Scottish Court of Session Decisions

Lewis v Richardson [2002] ScotCS 21 (23rd January, 2002)

OUTER HOUSE, COURT OF SESSION
1598/5/99	OPINION OF LORD REED in the cause HELEN LEWIS Pursuer; against GRAHAM RICHARDSON Defender:   ________________

 

 

Pursuer: Lamont; Lawford Kidd

Defender: P.M. Stuart; Brechin Tindal Oatts

23 January 2002

1. This action of damages arises out of a road accident in which the pursuer was injured. Liability is admitted. The only matter in dispute is the assessment of damages. In that regard, I heard evidence from the pursuer. Her evidence was not cross-examined. The accuracy of three reports by Mr J E Robb, a consultant orthopaedic surgeon, was agreed by joint minute. Counsel confirmed that that agreement extended to the entire contents of the reports, including the histories given by the pursuer to Mr Robb.
2. The circumstances giving rise to this claim can be summarised as follows. On Sunday 21 February 1999 the pursuer, a 32 year old management consultant employed by the Scottish Office Home and Health Department, was on her way home to Edinburgh after spending the weekend hill-walking with friends in Skye. She was a passenger in a car being driven by a female friend. The other friends who had been in the hill-walking party were in another car. Road conditions were poor due to snow. About 30 miles from Kyle of Lochalsh the car in which the pursuer was travelling skidded at a corner, spun round and travelled backwards for about 150 yards before going into a ditch at the side of the road. The pursuer was shaken but uninjured. She and her friend left the car and made their way to a local hotel, where they telephoned the police and reported the accident. Police officers attended and took the pursuer and her friend back to the car, in a police car, to collect their property. The police car was parked on the verge at the side of the road. The pursuer's other friends also went to the scene of the accident, in their car, and parked about 5 yards behind the police car. While the pursuer was sitting in the back seat of the parked police car, another car, driven by the defender, approached from the opposite direction. It skidded at the corner and slid across the road towards the police car. It struck the police car head on, causing the police car to move backwards. The police car then struck the car which was parked behind it.
3. In her evidence, the pursuer described how frightening she found this double collision. She was already in a nervous condition due to the incident in which her own car had gone off the road. When the defender lost control of his car on the bend, she saw his car sliding towards the police car over a distance of about 50 yards. She was unable to get out of the police car and was trapped in the face of the impending collision. She described the initial impact, when the defender's car struck the police car, as "pretty hard". It was then followed by the second impact. The pursuer was shocked and frightened at that stage. She was upset. Within a short time of the accident she was aware of something being wrong with her neck. It felt stiff and uncomfortable, especially on the left side. She was offered a lift back to Edinburgh by other people at the hotel. Road conditions remained very poor, and the journey lasted 5 hours. The pursuer found it frightening, due to the shock of the previous accident and her fear that another accident might occur. During the journey her neck became increasingly stiff and painful.
4. The following morning the pursuer found that her neck was still stiff and painful. She took the day off work and went to see her GP. She was advised to put an ice-pack on her neck, to take ibuprofen to reduce the swelling and to keep her neck mobile. She followed that advice. Her neck however became increasingly stiff and painful, the pain reaching its peak about 72 hours after the accident. By that stage the pursuer was unable to tilt her neck downwards and had difficulty tilting it sideways. Although movement of her neck was painful, she kept moving it in order to help it to get better, as her doctor had advised. She worked at home on the second day after the accident, and went into the office on the third day. Her work normally involved driving for about 3 hours per day, but she did not attempt driving at that stage. On the third or fourth day she went back to her doctor, as the pain was getting worse and was spreading. Her lower back was starting to hurt, and she was getting shooting pains down her left leg, from the buttock towards the knee and the ankle. She felt pins and needles in her left thigh and foot. The pain in her leg was quite intense. She was prescribed voltarol, a stronger anti-inflammatory. That helped relieve the discomfort. On medical advice, she cancelled a skiing holiday which she had booked, incurring a cancellation charge. During that first week after the accident she did very little. She did not go shopping. She did not do any housework. She was cautious about lifting anything. She did not pick up her laptop computer. She put very little into her briefcase. She had to be careful about how she sat, and could not sit for more than 30 minutes without needing to get up and walk around. At the end of that week she was obliged to drive to see a client. Following this drive she noticed that her neck was considerably worse.
