Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Kingarth Lord Caplan	A1295/01 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in RECLAIMING MOTION by CHRISTOPHER SIMMONS Pursuer and Reclaimer; against BRITISH STEEL plc Defenders and Respondents: _______

 

 

Act: Wylie, QC; Miss A Tait: Drummond Miller, WS (for The Lawrence MacPhail Partnership, Solicitors, Glasgow) (Pursuer and Reclaimer)

Alt: Smith; Simpson & Marwick, WS (Defenders and Respondents)

 

29 October 2002

 

 

I The accident

1. On 13 May 1996, the pursuer suffered an accident in the course of his employment with the defenders as a burner at Clyde Bridge Works, Cambuslang. He was working at a burning table on which a steel plate was being cut to shape. The pursuer's task was to cut up the leftover scrap into manageable pieces with a hand-held torch. To do this he had to stand on the table. The surface of the table was about half a metre above floor level. As the pursuer was about to step down from the table, the gas and oxygen lines that supplied his torch became entangled in his legs. This caused him to fall from the table and to strike his head on a metal stanchion. The impact was such that his helmet was cracked and his visor was smashed and cracked.

II The decision of the Lord Ordinary

2. After proof before answer, the Lord Ordinary found the defenders liable. A plea of contributory negligence tabled by the defenders was not persisted in. The main area of contention at the proof, and the only area of contention in this reclaiming motion, related to the pursuer's loss.
3. The pursuer's case was that the accident had caused him to suffer three forms of injury, namely (1) the direct physical effects of the blow to the head; (2) an exacerbation of a pre-existing skin condition, and (3) a depressive mental disorder.
4. The Lord Ordinary found in fact that the pursuer had sustained a severe blow to his head that caused injury to both his head and his ear, as a result of which his ear suppurated and he suffered headaches and blurred vision for several weeks thereafter (para [12]).
5. The Lord Ordinary found that a pre-existing skin condition had become worse after the accident (paras. [13]-[16]); but he was not satisfied that the pursuer had proved that the exacerbation of the skin condition was caused by the accident. He said that he tended to the view that these symptoms were probably caused by the pursuer's anger at the defenders' treatment of him rather than by the accident itself. He concluded that the defenders could not be held liable in damages for those symptoms as a discrete head of damages. He considered that the case was similar in these respects to the case of Graham v David A. Hall Ltd (1996 SLT 596).
6. The Lord Ordinary found that the pursuer was suffering from a mental disorder, namely a depressive illness (para [19]). That led to the critical question whether the illness was caused by the accident. The Lord Ordinary began by observing that while the accident involved a severe blow to the pursuer's head, the pursuer was not rendered unconscious and there were no physical changes to his brain. Having reviewed the psychiatric evidence he reached the following conclusion:

"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" (para [20]).

It appears that in reaching this conclusion too the Lord Ordinary had in mind Graham v David A Hall Ltd (supra).

7. On these findings, the Lord Ordinary awarded £3,573.60, being £3,000 as solatium for the blow to the head and its after-effects, and interest on that sum of £573.60. If the Lord Ordinary had found that all three medical conditions had been caused by the accident, he would have awarded damages, including interest, in the sum of £484,273.63. In arriving at that figure, the Lord Ordinary made no allowance for past or future services rendered by the pursuer's wife. He said

"While I recognise that Mrs Simmons has been a devoted wife and has undertaken additional chores such as driving the pursuer to appointments and returning home at lunchtimes to ensure that he pursuer has got out of bed, I am not convinced that the additional chores undertaken by the pursuer's wife could be described as necessary services."

III Grounds of appeal

8. The pursuer has reclaimed on the basis that the Lord Ordinary misdirected himself on three aspects of the case, namely (1) his assessment of the medical evidence relating to the pursuer's skin condition and his mental disorder and the related question of causation, (2) his assessment of interest and (3) his assessment of damages. The defenders' cross-appeal has not been insisted in.
9. We can deal shortly with the second and third of the pursuer's grounds of appeal. The Lord Ordinary allowed interest on his award at the rate of 4% per annum. Since the award was for past solatium, counsel agree that the Lord Ordinary should have allowed interest at the rate of 8%. On the basis of the Lord Ordinary's decision, the total award should therefore have been £4,147.20.
10. Counsel agree that in his alternative calculation of damages the Lord Ordinary erred in failing to make awards for past and future services rendered by the pursuer's wife. Counsel are agreed on the amounts. The result of the agreement is that, if we allow the reclaiming motion on its merits, the total award will be £498,221.77, with interest on that sum at the rate of 8% per annum from 23 February 2001.

