Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH NUMBER123
PD1550/09	OPINION OF LADY STACEY in the cause MELANIE LOGAN Pursuer; against (FIRST) WILLIAM LOGAN AND (SECOND) GHI INSURANCE SERVICES UK LTD Defenders: ­­­­­­­­­­­­­­­­­________________

Act Purser: Galbraith; Digby Brown LLP

Alt Defenders: Mackenzie; HBJ Gateley Wareing

1 September 2010

Introduction

[1] This is an action for reparation following a road traffic accident. The defenders admitted liability and the proof was on quantum only. There were preliminary matters as follows. Counsel for the pursuer sought to lodge an inventory and a supplementary list of witnesses. Counsel for the defender had no objection and I allowed it. I allowed late productions consisting of reports from inquiry agents. I allowed a minute of amendment and answers to be received, and allowed the record to be amended in terms of them. A new record had been prepared. Parties helpfully entered into a joint minute agreeing medical records, internet searches relating to the pursuer's business, a video of the pursuer taken by enquiry agents, and the income, direct costs, overheads and pre tax profit or loss for the pursuer's business for the years

1.     1 August 2006 to 30th June 2007,

2.     1 July 2007 to 30 June 2008, and

3.     1 July 2008 to 30 June 2009.

The minute refers in error to 1 August 2007 and 1 August 2008, but parties were agreed that the correct date was 1 July in each of those years.

[2] The dispute between the parties concerned the appropriate sums for solatium; for services rendered to the pursuer by her son, under the Administration of Justice Act 1982 s.8; and the loss if any which the accident had caused to her business. The pursuer did not seek any out of pocket expenses as a result of the accident. The defenders argued that the pursuer sought excessive sums. They argued that she is fit to work, and in any event had had pre existing medical conditions which were relevant to the assessment of future loss. The defenders argued that the pursuer had not proved any future loss. As I understood counsel, the pursuer did not seek a separate sum in respect of loss of employability, as that loss, even if proved, was dealt with in the claim for future loss to her business. The pursuer gave evidence and led as witnesses her son, Miss McQueen, consultant orthopaedic surgeon, Dr Rodger, consultant psychiatrist, Vanessa Wise and Robert Black, both customers. The defenders led no witnesses.

The pursuer's position

[3] The pursuer was born on 03 10 51. She is self employed, running a tattoo parlour.

[4] She had been involved in a road traffic accident which she said had had a profound effect on her life. She gave evidence and described it thus. The accident happened on 15 08 07. She was driving her own car, with her dog in it. She had dropped a friend off and was coming home, at about 8.00pm. She drove up to a roundabout on London Street, Edinburgh. There was a car on the roundabout and so she slowed down and when it was safe for her to go onto the roundabout she did so. A car coming from her left came onto the roundabout and hit her on the passenger side. It was confusing but she did remember a loud bang. There were people at the roundabout and a man covered her up. She felt quite "fuzzy and scary." A fireman and ambulance people came, and took her out of the car on a board with a collar for her neck. Her dog got its tail jammed in the door and had to be taken out by the fireman. She tried to wiggle her toes and found that she could so thought that nothing was broken. She knew that was good but nonetheless she was sore and shaky and in shock. She remembered being thrown forward in the car and then stopped by her seatbelt. She felt sick. She did not know what force was involved but it was loud and it was hard. She was taken in an ambulance to Edinburgh Royal Infirmary where the police came and breathalysed her. She had not been drinking. The doctors took an x ray and told her that nothing was broken and a couple of hours after admission she was allowed home. She was feeling very shaky, confused and sore. Her neck and between her shoulder blades was really sore. As the days went on her back began to feel really tender. The pain got worse. She went to see her GP, Dr Stewart, on 17 August, that is two days after the accident, but at that stage he had no report from the hospital. He prescribed painkillers and referred her to a physiotherapist. She wanted pain relief and to confirm that nothing untoward had happened.

