Ipsofactoj.com: International Cases [2005] Part 8 Case 1 [HL]


HOUSE OF LORDS

Coram

British Steel plc

- vs -

Simmons

LORD STEYN

LORD HOPE OF CRAIGHEAD

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

BARONESS HALE OF RICHMOND

29 APRIL 2004


Judgment

Lord Steyn

My Lords,

  1. 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.

    Lord Hope of Craighead

    My Lords,

  2. In my opinion the pursuer is entitled to payment of the full amount of 498,221.77 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.

  3. 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 3,000, with interest, as solatium for these physical injuries: 2002 SLT 711.

  4. 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.

  5. 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.

  6. 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.

  7. 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

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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"

  14. 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 wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrongdoer. Tried by this test, the present claim appears to fail. The personal injuries of the individual himself will be properly held to have been in the contemplation of the wrongdoer. But he cannot be held bound to have surmised the secondary injuries done to all holding relations with the individual, whether that of a master, or any other.

  15. As the last sentence of this quotation shows, the issue in that case was one of liability. The pursuer was suing for the loss which he had sustained because he was deprived of the services of his employee, William Hill, who was injured in the accident. It was in the same context that the grand rule made its next appearance in the reports, some 60 years later, in Reavis v Clan Line Steamers Ltd 1925 SC 725. In that case the pursuer was travelling as a passenger on a vessel which sank after colliding with another vessel while on passage from Glasgow to Dublin. It was common ground that she was entitled to damages for the personal injuries which she sustained and any loss attributable to her disability. But she was also seeking to recover loss due to the fact that some members of an orchestra which she had formed were drowned and others injured, resulting in the disbandment of the orchestra and the loss to her of what had been a profitable enterprise. It was held, applying Lord Kinloch's dictum, that while the members of the orchestra had a right of action for their own personal injuries and losses, no action lay at the pursuer's instance for the loss which she had sustained due to the loss of their services.

  16. The grand rule was mentioned again, and applied, in Steel v Glasgow Iron and Steel Co Ltd 1944 SC 237. That too was an action where the issue was one of liability, as the question was whether the actions of the deceased had broken the chain of causation when he intervened in an attempt to save property. Lord Justice Clerk Cooper said at p 247 that the rule had been restated with minor variations in Scottish textbooks and decisions for 80 years and that it had been reformulated almost in its original form in the speeches of Lord Thankerton and Lord Macmillan in Bourhill v Young 1942 SC (HL) 78 and Muir v Glasgow Corporation 1943 SC (HL) 3; see also Lord Jamieson, at p 267. At p 248 the Lord Justice Clerk added this comment:

    This rule of the 'reasonable and probable consequence' is a key that opens several locks; for it not only fixes the nature and the measure of the duty to take care, but it may also aid in determining whether the causal nexus is complete and, perhaps, whether the damages claimed are too remote.

    In Cameron v Hamilton's Auction Marts Ltd 1955 SLT (Sh Ct) 74, 78 the Sheriff (Hector McKechnie QC) said:

    No Scots judge, so far as I know, has ever suggested liability for a consequence of negligence which was not natural and probable in the sense of being foreseeable, subject, of course, to the qualification that a negligent person takes the risk that his victim (and the victim's dependants) may be in poor health.

  17. As the concluding words in these two quotations indicate, it had by now been appreciated that the foreseeability test which lies at heart of the grand rule had a function to play in questions as to the remoteness of damage as well as to liability. In one of his occasional but always highly authoritative contributions to the literature on this subject, "The Analysis of Negligence", 1962 SLT 2, 4, W A Wilson (later Professor W A Wilson) wrote:

    The foreseeability test for damage is subject to the important qualification that a wrongdoer takes his victim as he finds him. If a foreseeable injury - a slight wound, say - causes death because the victim is a haemophiliac, the defender is liable although he did not know of the susceptibility (per Lord Wright, Bourhill v Young's Executor, [1943 SLT 105] at p 110). The rule, of course, applies only in questions of compensation and not in questions of culpability. There is no negligence, and no liability where an act which would not cause damage to a normal man in fact causes injury to the victim because of an unknown and unforeseen susceptibility.

    Thus, foreseeability enters into actionable negligence not just twice - as was stated by Lord Russell of Killowen in Bourhill (page 107) - but four times. It may be used to determine

    (a)

    whether a duty exists;

    (b)

    whether an act or omission is a breach of duty;

    (c)

    whether reasonable care has been taken (in the guise of probability); and

    (d)

    for what damage the defender is liable.

  18. Two further qualifications to the question of compensation now have to be added to that stated by Professor Wilson in the first paragraph of that quotation in the light of subsequent authority. His qualification that a wrongdoer takes his victim as he finds him was based on the then recent decision of the Court of Appeal in Smith v Leech Brain & Co Ltd [1962] 2 QB 405, which was later to be accepted as in conformity with the law of Scotland by Lord President Clyde in McKillen v Barclay Curle & Co Ltd 1967 SLT 41, 42. There must now be added these further qualifications:

    1. that a defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable: Hughes v Lord Advocate 1963 SC (HL) 31, 38 per Lord Reid; and

    2. where it is established that physical injury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric injury: Page v Smith [1996] 1 AC 155, 196-197 per Lord Lloyd of Berwick.

