in the cause







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

Defenders: Smith; Simpson & Marwick, WS

23 February 2001

[1]The pursuer seeks damages for injuries sustained by him while acting in the course of his employment as a burner with the defenders at their premises at Clyde Bridge Works, Cambuslang, on or about 13 May 1996. At the defenders' premises there were four cutting stations each containing a burning table using a profile burner. The profile burners at stations 1 and 2 were fitted with drum devices containing the tubes supplying gas and oxygen to hand-held burning torches. The operator using such a torch at stations 1 and 2 was able to pull out the required length of tubes to enable him to work in safety. He could cause the drum to retract the tubes so that at any given time there was no need for any unnecessary length of tubes to be lying on the metal plate which was being cut by the profile burner. No such drum device was fitted to the profile burners at cutting stations 3 or 4. Consequently at these stations lengths of tubing were attached to a mains supply situated on the wall behind the burning table and the operator required to pull the tubes up onto the burning table and thereafter to pull them along the table cutting scrap metal left by the profile burner. The tubes were heavy and unmanageable and often became snagged on the edge of the table or on serrated spars which supported the steel plate which was being cut by the profile burner. There was no system for the retraction of any unnecessary tubing at these cutting stations.

[2]On the said date the pursuer was working at burning station 3, which was fitted with a burning table about three metres wide by 20 metres long and about half a metre above floor level. Above the table there are rails which allow the profile burner to run the length of the table and on top of the table there are serrated spars upon which sits the steel plate which is to be cut to shape by the profile burner. The profile burner is operated by computer and passes over the steel plate. Burners such as the pursuer required to follow the passage of the profile burner and to cut the remaining scrap metal edges into manageable sizes with his hand-held burning torch. In order to undertake his duties the pursuer required to climb up onto the table and from the table onto the rail along which the profile burner ran and thereafter onto the metal plate which was to be cut. Once the pursuer had completed cutting the scrap metal, he descended from the metal plate and the scrap metal in the reverse order. On the said date when the plate had been cut, the pursuer was about to step down from the table when the tubes snagged either on the table or on the serrated spars causing the torch to be wrenched from his hand and the tubes to become entangled in his legs, as a result of which the pursuer fell from the table and struck his head against a metal stanchion. The pursuer was wearing protective headgear with a visor which was split as a result of the severe impact and the pursuer sustained certain injuries.

[3]As far as the circumstances of the accident are concerned, the only witnesses were the pursuer, Fraser Chambers and David Botterill, who were colleagues of the pursuer working in the vicinity of the pursuer. The pursuer testified that he was carrying his burning torch and was about to descend from the table to the floor when the tubes became snagged, wrenching the torch from his grasp and causing the tubes to trip him as a result of which he fell headlong into a metal stanchion. He suffered a severe blow to his head, causing his helmet and visor to crack and his ear to be damaged. He ended up sitting on the floor. Fraser Chambers saw the pursuer tripping and coming off the table, thereafter striking his head on a metal stanchion. Mr Chambers said that the pursuer's helmet was cracked and the visor on the helmet was smashed and cracked. The pursuer was dazed and did not appear to know where he was. Mr Chambers took the pursuer to Mr Scott, the shift manager to enable the pursuer to report the matter. David Botterill said that the first that he was aware of any problem was when he turned and saw the pursuer on the ground. The pursuer was groggy and Mr Botterill went to his assistance after which Mr Chambers took the pursuer to Mr Scott's office. The shift manager, Jack Scott, gave evidence for the defenders. He recalled the pursuer telling him of the accident when they were leaving the factory to go home and mentioning that he had sustained injury to his ear. Mr Scott thought that a formal accident report was completed in the presence of the pursuer the following day. I concluded that Mr Scott was mistaken in respect of this last piece of evidence, which was not in any event material. It was however inconsistent with the evidence of the pursuer, his wife, Mr Chambers and Mr Botterill. In the circumstances I accepted that the accident to the pursuer occurred as he averred. In fairness to the defenders the circumstances of the accident were not seriously disputed in cross-examination.

