Scottish Court of Session Decisions

Smith v. Hastie [2002] ScotCS 71 (19th March, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD MENZIES in the cause CARMEL SMITH Pursuer; against MARK HASTIE Defender:   ________________

 

 

Pursuer: Bennett; Henderson Boyd Jackson, W.S.;

Defender: Anderson, Q.C., P. Milligan; Simpson & Marwick; W.S.

19 March 2002

1. This is an action for damages for personal injuries arising out of a road accident in High School Wynd, Edinburgh on 5 December 1997. Shortly after 8am on that date, the pursuer was driving her motorcar (which was a Volkswagen Sharan people carrier) along Holyrood Road, Edinburgh in the direction of South Bridge. She turned left into High School Wynd and drove up that street towards its junction with Infirmary Street. High School Wynd is a relatively narrow street which runs approximately north to south, which is cobbled on its northern part, and which slopes quite steeply uphill from north to south. At its southern end the street takes a sharp bend to the right (at approximately right angles) and becomes Infirmary Street. Infirmary Street runs approximately east to west, and continues to slope upwards (although on a more gentle gradient than High School Wynd) from east to west until it meets South Bridge. Shortly before reaching the bend, that is to say a short distance before High School Wynd becomes Infirmary Street, the pursuer's car was involved in a collision with a Honda Civic Coupe car being driven by the defender. As a result of this collision, the pursuer sustained loss, injury and damage. She seeks damages therefor from the defender, alleging that the defender lost control of his car so that it strayed into the wrong side of the road, making it impossible for the pursuer to avoid a collision. The defender denies negligence and claims that the accident was caused wholly or partly by fault of the pursuer, who was driving her car on the defender's side of the road and too fast.