    To these points there must be added a comment on causation. The general rule is that it must be shown that the injury would not have occurred but for the act or omission of the defender. But if a number of factors contributed to the injury it is sufficient that the contribution which the factor attributable to the defender's fault made to the injury was material: Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, 32, per Lord Reid.

  19. In the light of these developments I would not accept the Second Division's observation, 2003 SLT 62, 65, para 21, that the principles governing remoteness of damage are still not finally resolved in Scots Law. In my opinion the basic principles are well settled. I agree with the way they have been set out in his speech by my noble and learned friend Lord Rodger of Earlsferry. As he has indicated, the grand rule has not lost its value in this context: see also the comments in Stair Memorial Encyclopaedia, vol 15 (1996), Obligations, pp 257-259, paras 382-385. The writer points out in para 384 that the key to understanding Lord Kinloch's dictum lies in the word "therefore" which conjoins the two limbs:

    If a consequence is 'natural and direct' it may therefore be supposed to be within the view of the wrongdoer. In other words, the test is what is in the reasonable contemplation of the wrongdoer, that is, what is reasonably foreseeable.

    I would accept that interpretation of it, which is consistent with the way the principle has been restated in the modern authorities. But the grand rule is best seen now, as Lord Rodger points out, as the starting point. To this extent Mr. Smith's submission that it sets out the test to be applied here can be accepted. But the circumstances of the case may require that it be subjected to refinement and to further analysis.

    REMOTENESS IN THIS CASE

  20. The Lord Ordinary approached the issue of remoteness by asking himself whether the pursuer's medical condition was "directly attributable" and "sufficiently causally connected" to the accident: 2002 SLT 711, 714, paras 20, 21. This phraseology was adopted by the Second Division: 2003 SLT 62, 67, para 36. The question of remoteness did not arise on the view which the Second Division took of the facts. But it requires to be examined on the view of the facts taken by the Lord Ordinary. As I understand his opinion, he thought that there was a break in the chain of causation because the pursuer's anger which led to his medical condition was due not to the accident itself but to the defender's treatment of him after the accident. That is why he saw the issue of timing as critical. There is no sign in his opinion that he based his decision on the proposition that, because it was caused by anger, the medical condition was not reasonably foreseeable or that the defenders were not liable because the depressive mental illness was a psychiatric injury.

  21. The fact that the pursuer sustained physical injuries in the accident for which the defenders have been found liable makes it unnecessary, applying Page v Smith [1996] 1 AC 155, to ask whether the psychiatric injury from which he has also been suffering was reasonably foreseeable. The pursuer is in the position of a primary victim of the accident on Lord Lloyd's analysis, which has been followed and applied in Scotland: see Fraser v State Hospitals Board for Scotland 2001 SLT 1051, per Lord Carloway. So no distinction needs to be made between his initial physical injuries and his subsequent mental state. The duty of care which the defenders owed to the pursuer extended to the psychiatric symptoms as well as to the physical consequences. They must take their victim as they find him, so the aggravation of his psoriasis and the anger which led to his depressive mental illness can both be assumed to fall within the scope of their liability, so long as there was a causal connection between these symptoms and the accident. This point was disputed by Mr. Smith, as I understood him, on the ground that the pursuer's anger was an emotional response which was not reasonably foreseeable. But, as I have said, it did not seem to trouble the Lord Ordinary.

  22. The Lord Ordinary accepted the evidence of the pursuer's expert, Dr Angela Forsyth, about the cause of the dermatological condition which led to the deterioration in the pursuer's mental state and to his depressive mental illness. She said that the pursuer did not seem to be stressed by the accident itself but was more stressed by the fact that it had happened. She said that it was increased by the defenders' lack of apology and the lack of support which they provided to him, and that her impression was that the stress which undoubtedly existed after the accident seemed more related to such matters rather than to the accident itself. In re-examination she said 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.

  23. The Lord Ordinary said that he tended to the view, in the light of this evidence, that the skin condition was probably caused by the pursuer's anger at the defenders' treatment of him rather than by the accident: 2002 SLT 711, 713, para 17. But his summary of the evidence about the things that made the pursuer angry shows that one of these things was the happening of the accident. It includes these findings: p 712, para 13:

    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.

  24. Other things that happened later also made the pursuer angry. But on these findings the anger began with the accident itself. It was one of the things caused by the accident. Emotional reactions such as anger, distress or fear do not sound in damages. But emotional reactions may lead to other conditions, both physical and psychiatric, for which damages can be awarded. The Lord Ordinary was not satisfied that the exacerbation of the skin condition was caused by pursuer's anger at the accident itself. But the question which he did not ask himself, and which on his own findings had to be asked and answered, was whether this part of the pursuer's anger materially contributed to the exacerbation.

