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

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    53.  My Lords, if that is an accurate summary of the facts, the most surprising aspect of the opinions in both the Outer House and the Inner House is the lack of any reference to the case law on the liability of wrongdoers for psychiatric injury. Scots law itself has a fairly long pedigree in this area, going back beyond Cooper v Caledonian Railway Co (1902) 4 F 880. As the references in that case to Dulieu v White & Sons [1901] 2 KB 669 show, however, from the start Scots law and English law have been intertwined. They have gone on to develop together, with leading cases such as Bourhill v Young 1942 SC (HL) 78 being authoritative in both jurisdictions. In the present case, accordingly, where the pursuer was not merely within the range of potential physical injury but actually suffered such injury as a result of the defenders' negligence, the most obvious place to look for guidance on the approach to be followed is the decision of this House in Page v Smith [1996] 1 AC 155. In practice that decision has been regarded as authoritative in Scots law. For example, in Campbell v North Lanarkshire Council 2000 SCLR 373, Lord Reed carefully analysed the speech of Lord Lloyd of Berwick and the speeches in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455. He then allowed a proof before answer in order to determine whether the case fell to be determined on the basis that the pursuer was a primary victim under the test in Page v Smith. In their Discussion Paper on Damages for Psychiatric Injury (no 120, 2002) the Scottish Law Commission proceed on the basis that Page v Smith applies in Scots Law. See also J Thomson, Delictual Liability (2nd ed, 1999), pp 71, 116 and 269. Not surprisingly, therefore, Mr Smith did not seek to persuade your Lordships that Page v Smith should not be applied in a Scottish appeal: indeed, he made no submissions at all on the case.

    54.  In Page v Smith the plaintiff was driving along the highway when he was involved in a collision with a car driven by the defendant. He suffered no physical injury, but three hours after the accident he began to feel exhausted. That exhaustion continued. In fact, as a result of the accident, the plaintiff suffered a recrudescence of an illness, commonly known as ME, from which he had previously suffered in a mild form on sporadic occasions. After the accident, the illness became of chronic intensity and permanence and he raised an action of damages for the illness and for his resulting loss. At first instance, Otton J found in favour of the plaintiff, but the Court of Appeal reversed his decision on the ground that injury by nervous shock was not foreseeable in a person of ordinary fortitude as a result of what happened to the plaintiff. By a majority, Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting, the House allowed the plaintiff's appeal. In analysing the law, Lord Lloyd of Berwick, with whom Lord Ackner and Lord Browne-Wilkinson concurred, held that it was appropriate to distinguish between primary and secondary victims, the former being those within the range of foreseeable physical injury. Before examining the relevant authorities, Lord Lloyd expressed his provisional conclusion in this way, [1996] 1 AC 155, 190B - F:

    "The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. If a working definition of 'personal injury' is needed, it can be found in section 38(1) of the Limitation Act 1980: '"Personal injuries" includes any disease and any impairment of a person's physical or mental condition….' There are numerous other statutory definitions to the same effect. In the case of a secondary victim, the question will usually turn on whether the foreseeable injury is psychiatric, for the reasons already explained. In the case of a primary victim the question will almost always turn on whether the foreseeable injury is physical. But it is the same test in both cases, with different applications. There is no justification for regarding physical and psychiatric injury as different 'kinds' of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both….

    Applying that test in the present case, it was enough to ask whether the defendant should have reasonably foreseen that the plaintiff might suffer physical injury as a result of the defendant's negligence, so as to bring him within the range of the defendant's duty of care. It was unnecessary to ask, as a separate question, whether the defendant should reasonably have foreseen injury by shock; and it is irrelevant that the plaintiff did not, in fact, suffer any external physical injury."

His Lordship went on to examine the authorities, which did not, in the event, cause him to change his provisional view. Having once more referred to the differences between primary and secondary victims, Lord Lloyd summarised his final view in this way, at p 197F - H:

    "4. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different 'kinds of damage'. 5. A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him."