[5] At first the physiotherapist saw her three times a week. The pursuer felt that things went well with her. Treatment was reduced to twice per week as she was getting better. The pursuer spoke to the physiotherapist about returning to work and was advised that it should be gradual. Therefore when the physiotherapy was reduced to one day a week she tried one day at work. She was given exercises to do to keep her supple. She also had two sessions of acupuncture which she found very strange, but she thought that it did help a bit for pain relief. Physiotherapy continued until early December 2007. The pursuer had problems moving as she was suffering pain, and felt that she had to try to get her body over the shock. She said that it was difficult even to move from sitting to standing and the main problem was the lower region of her back. The pursuer felt that it was a catch 22 situation because she was trying to sit without putting pressure on her lower back, but that put her shoulder out of alignment. Physiotherapy helped with her posture, and with difficulty she had in getting up from sitting to standing. By December 2007 the pursuer said that her main concern was "I have to get back to work" and she was concerned that the longer she was off the less the chance was of keeping her clients. Therefore she did a couple of days work and in between times saw the physiotherapist. She was prescribed stronger painkillers. She was told that she would have to learn to cope with it and get on with it and she tried to do that. She wanted to grin and bear it. She said that now she is still in pain in her back although it is not constant. She is careful how she turns because turning the wrong way is really painful. Some days it is not too bad and other days it niggles all the time. It depends on her workload. It can be very difficult.

[6] The pursuer explained that she has a personal trainer who comes once a week to do exercises with her to keep her supple. She also has massages and takes herbal remedies because she finds that the whole thing wears her down. She uses herbal remedies as well as traditional pain killers. It was suggested by a friend that she was at an age when ill health happens and she felt quite upset, and felt like saying that she was not over the hill yet. She paces herself. As a result of the accident she had to modify her lifestyle. Prior to the accident she went twice a week or occasionally once a week to Latin American dancing and she used to go hill walking but could not do these activities since the accident. At this stage in her evidence she became upset and said that she had lost confidence. Since the accident, she cannot drive, due to a lack of confidence. She said that she felt safer on a bus. She does not go out much. She used to love to go to Glasgow shopping with her friends but now she cannot take the pace and has to stop and sit and drink coffee instead of going round the shops. She was asked how she was mentally and she said that she was upset. She finds that she does stupid things then starts doubting herself. For some time after the accident she was inclined to seek reassurance from friends and family about every day matters, but she has been able recently to stop doing so as often as before. She cannot look after her household as before. She needs help from her son in with heavy work. Her friend helps her with household shopping and carrying heavy items, which she used to do herself, and copes with her moods. She finds that she reacts badly to things such as a loud door banging, even though she knows that it is not really a problem, but she feels that she "makes a meal of it." She cannot exercise as much as she used to and has put on one and a half stones in weight which she finds very upsetting. She said that she needs a good appearance for her job and that looking at herself she feels that she has aged and does not like it. She never used to have any problem walking and going upstairs but now that is not the case. Her mother is 87 years and she feels that she is quicker up off the seat than the pursuer is. She does not like the way the accident has made her feel.

[7] The pursuer went to see a psychiatrist, Dr Rodger, in April 2008. She said that she found it upsetting because he made her open up about not driving. She would really rather take the attitude that this has happened and she must just get on with life, but she does not think she will ever get over it. She keeps wondering why the other driver did not see her and she thinks that if there had been a passenger in the car then that person might have been killed and she would have been partly responsible. She did not open up to anybody else. She was asked if she had spoken to anybody else and she said that she asked the policeman why the other driver had not seen her but he could not say. She was asked if she was aware of the diagnosis by Dr Rodger of an adjustment order with depression and anxiety and she said that she was aware of it. She said that while she does feel grateful for what she has, she prefers not to think about it. She was asked about cognitive behaviour treatment and said that she decided not to have that because it would open it all up. She prefers it have the accident in a compartment and simply get on with her job of tattooing which is what she likes doing. She was keen to make the point that because she does not drive, that does not mean that she has mental health issues and she is not as she put it "off her head."

[8] The pursuer in examination in chief said that she could be made to feel like a hypochondriac if she was always at the doctor and she thought that she just had to get on with it. She agreed she had had medical problems with her knee in January 2008. She said she had no back problems before the accident or "at least nothing to write home about." In 1995 to 1996 she had a hysterectomy and she was slow to heal after that. She was sent for X-rays to check her bone density after the hysterectomy but they found nothing.