[4]The next issue for me to consider is the question of whether the accident was caused by the fault of the defenders. The pursuer gave evidence that the problem of the tubes snagging on the table or on the serrated spars was a common occurrence. A number of other witnesses for the pursuer gave evidence to the same effect, namely Fraser Chambers, David Botterill, Obedia Phillips, Charles Heaney and James Waddell. Although John Daly, the manufacturing manager of the defenders, stated that he was unaware of this problem, three of the defenders' witnesses, all of whom were shift managers, namely Jack Scott, John Colligan and Thomas McCallum, confirmed that they were aware that tubes did snag on the table or on the serrated spars at those stations not fitted with overhead drums to contain the tubes. At stations 1 and 2 where drums were fitted, there was no opportunity for the tubes to become snagged because the operator was able to restrict the amount of tubing to the absolute minimum required to provide oxygen and gas to his torch. All of the witnesses, including the defenders' witnesses, accepted that if an overhead drum had been fitted to the pursuer's machine, the tubes would not have become snagged and the accident would not have occurred. John Daly, accepted in cross-examination that it would have been practicable to fit an overhead drum at station 3. Moreover he accepted that prior to the accident the defenders had identified the need to fit a drum at that station and station 4 but it had not been done. He did not consider the matter to be high priority but if he had been aware that there was a problem of snagging he would have reviewed the decision not to fit a drum at that stage. There was also evidence in cross-examination of the defenders' witnesses that the fitting of drums to the burning portals at these stations was not a major exercise. In particular Jack Scott explained that a drum could be fitted within four to six hours and in re-examination he stated that he thought that prior to the accident the drums were readily available in the store. It appeared to me on the evidence led that the risk of injury at stations 3 and 4 caused by operators tripping over tubes or by tubes snagging and causing operators to overbalance was an obvious risk which the defenders failed to address. I considered that the system of work at stations 3 and 4 was unsafe and that for little inconvenience the defenders could have fitted a drum at stations 3 and 4 prior to the accident had they been seriously concerned about the safety of their employees.

[5]I noted that although drums have now been fitted to stations 3 and 4, it appears that this occurred some considerable time after the accident notwithstanding the manager's recommendation dated 1 July 1996 appended to the injury report form (No 6/2 of process) that hose reels should be fitted to cutting portals 3 and 4 to reduce the likelihood of a similar accident and that this should be done by 10 July 1996. Russell Clearie, an employee of the defenders, testified that it was between nine months and one year after the accident before this recommendation was implemented. He was not cross-examined on this matter and I attached significance to this piece of evidence when I sought to reconcile the difference between witnesses for the pursuer and witnesses for the defender about whether the issue of the installation of drums at stations 3 and 4 had been raised with the defenders prior to the accident. The significance of Mr Clearie's evidence is that it suggested to me that the defenders were not as concerned about issues of safety as their witnesses sought to persuade me. In general I preferred the evidence of the witnesses for the pursuer who testified that on numerous occasions prior to the accident they had either spoken with representatives of management or had entered comments on burning sheets to the effect that overhead drums should be installed at stations 3 and 4 but these requests were not complied with. Even if no such complaints or requests had been made I would have concluded on the evidence that it must have been obvious to anyone applying their mind to issues of safety that there was a significant risk of injury to operators in the system of work adopted at stations 3 and 4 which could easily be avoided by adopting the system at stations 1 and 2. In all the circumstances I am satisfied that the accident was caused by a breach of the defenders' common law duties towards the pursuer in respect of their failure to take reasonable care for his safety. In particular they failed to take reasonable care to provide him with a safe place of work, a safe system of work and with safe and suitable plant and equipment to enable him to carry out his work in reasonable safety.

[6]In relation to the defenders' alleged breaches of statutory duties relied upon by the pursuer, I have concluded that the defenders are in breach of Regulation 11(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. That regulation provides:-

"Every workstation shall be so arranged that it is suitable both for any person at work in the workplace who is likely to work at that workstation and for any work which is likely to be done there."

For the reasons which I have already given I do not consider that the workstation at which the pursuer had to work was so arranged that it was suitable for him or for the work which was likely to be done there. The presence of the tubes on the metal plate and on the table and their tendency to snag on the table or on the spars, rendered the workstation unsuitable for work which was likely to be done there.

[7]I also consider that the defenders are in breach of Regulation 12(3) of the 1992 Regulations. That regulation provides:-

"So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall".