    55.  Since the pursuer in the present case actually suffered physical injuries as a result of the defenders' fault and negligence, the starting point is that he is a primary victim in terms of Lord Lloyd's classification. Mr Smith argued, however, that the pursuer's psoriasis and his depressive illness sprang not from the accident itself, but from his anger at the happening of the accident. Hence he could not recover damages. I see no reason to give effect to such a distinction, even supposing that it can be realistically drawn in a given case. Regret, fear for the future, frustration at the slow pace of recovery and anger are all emotions that are likely to arise, unbidden, in the minds of those who suffer injuries in an accident such as befell the pursuer. If, alone or in combination with other factors, any of these emotions results in stress so intense that the victim develops a recognised mental illness, there is no reason in principle why he should not recover damages for that illness.

    56.  Not only is there no hint of the distinction advocated by Mr Smith in Lord Lloyd's speech in Page v Smith, but indeed the whole thrust of the speech is to quite the opposite effect. On Lord Lloyd's approach, all that matters is that the defenders were in breach of their duty of care not to expose the pursuer to the risk of personal injury and that, as a result of the breach, the pursuer suffered both physical and psychiatric injuries. The defenders are liable in damages for both types of injury and, in particular, for the exacerbation of the pursuer's psoriasis and for the depressive illness which followed - even if those developments were not reasonably foreseeable. Moreover, as the Second Division rightly held, 2003 SLT 62, 67E, it does not matter whether a psychologically more robust individual would have recovered from the accident without displaying either condition: the defenders must take their victim as they find him.

    57.  Although these considerations are sufficient for the disposal of the appeal, it may nevertheless be worth examining why the Lord Ordinary went wrong and felt obliged to limit the defenders' liability as he did. There are two clues.

    58.  The first is his view that the circumstances of the case were sufficiently similar to those in Graham v David A Hall Ltd 1996 SLT 596 that he should reach the same conclusion as in that case. In Graham the Second Division affirmed the decision of the Lord Ordinary (Lord Morton of Shuna), that the pursuer's disability after a particular date was caused not by the accident itself, but by her anger at what she regarded as the defenders' unfair treatment of her after the accident. So, here, the Lord Ordinary held, 2002 SLT 711, 713F - G, that the exacerbation of the pursuer's psoriasis was caused not by the accident but by "his anger at the defenders' treatment of him". It is important to notice that, consistently with his conclusion in para 20, the Lord Ordinary does not single out the defenders' treatment of the pursuer after the accident. If he had, the Graham case would have been in point and the Lord Ordinary would have been entitled to regard his anger at the defenders' failure to visit him or show any interest in him as the, distinct, operative cause of his psoriasis and, hence, of his depressive illness. But, as the Lord Ordinary himself found, this was only one among a number of factors, all of which brought about his condition. His anger at the defenders that the accident had occurred at all, despite the warnings, also made a material contribution to the development of his condition. Before the House, Mr Smith sought to argue that the principle in Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26 did not apply in this situation, but he cited no authority for his proposition and, in my view, it is unsound. The usual rule applies and, in the absence of any basis for identifying and apportioning the respective roles played by the various factors in the development of the pursuer's condition, the pursuer is entitled to recover damages for all of his injuries.

    59.  The other clue to the Lord Ordinary's approach lies in his indication, 2002 SLT at p 714C, that he had found difficulty in identifying the stresses that were "a direct result" of the accident. Similarly, at p 714F, he was not satisfied that the pursuer's mental condition was "directly attributable to the accident". For these reasons, it had not been established that the pursuer's medical condition was "sufficiently causally connected to the accident" to justify an award of damages: at p 714H. It may be that he thought that the exacerbation of the pursuer's skin condition and the onset of his depressive illness occurred too long after the accident for it to be the "direct" cause of these developments. By contrast, the Second Division, who held that the pursuer's skin condition worsened within days, considered that the evidence presented a coherent and cogent picture of a causal link "in the most direct sense" between the accident and the pursuer's present condition in both its dermatological and psychiatric aspects: 2003 SLT 62, 67D. Although neither the Lord Ordinary nor the Second Division discuss the relevant case law, counsel confirmed that in both the Outer House and Inner House counsel for the defenders, in particular, advanced arguments on causation and on the question "still not finally resolved in Scots law, as to the principles governing remoteness of damage": 2003 SLT 62, 65G. The Second Division considered that it was unnecessary to go into such questions in order to resolve the case. The question of causation could be decided "straightforwardly on a commonsense view of the whole evidence".