5. The pursuer's GP had referred her to a physiotherapist, but there was a waiting list. In the meantime the pursuer paid privately for physiotherapy. As advised by the physiotherapist, she purchased a special pillow to wear around her neck, which was alternately frozen and heated. She also purchased a lumbar roll for support while sitting or driving. Once the NHS physiotherapist became available, the pursuer attended further sessions with her. Physiotherapy took place initially twice a week, and subsequently once a week, over a period of about ten weeks. The pursuer found it helpful. The physiotherapist manipulated the pursuer's legs and gave her exercises to do. Driving gradually became easier, provided the pursuer took breaks on long journeys. She continued to wear the neck cushion and to use the lumbar roll. At home, she lay on the floor when necessary to relieve the pain. Physiotherapy sessions stopped on the basis that the pursuer was to continue doing the exercises. By that time her neck was moving more freely and was less painful. It was still sensitive, and there was the occasional problem. The pursuer was careful to avoid making it worse. Prior to the accident she had been very active, doing a lot of climbing (as often as twice a week) and hill-walking (at least once a week). She did not pursue these activities or pick up heavy objects. She did not attempt housework. Shopping had to be done in small batches. She was helped out by other people.
6. By this stage - around 10 weeks after the accident - the principal problem was the leg pain. At the beginning of this period it had been more or less constant, but by the end of this period it had become intermittent. It occurred weekly, for about 2 days on each occasion. On a bad day, the pain would extend to her foot. On a good day, she would only have pain in her back. The bad episodes were typically set off by driving, lifting or bending down to pick things up. She also had to be careful how she slept and got out of bed. After a time she stopped taking painkillers, as she did not think they were good for her. Instead she took advice from a physiotherapist and from a yoga teacher about how to relieve pain by exercises.
7. This pattern of weekly episodes of pain, typically lasting 2 days, continued until about 9 months after the accident. Between about February 2000 and February 2001 the episodes of leg pain were occurring about once every 2 weeks. Bad episodes lasted between about 2 and 7 days. There were about 8 to 10 such episodes during that year. Between about February 2001 and January 2002 there had been 2 or 3 episodes of bad pain, the last such episode being a period of 3 weeks in October 2001 when the pain had radiated down to her foot. As at January 2002 she continued to get odd "twinges". It was noticeable during the proof that after standing giving evidence for about an hour the pursuer began rubbing the small of her back. She explained that this was because she was getting twinges of pain.
8. The pursuer had attempted to resume her previous activities but, as she explained, she had to be "sensible" about what she did. She had resumed hill-walking in September 1999, and had built up gradually. She would not do anything severe. She used a lighter backpack than previously. She no longer did winter walking, because she did not like going on snowy roads in remote places. She had given up climbing. She did not attempt skiing for more than a year after the accident. Since then she had gone skiing on one occasion. She had taken a skid training course to improve her confidence when driving in winter, but she remained nervous about driving in bad weather or in remote places. She had to plan her working day to take that into account. Her job involved driving about 15,000 to 18,000 miles per annum. She had had a special lumbar seat fitted to her car. She had to stop and have a 15 minute break after driving for any extended period. She had to plan her journey to take this into account. She no longer lifted heavy objects such as boxes of files.
9. The reports by Mr Robb generally confirmed the pursuer's account. In his first report, dated 22 March 1999, Mr Robb stated:

"I think this lady suffered a cervical and lumbar sprain which is in keeping with the mechanism of injury described and this probably happened at the time of the second impact when she was sitting in the police car. Her neck symptoms have already improved and are likely to continue to do so with physiotherapy. She is not at risk of developing post-traumatic change in the cervical spine as a result of her injury. It is likely that her cervical symptoms with resolve fully within the next three to six months. The time taken from work is very reasonable. She continues to be troubled by some lower lumbar discomfort as a result of her lumbar strain in the accident. I think the discomfort she is experiencing in the lateral aspect of the left thigh is due to some nerve root irritation. I think that her lumbar and leg symptoms will also respond to physiotherapy and it is again likely that these symptoms should resolve fully within the next three to six months. Again she is not at risk of developing post-traumatic degenerative change within the lumbar spine or any disc problems in the future as a result of the injury."

10. In his next report, dated 21 February 2000, Mr Robb stated:

"This lady's cervical sprain has resolved and she is not at risk of developing any further problems in her neck in the future. She still has some symptoms arising from the lumbar region which are muscular and have improved. However the time taken to do so is longer than previously anticipated and I think her lumbar symptoms should resolve within the next six months."

11. In his third report, dated 19 February 2001, Mr Robb stated:

"Miss Lewis's neck symptoms have resolved fully. I think she has some residual nerve root irritation affecting the left leg but there were no signs of any neurological damage. Although it is two years since the injury it is probable that the nerve root irritation symptoms should continue to improve with time and already she has modified her lifestyle to accommodate this and these should eventually become less frequent and should eventually resolve perhaps in another twelve months."

In the event, the pursuer's symptoms had not fully resolved by January 2002.

12. Against this background, counsel for the pursuer submitted that solatium should be assessed within the range £4,500 to £5,500. Counsel referred to the Judicial Studies Board Guidelines for the Assessment of General Damages (5^th ed.) at pps.26 and 28. He submitted that this case fell within the category of minor back injuries, but within that category was towards the upper end of the range. The Guidelines suggested a figure of up to £6,750 for that category of injury. The pursuer's case was more serious than the category of minor neck injuries, for which the Guidelines suggested a figure of up to £3,750. Counsel also referred to two reported Scottish decisions: Fraser v Greater Glasgow Health Board, 1997 S.L.T. 554, in which solatium had been assessed (prior to a discount for a pre-existing condition) at £5,000, which would equate to £5,550 at current values; and Graham v Marshall Food Group Ltd, 1998 S.L.T. 1448, in which the award was again £5,000, equivalent to £5,350 at current values. Counsel for the defender, on the other hand, submitted that an award of £2,250 would be appropriate. He referred to Williams v Thompson (reported in Kemp & Kemp, The Quantum of Damages, para.K2-105/1) and Vanneck v Sluggett (ibid, para.K2-055). Counsel submitted that, since the pursuer had sought to minimise the impact of her injuries upon her lifestyle, the award of solatium had to reflect that fact. The defender had to take his victim as he found her. This pursuer had resumed her pre-accident activities and got on with her job despite undergoing an unpleasant accident and suffering pain. The damages had to reflect the fact that neither her daily living nor her work had been substantially disrupted.
13. Before any authority was cited to me, the figure which had come into my mind as appropriate solatium was one of £5,000. The cases which were cited appear to me to support a figure of that order, taking into account the frightening nature of the accident itself and the nature and duration of the consequent pain, as well as the limited degree of disruption to the pursuer's life. I do not consider that the solatium awarded to the pursuer, which is intended to compensate her for pain and suffering, should be reduced by reason of the fact that she "gritted her teeth and got on with things" (as she put it). I consider that 90% of the award of solatium should be allocated to the past, and will attract interest at the rate of 4% from the date of the accident until the date of decree.
14. I shall accordingly award solatium of £5,000, interest calculated as aforesaid and an agreed sum of £745 in respect of expenses incurred. The case will be put out By Order so that I can grant decree for a sum which has been calculated as being the appropriate figure as at the date of the hearing. Expenses can also be dealt with at that hearing.