|Judgments - Simmons (Respondent) v. British Steel plc (Appellants) Scotland
31. In the defenders' works at the time there were four cutting stations. At two of them the profile burners were fitted with overhead drums that contained the tubes supplying the hand-held burning torches. This meant that the tubes could be pulled out and retracted, as required, and there was no need for any unnecessary length of tubing to be lying on the metal plate. No such device was fitted to the other two burning stations, including the one at which the pursuer was working at the time of his accident. The Lord Ordinary (Hardie) held that problems with snagging of the tubes at these stations were common and that on many occasions the pursuer and his colleagues had either spoken to management representatives about them or had entered comments on burning sheets, to the effect that drums should be installed at these stations. The defenders did not comply with these requests.
32. In the circumstances the Lord Ordinary found the defenders liable to the pursuer at common law for failing to provide a safe system of work, as well as in terms of regulations 11(1) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 and regulation 5 of the Provisions and Use of Work Equipment Regulations 1992. The defenders do not challenge the finding of liability and there is no need to consider the matter further.
33. The Lord Ordinary held that, immediately after the accident, the pursuer was dazed and shaking, with sweat "lashing off" him. His right ear was injured and liquid was running out of it. When he returned home, he told his wife about the accident. He had a swelling at the top right-hand side of his head and above his right ear. He complained of a sore head. The following morning, he was not actually due to go to work, but he complained of a "thumping headache". Mrs Simmons made an appointment for him to see his general practitioner the following day, 15 May. Apparently, his doctor told him to take painkillers and to rest and he followed that advice. In fact, he never returned to work.
34. For some time the pursuer's head remained sore and he continued to take painkillers. The swelling did not die down for several days and his ear continued to leak. A day or two after his visit to the doctor, he complained that his vision was jumping when he watched television or tried to read the newspaper.
35. In summary, the Lord Ordinary was "satisfied that the pursuer sustained a severe blow to his head causing injury to his head and ear as a result of which his ear suppurated and he suffered headaches and blurred vision for several weeks thereafter": 2002 SLT 711, 712I - J. For these injuries, sustained by the pursuer "immediately following upon the accident", the Lord Ordinary awarded damages of £3,573.60, including interest. The defenders do not challenge that award. The issue between the parties is whether the Lord Ordinary was right to hold that the defenders were liable only for these injuries or whether they should also be liable for certain other consequences which I now go on to describe.
36. It was common ground that, even before the accident, the pursuer had suffered from a skin condition for which he had been treated with ointments and other medication to reduce the inflammation. Mrs Simmons gave evidence that, "some weeks later", the pursuer's skin erupted: 2002 SLT 711, 712F. The Lord Ordinary found that several weeks after the accident the pursuer's skin condition deteriorated and became more severe. He summarised the evidence of the pursuer and his wife on this matter in this way, at pp 712K - 713A:
Two experts, Dr Forsyth and Dr Cotterill, gave evidence about the pursuer's skin condition. For reasons that he explained, the Lord Ordinary preferred the evidence of the pursuer's expert, Dr Forsyth, and, in particular, he rejected Dr Cotterill's suggestion that the condition was caused as a side-effect of the drug, Tenif, that the pursuer had been prescribed for hypertension. He had taken that drug previously without suffering any such effect and the effect did not disappear after the pursuer stopped taking the drug. Again, I quote the Lord Ordinary's account of Dr Forsyth's evidence, 2002 SLT 711, 713A - F:
37. The Lord Ordinary then went on to give his conclusion on the defenders' responsibility for the pursuer's skin condition, 2002 SLT 711, 713F - G:
Having held that the defenders were not liable in damages for the exacerbation of the pursuer's skin condition "as a discrete head of damages", the Lord Ordinary explained, at p 713, para 18:
38. Even although it was the driving force behind much of the cross-examination by Mr Smith QC at the proof, the first of the points identified by the Lord Ordinary is no longer in issue. The defenders accept that the pursuer did indeed develop a depressive illness, as the Lord Ordinary held: 2002 SLT 711, 713L - 714A. He went on to consider whether this illness was attributable to the accident - the aspect of the case that he found most difficult to resolve. Again, it is useful to set out the relevant passage in his opinion, at p 714A - F:
The Lord Ordinary then expressed his conclusion on the defenders' liability for the pursuer's mental condition in this way, at p 714F - G:
39. The Lord Ordinary gave his decision on the case as a whole, at p 714H:
Had he found in favour of the pursuer on the questions of the exacerbation of his psoriasis and his depressive illness, the Lord Ordinary would have awarded damages of £484,273.63.