[9] In giving evidence about her business, the pursuer explained that she started the tattoo parlour at the end of July 2006. She had previously worked for the social work department in the home care section. Her mother had assisted her with child care. She had the opportunity to retire early and took it, obtaining lump sums and a pension. When her son turned 16 years her savings were depleted and she decided to try to make some money from art. She was always artistic. She had done portrait work and fantasy work, that is mythical dragons, sci-fi and fairies. There was agreed evidence that she advertised art work for sale on the internet, but she said that she could never make a living from that, although she would have been pleased in the past if that had been possible. This is an area of art which has been developed over the last 10 or 15 years and is now very popular. She had always loved tattoos and wondered if she could make it a business. She did one-to-one training. For six months after her training she thought about it and decided to set up in premises which she could afford to rent. Counsel for the defence objected to evidence about her business being led as he argued that there was nothing on record about her setting up a business in the sense of having a business plan or saying what she planned to do. He said that there had been a specification of documents served on her and she said she had no business plans. Accounts were lodged but there no tax computation and therefore he argued that this evidence was inadmissible. Counsel for the pursuer said that she did not understand the objection as it was clear that on record she had offered to prove that the pursuer had lost business. I repelled the objection.

[10] The pursuer said she did not have any business plan. She did not need to go to the bank to borrow any money. She was very enthusiastic about tattooing, and wanted to dispel the image of seediness which it has. She got on after setting up in July 2006 surprisingly well. She got customers by word of mouth. She liked designing the tattoos, especially for ladies, and as the pop stars of today have tattoos, they have become more popular with ladies. Some customers preferred to have a woman tattoo artist. There were only two other women tattooists in Edinburgh. She got her first client on the afternoon that she opened and at first she was dependant on people walking in without having made appointments. Her prices were fair at £45 an hour. In her first year she worked six days a week and if there was demand she would open seven days. She did drawing, stencil fitting and tattooing. She also had consultations with the clients. She thought that too many people get carried away with the idea of having a tattoo and she had to remind them that tattoos are for life. She had refused to do a particular tattoo because she thought that the person had not thought about it. She also does cover ups which she described as other people's shoddy tattoos which she improves on. She also does reconstruction of old tattoos which is cheaper than a cover up. Her running costs apart from the rent, rates, and heat and light were needles and ink, cling film, a contract for clinical waste disposal, an ultra sonic bath and an auto clean steriliser. The pursuer emphasised that her premises were very efficient and professional but that she ran the parlour in a friendly way, and that regular customers could and did come in to talk and have coffee. She believed that her attitude was good for business, and in any event was the way she preferred to run things. The pursuer said that both tattooist and customer needed to take breaks during a tattoo. Since the accident however she has needed to take breaks more often due to pain and discomfort.

[11] After the accident, which happened near to the beginning of her second financial year, she had been unfit to work until between Christmas and New Year when she worked for two days and then tried to build up to three days. She had a lot of discomfort and pain and realised that she would need to pace herself. The work was physically hard. Certain parts of the body are more difficult to tattoo than others. She would usually work for an hour at a time and two hours was the maximum. She explained that this was the limit that a customer could take at a time. Before the accident she would work six days, usually starting about 10.30am and finishing about 7.30pm. In her first year she went away for one weekend break to a wedding and for a week's holiday with her sister. After the accident she came back to work but she found it difficult because of pain and discomfort. She said detailed work was difficult because the small needles tend to bounce and require a firm grip and a steady hand. She said that in January 2008 she had tried to work for three days but had paid the price and had realised that she could not work for so long. She managed to build it up to three days but was not fit to work for longer. At the date of the proof she was working Monday, Wednesday and Friday and an average day would be starting at 10.00am and finishing at 7.30pm. Some of her clients come off nightshift so she would take them at 9.00am if they wish. Her clients have to wait for appointments. She was sure that she could fill her appointments book if she was able to work for more hours. She has a lot of regular customers. Her takings had gone up in 2009 because she was fully booked every day that she is in and that she will attend to five or six people per day. She felt unable to work any more hours because when she got home her back was sore and she was mentally tired, some days being worse than others.

[12] She knew she had been under surveillance. It was suggested to her that one week in May 2010 she worked 10 hours on a Friday and she said that that would be right because Friday was her busiest day. She was asked what she would say if it was suggested to her that it suits her to work Monday, Wednesday and Friday and to relax Tuesday and Thursday and it was really a lifestyle choice. She said that was not so. There was no reason why she would want to lose income by going down to three days per week.

