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Simmons v British Steel Plc, House of Lords, 29 April 2004

4 May 2004
The issues

Psychiatric Injury – Psoriasis – Causation – Whether the Defender Liable For Psoriasis And Depressive Illness Arising Out Of Claimant’s Reaction To An Accident At Work – Material Contribution.

The facts

The Claimant/Pursuer was employed as a burner by the Defendant, British Steel in Cambuslang. He had an accident at work striking his head hard against a metal stanchion.

The Judge had found at first instance the Defendant liable amongst other things for failing to provide a safe system of work. The finding on liability was not challenged by the Defendant. Immediately after the accident the pursuer was dazed and shaking. He had a “thumping headache” the next day. For some time his head remained sore and he continued to take painkillers as advised by his doctor. The Trial Judge found that the pursuer had 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. The pursuer also claimed that the psoriasis and depression which afflicted the Claimant after the accident and as a result of which he claims he did not return to work, could also be put to the Defendant’s door.

There had been a dispute on evidence. The pursuer himself had given contradictory evidence as to the date on which the psoriasis had erupted. The pursuer’s wife had stated that the eruption occurred “some weeks later”. The Trial Judge preferred the wife’s evidence. The Trial Judge dismissed this element of the claim on the basis that the exacerbation of his condition and depression had been caused by his anger at the Defendant’s treatment of him after the accident rather than the accident itself (the pursuer was angry that the accident had happened at all despite warnings he had given to his employer, and that, after it had happened, nobody seemed to be interested in his welfare and that nobody from the personnel department of the Defendant had come to visit him or to contact him to enquire how he was, and that no apology had been made to him). The pursuer appealed to the inner house which reversed the decision of the Trial Judge on the basis that the Trial Judge’s conclusions were unsatisfactory and they took a different view of the case. They preferred the pursuer’s own evidence as to the date of the eruption of psoriasis.

The decision

1. An Appellate Court should not come to a different conclusion from a Trial Judge on printed evidence unless it was 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 conclusions; Lord Thankerton in Thomas v Thomas 1947.

2. The criticisms of the Trial Judge’s findings by the Inner House were not justified. In particular there had bee no reason to substitute a finding that the pursuers skin condition worsened within a matter of days rather than within a few weeks;

3. However, even on findings of fact as made by the Trial Judge, questions of law arose. From Page v Smith it was clear that the pursuer was a primary victim. The Defender should accordingly be liable for all the consequences of the accident including the psychiatric consequences of the accident;

4. The Defender argued that the pursuer’s psoriasis and depressive illness sprang not from the accident itself but from the pursuer’s anger at the handling of the accident and his treatment thereafter. There was no reason to give effect to such a distinction even supposing that it could realistically be drawn in a given case. Regret, fear for the future, frustration at the slow pace of recovery and anger were all emotions that were likely to arise, unbidden, in the minds of those who suffered injuries in an accident of this sort. If alone or in combination with other factors, any of these emotions resulted in stress so intense that the victim developed a recognised mental illness there was no reason in principal why he should not recover damages for that illness (Lord Rodger).

5. In this case there were a number of factors that had brought about the pursuer’s condition. The Trial Judge had not singled out the Defender’s treatment of the pursuer after the accident as being the sole operative cause of the psoriasis and depressive illness. He had also included his anger at the Defenders that the accident had occurred at all despite warnings that he had given them.

6. The Defender had sought to argue that the principle in Wardlaw v Bonnington Castings Limited did not apply in this situation but no authority had been cited and this view was unsound. The usual rule applied in these circumstances 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 was entitled to recover damages for all his injuries where one of the tortuous causes had made a material contribution to the pursuer’s condition.


At first blush Lord Rodgers Judgment and in particular his comments on Wardlaw appear alarming to any Defendant dealing with a claim for psychiatric injury – and in particular occupational stress. However, Hatton/Barber remains authority for the proposition that psychiatric injury is “divisible” in principle and therefore capable of apportionment. (Insurers will recall that although the issue of apportionment was before their Lordship’s House in Barber their Lordships elected not to hear the issue at the last minute). Lady Justice Hale (who sat as Lady Hale of Richmond in Simmons) made it clear that Wardlaw was a case on material contribution in the context of liability and did not rule out arguments of apportionment between concurrent causes, tortious and non-tortuous. In fact, in Wardlaw the Defendant raised no argument on apportionment.

Insurers may wish to add emphasis to Lord Rodger’s comments that the usual rule in Wardlaw 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. ÷÷.”

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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