40. The pursuer reclaimed, on the ground, inter alia, that the Lord Ordinary had misdirected himself on his assessment of the medical evidence as to the pursuer's skin condition and mental disorder and on the related question of causation. The Second Division (the Lord Justice Clerk (Gill), Lord Kingarth and Lord Caplan), 2003 SLT 62, allowed the reclaiming motion, recalled the Lord Ordinary's interlocutor and awarded the pursuer damages in the agreed sum of £498,221.77 with interest. The defenders have appealed to your Lordships' House against the interlocutor of the Inner House.
41. In dealing with the reclaiming motion, the Second Division began in time-honoured style by quoting the familiar passage from the speech of Lord Thankerton in Thomas v Thomas 1947 SC (HL) 45, 54:
42. In the light of this passage, the court first commented, 2003 SLT 62, 64, para 14, that they were at no particular disadvantage in not having seen and heard the witnesses since both sides were content with the Lord Ordinary's assessments of their credibility and reliability. The real issue, they considered, related to the conclusions to be drawn from evidence that was either undisputed or plainly established, in the light of other evidence. They were therefore in a position to reach a satisfactory conclusion on the whole evidence. The court went on to give three reasons for considering that they should re-examine the Lord Ordinary's factual conclusions. I take the less important reasons first.
43. The court considered that they were entitled to re-examine the Lord Ordinary's findings in fact because, on the critical issue of the cause of the pursuer's depressive illness, the Lord Ordinary's recollection of the evidence was mistaken on one aspect that he apparently regarded as important: 2003 SLT 62, 65, para 18. Their Lordships referred to the passage, which I have already quoted in paragraph 9, where the Lord Ordinary recalled asking Dr Pelosi a question about causation and getting an answer to the effect that his opinion would depend upon the extent to which the defenders were liable for the consequences of the pursuer's anger following the accident. As the court noted, there is no record of this exchange in the transcript and counsel agree that it did not take place. For my part, I would regard this mistake by the Lord Ordinary as immaterial in the context of the case as a whole. The supposed answer appears to envisage Dr Pelosi expressing an opinion on an essentially legal question, which was ultimately for the Lord Ordinary himself to decide. In itself, this slip could not possibly justify the court in re-opening his findings in fact.
44. The court also considered that, on a fair reading of the evidence, the decision in Graham v David A Hall Ltd 1996 SLT 596 was distinguishable from the present case. Even if the Lord Ordinary was wrong in applying that decision, however, his error was in the application of the law to the facts as he found them. In itself, such an error would not be a ground for reconsidering his conclusions as to the facts, unless it meant that he had failed to make findings on points that would be relevant on the correct legal approach. The Second Division did not identify any failure of that kind.
45. Most importantly, the court considered, at p 65B, that they ought to review the evidence "because the reasons given by the Lord Ordinary for his conclusions on the crucial issues of fact are not, in our view, satisfactory." They continued, at p 65B - E:
The passage gives two reasons for thinking that the Lord Ordinary did not explain clearly why he reached the conclusion that the pursuer had failed to prove that his exacerbated skin condition and depressive mental illness were a consequence of the accident.
46. On one view, they say, at p 65C - D, the Lord Ordinary could have meant that these symptoms were all caused by the pursuer's feeling of anger that, despite his previous warnings and through the fault of the defenders, the accident had happened at all. On that view, the Second Division considered that he had not sufficiently explained why the pursuer's claim should be restricted to solatium for the blow to the head and its after-effects. In their opinion, on that basis, the pursuer would be entitled to damages for all three elements of his condition. The very fact that the court were able to express that view without re-examining the facts demonstrates, however, that this, too, is a criticism of the Lord Ordinary's application of the law to the facts that he found. Any such error of law would be no reason for re-opening his factual conclusions.