The metal plate was the floor of the pursuer's workplace. It was not kept free from "any article" which may cause a person to slip, trip or fall. In particular it was not kept free of the tubes which caused the pursuer to trip and fall. The defenders submitted that this regulation had not been breached because the tubes were not an obstruction as they were justifiably there as part of the process. In this regard counsel for the defenders relied upon Jenkins v Allied Iron Founders Ltd 1970 SC (HL) 87. In particular he relied upon the speech of Lord Reid at page 41 where his Lordship considered the meaning of the word "obstruction". His Lordship stated:- "This is clearly not intended to include easily visible objects properly put on the floor in the course of a proper system of work." I respectfully agree with Lord Reid in this regard and had I been concerned with a regulation which was confined to "an obstruction", I would have favoured the defenders. However the regulation with which I am concerned is wider than that considered by Lord Reid and requires employers to keep floors free not only from obstructions but also from "any article or substance which may cause a person to slip, trip or fall". Mr Smith for the defenders invited me to conclude that an obstruction was synonymous with an article unless perhaps an article was moveable and an obstruction was fixed. It was his submission that the purpose of the regulation was to stop things being there that should not be there. It should therefore not apply to equipment being used in the course of the manufacturing process. I consider that the fact that the regulations have added the word "article" must be given some effect and the meaning of the word "article" must be something other than an obstruction. I do not consider that the distinction should be on the basis of moveable and fixed items. Indeed if that was the case, Lord Reid would not have concluded that the gate in Jenkins was an obstruction because it was clearly moveable. In my opinion an article must be construed as meaning something other than an obstruction and would extend to easily visible objects which were on the floor even if they were part of a process. If they were there as part of a proper and safe system of work, it is difficult to see how employers would be in breach of this regulation because they would probably be able to satisfy the reasonable practicability test. I consider that the addition of the word "article" to the obligation to keep floors free from obstructions has the effect of removing the previously absolute protection afforded to employers for placing visible objects on the floor in the course of a proper system of work. It will now be for employers to show that it was not reasonably practicable to avoid placing such articles on the floor even if they are part of the manufacturing process.

[8]Finally I consider that the defenders are in breach of Regulation 5 of the Provisions and Use of Work Equipment Regulations 1992. For the reasons already given, the equipment was not suitable for the purpose for which it was to be used and the defenders ought to have had regard to the additional risk posed to the pursuer by the use of that equipment. Accordingly I have reached the conclusion that the accident was caused by the fault of the defenders at common law and in breach of their statutory obligations.

[9]Although there was a contributory negligence case on Record, the defenders' counsel advised me in his closing submissions that the defenders did not insist upon it. Accordingly damages fall to be assessed on the basis of full liability.

[10]The real issue in this case is what the consequences of the accident were. In particular I have to determine what the present medical condition of the pursuer is and the extent to which the defenders are responsible for that condition. There are essentially three aspects to the pursuer's medical condition following the accident. The first of these is the direct physical effects of the blow to his head, the second is the exacerbation of his pre-existing skin condition and the third is his present mental state. I propose to deal with each of these in turn and to consider the extent to which I am satisfied that the pursuer has established that each condition is referable to the accident.

[11]In relation to the consequences immediately following the accident, it is clear from the evidence of the pursuer, Mr Chambers and Mr Botterill that the pursuer sustained a severe blow to his head, causing his safety helmet to crack and the visor on the helmet to smash and crack. The pursuer was dazed. He was shaking. He said that the "sweat was lashing off" him. On the evidence of the pursuer and Mr Scott, the pursuer sustained an injury to his right ear. Liquid was running out of it. Although Mr Scott is mistaken about the time of reporting the accident, the mistake is not material because the accident occurred towards the end of the shift in any event and the time lapse between the pursuer reporting the accident in Mr Scott's office and leaving the factory would not have been long. The pursuer's wife gave evidence about the condition of the pursuer when he arrived home. He told her about the accident. He complained of a sore head. He had a swelling at the right-hand side of his head at the top of and above his right ear. The following morning the pursuer complained about a "thumping headache". He stayed off work and his wife made an appointment for him to visit his general practitioner the following day, 15 May. When he returned from the doctor he told her that he was to take painkillers and rest. He complied with that advice. He never returned to work. His head remained sore for some time. A day or two thereafter the pursuer complained to his wife that his eyesight was affected. In particular his vision was "jumping" when he watched television or tried to read the newspaper. He continued to take painkillers. His head remained swollen for several days. The pursuer's wife spoke of his right ear leaking. Some weeks later his skin erupted. The defenders' occupational health unit records relating to the pursuer are No 7/5 of process. At page 73 there is an entry relating to a consultation approximately five weeks after the accident. That entry records that the pursuer gave a history of falling and striking the right side of his head and face and complained that his right ear had been painful since then. He complained of feeling dizzy and his ear was suppurating at that time.