IV Causation of the pursuer's present medical condition

11. This is the central issue in the reclaiming motion. It raises two questions: first, whether we are entitled to review the evidence on which the Lord Ordinary based his findings as to the causation of the pursuer's exacerbated skin condition and his mental illness; and second, whether, if we do so, we should disturb those findings and substitute our own.
12. Counsel for the defenders did not challenge the Lord Ordinary's findings that the pursuer was entitled to damages for the injury to his head. The case was presented on both sides on the basis that if the Lord Ordinary erred in limiting damages to that element of the pursuer's injuries, it would be appropriate that we should substitute an award in respect of all three elements.

(i) The scope for review of the Lord Ordinary's findings in fact

13. The defenders rely on Thomas v Thomas (1947 SC (HL) 45) for the submission that we are not entitled to interfere with the Lord Ordinary's findings in fact. Thomas v Thomas was a defended divorce action. As is clear from the judgment of the Lord Ordinary in that case, which is not reported, the proof raised numerous questions as to credibility and as to the weight to be given to certain lines of evidence. These were crucial to the judgment that had to be made on the question whether the defender's conduct constituted cruelty. Lord Thankerton stated the general principles in the following terms:

"(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."

14. In this case we are at no particular disadvantage in not having seen and heard the witnesses. Both sides were content with the Lord Ordinary's assessments of the credibility and reliability of the witnesses. The real issue relates to the conclusions that are to be drawn from evidence that is either undisputed or, in the light of other evidence, is plainly established. We therefore consider that we are in a position to reach a satisfactory conclusion on the whole evidence.
15. The Lord Ordinary accepted all of the pursuer's witnesses, with one possible exception, as credible and apparently reliable on all questions of primary fact. The exception was Dr. Douglas Naismith, the pursuer's general practitioner. The Lord Ordinary says that he "did not find Dr. Naismith particularly impressive as a witness." However, it appears that the Lord Ordinary did not regard Dr Naismith as a crucial witness on the dermatological and psychiatric questions with which this appeal is concerned. His reservations about Dr Naismith related mainly to the accuracy of his record-keeping.
16. The only witness whose evidence the Lord Ordinary expressly rejected was Dr. John Cotterill, a consultant dermatologist led by the defenders. Dr. Cotterill suggested that the pursuer's skin condition was caused by the taking of Tenif, a drug prescribed for the pursuer in the middle of 1996 for the treatment of hypertension; but that suggestion was contrary to undisputed evidence that the pursuer had taken Tenif before the accident with no adverse effects. Dr Cotterill also remarked on the pursuer's tattoos, which he said were suggestive of a borderline personality disorder, and on his plethoric facial appearance, which he said was indicative of alcohol intake. There was no evidence to support either of these last two suggestions. We are not surprised that the Lord Ordinary considered that Dr. Cotterill was a partisan witness and that the whole tenor of his evidence was unsatisfactory. The defenders accept the Lord Ordinary's conclusions on that aspect of the case and place no reliance on Dr Cotterill's evidence.
17. Moreover, we consider that we 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. 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.
18. There is a further consideration that entitles us to re-examine the Lord Ordinary's findings in fact, namely that the Lord Ordinary's recollection of the evidence on the critical issue as to the cause of the pursuer's depressive illness is mistaken on one aspect that he apparently regarded as important. In his Opinion the Lord Ordinary says

"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" (para [20]).

There is no record of this exchange in the transcript and counsel agree that it did not take place.

19. Finally, for reasons that we shall give, we consider that on a fair reading of the evidence Graham v David A. Hall Ltd (supra) is distinguishable from this case.
20. For all of these reasons we conclude that we are entitled to review the evidence and the Lord Ordinary's conclusions from it.