[13] Her accounts and book keeping are done by her accountant Mr Turnbull. Her personal tax is not amongst productions for the court, but it is dealt with by Mr Turnbull. Daily takings vary. Her rate is now £55 per hour but that varied according to the type of work. The pursuer explained that in her first year's accounts the income of £19,778 came from clients. The direct costs of £1,382 were the ink and needles. She may need three or four different needles for one tattoo. The profit before tax of £4,632 in her first year pleased her. She had hoped to go on in the business and build it up. She hoped to work until she was between 65 and 70 and would go on until her hand was no longer steady or she could not see what she was doing. She was asked if she had any up to date books and she said that they had not been requested. Her last year of trading had been similar to the one before.

[14] The pursuer lives with her son Drew, his girlfriend Julia and a woman called Margaret who is disabled, whom she has looked after for many years. Before the accident she did all the housework and shopping but since then everybody has helped her and Drew and Julia now do quite a lot.

The defenders' cross examination of the pursuer.

[15] Counsel for the defenders sought to attack the pursuer's credibility and reliability. He asked if she was sure she had been put on a board at the scene of the accident. She maintained she had been. He showed her 7/6 of process at p.183 in which there is an accident and emergency report that she "self extricated" from the car. It is said that the police referred to the impact as "glancing". The pursuer vehemently denied that she had got herself out of the car. She remembered them wanting to take off roof of car and she refused. She was sure that a board had been used. She thought it had been a heavy impact, not a glancing impact.

[16] Counsel referred to the medical records. In doing so I understood him to be seeking to show that the pursuer had suffered conditions which might have affected her ability to work, and to show that she had not been reliable in her own evidence.

[17] Counsel asked about her past medical history. The pursuer said she had had a hysterectomy in the mid 1990s which she had found it hard to get over. The healing took a long time. Counsel referred to p. 135 in which a letter from Dr Thomson to her GP dated 05 09 05 noted her as presenting with pain between the shoulder blades relating to movement and exercise, and referred to her being depressed due to a custody battle about her son, a car accident and a fire. The pursuer said that the entry was not right as she had not had a car accident as it was "just her coming round a corner and somebody else reversing out." Counsel referred her to p.22 of the same production in which her GP noted on 24 03 95 that her car had been written off. The pursuer said that she could not remember any car that had been written off. Counsel asked if she was off for six months in 1996 to do due to osteoporosis to which she replied it was due to the hysterectomy. He directed her to pp. 23 and 24 where there were records of her having sick lines for several weeks, apparently in connection with osteoporosis, in 1995. She agreed osteoporosis had been investigated. He asked her if she had problems in 2000 with a sore back and showed her p. 28 of 7/6 of process which showed that she had been to see her doctor about a sore back on 18/07/00. She said that was due to a fall. He took her to p.33 and an entry for 30 07 04 which described her as stressed by weight gain despite exercise and she agreed and said that her doctor told her she needed HRT. At p. 164 of the same production there was an entry referring to the rapid access pain clinic on 21 01 03, when she had central chest pain; the pursuer recalled that as "a scary episode", but that she had recovered. He asked her if she had seen a rheumatologist and she said she might have done. He directed the pursuer's attention to p. 144 which is a letter sent by Dr Lambert, consultant rheumatologist, on 19 03 06 following her meeting him. He reported her as having a presenting complaint of intra scapular back pain and stiffness in her lumbar spine, as well as stiffness in her fingers. He noted early Heberden's node formation in the fingers which he thought accounted for the stiffness. He found her to be hampered in terms of activities of daily living having previously been quite active in hill walking and fishing, but unable to do these things due to pain. Counsel drew attention to 6/1 of process, p. 3, where Miss McQueen (who had examined the pursuer in connection with the case and who had provided a report and would be led in evidence) was told by her that she had no previous problems with her back or neck. The pursuer said that she was well when she spoke with Miss McQueen and when pressed said that she had only thought about it because counsel was bringing it up and had not thought about it before. She assumed Miss McQueen would know about her records.

[18] Counsel asked about time off in her first year for any reason and all the pursuer could remember was the wedding for a weekend and a week's holiday with her sister. He took her to 7/6 of process p.38 which was an entry indicating there was a week off with arthritis in January 2007. The pursuer could not remember being off for a week but thought she might have been off for a day.