Evidence with regard to Liability

2. On behalf of the pursuer, five witnesses gave evidence on liability, namely the pursuer, her son Michael Smith, PC Colin McCulloch, Sergeant Roderick Hardie and Dr John Steel. The defender gave evidence on his own behalf, and the evidence of a passer-by, Peter Swinton was led in support of him. Before giving my decision as to liability, it is appropriate that I should give a brief narrative of the evidence which was led on this issue.
3. The pursuer stated that on the morning in question, she was driving her children from her house in East Lothian to George Heriots School in Lauriston Place. She used the route which she routinely used, which took her along Holyrood Road, then up High School Wynd and Infirmary Street to South Bridge and thence to Lauriston Place. On the day in question she was in no particular hurry. The children required to be at school by 8.35am, it would take her approximately five minutes from High School Wynd to the school, and she had about half an hour in hand. As she was turning left from Holyrood Road into High School Wynd there was a refuse lorry waiting to cross Holyrood Road from High School Wynd to Blackfriars Street; the presence of this vehicle meant that the pursuer had to slow right down as she turned into High School Wynd. She did not know her speed while driving up High School Wynd, but she stated that the Volkswagen Sharan was quite a sluggish vehicle, and she was driving uphill, so she was not travelling fast. When she reached a point in the road some distance short of the junction with Infirmary Street (at approximately the indentation in the road which is shown on the left side of the road and some feet behind the vehicle in No. 6/3 - 20 of process, or perhaps two feet further back than this) she stated that the defender's car came round the corner in the opposite direction on the wrong side of the road, and hit her car. Her perception was that the defender came round the corner too fast. She was in no doubt whatsoever that his car crossed over the centre line. As a result of the collision there was damage to the middle of the front bumper of the Volkswagen Sharan. The pursuer stated that she did not really look at the defender's car after the accident - it was in the middle of her bumper, and underneath it. She was sure that the defender had not straightened up as he came round the corner. His car was further over the road and into the pursuer's side of the road than the car shown in photograph No. 6/3 - 22 of process, and also further on to the wrong side of the road than the car shown in No. 7/1 - 4 of process. The pursuer was certain that she was driving her car straight, that no part of her car was over the imaginary centre line of the road (there were no centre road markings at the locus), that she was not driving too fast and that the defender was driving too fast. She had stopped, or almost stopped, when the collision occurred. She did not subsequently move the car until requested to do so by the police later. After the collision she got out of the car, checked that her children were not injured, told her son Michael to look after the younger children, and then spoke to the defender who had got our of his car and approached her. The pursuer was very angry with the defender and swore at him, saying something along the lines of "what the bloody hell are you playing at - you could have killed us", to which he replied "I'm sorry, I skidded on some ice". She said that there was no ice and that was merely an excuse. The defender suggested that the parties merely exchange addresses, but the pursuer insisted on telephoning the police. She told him not to move his car, and then went to the university buildings at the end of Infirmary Street to telephone the police. When she returned the defender's car had been moved.
4. In cross-examination the pursuer accepted that this was a difficult corner, and that she had never approached it from the opposite direction. She said that she saw the defender's car coming at her, she had time to hit the brake and put her arm across her son in the front seat, and that her car was stationary when the defender's car struck it. She said that there was nowhere for him to go, and "I knew he was going to hit me, he was going so fast. He was attempting to straighten up.". Her car did not move backwards on impact, because her foot was on the brake. She insisted that she was on the right side of the road. She maintained her evidence about the defender saying "I'm sorry, I skidded on some ice", and she went on to state that she said to him "This is your fault". His reaction was to say that these things happen; he did not deny fault at that time. When she returned having telephoned the police, she said that the defender came over to her and said "I've got a witness". She maintained that her recollection of events was clear before the accident, but after the accident she was shaken and upset. She denied that she cut the corner, and observed that she did not get as far as the corner before the collision occurred. She could give no explanation as to why an independent witness would suggest that she cut the corner and caused the accident.
5. The pursuer's son, Michael Smith was in the front passenger seat of her vehicle when the collision occurred. He was aged 15 at the time of the accident and 19 at the date of the proof. He confirmed that on 5 December 1997 his mother was driving him to school, and his younger brother and sister were in the back seats of the car. He confirmed that the accident happened at about 8am, and that he was not due at school until 8.35am. They were on time - they were always at High School Wynd at about 8am. As they turned into High School Wynd from Holyrood Road there was a bin van waiting at the bottom of High School Wynd looking as if it wanted to cross Holyrood Road into Blackfriars Street. This meant that the pursuer had to come almost to a dead stop to take the turn into High School Wynd. As they approached the top of High School Wynd a car came round the corner in the opposite direction, did not manage to straighten out, and hit them. He was shown photograph No. 7/1 - 4 of process, and stated that the defender's car came round from Infirmary Street rather as the white car in that photograph, but failed to straighten out, and hit them. At impact he said that the Volkswagen Sharan was approximately 5 metres back from the corner, and that the front of the Sharan was at the point of the dark tarmacadem surface just before the sunlit area on photograph No. 7/1 - 2 of process. He was sure that the Sharan was completely to the left of the imaginary centre line of the road, and entirely on its own side of the road. After the collision he said that he was in shock, then he got out and walked round the car to see if his brother and sister were alright. Shortly afterward, the pursuer went over to speak to the defender. Michael Smith was not able to hear everything that was said, but remembered that his mother was shouting at the defender, who shouted back at her. He also remembered that she said to the defender that he came round the corner too fast, and his reply was that he was not driving too fast and that the road was icy. He remembered that the defender did not want to involve the police, but the pursuer insisted on calling the police. She told the defender to leave his car where it was, and went into the university building to phone the police. As she was doing so, the witness was comforting his brother and sister, who were upset and crying. During this time, the defender got into his car and switched the engine on; Michael Smith shouted at him not to move the car, to which the defender shouted that it was none of his business, and reversed his car. He was certain that the pursuer did not move her car before the police arrived. He was shown the plan which formed page 10 of No. 6/1 of process, and in particular the rectangle immediately above the words "High School Wynd". He said that the rectangle was correct in showing the lateral position of the Volkswagen Sharan, i.e. that it was completely over on the left side of the road, but the car was in fact slightly further back from the bend - the front of the car was only about two thirds of the way up the rectangle. In cross-examination Michael Smith insisted that there was no question of the pursuer driving at speed up the hill, and this was particularly so because the bin van was at the bottom of the hill. He was sure that the defender was on the wrong side of the road and failed to straighten out - if he had straightened out he would have been on his own side of the road. He denied that the pursuer cut the corner, and observed that the collision happened before they reached the corner. He accepted that he was not able to hear precisely what was said between the pursuer and the defender after the accident.
6. PC Colin McCulloch was based at St Leonards police office and was aged 34 with five years police experience. On 5 December 1997 he was in a police car on mobile patrol and was instructed to attend an accident at High School Wynd. He arrived at about 8.30am, and found a white Volkswagen Sharan towards the top of High School Wynd, between the junction of High School Yards and Infirmary Street, in the middle of the road. He was told by the pursuer that the Sharan had not been moved since the accident, and nobody said anything to contradict that. When shown photograph No,. 6/3 - 19 of process he said that the rear of the vehicle would be in line with the interruption of the yellow line on the left side of the road, and approximately two feet out from the kerb. He could not say if it was over the imaginary centre line of the street - it was either on or over it. When shown page 10 of the report No. 6/1 of process he said that the Sharan was further down towards High School Yards and not as close to the corner with Infirmary Street, as the rectangle already referred to - he would have put the Volkswagen over the words "High School Wynd" on the plan. He stated that he spoke to the pursuer who told him that she had been taking her children to school and travelling up High School Wynd when a red car came round the corner in the centre of the road too quickly and was unable to stop before hitting her. He spoke only to the pursuer - his colleague Sergeant Hardie spoke to the other driver. Similarly, PC McCulloch only examined the damage to the pursuer's car. He noted that this comprised a small crack and scraping to the central area of the front bumper. He was asked to give his impression as to whether either vehicle was at fault, and he observed that the defender's vehicle was placed No. 1 in the police report, which suggested that he might be at fault. No further proceedings were taken as a result of this accident. In cross-examination he confirmed that he did not look at the damage to the other vehicle; that this was a very minor accident; and that the likely speed of the vehicles on impact was, in his opinion, very slow. He had himself attended several accidents at this locus - it was quite a common corner for minor accidents.
7. Sergeant Roderick Hardie was based at Portobello police office. He was aged 33 with 15 years police service. He received a call instructing him to attend at High School Wynd, and arrived at about 8.30am. He met PC McCulloch at the locus. The defender's car had been moved before he arrived. The pursuer's vehicle was still in High School Wind. It was quite a large vehicle, which took up a lot of the hill, although he could not be specific and did not measure the scene. He arranged for the Volkswagen Sharan to be moved and parked in a better position - it was not parked against the kerb, nor in a position to allow the traffic to flow freely. He considered that it was further down High School Wynd than an imaginary line drawn across from the bend with Infirmary Street, but could not be more precise. He dealt with the defender, while PC McCulloch dealt with the pursuer. The defender told him that he had been driving to work down Infirmary Street, intending to turn left into High School Wynd, when he met the other car on the bend and was unable to stop in time, as a result of which a collision occurred. The defender's position as expressed to Sergeant Hardie was that it was one of these things - he did not blame himself or the pursuer. Sergeant Hardie examined the defender's car, which had minor damage to the front near-side bumper with denting and scraping. He thought that the pursuer's vehicle had damage to the middle of its front bumper. He was asked why he listed the defender's vehicle first on the police accident report form, and he stated that he had been trained to form some opinion as to who might be at fault. He thought that vehicle 1 (i.e. the defender's vehicle) was more likely to be at fault, due to the position of the damage of his vehicle, which suggested that it was further out than it needed to be.
8. In cross-examination Sergeant Hardie confirmed that he took no measurements at the locus, but would not argue with the suggestion that the pursuer's car was about two feet out from the left kerb. He confirmed that the road was narrow at that point, and a large vehicle would take up a large part of the road. If the Volkswagen Sharan were two feet out from the kerb, he thought that it would be over the imaginary centre line of the road. With regard to the damage to the defender's car, he had noted this in his notebook. He remembered that it was very minor, with denting and scraping, but he could not draw it precisely. He recalled clearly that the defender's car was damaged on the front near-side wing of the bumper. He said that he had a clear recollection that this was the situation of the damage - he could not describe exactly the scrape, but he could remember that it was the near-side corner of the car - it was not on the driver's side. He confirmed that in light of his experience the speed of the vehicles was low at the point of impact - "in single figures miles per hour". He would not like to lay blame on anyone for this accident. His recollection of the damage to the defender's car was that it was on the point of the wing of the vehicle - he did not think it went along the front bumper at all. He recalled that it was on the front near-side of the vehicle, and that was how he recorded it.
9. The last witness for the pursuer with regard to liability was Dr John Steel, a senior lecturer at Heriot Watt University Department of Mechanical Engineering and the director of the Vehicle Accident Investigation Unit within that department. He has prepared reports on road traffic accidents since 1991, and spoke to his report No. 6/1 of process. In his expert opinion both vehicles were moving at impact, and both were probably travelling relatively slowly. He considered that the combined speed of the vehicles was about 20mph and that neither was travelling at more than 15mph. Both vehicles could have been travelling at 10mph, or one at 5mph and one at 15mph. Any impression that Mr Swinton had that the Volkswagen Sharan was travelling at about 40mph immediately before the impact would be mistaken, for the reasons given in paragraphs 5.2 and 5.3 of Dr Steel's report. If the defender lost control going round the bend from Infirmary Street into High School Wynd Dr Steel considered that he must have been driving at at least 15mph. He would expect the defender's car to take longer to stop than the Sharan. He stated his conclusions as follows:

(1) The pursuer and defender were both probably driving their vehicles at between 10mph and 15mph approaching the locus;

(2) the impact speed of the vehicles was probably between 0 and 5mph (0 and 10mph relative speed); and

(3) the defender had his vehicle completely out of position as he negotiated the corner and this caused the accident. This last conclusion was based on the information which he had about the position of the Volkswagen Sharan and the police information as to the damage to the cars.