(ii) Findings on causation

21. Counsel on both sides ventured into a discussion of direct and indirect causation and of the question, still not finally resolved in Scots law, as to the principles governing remoteness of damage. In our view, such questions are unnecessary for the resolution of this case. This is a case where the question of causation can be decided straightforwardly on a commonsense view of the whole evidence.
22. Before one even reaches the medical evidence, the other evidence presents a convincing picture of a direct causal link between the accident and all three aspects of the pursuer's injuries. Much of this evidence comes from the pursuer and his wife, both of whom the Lord Ordinary accepted, without qualification, as credible witnesses.
23. The starting point, in our view, is the clear and undisputed evidence that before the accident the pursuer was easy-going, good natured and jovial. He was a capable and energetic worker. He was enthusiastic about his job. He was in good health. He participated in a number of sporting activities such as karate, weight training and golf. As he described it, he was as fit as a fiddle. His only medical problem at the date of the accident was a mild skin condition that was satisfactorily controlled. This condition did not restrict his life or impair his ability to work.
24. The accident itself was frightening. The pursuer suffered a severe blow to the head from which he took some time to recover. He was distressed that the accident had happened. He realised that the consequences would have been much worse if he had not been wearing his helmet or if he had fallen in the opposite direction and been burned. Within a matter of days, the pursuer's skin condition began steadily to worsen. He found it difficult to concentrate. He could not get the accident out of his mind. His sleep was disturbed. He became disheartened, tearful and morose. He was unable to resume his sporting activities. Within weeks he began to display symptoms of anger and aggressiveness. He was angry at the fact that the accident had happened at all, because he had given the defenders repeated warnings that this was an accident waiting to happen. The defenders' failure to heed these warnings became a recurring topic of his conversation. Events after the accident worsened his mood. He resented the off-hand treatment that he received from the defenders. He resented having to go from pillar to post to be examined by various doctors. Worse still, the defenders' occupational health doctor refused to allow him to return to work because of his worsened skin condition. In due course the pursuer had to retire early on the ground of ill health.
25. As the pursuer's mental state deteriorated, his skin condition deteriorated even more and his embarrassment increased. He became increasingly depressed. He had feelings of hopelessness. He was reluctant to go out. He exhibited hostility, even to those, including his wife, who were trying to help him. He gradually underwent a complete change of personality. He is now seriously depressed. It is unlikely that he will work again.
26. In our view, this evidence strongly suggests that the pursuer's exacerbated skin condition and his mental deterioration, of which his anger was only one aspect, were caused by the fact that the accident occurred, although these symptoms were no doubt intensified by the defenders' treatment of him afterwards.
27. All of this is in any event confirmed by the preponderance of the medical evidence. The disputed questions in the dermatological evidence between the pursuer's witness, Dr. Angela Forsyth, and the defenders' witness, Dr. Cotterill, was settled conclusively in Dr. Forsyth's favour. Dr. Forsyth, whose evidence we, like the Lord Ordinary, accept, agreed that anxiety could cause psoriasis, which could in turn cause further anxiety and create a vicious circle. Dr. Forsyth described this as being a "very common" phenomenon. She seems to have formed the decided view that that was what had happened in the pursuer's case. She thought that the accident "seemed to cause considerable stress in Mr Simmons." She later explained that the pursuer was particularly upset that the accident, although perhaps not of itself an extremely stressful event, had happened at all, and he was distressed to think that it could have been avoided and that his injuries might have been much worse. Although Dr Forsyth mentioned that further stress was caused by the failure of the defenders to give the pursuer appropriate support, there was nothing in her evidence to suggest that this consideration was anything more than a contributory factor. It is significant, in our view, that even Dr Cotterill accepted that a stressful event could precipitate an aggravation of an existing skin condition.
28. As to the psychiatric evidence, the first significant point is that neither of the witnesses on the question regarded injury to the brain as a sine qua non of the occurrence of the pursuer's depressive mental illness. The lack of any sign of damage to the brain to which the Lord Ordinary refers is therefore a neutral factor.
29. Like Dr Forsyth, the pursuer's witness Dr. Anthony Pelosi diagnosed a vicious circle in which the pursuer's skin problems and his mental state each intensified the other. He regarded the accident as the cause of the pursuer's present symptoms. His overall conclusion was that the pursuer was suffering from a depressive mental illness, a feature of which was his repeated manifestation of anger. He was of the view that an accident such as the pursuer suffered could cause such a condition. He was not challenged on that point. He went further and concluded that in this case the accident itself was an important causative factor, along with the aggravation of the skin condition and the resultant loss of work, in the development of the pursuer's mental illness. He regarded that conclusion as being compelling in the light of the history of the case. In Dr Pelosi's view, the immediate causes of the pursuer's resentment, anger and depression were the fact that the accident ought never to have happened and his realisation that the accident could have had more serious consequences. He agreed that "the routes to the pursuer's current condition" could all be traced back to the accident.
30. The Lord Ordinary (at para [20]) has quoted the following statement from Dr Pelosi's Report dated 11 May 2000:

"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."

In our view, it is clear from this statement and from Dr Pelosi's extensive oral evidence that although he took into account the pursuer's perception of the defenders' treatment of him, he did not suggest that that factor played more than a contributory role in the pursuer's mental condition. In one answer Dr Pelosi apparently played down its significance relative to the other factors identified by him in the statement that we have quoted. It seems to us that the Lord Ordinary has not explained why he did not accept the conclusions of Dr Pelosi that are set out in that statement, and has not assessed those conclusions in the light of all the other evidence (cp. Dingley v Chief Constable, Strathclyde Police, 1998 SC 548).

