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

Once personal injury to a primary victim is reasonably foreseeable, a negligent defender is liable for all physical or psychiatric injury causally resulting. Liability is not restricted because the extent, mechanism or psychiatric character of the injury was unforeseeable. The defender must take the victim as found.

Emotional reactions such as anger are not themselves compensable, but a recognised illness produced by them may be. Where several factors contribute to an injury, causation is established if the factor attributable to the defender’s fault makes more than a minimal contribution. Without a basis for apportionment, the defender is liable for the whole injury.

The respondent employee suffered physical injuries when he tripped at work and struck his head. His pre-existing psoriasis later worsened, and he developed a severe depressive illness. The Lord Ordinary found the employer liable for the accident but awarded damages only for the immediate injuries: 2002 SLT 711.

The Second Division allowed the employee’s reclaiming motion and awarded £498,221.77 after substituting its own findings about the onset and cause of the later conditions: [2002] ScotCS 286; 2003 SLT 62. The employer appealed. The central issues were whether the appellate court had been entitled to disturb the Lord Ordinary’s findings and whether, on those findings, the psoriasis and depressive illness were sufficiently caused by, and not too remote from, the accident.

1. Appeal dismissed unanimously. Lord Hope of Craighead and Lord Rodger of Earlsferry delivered the substantive speeches. Lord Steyn, Lord Scott of Foscote and Baroness Hale of Richmond agreed with both. The House accepted the Lord Ordinary’s material findings but held that he had applied the law incorrectly. The employee remained entitled to the full award of £498,221.77.

2. Per Lord Hope and Lord Rodger, the Second Division had no proper basis for substituting its own factual conclusions. A trial judge’s advantage extends beyond credibility to the reliability, personality and demeanour of witnesses. An appellate court should not displace findings dependent upon those advantages unless satisfied that the trial judge was plainly wrong. The Lord Ordinary was entitled to find that the psoriasis worsened several weeks, rather than days, after the accident.

3. Per Lord Rodger, with Lord Hope agreeing, reasonable foreseeability supplies the starting point for remoteness. A defender is generally not liable for damage of an unforeseeable kind. Foreseeability is not conclusive where a new intervening act or unreasonable conduct breaks the chain. If the injury is of a foreseeable kind, however, its unforeseen extent or manner does not exclude liability, and the defender must take the victim as found.

4. Applying Page v Smith [1996] 1 AC 155, the employee was a primary victim because physical injury was foreseeable and had actually occurred. It was unnecessary to ask separately whether psychiatric injury was foreseeable. Physical and psychiatric injury were not different kinds of personal injury for this purpose. A recognised illness caused through anger, fear, frustration or another emotional response to the accident could therefore be recovered, although the emotion itself did not sound in damages.

5. Per Lord Hope and Lord Rodger, the accident was one of several causes of the employee’s anger. Under the material-contribution principle in Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, it was enough that the anger attributable to the employer’s fault contributed more than minimally to the psoriasis and ensuing depressive illness. There was no basis for separating or apportioning the effects of the various factors. The causal connection was established, and damages were recoverable for all the resulting injuries.

1. House of Lords: In [2004] UKHL 20, unanimously dismissed the employer’s appeal. It accepted the Lord Ordinary’s material factual findings but upheld the Second Division’s award on different legal reasoning.

2. Inner House, Second Division: In [2002] ScotCS 286, reported at 2003 SLT 62, allowed the employee’s reclaiming motion, recalled the Lord Ordinary’s interlocutor and awarded £498,221.77 with interest.

3. Outer House: The Lord Ordinary found the employer liable but awarded damages only for the immediate physical injuries, excluding the aggravated psoriasis and depressive illness: 2002 SLT 711.