10. The defender stated in evidence that he approached the bend between Infirmary Street and High School Wynd shortly after 8am on 5 December 1997. This was his normal route to work, which he had travelled for approximately five days each week for about five months, since June 1997. He was in no hurry that morning and was not running late. As he turned the corner at the end of Infirmary Street into High School Wynd he saw a vehicle which was being driven in his opinion far too fast, on his side of the road. He braked, but could not stop and there was a collision. He was driving at between 10-15mph, and estimated his speed on impact at about 10mph. He estimated the other vehicle's speed at about 40mph, but could not estimate its speed at impact. When he saw the other vehicle he pulled hard to the left and braked. He considered that he was more or less stopped, but while the other vehicle was braking it still had not more or less stopped before impact. He stated that the damage to his vehicle was on the off-side. The bonnet was dented along the front, and the headlamps and bonnet around the headlamp were damaged. The Volkswagen Sharan was damaged on the off-side of the front bumper. After the accident the pursuer got out of her car "bawling and shouting" and approached his car, whereupon he got out. He denied stating that he had skidded on ice. He accepted that the pursuer suggested that the police should be called, but stated that he called the police from his mobile telephone while the pursuer went to a building to phone the police. The police arrived in 5 or 10 minutes, and both vehicles were moved. He said that Mr Swinton, a passer-by, approached him and asked if he was alright, and offered his details. He said that he would be a witness for the defender because he believed him to be in the right and the pursuer to be in the wrong. The defender stated that the collision occurred when his car was fully around the corner.
11. In cross-examination the defender stated that he does not in general take this corner wide, and certainly did not take it too wide on this occasion. He was shown photograph No. 7/1 - 4 of process and stated that he would not say that was particularly wide. He denied driving too fast and denied crossing into the pursuer's side of the road. He again estimated that the pursuer was driving at 40mph. He accepted that when the pursuer approached him after the accident she said something along the lines of "what the bloody hell were you doing, you could have killed us", but attributed this to a guilty conscience on her part. He stated that the pursuer told him to leave his car where it was, but he moved it because it was causing an obstruction. He denied that Michael Smith tried to stop him from moving his car and that he told Michael Smith to mind his own business. He was certain that the damage to each of the cars was to the off-side.
12. Finally, Peter Swinton was an independent pedestrian who saw the accident. He was a foreman slater employed by the University of Edinburgh in Infirmary Street, and was employed in that capacity in December 1997. He had driven for 24 years. On 5 December 1997, as was his practice, he parked his car in the university car park at the bottom of High School Wynd and walked up High School Wynd. He said that he saw the accident quite clearly, and indicated under reference to No. 6/3 - 20 of process that he was about ten yards downhill from the corner of High School Wynd and Infirmary Street, on the right (i.e. east) side of High School Wynd. He heard a rumble and turned round and saw the Volkswagen Sharan coming up the hill at great speed - at about 40mph. He saw the Honda come round the corner and the Volkswagen cut the corner and skid straight into the Honda. He said that the Volkswagen was crossed right over on his side of the road - if there had been a white line in the centre of the road, it would have been at least two feet over the white line. He stated that he was ten yards from the corner and nine yards from the accident. He was sure that the two cars collided off-side to off-side. He thought that it was obvious that an accident was going to happen because of the speed of the Volkswagen. He offered to be a witness for the man in the red Honda because in his opinion he had done nothing wrong. When asked what the driver of the Volkswagen could have done to avoid the accident he replied "slowed down and stayed to the left". When asked what the driver of the red Honda could have done to avoid the accident he answered "nothing. He was already round the corner.". He considered that the accident happened when the Honda was in approximately the same position as the car shown in No. 6/3 - 22 of process, although slightly nearer the camera than that car. He remained there until after the police arrived, and he was adamant that neither car was moved before he left.
13. In cross-examination Mr Swinton reiterated that the Volkswagen was travelling at about 40mph, or at least between 30 and 40mph - well over the speed limit. He had seen accidents on that corner on at least five occasions previously, and was not surprised that the accident happened. He was sure that the accident happened on the corner, not further downhill from the corner. When he was asked if the defender's car was round the bend into High School Wynd, he replied that it was not - the accident happened on the bend. He refused to accept that he could possibly have been wrong about this, and knew what he had seen. In re-examination he was again shown No. 6/3 - 22 of process, and said that the Honda would be about the position of the car in that photograph at impact. Mr Swinton said he could not see the whole of the Honda before impact.

