodger of Earlsferry. As he has indicated, the grand rule has not lost its value in this context: see also the comments in Stair Memorial Encyclopaedia, vol 15 (1996), Obligations, pp 257-259, paras 382-385. The writer points out in para 384 that the key to understanding Lord Kinloch's dictum lies in the word "therefore" which conjoins the two limbs:

    "If a consequence is 'natural and direct' it may therefore be supposed to be within the view of the wrongdoer. In other words, the test is what is in the reasonable contemplation of the wrongdoer, that is, what is reasonably foreseeable."

I would accept that interpretation of it, which is consistent with the way the principle has been restated in the modern authorities. But the grand rule is best seen now, as Lord Rodger points out, as the starting point. To this extent Mr Smith's submission that it sets out the test to be applied here can be accepted. But the circumstances of the case may require that it be subjected to refinement and to further analysis.

Remoteness in this case

    20.  The Lord Ordinary approached the issue of remoteness by asking himself whether the pursuer's medical condition was "directly attributable" and "sufficiently causally connected" to the accident: 2002 SLT 711, 714, paras 20, 21. This phraseology was adopted by the Second Division: 2003 SLT 62, 67, para 36. The question of remoteness did not arise on the view which the Second Division took of the facts. But it requires to be examined on the view of the facts taken by the Lord Ordinary. As I understand his opinion, he thought that there was a break in the chain of causation because the pursuer's anger which led to his medical condition was due not to the accident itself but to the defender's treatment of him after the accident. That is why he saw the issue of timing as critical. There is no sign in his opinion that he based his decision on the proposition that, because it was caused by anger, the medical condition was not reasonably foreseeable or that the defenders were not liable because the depressive mental illness was a psychiatric injury.

    21.  The fact that the pursuer sustained physical injuries in the accident for which the defenders have been found liable makes it unnecessary, applying Page v Smith [1996] 1 AC 155, to ask whether the psychiatric injury from which he has also been suffering was reasonably foreseeable. The pursuer is in the position of a primary victim of the accident on Lord Lloyd's analysis, which has been followed and applied in Scotland: see Fraser v State Hospitals Board for Scotland 2001 SLT 1051, per Lord Carloway. So no distinction needs to be made between his initial physical injuries and his subsequent mental state. The duty of care which the defenders owed to the pursuer extended to the psychiatric symptoms as well as to the physical consequences. They must take their victim as they find him, so the aggravation of his psoriasis and the anger which led to his depressive mental illness can both be assumed to fall within the scope of their liability, so long as there was a causal connection between these symptoms and the accident. This point was disputed by Mr Smith, as I understood him, on the ground that the pursuer's anger was an emotional response which was not reasonably foreseeable. But, as I have said, it did not seem to trouble the Lord Ordinary.

    22.  The Lord Ordinary accepted the evidence of the pursuer's expert, Dr Angela Forsyth, about the cause of the dermatological condition which led to the deterioration in the pursuer's mental state and to his depressive mental illness. She said that the pursuer did not seem to be stressed by the accident itself but was more stressed by the fact that it had happened. She said that it was increased by the defenders' lack of apology and the lack of support which they provided to him, and that her impression was that the stress which undoubtedly existed after the accident seemed more related to such matters rather than to the accident itself. In re-examination she said that her impression was that the pursuer was upset and angry that the accident had happened at all after he had complained to his employer.

    23.  The Lord Ordinary said that he tended to the view, in the light of this evidence, that the skin condition was probably caused by the pursuer's anger at the defenders' treatment of him rather than by the accident: 2002 SLT 711, 713, para 17. But his summary of the evidence about the things that made the pursuer angry shows that one of these things was the happening of the accident. It includes these findings: p 712, para 13:

    "He was angry that the accident had occurred when it could easily have been avoided. He was angry that the defenders had failed to heed his warnings about the dangers associated with the tubes and had failed to install overhead drums as they had been requested on numerous occasions to do."

    24.  Other things that happened later also made the pursuer angry. But on these findings the anger began with the accident itself. It was one of the things caused by the accident. Emotional reactions such as anger, distress or fear do not sound in damages. But emotional reactions may lead to other conditions, both physical and psychiatric, for which damages can be awarded. The Lord Ordinary was not satisfied that the exacerbation of the skin condition was caused by pursuer's anger at the accident itself. But the question which he did not ask himself, and which on his own findings had to be asked and answered, was whether this part of the pursuer's anger materially contributed to the exacerbation.

    25.  The Lord Ordinary accepted that there was little difference of opinion between Dr Pelosi, the pursuer's consultant psychiatrist, and the defenders' expert, Dr Freeman. Dr Pelosi said in his report, in a passage quoted by the Lord Ordinary, that "the incident itself" among other things should be considered a stressful life event and causally important in the remarkable change in the pursuer's mental state. Dr Freeman accepted in cross examination that the accident could be said to have materially contributed to it.

    26.  An analogy can be drawn between this case and Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, where there were two sources of dust, one of which came from defective swing grinders and was due to the fault of the defenders. The pursuer's pneumoconiosis could not be wholly attributed to the material from one source or the other. Lord Reid said, at p 32:

    "It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material."

In this case there were several causes of the pursuer's anger. It was enough that one of them arose from the fault of the defenders. The pursuer did not need to prove that that cause would of itself have been enough to cause the anger which produced the exacerbation. He was entitled to succeed if it made a material contribution to it: see also McGhee v National Coal Board 1973 SC (HL) 37, 53, per Lord Reid.

    27.  The Lord Ordinary did not analyse the evidence in this way, and Mr Smith said that this was not the test which was to be applied in this case. But I would hold that his summary of the evidence requires us to do so. In my opinion the pursuer's anger at the happening of the accident cannot be dismissed under the de minimis principle. The conclusion which I would draw from the evidence is that it made a material contribution to the development of the skin condition and to the depressive mental illness which resulted from it. It follows that the causal connection was established and that these are consequences of the accident for which the pursuer is entitled to damages.

Conclusion

    28.  I have had the advantage of reading the speech of my noble and learned friend Lord Rodger of Earlsferry when it was in draft. I agree with it and, for the reasons which he has given and for these further reasons of my own, I too would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    29.  I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. For the reasons they have given, with which I am in full agreement, I too would dismiss the appeal.

LORD RODGER OF EARLSFERRY

My Lords,

    30.  In 1996 the pursuer, Christopher Simmons, was employed as a burner by the defenders, British Steel plc, at their Clydebridge Works in Cambuslang. In that capacity he used a hand-held burning torch to trim off scrap metal edges once the profile burner had cut, and passed through, the metal plate. The torch was fed with gas and oxygen supplied through flexible tubes. To carry out his work, the pursuer required to climb on to the burning table, the surface of which was about half a metre above floor level. On 13 May, as he was about to step down from the table, the tubes attached to his torch snagged and became entangled with his legs. As a result he fell from the table and struck his head hard against a metal stanchion, causing the visor in his headgear to split and the pursuer to sustain certain injuries.

 
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