    60.  Since case law on these matters was cited to the Lord Ordinary, it seems likely that, in referring to directness, he had in mind the kind of test that is found, for example, in the so-called "grand rule" on damages in Lord Kinloch's report to the Inner House in Allan v Barclay (1864) 2 M 873, 874:

    "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."

Although Lord Kinloch refers to damage that arises "naturally and directly" out of the wrong done, for him the significance of these qualities is that damage of that kind may reasonably be supposed to have been in the view of the wrongdoer. In more modern parlance, such damage was reasonably foreseeable by the wrongdoer. The effect of the rule is, therefore, to make the defender liable only for such damage as a reasonable man in his position would have foreseen.

    61.  Many of the Scottish cases, including Allan v Barclay, do not distinguish clearly between questions of liability and questions of the damage for which a defender is liable once liability is established. In practice, however, the type of approach in Lord Kinloch's rule was applied in relation to questions of the second kind. For this reason, the Scottish courts did not apply the rule, which the Court of Appeal adopted in In re Polemis and Furness, Withy & Co [1921] 3 KB 560, to the effect that a wrongdoer was liable for all the direct consequences of his negligent act, even though those consequences could not reasonably have been anticipated. Somewhat confusingly, while directness was used in the Scottish test to limit the scope of a wrongdoer's liability to the damage he could reasonably have foreseen, the same concept was used in the Court of Appeal's test to make the wrongdoer liable for damage he could not reasonably have foreseen.

    62.  In Cowan v National Coal Board 1958 SLT 19 an employee of the National Coal Board suffered an injury to his eye in the course of his employment. Because of his injury the employee became nervous and depressed and, while in that condition, he committed suicide about four months after the accident. His widow and children sought damages from the National Coal Board for his death. Lord Cameron assoilzied the defenders on the ground that the employee's suicide was not reasonably foreseeable. After reviewing the Scottish and English authorities and rejecting the approach in In re Polemis, Lord Cameron said this, at p 21:

    "I think that the true test of whether the death of the deceased was caused by the negligence of the defenders is whether the death naturally and directly arose out of the supposed wrong done to him and was therefore such a consequence as might reasonably be supposed to have been in the view of the wrongdoer. This introduces the idea of foreseeability, but it is the foreseeability of the 'reasonable man' - an impersonal test and one not dependent on the actual wrongdoer's own capacity for foresight."

    63.  As every law student knows, three years later the Privy Council disapproved the test in In re Polemis in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388. Tendering the advice of the Board, Viscount Simonds held, at pp 422 - 423:

    "a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour."

He went on to say, at p 423, that a man should be responsible for the necessary or probable consequences of his act (or any other similar description of them), "not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them." The reasoning owes much to speeches in two Scottish appeals to this House, Bourhill v Young 1942 SC (HL) 78 and Muir v Glasgow Corporation 1943 SC (HL) 3 which Viscount Simonds had cited earlier in the opinion. In particular he relied on the passage from the speech of Lord Russell of Killowen in Bourhill v Young, at p 85:

    "In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, ie, to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, ie, to the question of culpability not to compensation."

Lord Russell's statement, that reasonable foreseeability was relevant to the question of remoteness of damage, was inconsistent with the decision of the Court of Appeal in In re Polemis, but was entirely consistent with the trend of Scottish authority, including Allan v Barclay as interpreted in subsequent cases.