Decision on Liability

14. It is apparent from the above narrative that there is a sharp conflict of evidence as to the cause of this accident. Despite the evidence of Peter Swinton, an independent bystander, in support of the defender's evidence, I am persuaded that the accident was caused by the defender losing control of his vehicle and driving it onto the pursuer's side of the road in circumstances in which she could not avoid a collision. I reach this view for several reasons. First, I found the pursuer and her son Michael to be generally both credible and reliable regarding the circumstances of the accident and its immediate aftermath. They each gave their evidence in a clear and detailed manner, without any apparent exaggeration. The pursuer's version of events given in evidence in court was substantially the same as that which she gave to PC McCulloch immediately after the accident. This is to be contrasted to the defender's position, which is not the same as that expressed to Sergeant Hardie immediately after the accident. I accepted Sergeant Hardie's evidence (which coincided with that of the pursuer) that the defender's attitude about the accident shortly afterwards was that "it was just one of those things" - he did not suggest at that time that the pursuer was driving at excessive speed or cutting the corner, nor did he attribute any fault to her. It was the pursuer who was insistent that the police should be called (whether or not the defender also telephoned them from his mobile phone), and it was the pursuer who wished the cars to be left undisturbed until the police arrived. The defender acknowledged that the pursuer wanted him to leave his car where it was, and told him to do so, but he moved it before the police arrived.
15. Moreover, I accept the evidence of the pursuer and Michael Smith to the effect that immediately after the accident the defender gave an excuse about having skidded on ice. The defender denied saying this, but neither the pursuer nor Michael Smith was challenged on this matter in cross-examination, despite the fact that this is the subject of an express averment in the pursuer's pleadings. Mr Bennett for the pursuer submitted that failure to cross-examine on a critical piece of evidence should make the court less ready to reject the evidence led without challenge, and the court should be less inclined to put weight on any evidence led in replication by the defender. He referred me to two authorities in support of this submission, namely Currie v Clamp's Executor 2002 S.L.T. 196 and Dollar Air Services Ltd v Highland Council (an unreported decision of Lord Marnoch dated 11 July 1997). I agree with this submission, and accept the evidence of the pursuer and Michael Smith that the defender made an excuse about skidding on black ice shortly after the accident, which he denied making when he gave evidence in court.
16. With regard to the speed of the pursuer's vehicle before impact, I accepted the expert evidence of Dr Steel that the pursuer's vehicle could not have been travelling at anything like 40mph as it drove up High School Wynd, particularly having come to a virtual standstill at the bottom of the hill because of the presence of the refuse lorry. Taking Dr Steel's expert evidence, together with the evidence of the pursuer, Michael Smith and the defender's own estimate of his speed at 10-15mph, I consider that the pursuer was driving at between 5 and 10mph before the accident. The defender estimated that the Volkswagen was travelling at about 40mph just before the collision, and Mr Swinton also considered that it was travelling at 40mph, or between 30mph and 40mph. In my opinion they were clearly wrong about this - in Mr Swinton's case, for the reasons given by Dr Steel in paragraphs 5.2 and 5.3 of his report. Mr Swinton's evidence was significantly different from all of the other witnesses' evidence, including that of the defender, on other important points. For example, the pursuer, Michael Smith and PC McCulloch were all in general agreement about how far up High School Wynd the collision occurred. They each gave evidence to the effect that the front of the Volkswagen was several metres down the hill from the corner of High School Wynd and Infirmary Street. The defender's evidence coincided with this - he accepted that he was fully round the corner before the collision occurred. Mr Swinton was the only witness who remembered the accident as having happened actually on the bend, before the defender's Honda had fully come round the corner. He was adamant about this and would not be shaken on it. Similarly, all of the rest of the evidence indicates that the defender moved his car before the police arrived. The pursuer and Michael Smith speak to this, as do Sergeant Hardie and PC McCulloch. The defender also gave evidence that he moved his car in order to allow the traffic to flow. Mr Swinton was adamant that neither car was moved while he was there, and he stated that he remained there until after the police had arrived. In relation to the speed of the vehicles, the positioning of the pursuer's vehicle, the point at which the collision occurred and the moving of the defender's car, I consider that Mr Swinton was unreliable. I do not suggest that he was being deliberately untruthful, but I did not feel able to place any reliance on his evidence.
17. The damage to the two vehicles is also indicative of the defender having lost control of his vehicle and the accident having occurred on the pursuer's side of the road. Both the pursuer and PC McCulloch stated that the damage to the pursuer's vehicle was in the centre of the front bumper. It was not suggested to either of them that they were mistaken in this regard, although the defender gave evidence that the damage to the Volkswagen was to the off-side of its front bumper. The defender maintained that the damage to his vehicle was again to the off-side, with the bonnet being dented along the front, and surrounding the headlamp. The pursuer's evidence about this was confused - she started by saying that the defender's car was damaged on his near-side, and then on the driver's side, and concluded by stating that she never really looked at his car. However, Sergeant Hardie's evidence was clear and specific - his recollection was that the damage to the defender's car was on the point of the near-side wing of the vehicle. This was not only his recollection but what he recorded. He was an experienced police sergeant with 15 years service. The noting of the general position of damage to vehicles after road traffic accidents is clearly an important part of his duties. Nothing in the evidence gave me any reason to believe that his recollection or recording of the damage to the defender's vehicle was wrong. Accepting Sergeant Hardie's evidence that the damage to the defender's vehicle was to the near-side wing, this appears to me to give strong support for the view that the defender's car was indeed out of control and on the pursuer's side of the road, and in the words of the pursuer and her son, that it failed to straighten up as it came round the bend.
18. There remains the question of the position of the Volkswagen laterally - was it on its own side of the road, was it partly or wholly on the defender's side of the road, and did it cut the corner? Having regard to the point at which the collision occurred, several metres short of the corner, I have little difficulty in accepting the evidence of the pursuer and Michael Smith that the pursuer did not cut the corner. A Volkswagen Sharan is a wide car (although no dimensions were given in evidence) and the road at the point of collision is a narrow one. The pursuer and Michael Smith both stated that the pursuer was driving close to the east kerb (that is to say, the left kerb as she was driving up the hill). I am prepared to accept that she may have been driving up the hill some two feet out from the kerb with the consequence that the off-side of her vehicle was at about, or perhaps slightly over, the imaginary centre line of the road. It does not seem to me that it is unreasonable to drive a car with its near-side wheels about two feet from the eastern kerb, if that is what happened. However, having regard to the situation of the damage to the two vehicles, it does not seem to me that the lateral position of the pursuer's vehicle on the road made any contribution to the accident. The near-side corner of the defender's car struck the middle of the front bumper of the pursuer's car. Even if the pursuer's car had been 18 inches or two feet to its left, the collision would still have occurred.
19. It follows from the above that I am satisfied that the accident was caused by fault of the defender, and I am not persuaded by the defender's argument of contributory negligence.

