Simmons v British Steel Plc; British Steel Plc v Simmons
| Jurisdiction | UK Non-devolved |
| Judge | LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND |
| Judgment Date | 29 April 2004 |
| Neutral Citation | [2004] UKHL 20 |
| Docket Number | No 5 |
| Court | House of Lords |
| Date | 29 April 2004 |
[2004] UKHL 20
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Steyn
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Baroness Hale of Richmond
My Lords,
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.
My Lords,
In my opinion the pursuer is entitled to payment of the full amount of £3498,221.77 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.
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 A33,000, with interest, as solatium for these physical injuries: 2002 SLT 711.
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.
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.
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.
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
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.
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.
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.
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.
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.
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"
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...
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