[19] Counsel reminded the pursuer that her position was that she started back to work between Christmas and New Year 2007. He showed her in 7/1 of process a report written by Mr Steedman, consultant in accident and emergency medicine, after a consultation with her, held on 31 January 2008 at the request of her agents. In it Mr Steedman quotes physiotherapy records to the effect that she started back on 23 October, working three days per week. She accepted she did go back in October 2007, stating that she had been in pain then but that she had to work.

[20] Counsel showed a part of a video in which the pursuer walked with her friend, talked to her neighbours and carried some bags. In another part of the video she worked on a tattoo on a man's upper arm for about 45 minutes. Counsel suggested to the pursuer that she could do more than she claimed. In the end the pursuer said that she knew how she felt and he did not and so she would not argue with him.

Evidence from Miss McQueen

[21] Miss McQueen, consultant orthopaedic surgeon, spoke to her report number 6/1 of process. She understood from the pursuer that she had been off work for three and a half months after the accident and had then reduced her working time from six to seven days per week to three to four days. She reported that she had no previous problems with her back or neck and was otherwise healthy. On review of the GP records Miss McQueen had noted back pain in 1995, coccyx pain in 1996 and thoracic spine pain intermittently until 2000. On examination Miss McQueen found that the pursuer stood erect; had a normal gait; no tenderness in the lumbar spine; on forward flexion her fingertips reached her knees with 2 cm of excursion in the lumbar spine; there was no extension; there was 75% of expected range of lateral flexion which induced some back pain to the right side; and straight leg raising was normal on both sides. Her opinion was that the pursuer had sustained a whiplash injury and her difficulties with standing and bending had caused her to reduce her hours, which Miss McQueen said was a typical response by people suffering that type of injury. She regarded the pursuer as at a disadvantage in seeking employment, as she had reduced her hours and while she could do that in self employment it was not a course of action available to all. In light of the pursuer's age and previous history, Miss McQueen thought that there would be asymptomatic changes in the lower lumber spine which would not have given any difficulty in bending and standing for prolonged periods until her late sixties. She anticipated neither improvement nor deterioration in the pursuer's condition.

[22] In cross examination Miss McQueen said that the pursuer's hands as described by Dr Lambert were normal for her age. She would not expect her to be unable to carry out her work due to their condition. She noted that the pursuer had been off work for a week in 2007 due to arthritis. She would not expect that condition to cause much time off work in the near future. She was not too surprised at getting an inaccurate medical history from the pursuer, as she has found that many people are inaccurate about medical matters which they regard as being from long ago. Miss McQueen agreed with counsel that working three days per week days may be a choice on the part of the pursuer, but if so, regarded it as a reasonable choice because people with this type of back pain often say they suffer next day after exertion.

Evidence from Dr Rodger

[23] Dr Colin Rodger, consultant psychiatrist saw the pursuer at the request of her agents in May 2008 and January 2010 and wrote two reports, numbers 6/2 and 6/8 of process. He explained that the pursuer reported that she was not able to do various things, such as work long hours, dance or hill walk, all due the accident. She tended to think about the accident and found that she was not as full of life as she had been before it. She was anxious about driving and so had given it up.

[24] In his opinion the pursuer had developed an adjustment disorder with mixed anxiety and depressed mood, (as defined in DSM-IV at 309.28) as a result of the accident. He noted in his first report that her condition merited treatment by medication, clinical psychology therapy and cognitive behavioural therapy. In his second report he noted that there was no significant difference in her condition. He was aware that she preferred not to have treatment, which he said disappointed and surprised him. He was of the view that she could still be helped by treatment, except in relation to her anxiety about driving. He thought that she had adapted to not driving as a result of the difficulty caused to her by the accident, and that even if her mental condition improved she would still not go back to driving. He thought her condition could properly be described as mild to moderate and chronic, and that it was unlikely to resolve naturally. Dr Rodger described her condition as including a low mood and a tendency to ruminate, and to be impaired by a perception of pain. Dr Rodger said that the refusal to have treatment was not unusual and was of course a matter for the pursuer. While he would not recommend it, it was reasonable if the pursuer had decided that she preferred to adapt to the situation and forego treatment.

[25] In cross examination it was suggested to Dr Rodger that his diagnosis depended on the report given by the pursuer of her condition. He agreed that was so, but explained that by discussing matters with the pursuer he was able to carry out a mental state examination. He then reflected on all the circumstances known to him. He found that her distress about the accident was in excess of that expected following an accident of that sort. The stressor she had been subject to was the accident, and the consequences for her were the ongoing symptoms. The most obvious symptom was her nervousness about driving, and she also showed a perception of being limited by back pain. I understood Dr Rodger's position to be that he was able to make the diagnosis from consulting with the pursuer rather than from simply noting her self reported condition.