Damages

(a) Solatium

20. As a result of the collision, the pursuer was thrown against her seatbelt and then back into her seat, and her left knee struck the steering column of her car. Her husband drove her to work, but she felt upset and shaken and went home later that day. Some five days later she attended her doctor's practice complaining of pains in her chest, headaches, feeling stressed and pains across her back. It does not appear from her doctor's records that she complained of knee pain at that time, and she stated in evidence that she was first aware that she had hurt her knee over the Christmas period (although she also stated that she thought that she had mentioned knee pain to her doctor when she attended on 10 December 1997). Her doctor noted that she should be reviewed in one week if no improvement, and should receive physiotherapy. She did not return to see the doctor until 18 March 1998, when she complained of still having problems with low back pain, radiating to her left knee. She stated in evidence that at that time she was still suffering from bad dreams as a result of the accident as she could not put it out of her mind. She was also still suffering from headaches and dizziness. She attended physiotherapy at the City Hospital in Edinburgh between 18 June and 1 October 1998. She stated that her chest pain resolved relatively quickly and that her back pain and neck pain also resolved during the course of 1998, but her knee pain has persisted. She described this as a pain like toothache, constantly there as a dull pain, although some days worse than others. She finds stairs difficult, she finds kneeling down difficult (particularly getting up afterwards) and she cannot hill walk, swim or cycle. She stated that her knee pain was the principal reason for her giving up working in her restaurant business at The Pancake Place in the High Street, Edinburgh. She went back to work for about one week after Christmas 1997 but could not cope with the physical demands and did not work again until June 1998. She went back to work between June and September 1998 because this was the busiest time of the year, but did not work in the business thereafter. She stated that her physiotherapy treatment resulted in an improvement in her knee pain, which was undone by the demands of her work at The Pancake Place. She stated in evidence that her knee was still sore, and tender on the lateral aspect. She accepted that she had received no physiotherapy since October 1998 although this had been beneficial to her at that time, and explained that this was because she had not received any medical advice to have physiotherapy treatment. She also accepted that since her physiotherapy treatment ended in October 1998 she had seen her present G.P. on only one occasion which she had mentioned pain in her knee, which was on 7 December 1998. She had not taken pain killers, because these disagreed with her.
21. Three medical witnesses were led in support of the pursuer. There was no medical evidence led on behalf of the defender to contradict them. The witnesses were the pursuer's general practitioner at about the time of the accident, Dr Edington; Dr N.P. Hurst, a Consultant Rheumatologist who provided an independent report on her condition dated 14 January 2000 (No. 6/6 of process); and Mr John Keating, a Consultant Orthopaedic Surgeon who prepared an independent report on her dated 23 July 2001 (No. 6/5 of process). In addition to the pursuer's general practitioner records, the records of the physiotherapy department of the City Hospital were before the court (No. 7/3 of process). These indicated that the pursuer attended that department first on 18 June 1998 complaining of (a)  intermittent strong ache in her lower back, (b)  intermittent dull pain, occasionally stabbing, on the lateral aspect of her left knee, and (c)  intermittent stabbing pain and dull pain in her lower neck. She received regular physiotherapy at that department; the records indicate that on 16 July 1998 her knee had been pain free for five days and continued to improve (this at a time when she was working in The Pancake Place during its busiest season). On 23 July 1998 her knee was noted to be improving, as it was on 30 July 1998. On 1 October 1998 her knee was noted to be "100% better", and on the same day the physiotherapist who treated her wrote a letter which stated inter alia "at her final appointment 1.10.1998 she reported her original lateral knee pain was fully resolved and her back and neck pain were significantly better as a result of being off work but not fully resolved". The pursuer's reaction to this was that when she was receiving physiotherapy treatment her knee improved, but days later, when she was at work, it became worse. She thought that there was no point in her continuing with physiotherapy but she still had her knee problem.
22. The pursuer's general practitioner at the time of the accident was Dr Jane Edington, but when the pursuer attended at the doctor's practice on 10 December 1997 and 18 March 1998 she saw other doctors. The first time after the accident that the pursuer saw Dr Edington was on 4 September 1998. Dr Edington stated that she had only met the pursuer once or twice before this, when she was pregnant about five years previously - she did not attend the practice very often. Dr Edington did not record that she had examined the pursuer on either 4 September or 5 October 1998, so she did not think that she had in fact examined her. She had conversations on both these dates with the pursuer about the effect of her work on her knee condition, but her notes that the pursuer's work over the summer was undoing her physiotherapy, and that she really had to change her job, were based on what the pursuer told her and not on any examination. When she completed the pursuer's employment insurance report form (No. 7.2 of process, pages 31-38), and in completing the notes in the medical records, Dr Edington proceeded on the basis of what the pursuer told her and without any examination. She had not seen the pursuer since 9 November 1998, after which date the pursuer moved to a different practice. She stated that if the pursuer had continued to be her patient and had continued to be off work, she would have referred her for more specialist advice.
23. Dr Nigel Hurst is a Consultant Rheumatologist at the Western General Hospital in Edinburgh. His involvement with the pursuer was limited to seeing her on 13 January 2000 for the purpose of preparing the report of the following day (No. 6/6 of process). In providing that report, he had been given access to the pursuer's general practitioner records, but there were aspects of the records of the physiotherapy department of the City Hospital which he had not seen. The narrative which he gave as to the history of the pursuer's complaints was obtained from the pursuer herself (although the pursuer asserted in evidence that the information contained in the first three sentences of page 2 of the report was inaccurate). Dr Hurst felt that the pursuer's symptoms were consistent with her having struck her knee on the steering column of the car in this accident. He also considered that it was a very reasonable decision for her stopping work, because of the nature of her work which gave rise to stresses and strains on her knee. These would create considerable discomfort, and she could not do her job properly. He had seen the letter from the physiotherapist to Dr Edington dated 3 October 1998 (No. 7/2 of process, page 40) which stated that her knee was fully better, but he did not take it into consideration because the pursuer was not suffering from a medial ligament knee pain but from a lateral knee pain. In any event, he considered that her knee had deteriorated since then. He accepted under cross-examination that the history in his report came from the pursuer and not from the records. He examined the knee and observed the pursuer walking; he palpated the knee and found signs of swelling, and very specific tenderness on the outer side which was related to the anatomical structures and absent on the other side. He observed that he was only asked to comment on her present state - unlike an orthopaedic surgeon, it was not his function to express a view as to whether the pursuer should have an operation or not, nor was he asked to express a view as to whether anything could be done to alleviate her symptoms. He had not seen the records of the physiotherapy department of the City Hospital, and accepted that they presented a different picture from that presented by the pursuer to him in January 2000. He could only speculate as to the reason for this difference, and would have expected her to receive more physiotherapy treatment.
24. Finally, Mr John Keating gave evidence. He was a Consultant Orthopaedic Surgeon at Edinburgh Royal Infirmary and Princess Margaret Rose Hospital, and provided the report No. 6/5 of process. He expressed the view in cross-examination that a purely direct blow to the inner aspect of the pursuer's knee would not have caused her knee injury, and that some element of twisting or rotation would be required in order to cause a meniscal tear. If this was not a meniscal tear, he found it difficult to explain the persistence of the symptoms, although he has seen this on occasions - he would need to have an MRI scan or some other investigation to assess the cause of pain. He had not seen the records of the physiotherapy department of the City Hospital before, and accepted that the information contained in the letter of 26 January 1999 (at pages 21-23 of those records) would appear to be inconsistent with what the pursuer told him. However, at the end of the day Mr Keating's evidence came to be that, while there may not be a simple pathological explanation for the pursuer's knee pain, as the accident was the only documented injury, he would have to accept that it was the cause of the knee pain. He observed that it was an unlikely cause, but in the absence of any other trauma, he had to accept that it caused the pain. He indicated that knee problems were his particular area of expertise, and that injury to a knee was possible even in a low energy head on collision.
25. In his submissions for the pursuer, Mr Bennett urged me to make an award of £10,000 by way of solatium, half of which should be attributable to the past. He relied on several cases referred to in Kemp & Kemp on the Quantum of Damages, volume 4. In particular, he relied on Re Morton at I2-430, in which general damages of £8,500 were awarded; Carnell v A - B Aegon at I2 -432 in which general damages were awarded of £8,000; Evans v Hafeez at I2 -433 in which general damages were awarded of  £7,500 and Gildert v John Wilman Ltd at I2 - 434 in which general damages were awarded of £8,000. He emphasised that the pursuer had no pre-existing condition in her right knee, and taking her knee problem together with the other consequences of the accident, he submitted that £10,000 was appropriate.
26. Mr Anderson for the defender accepted that the pursuer suffered some discomfort in her neck and back which had resolved, and that there was some tenderness on palpation of the knee, but suggested that this was a very minor injury and that I could not determine whether the symptoms would resolve or not. Even if this was a permanent problem, it was very minor. Under reference to Gilchrist v D B Marshall (Newbridge) 1991 S.L.T. 842 and McCreadie v Claremont Garments (Scotland) Ltd 1993 S.L.T. 823 he suggested that an award of £4,000 inclusive of interest to date would be appropriate.
27. Taking all the evidence together, I do not consider that the pursuer's injuries justify an award of solatium as high as £10,000. In particular, having regard to the pursuer's very infrequent attendancies at her general practitioner since the accident, and the observations of the physiotherapist, I do not consider that it has been established that the pursuer's knee pain is as consistent or as severe as she stated to the three medical witnesses and to the court. Even when she was in the middle of the period when she was working in her restaurant business at The Pancake Place in July 1998, the physiotherapist noted (on 16 July 1998) that the knee "continues to improve and has been pain free for five days". If the knee continued to be as painful as the pursuer suggests after October 1998, I find it difficult to accept that she did not visit her doctor more frequently to seek treatment for this, or to request further physiotherapy treatment (which she indicated had been helpful in alleviating her pain in the summer of 1998).
28. Notwithstanding these observations, I accept that the pursuer's knee injury was caused by the road accident on 5 December 1997, as were the other symptoms which she described and which have resolved. In all the circumstances I consider that an appropriate award for solatium is £5,500. Of this sum, £4,000 inclusive of interest is attributable to the past, and £1,500 to the future.

