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

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    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:

    "He was referred to the works medical officer, Dr Murdoch, who is now deceased. Dr Murdoch refused to allow the pursuer to return to work because of his skin condition. Both the pursuer and his wife spoke of the pursuer's anger following the accident. 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. He was angry that nobody seemed to be interested in his welfare. In particular he was angry that nobody from the personnel department of the defenders came to visit him, or to contact him to enquire how he was. The pursuer's wife described him as 'raging', 'really angry' and she stated that he could not get the accident out of his mind. It became his sole topic of conversation. He was also angry when Dr Murdoch refused him permission to return to work because of his skin condition."

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:

    "As I have already indicated, Dr Forsyth was an impressive witness. She gave her evidence in a considered and objective manner. She rejected the influence of Tenif on the pursuer's skin condition for the reasons already given … and I accepted her evidence in that regard. However Dr Forsyth did not consider that the pursuer's present skin condition would prevent the pursuer from doing the job which he had been doing for more than 20 years. She did not know why the pursuer was unable to return to work after the accident. The import of her evidence was that whatever the reason for his inability to return to work, it was not due to his skin condition. In relation to the cause of the pursuer's exacerbated skin condition, both Dr Forsyth and Dr Cotterill stated that stress may aggravate psoriasis. Significantly, Dr Forsyth testified that the pursuer did not seem to be stressed by the accident itself but was more stressed by the fact that the accident had happened. Moreover the stress increased by the lack of apology to the pursuer by the defenders and the lack of support provided to him by them. The impression which Dr Forsyth had was that the stress which undoubtedly existed after the accident seemed more related to such matters than the accident itself. The pursuer perceived that he had been treated 'very, very badly' by his employers. He felt abandoned by them and let down 'very badly by his employers'. He seemed preoccupied by the fact that the accident could have been a lot worse if he had not been wearing a safety helmet. From the history given by the pursuer, Dr Forsyth understood that he had not been unconscious at the time of the accident and had got himself home after the accident. He had not placed a lot of significance on the blow to his head and although he had had swelling to his head, he tended to play down the physical effects of the accident. At the consultation with Dr Forsyth the pursuer had been angry and aggressive. She had to keep persuading him to return to the point and to try to avoid letting his anger interfere with the consultation. In re-examination she confirmed 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. In her evidence Dr Forsyth confirmed that emotions such as anger could exacerbate the pre-existing skin condition of the pursuer. She also expressed the opinion that if the pursuer was suffering from a depressive illness that would also account for the exacerbation of his skin condition."

    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:

    "I am not satisfied that the pursuer has proved that the exacerbation of his skin condition was caused by the accident. I tend to the view that these symptoms were probably caused by his anger at the defenders' treatment of him rather than by the accident. I have reached the conclusion that the defenders cannot be held liable in damages for the exacerbation of the pursuer's skin condition as a discrete head of damages. In this regard I considered that the circumstances were sufficiently similar to the case of Graham v David A Hall Ltd 1996 SLT 596 that I should reach the same conclusion."

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:

    "In order to succeed against the defenders to an extent greater than the damages attributable to the physical injuries following upon the severe blow to his head I have concluded that the pursuer must establish on a balance of probabilities that he is suffering from a mental disorder and that that is attributable to the accident."

    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:

    "There was no physical damage to the brain resulting from the accident. At page 3 of his report dated 5 August 1997 Dr Pelosi refers to his working diagnosis that the pursuer has developed a quite severe depressive illness as a result of a series of stresses which arose following his accident and states that some of these stresses are a direct result of the accident while others are indirect results. In his report dated 11 May 2000 Dr Pelosi states that:

    'The incident itself, the flare-up of his skin condition, his perception that this incident was his employer's fault, his perception that he was then shabbily treated by his employers and the permanent loss of his job should all be considered stressful life events and they have been causally important in his remarkable change in his mental state.'

    However, on the evidence available to me I have found difficulty in identifying the stresses which are a direct result of the accident. While the accident involved a severe blow to the pursuer's head, he was not rendered unconscious and there were no physical changes to his brain. When I asked Dr Pelosi to elaborate upon the question of causation, he said 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. It is also clear from Dr Pelosi's evidence that the exacerbation of the pursuer's dermatitis could affect his mental state. Dr Pelosi considered that the pursuer's depression and his psoriasis would be interacting such that his difficulties with his mental state would exacerbate his skin problem and his skin problem would affect his mental state. This was consistent with the evidence given by Dr Forsyth who expressed the view that if one was faced with a patient with psoriasis and depression each condition might have an adverse affect on the other so that one was faced with what she described as a "vicious circle". The date of the onset of the pursuer's psychiatric condition was not established in evidence although it appeared from the evidence of Dr Naismith that the pursuer had various problems: initially the injuries associated with his accident, thereafter his dermatitis followed by the resultant infections associated with his dermatitis, and ultimately his psychiatric condition. That history, coupled with the evidence of Dr Pelosi that in June 1997 the pursuer's fury and anger was apparent towards the management of the defenders and that he was preoccupied by what might have happened if he had had a more serious accident or how life might have turned out for him if he had not had an accident at all, was similar to the evidence of the pursuer's wife relating to the pursuer's anger shortly after the accident."

The Lord Ordinary then expressed his conclusion on the defenders' liability for the pursuer's mental condition in this way, at p 714F - G:

    "In all the circumstances I am not satisfied that the pursuer has established that his mental condition is directly attributable to the accident. On the contrary I consider it more probable that some time after the accident his anger at the defenders exacerbated his psoriasis causing him to be absent from work. His 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."

    39.  The Lord Ordinary gave his decision on the case as a whole, at p 714H:

    "While I have considerable sympathy for the predicament of the pursuer and his family, particularly Mrs Simmons, I regret that his present medical condition has not been established to be sufficiently causally connected to the accident to justify an award of damages. Accordingly I have assessed damages on the basis of the injuries sustained by the pursuer immediately following upon the accident, without including any sum for his depressive illness or the exacerbation of his psoriasis."

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:

    "(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."

    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:

    "In expressing his conclusion that the pursuer had failed to prove that the exacerbated skin condition and his depressive mental illness were a consequence of the accident, the Lord Ordinary has not clearly explained why he reached that view. On one view, the Lord Ordinary's conclusion is that all of those symptoms were caused by a feeling of anger on the part of the pursuer that, through the fault of the defenders, the accident had happened at all, despite his previous warnings. Counsel for the defenders appeared to accept that the Lord Ordinary's opinion could be read in this way. If that is a correct interpretation of the Lord Ordinary's view, we consider that the Lord Ordinary has not sufficiently explained why on that basis the pursuer's claim should be restricted to solatium for the blow to the head and its after-effects. In our opinion, the pursuer would be entitled on that basis to damages for all three elements of his condition. On the other hand if, as counsel for the pursuer suggested, the Lord Ordinary's conclusion is that the pursuer's problems were caused solely by his anger at the defenders' off-hand treatment of him after the accident, we consider that the Lord Ordinary has not adequately explained what aspects of the evidence led him to that conclusion."

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:

    "Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?"

    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.

 
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