[12]I considered the pursuer and the pursuer's wife to be credible witnesses. Indeed the pursuer's wife tended to understate the difficulties which the pursuer and she had experienced since the accident. The pursuer's general practitioner, Dr Douglas Naismith, gave evidence about various entries in the records. I did not find Dr Naismith particularly impressive as a witness. He stated at one point that in completing forms for the Department of Social Security, it was his practice to put in absolutely every condition from which his patients suffered and to complete these forms without referring to the medical records of the patient. His explanation for this was to avoid unnecessary bureaucracy. Despite my reservations about Dr Naismith, I derived some support from his evidence in relation to the injuries sustained by the pursuer as a result of the accident. On 15 May 1996 there is an entry in the pursuer's records relating to a visit to his general practitioner. This coincides with the evidence given by the pursuer's wife about arranging an appointment for the pursuer and that that appointment was two days after the accident. The entry records an ear infection. On 20 May 1996 there is a record of a further visit where the doctor records elevated blood pressure for which the pursuer was prescribed Tenif, a drug which had been prescribed on a previous occasion for the pursuer. The entry also records a head injury. Accordingly, in relation to the first issue I am 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.

[13]The second issue relates to the exacerbation of a pre-existing skin condition. The evidence on this matter comes essentially from the pursuer, his wife, Dr Angela Forsyth, a consultant dermatologist instructed by the pursuer and Dr John Cotterill, a consultant dermatologist instructed by the defenders. Both the pursuer and his wife spoke of the pursuer having a pre-existing skin condition for which he had received treatment. He had previously been to a dermatologist. On occasions he received ointments and other medication to treat his skin when it became inflamed. Several weeks after the accident the pursuer's skin condition deteriorated. It was more severe than ever before. He was referred to the Work's 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.

[14]The medical evidence relating to the pursuer's dermatological condition was contained in the report by Dr Forsyth (No 6/1 of process) and the report by Dr Cotterill (No 7/1 of process). Both of these experts gave evidence. One of the differences between the two experts was that Dr Forsyth was of the opinion that the pursuer had psoriasis whereas Dr Cotterill considered that the pursuer had seborrhoeic eczema and probably psoriasis. I did not consider that there was any significance in this particular difference between the dermatologists but if it had been significant, I would have preferred the evidence of Dr Forsyth for the reasons which I will explain in connection with other differences. The principal difference between these witnesses was that Dr Cotterill considered that the pursuer's skin condition following the accident was caused by the Tenif which was prescribed for the pursuer on 20 May 1996 and on 1 July 1996 for hypertension. Clearly if Dr Cotterill was correct in his conclusion in this respect the pursuer's skin condition could not have been caused by the accident at his work. Dr Forsyth rejected the theory that Tenif had caused the pursuer's skin condition. The reasons for her rejecting such a conclusion were that the pursuer had been prescribed Tenif on a previous occasion and it had not had any adverse effect on his skin; moreover, if the Tenif had been the cause of his skin complaint, Dr Forsyth considered that following the cessation of that medication his skin would have improved. Such an improvement did not occur when the pursuer ceased taking Tenif.

[15]In general I considered that Dr Forsyth was a witness upon whom I was prepared to place more reliance than Dr Cotterill. Undoubtedly the pursuer had not been an easy patient for either Dr Forsyth or Dr Cotterill, both of whom had been subjected to abuse by the pursuer when they examined him. I think it is fair to say that both of these doctors considered that the pursuer was probably one of their most difficult patients. Dr Forsyth gave the impression of being more objective and truly an expert witness whereas Dr Cotterill struck me as being partisan and considered himself to be a witness for the defenders rather than an expert witness. This can be illustrated by two matters. At page 1 of his report Dr Cotterill refers to the pursuer being tattooed and his facies being plethoric, suggestive of excessive alcohol intake. When he was asked in cross-examination about the reference to tattoos, Dr Cotterill expressed the view that tattooing was indicative of a borderline personality disorder. He maintained that if you saw people who were extensively tattooed, that indicated a personality disorder. He made reference to police officers being alarmed at certain tattoos on the hands of young people as being "borstal spots". He referred to professional tattoos as initiation rites. At the end of this chapter of cross-examination he stated that he wasn't putting any "great store on the pursuer's tattoos". Rather it was just something he observed. In relation to the facial appearance indicative of alcohol intake, when he was cross-examined about this, Dr Cotterill stated that he was unaware of the pursuer's alcohol intake at the time of his examination of the pursuer. He confirmed that there had been no smell of alcohol. He confirmed there had been no slurring of speech. He confirmed that the pursuer's eyes were not glazed. The pursuer simply had a red face. At page 8 of the report Dr Cotterill remarked upon the absence of any reference to a head injury in the general practitioner's reports. In fact there was such a reference on 20 May 1996. The whole tenor of Dr Cotterill's evidence was unsatisfactory. It appeared to me that he was giving such evidence as he considered the defenders wished rather than an objective assessment of the pursuer's condition and its possible causes. Had it been necessary for me to do so, I would have rejected Dr Cotterill's evidence in favour of Dr Forsyth.