(b) Loss of Earnings

29. At the time of the accident the pursuer ran her own restaurant business known as The Pancake Place in the High Street in Edinburgh. She had done so since August 1993. This was a "fast food" type of restaurant, where speed of service and turnover of tables was essential to the profitability of the business. The pursuer gave evidence that she had been accustomed to working in the business seven days per week (at least during the busiest time of the year, which was the period from the beginning of June to the end of August each year), and she worked from about 6am until late in the evening. She did a lot of physical work, cooking and preparing food. There was one kitchen downstairs and one upstairs, and she required to go up and down stairs frequently, and often lift heavy containers of food and pots and pans. After the accident she went back to work for about one week after Christmas 1997 and early January 1998, but found that she could not cope with the physical work required. In previous years she had employed two additional cooks who worked in the restaurant over the three busy months of the summer. When she could not cope with the physical work in January 1998 she employed two extra cooks to cover for her. She went back to work for the period between the beginning of June and the end of August 1998, during which time she was receiving physiotherapy. She said that the physiotherapy was helping her knee, but the work was undoing all the good of her treatment. During this period the number of staff working in the business was the same as in previous years at that time, namely the pursuer and the same two extra cooks. Because the two cooks had been working in the period since January 1998, they knew how the business operated and so the pursuer did not have to work quite as hard as she had done in the equivalent period in previous years. Nonetheless she required to have her leg and her back strapped up while she was working, and after this busy period she decided that she could no longer cope with the physical demands of the restaurant. After discussing the matter with her G.P. she decided to sell the business. She did not return to active physical work in the restaurant thereafter, and she sold the business eventually in February 2000 at a price of £175,000 (having purchased it in 1993 for £90,000). Thereafter she went on a course run by the Department of Employment to retrain people who have been disabled for their previous work. This was a ten week course which began in about April 2000. She then purchased at a price of £100,000 the franchise for a new business which involved printing, photocopying, postal services and the provision of office services. This did not make such physical demands on the pursuer as her previous business. She started a company for this purpose, Areadate Ltd, which started trading on 27 November 2000. She and her son are directors of that company, and she confirmed that No. 6/10 of process were accurate accounts for that company covering the period from 27 November 2000 to 31 August 2001.
30. The pursuer attributed the decline the turnover of The Pancake Place in the period to 20 February 2000 to the fact that she was not working there herself, and she had been unable to find anybody with an equivalent speed of production of food to herself. The wages bill for the business had increased as a direct result of her inability to work in the restaurant herself, because it had been necessary to employ two cooks throughout the year, and not just for the busy three month period between the beginning of June and the end of August. She could not explain why the wages bill for the business had increased from about £66,500 in the year to 30 April 1995 to £74,000 in the year to 1996, nor could she explain why there was such a large increase in the wages bill (of just over £14,000) between April 1997 and April 1998. She agreed that this could not be explained merely by the employment of two additional cooks between January and April 1998. In the period between October 1998 and October 2000 the pursuer received income from a permanent health insurance plan, the premiums for which had been paid for by the business and were included in the business accounts. With regard to the projections for profit and loss of Areadate Ltd for the three years ended 30 November 2003 which were contained in Appendix 5 to No. 6/13 of process, the pursuer explained that these projections had been based on information which she had obtained from the franchiser. She also accepted that her claim for loss was predicated on the assumption that her business at The Pancake Place would have continued to be more profitable year on year.
31. In support of the pursuer's claim for loss of earnings expert evidence was led from Mr G, J Riddell, a chartered accountant and partner in the firm of P.K.F.. He had been with that firm for some 25 years, and a partner in their Edinburgh office since 1997. He had prepared the accounts for The Pancake Place and also for Areadate, and was the author No. 6/13 of process together with its appendices. I do no attempt to summarise those appendices here - the assumptions and methodology are apparent from the face of the appendices. Mr Riddell drew particular attention to the figures in Appendix 1 for gross profit, gross profit as a percentage of turnover and wages as a percentage of turnover. He drew attention in Appendix 2 to the fact that the percentage increase in sales in each of the years prior to the pursuer's accident was greater than the percentage increase in inflation in the same period. He considered that in assessing the anticipated profits of the business had the accident not happened it was appropriate to compare the actual sales in each year with the sales which he would have anticipated had the accident not happened. He reached a figure for anticipated sales in the year to April 1998 by applying the relevant rate of inflation to the figure for sales in 1997. He then reached a figure for anticipated sales in 1999 by applying the relevant rate of inflation to the figure which he had previously obtained for anticipated sales in 1998. He also considered that it was appropriate when assessing the loss of profits of the business to compare the actual wages paid with the wages which might have been anticipated had the accident not happened. He stated that it was appropriate to use the figure of 23.5% wages as a percentage of turnover which was achieved in the year ended 30 April 1997, because by this year the pursuer had been running the business for three years and had found the optimum level of staffing and wage levels. He was of the view that without an external influence such as the accident, wages would have continued to remain at (or perhaps below) the figure of 23.5%, and that the ratio of wages to turnover in the restaurant trade was something which could be accurately predicted and was relatively constant. He then applied the figure of 23.5% to the figure already obtained for anticipated sales, in order to obtain a figure for anticipated wages had the accident not happened. After allowing for deductions for tax and national insurance, he calculated the pursuer's loss of earnings in the period until the sale of The Pancake Place business on 30 April 2000 at £39,137, as shown in Appendix 3 to No. 6/13 of process.
32. For the period between 1 May and 30 November 2000 (that is from the sale of The Pancake Place to the start up of Areadate Ltd) he estimated the pursuer's net loss at £17,456, as shown in Appendix 4 to No. 6/13 of process. He arrived at this figure by applying an anticipated gross profit of 65% to the figure for anticipated sales in the year to 30 April 2000 of £345,580 in Appendix 3, and deducting from the resulting figure anticipated wages of £81,233 and overheads of £97,436, giving a total of £46,018, to which he applied a factor of 1.018 to reflect inflation. He then estimated the pursuer's loss of earnings from 1 December 2000 to 30 November 2001 at £32,849 on the assumption that the anticipated profit for the previous year fell to be increased by inflation at 2.5%, giving a total loss to the date of proof of £89,442. He estimated the pursuer's losses for the period from 1 December 2001 to 30 November 2003 at £79,263 after deduction of her Areadate Ltd salary of £4,305, which is shown in year three in Appendix 5.
33. In cross-examination Mr Riddell accepted that the accounts showed a difference in wages between the year to April 1997 and the year to April 1998 of about £14,000. He was unable to give evidence as to how much the two cooks were being paid, nor was he able to allocate the increase in wages between the period before the pursuer's accident in December 1997 and the period after it. He stated that there were increases in the wage bill before the accident, but he could not remember what these were. If each of the cooks was being paid £180 per week he accepted that the loss sustained as a result of the pursuer's absence following the accident could not be as high as he had estimated. In answer to a question from me, he stated that he had assumed that the jump in the percentage of turnover attributable to wages from 23.5% to 27% was all attributable to the period following the accident, but he accepted that he did not have the materials to determine if that assumption was justified. He also accepted that if the basic premise turned out to be incorrect, because of the compound nature of his calculations there would be changes throughout each of the years in which he has estimated the pursuer's loss. He accepted that if the two cooks were each paid £180 per week, and if as a result of the pursuer's accident they required to be employed for nine months longer in each year than they would otherwise have been employed, the additional cost per annum would have been in the region of £15,700, and therefore the loss over the period to the sale of the business in April 2000 would have been £36,600.
34. The defender's accounting expert witness was Hamish McDonald, a member of the Institute of Chartered Accountants who qualified in 1987 and who was a senior manager in the Forensic Accounting Department of Deloitte & Touche. He did not consider that the assumptions in Mr Riddell's report No. 6/13 of process, and in the appendices thereto, were justified. He did not accept the assumption which Mr Riddell made (in the last paragraph of page 1 of 6/13 of process) that overheads would have remained fairly constant. He was of the opinion that fixed costs were outwith the control of any business, and there was no reason why they should remain constant. He did not accept the methodology or assumptions adopted by Mr Riddell in the appendices. In particular he did not accept that one could make the assumption that the sales of the business would rise in line with inflation. He considered that no business was so predictable that one could use the last year's sales figures and merely apply inflation to these to estimate the following year's sales. This was particularly true of the restaurant business: it was not possible to assume that there would be the same number of customers in one year as in the previous year, nor that they would spend the same amount of money. He was of the opinion that any business would have peaks and troughs. He also did not accept the assumption that wages would remain at 23.5% of sales. He considered that wages are not a wholly variable cost - there will always be a fixed element, and therefore it was not reasonable to assume that they would vary directly with the level of turnover. If one had to estimate wages on the basis of a percentage of turnover, he considered that the correct methodology would be to average this out over a number of years, and not just over one year which may have been distorted. He considered that it would be standard accounting practice to take an average figure rather than one year's figure, and this was not just his personal view. He did not consider, on the basis of the material before him, that it was possible to express a view on what the likely figures might be for the years to 2001, 2002 or 2003, and he did not consider that Mr Riddell's approach was a normal approach for a forensic accountant to adopt. He did not consider that it was reasonable, because it was based on the results of one year (that is, 1997), and one cannot base a prediction on the figures for one year alone. He observed that in terms of net profit before interest, the year ended 30 April 1997 (which was the base year on which Mr Riddell based his projections) was significantly the most profitable of the seven periods shown in Appendix 1 to No. 6/13 of process. Moreover, he considered that it was a mistake to have regard only to net profit before interest when assessing the pursuer's loss of earnings, because the business did suffer interest which, as is apparent from the accounts for the various years, varied between £3,639 and in excess of £7,000. Mr McDonald considered that the appropriate methodology to assess the profitability of the business was to take the figures for net profit after interest for the relevant full years from 1996 to 1999, obtain the average, and then deduct (by way of a rough estimate) one third for tax and national insurance, which gave a figure for the pursuer's net earnings of about £15,800 per annum. He considered that from a forensic accountancy perspective there was no basis on the figures before the court for assessing the amount of the pursuer's loss attributable to the accident. He also found it difficult, if not impossible, to make any prediction as to the likely profitability of Areadate Ltd over its first three years trading on the basis of the figures given in Appendix 5 to No. 6/13 of process.
35. In his submissions, Mr Bennett for the pursuer urged me to accept that the pursuer's injuries - and in particular her knee injury - were such that her decision to stop working at The Pancake Place, and her subsequent decision to sell the business, were not unreasonable and were a natural consequence of the accident. He submitted that Mr Riddell's methodology and assumptions were preferable to Mr McDonald's opinion. With regard to the assumption that turnover would increase in line with inflation, he submitted that from Mr Riddell's position of experience in advising restaurant businesses it was reasonable to assume that the reason for the relative decline of the turnover of The Pancake Place in comparison to the rate of inflation was the pursuer's absence from the business, and no other reason for this decline was asserted in the evidence. He suggested that Mr Riddell's perspective was more broadly based than Mr McDonald's, and it was entirely reasonable. With regard to his assumptions about wages, Mr McDonald's criticism fell into two parts (1) that it was wrong to assume that wages would represent a fixed percentage of turnover and (2) that in any event it was unreasonable to use 23.5% as the base, because this represented just one year. So far as (1) was concerned, he submitted that all that Mr McDonald did was to assert the negative, and that when one looked at the evidence of the pursuer and Mr Riddell in its totality it was entirely reasonable to accept that wages were properly regarded as a fixed percentage of turnover. With regard to (2) he submitted that Mr Riddell had indicated that 23.5% was an industry achievable percentage, and this was the percentage which the business had reached after three years trading. In each of these years the business had become more efficient, and there was no reason to think that it would become less efficient (with a consequent increase in the percentage of wages as related to turnover) in subsequent years.
36. For the defender, Mr Anderson submitted that the pursuer was too keen to give the impression that she had retired on the basis of medical advice - it was clear from her evidence under cross-examination that she had made the decision herself. However, he accepted that if the court considered that her injuries justified her giving up active work in The Pancake Place, it was not then unreasonable for her to have sold the business and purchased an alternative business in which she could be actively involved as she had previously been. He accepted that he could not demand that the pursuer must soldier on in her previous business or obtain employment. However, he said that it did not follow that every diminution in her income was attributable to the accident - it was not reasonable to require the defender to subsidise the business which she went into. She sold The Pancake Place business for £175,000, having purchased it about six years earlier for £90,000 and she injected the capital into her new business. She was entitled to damages for the profit which she would have made from The Pancake Place if she had kept it, but Mr Riddell's approach took no account of the sale price of that business. He submitted that I should have regard to the fact that the pursuer received £175,000 for the sale of the business, and that I should take this into account when awarding damages. More generally with regard to the period between the date of the accident and the sale of The Pancake Place, he relied on the approach of the Court of Appeal in Ashcroft v Curtin [1971] 1 W.L.R. 1731, and particularly the remarks of Edmund Davies L.J. at 1737G - 1738E. In that passage Edmund Davies L.J. observed that his greatest difficulty was in quantifying the loss, in the face of a submission that the onus of proving loss rested with the pursuer and, that onus not having been discharged, no damages at all should be awarded. Under reference to the dictum of Lord Goddard C.J. in Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 T.L.R. 177, he observed that:

"the unsatisfactory conclusion to which I have felt myself driven is that, while the probability is that some loss of profitability resulted from the plaintiff's accident it is quite impossible to quantify it. Nevertheless I regard it as improbable that the loss would be anything like in the region of £10,500".

He went on to state that:

"doing the best I can, and fully realising that I too am rendering myself to be attacked for simply 'plucking a figure from the air', I think the proper compensation under this head is £2,500".

Mr Anderson submitted that Mr Riddell's evidence was flawed in its general methodology, and in particular it was flawed with regard to its assumptions (a) that overheads would have remained fairly constant, (b) that turnover would increase in line with inflation, and (c) that wages would remain as a constant percentage of turnover, which would remain at 23.5%. He submitted that Mr McDonald's approach was preferable, and on that approach it was simply not possible to reach a concluded view on the evidence as to the amount (if any) of the pursuer's loss before the sale of The Pancake Place. He accepted that there must be some loss between the date of the sale of that business in April 2000, and the start up of Areadate Ltd in November 2000. For this period he adopted Mr McDonald's reasoning that the pursuer's average net annual earnings from The Pancake Place amounted to about £15,862 after tax and national insurance, so for the period of seven months between the end of April and the end of November 2000 her loss was £10,574. The same approach should, in his submission, be adopted for the period following the start up of Areadate Ltd in November 2000. If I was minded to make an award for the first two years of that business, this would result in a figure of £31,724, and if I was minded to make an award covering three years this would amount to £47,586. In summary, his submission was that it may not be possible to make any award which could be justified by means of a precise calculation, but that the court should attempt to achieve justice by making a "lump sum" award rather in the same way as was done in Ashcroft v Curtin (supra).