31. More importantly perhaps, there was nothing in the evidence of Dr Freeman, the defenders' expert witness, which seriously contradicted Dr Pelosi's view. The main line of defence on this part of the case seems to have been that the pursuer was not suffering from a mental illness at all; but although Dr Freeman was at times reluctant to put a diagnostic label on the pursuer's condition, and although he was apparently sceptical about its severity, he appeared in the end to agree that the pursuer was suffering from a depressive illness of some kind. This was how the Lord Ordinary interpreted his evidence. That conclusion was not challenged before us. Furthermore, in a part of his evidence that is not specifically referred to by the Lord Ordinary, Dr Freeman accepted that it was the pursuer's reaction to the event - coloured in particular by his conviction that it need not have happened - which could be said to be the trigger of his problems. In cross examination he agreed that the accident could be said, at least, to have materially contributed to the problem. The Lord Ordinary has not specifically commented on this evidence.
32. To the extent that there was any difference between the psychiatric witnesses, we prefer the evidence of Dr Pelosi. Dr Freeman met the pursuer only twice. The first meeting in early 1999 was unsatisfactory and had to be curtailed because of the pursuer's unco-operative attitude. The second meeting took place about two weeks before the proof. Dr Pelosi on the other hand had been directly involved in the diagnosis and treatment of the pursuer's symptoms over an extended period and had co-ordinated his efforts with those of the pursuer's wife and the community psychiatric nurse, Mr John Coffey. In our view, Dr Pelosi's diagnosis that the pursuer's mental state results from stress caused by the accident is based on a greater familiarity with the case and, in the context of the other evidence, represents a more logical and coherent interpretation of the pursuer's symptoms.
33. Counsel for the defenders argued that the link between the accident and these conditions was not proved because of the absence of any satisfactory medical evidence as to why the pursuer was off work, and in particular the absence of references to the pursuer's skin condition in the records of Dr Naismith, between the date of the accident and about the beginning of 1997. In our view, this argument is unsound. It is plain that Dr Naismith's records were not reliable as to the condition of the pursuer at any given date. The deficiency of those records as to the skin condition during this period does not prove that the pursuer did not suffer from it or from the build-up of the other symptoms related to the accident. On the contrary, the fact that the pursuer suffered from stress and the aggravation of his skin condition soon after the accident is amply vouched by the evidence of the pursuer and of his wife. In any event, it seems that the Lord Ordinary did not attach any particular evidential significance to the gaps in Dr Naismith's records.
34. In our view, the evidence looked at as a whole presents 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 its psychiatric aspects. This is not a case like Dingley v Chief Constable, Strathclyde Police (supra) where there was a lack of proof that the accident could cause the medical condition from which the pursuer suffered. In this case there is undisputed evidence that the accident is capable of causing both the worsening of the pursuer's skin condition and his present mental illness. In our view, there is ample evidence, both circumstantial and medical, that it did in fact cause both conditions. It may be that a more psychologically robust individual would have recovered from the accident without displaying either condition; but the defenders must take their victim as they find him.
35. In the light of these conclusions we consider that the Lord Ordinary was mistaken in invoking Graham v David A. Hall Ltd (supra) in support of his decision. It is our impression that, in relying on that case, the Lord Ordinary may have misdirected himself by looking at the pursuer's present symptoms solely in the context of post-accident events. In our view, Graham is distinguishable. In that case the pursuer sustained bruising to her back when she slipped on stairs. She had recovered from that within about two months. She thereafter complained of a variety of symptoms that, according to the weight of the medical evidence, were caused by hypochondriasis. This condition had a supervening cause, namely the defenders' treatment of her and in particular their refusal to acknowledge liability for the accident or to give her light work (Graham, supra, at p. 597F). In the present case, the pursuer's dermatological and psychiatric conditions have from the outset been constituent parts of a developing illness that began to manifest itself almost immediately after the accident.
36. For all of these reasons we conclude that there was ample evidence to warrant the conclusion that all three aspects of the medical consequences suffered by the pursuer were directly caused by the accident. Moreover, we consider that that is the proper conclusion to be drawn upon a consideration of the whole evidence.

Interlocutor

37. In the result, we shall allow the reclaiming motion and recall the Interlocutor of the Lord Ordinary to the extent of substituting decree for the now agreed sum of £498,221.77, with interest on that sum at the rate of 8% per annum from 23 February 2001 until payment.