  25. The Lord Ordinary accepted that there was little difference of opinion between Dr Pelosi, the pursuer's consultant psychiatrist, and the defenders' expert, Dr Freeman. Dr Pelosi said in his report, in a passage quoted by the Lord Ordinary, that "the incident itself" among other things should be considered a stressful life event and causally important in the remarkable change in the pursuer's mental state. Dr Freeman accepted in cross examination that the accident could be said to have materially contributed to it.

  26. An analogy can be drawn between this case and Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, where there were two sources of dust, one of which came from defective swing grinders and was due to the fault of the defenders. The pursuer's pneumoconiosis could not be wholly attributed to the material from one source or the other. Lord Reid said, at p 32:

    It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.

    In this case there were several causes of the pursuer's anger. It was enough that one of them arose from the fault of the defenders. The pursuer did not need to prove that that cause would of itself have been enough to cause the anger which produced the exacerbation. He was entitled to succeed if it made a material contribution to it: see also McGhee v National Coal Board 1973 SC (HL) 37, 53, per Lord Reid.

  27. The Lord Ordinary did not analyse the evidence in this way, and Mr. Smith said that this was not the test which was to be applied in this case. But I would hold that his summary of the evidence requires us to do so. In my opinion the pursuer's anger at the happening of the accident cannot be dismissed under the de minimis principle. The conclusion which I would draw from the evidence is that it made a material contribution to the development of the skin condition and to the depressive mental illness which resulted from it. It follows that the causal connection was established and that these are consequences of the accident for which the pursuer is entitled to damages.

    CONCLUSION

  28. I have had the advantage of reading the speech of my noble and learned friend Lord Rodger of Earlsferry when it was in draft. I agree with it and, for the reasons which he has given and for these further reasons of my own, I too would dismiss the appeal.

    Lord Scott of Foscote

    My Lords,

  29. I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. For the reasons they have given, with which I am in full agreement, I too would dismiss the appeal.

    Lord Rodger of Earlsferry

    My Lords,

  30. In 1996 the pursuer, Christopher Simmons, was employed as a burner by the defenders, British Steel plc, at their Clydebridge Works in Cambuslang. In that capacity he used a hand-held burning torch to trim off scrap metal edges once the profile burner had cut, and passed through, the metal plate. The torch was fed with gas and oxygen supplied through flexible tubes. To carry out his work, the pursuer required to climb on to the burning table, the surface of which was about half a metre above floor level. On 13 May, as he was about to step down from the table, the tubes attached to his torch snagged and became entangled with his legs. As a result he fell from the table and struck his head hard against a metal stanchion, causing the visor in his headgear to split and the pursuer to sustain certain injuries.

  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.

  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 accident 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, i.e., 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, i.e., 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,

  69. I have read the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry and agree with them both. For the reasons they give, I would also dismiss the appeal.


Cases

Graham v David A Hall Ltd 1996 SLT 596; Clarke v Edinburgh and District Tramways Co Ltd 1919 SC (HL) 35; Thomas v Thomas 1947 SC (HL) 45; Graham v David A Hall Ltd 1996 SLT 596; Allan v Barclay (1864) 2 M 873; Reavis v Clan Line Steamers Ltd 1925 SC 725; Steel v Glasgow Iron and Steel Co Ltd 1944 SC 237; Bourhill v Young 1942 SC (HL) 78; Muir v Glasgow Corporation 1943 SC (HL) 3; Cameron v Hamilton's Auction Marts Ltd 1955 SLT (Sh Ct) 74; Smith v Leech Brain & Co Ltd [1962] 2 QB 405; McKillen v Barclay Curle & Co Ltd 1967 SLT 41; Hughes v Lord Advocate 1963 SC (HL) 31; Page v Smith [1996] 1 AC 155; Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26; Fraser v State Hospitals Board for Scotland 2001 SLT 1051; McGhee v National Coal Board 1973 SC (HL) 37; Thomas v Thomas 1947 SC (HL) 45; Cooper v Caledonian Railway Co (1902) 4 F 880; Dulieu v White & Sons [1901] 2 KB 669; Campbell v North Lanarkshire Council 2000 SCLR 373; Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455; In re Polemis and Furness, Withy & Co [1921] 3 KB 560; Cowan v National Coal Board 1958 SLT 19; In re Polemis in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388; Smith v Leech Brain & Co Ltd [1962] 2 QB 405; M'Kew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20; Lamb v Camden London Borough Council [1981] QB 625; Ward v Cannock Chase District Council [1986] Ch 546

Authors and other references

W A Wilson, "The Analysis of Negligence", 1962 SLT 2

Stair Memorial Encyclopaedia, vol 15 (1996), Obligations

Scottish Law Commission, Discussion Paper on Damages for Psychiatric Injury (no 120, 2002)

J Thomson, Delictual Liability (2nd ed, 1999)


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