Simmons v British Steel plc

The House of Lords dismissed the defenders' appeal and upheld the award of damages for both the immediate physical injuries and the later exacerbation of a pre-existing dermatological condition and resultant depressive illness. The court applied the principle in Page v Smith that where the claimant is a primary victim (having suffered physical injury) the defendant is liable for psychiatric injury without separate foreseeability of psychiatric harm. The court also applied the material contribution test (Wardlaw/Wardlaw principle) to causation: where multiple factors contribute, a contribution which is not de minimis is sufficient. The defenders must "take their victim as they find him", so aggravation of a pre-existing susceptibility is within liability. The House rejected the Inner House's interference with the Lord Ordinary's key factual findings on timing and reliability of witnesses, but held that, applying established legal principles, those factual findings nonetheless established liability for the wider consequences of the accident.

Background and facts:

• The pursuer, employed as a burner, tripped on trailing gas/oxygen tubes on 13 May 1996, fell from a burning table and struck his head, suffering physical injuries for which the defenders were found liable.
• After the accident the pursuer experienced an exacerbation of pre-existing psoriasis and developed a severe depressive illness; he has not returned to work.
• The Lord Ordinary awarded damages for the immediate physical injuries only; on reclaiming the Inner House awarded the larger sum agreed and the defenders appealed to the House of Lords.

(i) Nature of the claim: The pursuer sought damages for immediate physical injuries and for subsequent exacerbation of a dermatological condition and psychiatric illness arising from the accident; the principal issues were causation and remoteness for those latter heads of damage.

(ii) Issues framed by the court:

• Whether the Lord Ordinary's factual findings (particularly as to timing and causation) should be disturbed by the Inner House.
• If the Lord Ordinary's findings stand, whether the exacerbation of the skin condition and the depressive illness were legally caused by the accident and are recoverable (questions of causation, remoteness and the applicable legal tests for psychiatric injury).

(iii) Reasoning and decision:

• The House concluded that the Inner House was wrong to substitute its own findings on certain factual points where the Lord Ordinary had properly assessed witness reliability and timing.
• On the legal issues, the House applied Page v Smith: as the pursuer was a primary victim (he sustained physical injury), it was unnecessary to require separate foreseeability of psychiatric injury; the duty extended to psychiatric as well as physical consequences.
• The court applied the material contribution approach to causation (Wardlaw/Wardlaw and McGhee analogies): where the defender's fault made a material contribution (not de minimis) to the emotion or condition that produced the harm, liability follows.
• The defender must take the victim as found; aggravation of pre-existing conditions is therefore within liability. Applying those principles to the Lord Ordinary's findings, the House held that the accident materially contributed to the pursuer's anger and subsequent exacerbation of psoriasis and depressive illness, so damages for those heads were recoverable.

Appeal dismissed. The House of Lords held that (1) the Inner House was not entitled to supplant the Lord Ordinary's factual findings on timing and witness reliability; (2) as the pursuer was a primary victim his psychiatric injury did not require a separate foreseeability inquiry under Page v Smith; and (3) causation is satisfied if the defender's fault materially contributed to the harm (and the defender must take the victim as he finds him), so the pursuer was entitled to damages for the exacerbated psoriasis and depressive illness.

Appeal to the House of Lords from the Inner House, Second Division (reclaiming motion allowed: 2003 SLT 62). First instance decision by the Lord Ordinary (Hardie) in the Outer House: 2002 SLT 711 (interlocutor recalled by Inner House).