37. Although as indicated above I had some reservations as to the severity of the pursuer's knee pain and the extent of her disability as a result of this, I have reached the view that her knee injury was sufficiently disabling that she could not meet the heavy physical demands of working in the kitchen at The Pancake Place. It follows, as was conceded by counsel for the defender, that she acted reasonably in deciding to give up this business, sell it and find an alternative business in which her disability would not prevent her from active involvement.
38. The difficulty remains how to quantify her loss as a result of this. I am not persuaded that the approach adopted by Mr Riddell is the correct one. It seems to me altogether too speculative, and results in an apparently impressive edifice which is built on unsound foundations. I am persuaded by Mr McDonald's reservations and criticisms of Mr Riddell's approach. In particular, the assumptions (a) that overheads would have remained fairly constant after the pursuer's accident, (b) that turnover would have risen in line with the rate of inflation, and (c) that wages would have remained as a constant percentage of turnover, which was appropriately stated at 23.5%, appear to me to be assumptions for which there is no suitably sound foundation. As Mr Riddell agreed, if there was an error in methodology or assumption in calculating loss for the year to April 1998, such error or errors is likely to be compounded in subsequent years. The result is that I do not consider that I can safely proceed on the basis of the various appendices to Mr Riddell's report No. 6/13 of process.
39. What then is to be done? The harsh view - and perhaps the correct view - would be that the pursuer has failed to discharge the onus of proving her loss under this head, and therefore to make no award under it. However, such a view would be to ignore the reality, namely that the pursuer's business (and so the pursuer herself, as she was a sole trader) must have incurred increased wages costs as a result of her inability to work, because two cooks required to be employed throughout the year, rather than only for a three month period over the summer.
40. I do not find the approach adopted by the Court of Appeal in Ashcroft v Curtin (supra) attractive as a general proposition, nor am I convinced that the observations of Edmund Davies L.J. were in fact intended to apply to a situation of a claim for loss of earnings. It seems to me that, having regard to the passage at 1738E to 1739A, the Court of Appeal's award of £2,500 may have in fact have been an award for loss of earning capacity, rather than an award for loss of earnings. Be that as it may, standing the facts (1) that I am satisfied that the pursuer has sustained some loss of income as a result of her accident, (2) that I am not persuaded by the methodology and assumptions contained in Mr Riddell's evidence and therefore have no accurate or precise figures on which to quantify such loss of income, and (3) importantly, that in such a situation the defender's counsel urged me to do such justice as I could by awarding a sum which might not be capable of a precise arithmetical justification, I consider that the pursuer's loss of income from the date of the accident to the sale of The Pancake Place business on 30 April 2000 is fairly assessed at £30,000 inclusive of interest to date.
41. With regard to the period after the sale of The Pancake Place business any accurate and arithmetically justifiable quantification of the pursuer's loss is even more difficult, and there is a real risk that the attempt to quantify disintegrates into mere speculation. I consider that there is force in Mr Anderson's submission for the defender that I cannot shut my eyes to the fact that the pursuer sold the business for £175,000. I also observe that in the last full year's trading of the business, for the year ended 30 April 1999, the business made a net profit before interest of £31,902, which represented a net profit of 9.69% of that year's turnover - this in a business for which the pursuer had paid £90,000 for the franchise in 1993. It is apparent from the figures in Appendix 1 to No. 6/13 of process (and also from the accounts No. 6/12 of process) that even in the period ended 20 February 2000, when the pursuer was taking no active part in The Pancake Place, the business made a net profit before interest of £13,173, which represented 5.11% of turnover. In these circumstances I agree with the submission of counsel for the defender that while the pursuer's decision to sell the business and purchase a new business may have been understandable, it does not follow that the defender should be required to pay for the whole cost of this. She had an asset (namely The Pancake Place business) which was generating income for her even when she was not actively involved in it. She decided to sell that asset, and to invest some of the sale proceeds in purchasing a new business, in the knowledge that this would be unlikely to make any profits for at least three years. In these circumstances I am not persuaded that the approach urged on me for the pursuer is the correct one. For the period from the sale of The Pancake Place business until the start up of Areadate Ltd, I agree with the approach suggested by counsel for the defender. For this period I consider that an award of £11,000 inclusive of interest to date is appropriate.
42. With regard to the period after the start up of Areadate Ltd, I do not consider that it is possible to make an award for loss of earnings under reference to any of the material presented on behalf of the pursuer. The whole exercise becomes too speculative, and the primary cause of any losses sustained by the pursuer after this date seems to me to be her decision to sell the asset which she had and to reinvest the proceeds in a fresh start up business which she knew would not generate profits in the short term. That having been said, I accept that if this business is not successful, the pursuer's earning capacity has been diminished as a result of the injuries which she sustained in the accident. To some extent such loss of earning capacity has been remedied by the training which she underwent in the period before she started up Areadate Ltd, which training falls within the period for which I have awarded damages of £11,000. To the extent that there remains damage to the pursuer's earning capacity notwithstanding her re-training, I consider that an award of £5,000 is appropriate.

(c) Personal Services

43. The pursuer gave evidence that she used to do some gardening before the accident - she is now able to work in her greenhouse but does not cut grass, weed or plant trees. Moreover she used to do some DIY, decorating and painting but is unable to do this now. She had cleaning help in the house before the accident, and still has this. No evidence was led in support of the pursuer's claim in this regard - her son was not asked any questions about this, and no other member of the family was led in evidence to support her.
44. Mr Bennett referred me to Table 20 of the Ogden Tables, which he suggested provided support that there should be a multiplier of 25.7. He indicated that he was prepared to accept a discount from this to a multiplier of 20 years.
45. I am prepared to accept that the pursuer may have become unable to provide some personal services which she formerly provided, but in the absence of any supporting evidence, and in the absence of any evidence at all as to the value of these services, I do not consider that it is appropriate to approach this aspect of the claim on the basis of a multiplier and multiplicand. Again, in light of the paucity of evidence in this regard, all I can do is approach the matter with a very broad brush. This aspect of the claim does not appear to me to be worth much. I award a sum of £2,500 to cover this claim, which includes inability to render such services to date, with interest thereon, and also includes inability to render these services in the future.

CONCLUSION

46. Drawing together all of the above, I consider that the accident was caused by the sole fault of the defender, and that there was no element of contributory negligence on the part of the pursuer. The evidence on behalf of the pursuer with regard to damages was less than satisfactory; doing the best that I can I assess her damages in total at £54,000, inclusive of interest to today's date. I therefore sustain the first plea-in-law for the pursuer, repel the pleas-in-law for the defender, and grant decree for payment by the defender to the pursuer of the sum of £54,000 with interest thereon at the rate of 8% per year from today's date until payment.