    64.  The English courts quickly adopted the new test in The Wagon Mound. Since the Scottish courts had not subscribed to the rule in In re Polemis, they might have been expected to welcome the repentance of the Privy Council and the English courts and to make common cause with them in applying the approach in The Wagon Mound. It was not to be. The Inner House considered The Wagon Mound for the first time in McKillen v Barclay Curle & Co Ltd 1967 SLT 41, where the Lord Ordinary had awarded the pursuer damages for tuberculosis, on the basis that in the accident he had fractured a rib and this had reactivated his pre-existing tuberculosis. The First Division held that the pursuer had failed to prove the causal connexion between the fractured rib and the tuberculosis, since there was no corroboration of the evidence of the pursuer's expert witness. They accordingly allowed the reclaiming motion. The defenders had also argued, however, under reference to The Wagon Mound, that they were not liable for the reactivation of the pursuer's tuberculosis since that was not reasonably foreseeable. In fact, by this time, Lord Parker LCJ had already held that the reasoning in The Wagon Mound did not affect the rule that a tortfeasor takes his victim as he finds him: Smith v Leech Brain & Co Ltd [1962] 2 QB 405, 415. So, even as a matter of English law, the argument was not sound. The First Division judges rightly indicated that Scots law had long proceeded on the basis that a wrongdoer takes his victim as he finds him. In doing so, however, Lord President Clyde, in particular, indicated, 1967 SLT 41, 42, that foreseeability had no relevance to the determination of the measure of damage, once liability had been established. It therefore looked as if he was adopting the rule in In re Polemis which the Scottish courts had previously rejected and which the Privy Council had now buried.

    65.  Not surprisingly, in M'Kew v Holland & Hannen & Cubitts (Scotland) Ltd 1969 SC 14 the Lord Justice Clerk (Grant) pointed out, at p 24, that the statements in M'Killen were obiter and were made in the context of a "thin skull" kind of case. He went on to refer to the passages on foreseeability in Bourhill v Young and Muir v Glasgow Corporation that Viscount Simonds had cited in The Wagon Mound. While the Lord Justice Clerk did not require to reach a final view, the clear implication of his remarks is that the proper test for remoteness of damage is foreseeability. Lord Wheatley did not deal with the law. Lord Walker's analysis of the rule in Allan v Barclay is hardly correct, but he rightly concluded that, under both the doctrine in The Wagon Mound and the rule in Allan v Barclay, "the question of what ought to be within the contemplation of the wrongdoer is quite fundamental": at p 31. In the appeal to this House counsel do not appear to have referred to M'Killen and Lord Reid and Lord Guest did not do so either. Lord Reid commented, however, that "A defender is not liable for a consequence of a kind which is not foreseeable": 1970 SC (HL) 20, 25.

    66.  The picture is confused, largely because of the obiter dicta in M'Killen v Barclay Curle & Co Ltd. If those dicta are put on one side, however, there is a line of Scottish authority, stretching back to Allan v Barclay, that is consistent with The Wagon Mound in that it limits a defender's liability to damage that was reasonably foreseeable. While there are references to damage that arises "naturally and directly" or to consequences that are "natural or necessary or probable", it has long been recognised that these formulae are vague and by no means easy to interpret. See, for instance, the comments of Lord Sumner on "natural, probable and necessary" in Weld-Blundell v Stephens [1920] AC 956, 983 - 984. In Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] AC 617, 634E - 635A Lord Reid described the word "natural" as "peculiarly ambiguous" and pointed to the different ways it could be used. He also drew attention to the shades of meaning that could be attached to the adjective "probable". While in Weld-Blundell Lord Sumner had thought that "direct cause" was the best expression, Lord Reid [1967] AC 617, 635E - 636D, highlighted the different meanings of "direct", depending on the context. Indeed the present case illustrates all too clearly that the use of that word is liable to introduce confusion, while contributing little of value to the solution of practical cases. As was recognised in Allan v Barclay and The Wagon Mound, the ultimate test is whether the damage was reasonably foreseeable.

    67.  These authorities suggest that, once liability is established, any question of the remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: M'Kew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid; Bourhill v Young 1942 SC (HL) 78, 85 per Lord Russell of Killowen; Allan v Barclay (1864) 2 M 873, 874 per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: M'Kew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid; Lamb v Camden London Borough Council [1981] QB 625; but see Ward v Cannock Chase District Council [1986] Ch 546. (3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate 1963 SC (HL) 31, 38, 40 per Lord Reid. (4) The defender must take his victim as he finds him: Bourhill v Young 1942 SC (HL) at p 92 per Lord Wright; M'Killen v Barclay Curle & Co Ltd 1967 SLT 41, 42, per Lord President Clyde. (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: Page v Smith [1996] 1 AC 155, 197F - H, per Lord Lloyd of Berwick.

    68.  For these reasons, as well as those given by my noble and learned friend, Lord Hope of Craighead, I would dismiss the appeal.

BARONESS HALE OF RICHMOND

My Lords,

    

 
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