47. The alternative possibility, at p 65D - E, was that the Lord Ordinary had concluded that the pursuer's problems were caused solely by his anger at the defenders' offhand treatment of him after the accident. If so, the court considered that the Lord Ordinary had not adequately explained what aspects of the evidence led him to that conclusion. This is the only criticism of the Lord Ordinary that could have justified the Second Division in re-considering the evidence for themselves. And, even if they felt that they could proceed on the basis of the Lord Ordinary's assessment of the witnesses, they would still not have been entitled to come to a different conclusion from the Lord Ordinary on the facts without asking themselves the question posed by Lord Shaw of Dunfermline in Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35, 37:
48. Since they considered that the Lord Ordinary had not explained his position clearly, the Second Division must have accepted the suggestion that his opinion could be interpreted as holding that the pursuer's problems were indeed caused solely by the defenders' offhand treatment of him after the accident. In my respectful view, however, on a fair reading, his opinion is not to be interpreted in this way. The Lord Ordinary deals with the matter in two places. The first is where he gives his conclusion that the pursuer has not proved that the exacerbation of his skin condition was caused by the accident. He says, 2002 SLT at p 713F - G, that he tends to the view that "these symptoms were probably caused by his anger at the defenders' treatment of him rather than by the accident." Taken in isolation, that passage might be open to the construction suggested by pursuer's counsel. But it has to be read along with the closing sentences of para 20 where the Lord Ordinary gives his view on the cause of the pursuer's mental condition. Those sentences follow immediately upon a detailed account of Dr Pelosi's evidence, including his evidence that the pursuer was preoccupied by what might have happened if his accident had been more serious or how life might have turned out for him if he had not had an accident at all. The Lord Ordinary also draws attention to the similarity of that evidence to the evidence of Mrs Simmons about the pursuer's anger shortly after the accident. It would be astonishing, therefore, if, one sentence later, the Lord Ordinary had somehow ignored this evidence and had found that the pursuer's problems were caused solely by the defenders' offhand treatment of him after the accident.
49. It is in fact clear, however, that the Lord Ordinary fell into no such error. He held, at p 714F - G, that some time after the accident the pursuer's anger at the defenders exacerbated his psoriasis, causing him to be absent from work. This prolonged absence from work "caused him to become preoccupied with the accident and to become more angry at the defenders, including their failure to visit him or take any interest in him, all of which resulted in a deterioration of his mental state" (emphases added). Plainly, the Lord Ordinary considered that the defenders' failure to visit him or to take any interest in him was only one of the reasons for the pursuer's anger and only one of the reasons for the deterioration in his mental state. On the evidence which the Lord Ordinary had accepted, the other reason related to the happening of the accident at all and the possibility that it might have been more serious - which, according to Mrs Simmons, made him rage and which he could not get out of his mind. The Lord Ordinary's findings as to the reasons for the development of the pursuer's depressive illness are therefore not tainted by the particular error which counsel for the pursuer attributed to him.
50. In these circumstances there was no basis for the Second Division to re-open the Lord Ordinary's findings. Indeed, having read the same excerpts from the transcript as were before the Inner House, I would pay tribute to the careful way in which Lord Hardie analysed the evidence and formulated his findings in fact. More particularly, I am satisfied that, on the basis of Mrs Simmons' evidence, in particular, the Lord Ordinary was fully entitled to hold that the exacerbation of the pursuer's skin condition did not occur until "several weeks" after the accident: 2002 SLT 711, 712K. Without explaining why, the Second Division substituted a finding that "within a matter of days, the pursuer's skin condition began steadily to worsen": 2003 SLT 62, 65J - K (emphasis added). Applying the well-established principles in Thomas v Thomas and other authorities, I see no basis for the appellate judges, who had not seen the witnesses, supplanting the Lord Ordinary's considered finding on this particular, important, matter.
51. Mr Smith QC argued that, if your Lordships concluded that the Inner House had been wrong to interfere with the Lord Ordinary's findings in fact, this would mean that the defenders' appeal must be allowed and the Lord Ordinary's interlocutor restored. That deceptively simple submission overlooks the possibility that, while the Lord Ordinary reached impeccable conclusions on all the factual issues in the case, he erred in applying the law to the facts. And indeed I have already pointed out that, on analysis, two of the Second Division's criticisms of the Lord Ordinary raise questions of law.
52. In order to consider the questions of law that arise, I must recap the facts found by the Lord Ordinary. In the accident the pursuer sustained a severe blow to his head, causing injury to his head and ear, as a result of which he suffered headaches, dizziness and blurred vision for several weeks. He was also 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 and had ignored the repeated requests to install drums to deal with the trailing tubes. Some time after the accident, the pursuer's anger exacerbated his pre-existing psoriasis and, as a result, the defenders' works medical officer refused to allow him to return to work. This, too, angered the pursuer. His prolonged absence from work caused him to become preoccupied with the accident and more angry at the defenders, inter alia because the defenders' personnel department failed to visit him or to take any interest in him. All of this resulted in a deterioration in the pursuer's mental state, leading to his depressive illness.