[16]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.

[17]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.

[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.

[19]A number of witnesses gave evidence which had a bearing upon the pursuer's present mental state. These included the pursuer, his wife, James Waddell, Charles Heaney, Obedia Phillips, David Botterill, Fraser Chambers, Russell Clearie, James Jones, Community Psychiatric Nurse, John Coffey, Senior Charge Nurse, Dr Pelosi, Consultant Psychiatrist and Dr Christopher Freeman, Consultant Psychiatrist. All of the witnesses apart from the medical witnesses testified to some extent about the change in the pursuer's personality since the accident. I accepted these witnesses as credible. In particular I did not consider that either the pursuer or his wife exaggerated in describing his change in mood. Mrs Simmons testified that there had been a complete personality change in her husband. The pursuer's first involvement with psychiatric services was the referral on 21 February 1997 by his general practitioner to James Jones, a community psychiatric nurse who was a second cousin of the pursuer (No 7/4 of process, page 25). Mr Jones contacted Mr Coffey on or about 14 March 1997 and the pursuer saw Mr Coffey from about April 1997 for at least a year. Mr Coffey involved Dr Pelosi in the treatment of the pursuer. Dr Pelosi, the most senior psychiatrist in Lanarkshire, made a diagnosis of a depressive illness as a reasonable working hypothesis. Unfortunately he was unable to test his hypothesis because of the lack of co-operation of the pursuer. Dr Pelosi indicated that he wished the pursuer to undergo treatment in a private facility for which he had received the necessary commitment of public funds but Dr Pelosi was unwilling to incur such expenditure unless the pursuer was willing to co-operate which he declined to do. Dr Pelosi was in no doubt that the pursuer was psychiatrically ill and considered that the most appropriate category was depressive illness. At the end of the day there was little difference of opinion between Dr Freeman and Dr Pelosi. Dr Freeman considered that Dr Pelosi's diagnosis of a depressive illness was a reasonable working hypothesis. In cross-examination Dr Freeman stated that he sensed that there was something psychiatrically wrong with the pursuer. When the pursuer's conduct in the witness box was described to Dr Freeman he accepted that the pursuer could be someone with a depressive condition. On balance I am satisfied that the pursuer is suffering from a mental disorder, namely a depressive illness.

[20]The sole remaining issue for me to determine in this regard is whether the pursuer's mental disorder is attributable to the accident. I have found this aspect of the case to be the most difficult to resolve. 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 (No 6/11 of process) 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. 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.

[21]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. If I had concluded otherwise the damages which I would have awarded are tabulated below.

Past Solatium


Interest thereon


Future Solatium



Past Wage Loss


Interest thereon



Future Wage Loss


Past Services


Future Services


Pension Loss


Total Damages


In relation to future loss I have taken a broad figure which approximates ten years' wage loss. I have adopted this approach to reflect the desire of the pursuer to return to work and also to recognise that whereas there has been some improvement in his condition, it is likely to be several years before he is fit for work. It also reflects the fact that I consider that his improvement in health would accelerate if he were to co-operate with the psychiatrists in obtaining treatment. I have not allowed anything for past services or future services. While I recognise that Mrs Simmons has been a devoted wife and has undertaken additional chores such as driving the pursuer to appointments and returning home at lunchtimes to ensure that the pursuer has got out of bed, I am not convinced that the additional chores undertaken by the pursuer's wife could be described as necessary services.

[22]It was agreed that if I made an award of damages restricted to the consequences immediately following the accident, such damages should be for past solatium only. Having regard to the injury which the pursuer sustained as a result of his fall and to the prolonged period during which he suffered headaches, dizziness and blurred vision, I consider that an appropriate award of solatium in this case is £3,000. Interest thereon from the date of the accident to date amounts to £573.60. Accordingly I shall repel the first five pleas-in-law for the defenders, sustain the first plea-in-law for the pursuer and grant decree for the sum of £3,573.60 inclusive of interest.