Evidence from Drew Logan

[26] Drew Logan, the pursuer's son, described the effect of the accident on his mother. It had a major effect on her, making her less confident and out going than before. He had to help her with household tasks such as moving furniture when cleaning. As she was and still is often in pain, he has taken over much of the cooking and said that he does not allow her to do too much. He thought that she had used a personal trainer before the accident but not after it, as she was no longer able for exercise in the way she had been before.

Evidence from customers

[27] Vanessa Wise had known the pursuer since the beginning of 2009. She met her because she already had tattoos and she wanted to get a cover up. She had been to five tattoo artists in Edinburgh when a friend recommended the pursuer. Ms Wise had her own drawing of what she wanted for her right groin area. She liked the pursuer because she listened and she did not judge. She put her mind at rest. She had a few sessions with her and the result was perfect. Ms Wise said that the pursuer had had to cancel sometimes due to her having a sore back. She said that after 45 minutes of working the pursuer often would stop because she needs her rest. In any event, Ms Wise could not tolerate tattooing without breaks every so often. Ms Wise often has to wait for two or three weeks for an appointment. In cross-examination counsel asked if she would expect other tattooists to take a break as the pursuer does, and she said that she would not.

[28] Robert Black said that he works away from his home in Dundee and had worked in Edinburgh for about a year from August 2008 to August 2009. He lived in digs close to the pursuer's shop and he went in and got to know her. He wanted cover ups of old tattoos. He knew that there was an option to have this by laser but it was expensive. Conventional wisdom is that dark tattoos can only be covered by more dark tattoos but he discovered that the pursuer could put light tattoos on top, which was what he preferred. He said that he found the atmosphere at Ms Logan's shop friendly and its nature appealed to him. He could see other people getting work done and the pursuer was very good at discussing with him what he would like done. She could design things and he left her to get on with it. The place was always busy, but he was always offered tea or coffee and made to feel that he was important. He had had the whole of his right arm tattooed and that had taken between thirty and forty hours. He said that he had had a ruptured disc and so he suffered back pain. The pursuer never raised the subject with him but he recognised from the way she walked and moved about that she too was suffering and so he asked and she confirmed that she did suffer pain in her back. He said that she would work on his tattoos for a while and then stop to allow her to stretch, and that arrangement suited him because he could go out for a cigarette.

The Joint Minute

[29[ Parties agreed a number of productions by joint minute. These included the pursuer's accounts. The pursuer said that the direct costs were the cost of ink and needles. There was no explanation why they were approximately twice as high in the first year as subsequently. The overheads were all other expenses incurred. There was no evidence about the income, costs or overheads in the year July 2009 to June 2010. There was no evidence about the pursuer's personal tax.

Submissions for the Pursuer

[30] Counsel for the pursuer submitted that she had suffered a whiplash injury causing pain in her neck and back, and had developed the adjustment disorder described by Dr Rodger. As a consequence of the accident, she suffered continuing pain and discomfort, was anxious, was unable to work as she would have but for the accident, and was unable to drive, dance or go hill walking. In discussion, counsel submitted that the fact that the pursuer claimed that she did not have any mental health issues did not negate Dr Rodger's diagnosis. Counsel argued that the defenders had not pled any failure to mitigate loss, and so there should be deduction made in light of the doctor's view that treatment which would be helpful had been turned down. In any event, Dr Rodger, while frustrated by the pursuer not getting treatment, recognised her response as not unusual and reasonable in all the circumstances. Counsel relied on Miss McQueen's opinion that the symptoms described by the pursuer were what would be expected from a road traffic accident such as that described by the pursuer. Counsel submitted that the pursuer had been prevented from working as many hours as she would choose to work by the effects of the accident. She submitted that evidence from the customers confirmed that she was in demand, and that there was no reason why she would not work six days a week had the accident not happened.

[31] Counsel argued that the pursuer's credibility was not badly affected by the matters in the medical records. She had forgotten some episodes of ill health but that was not surprising. In discussion counsel argued that the agreement that she had gone back to work in October 2007 when confronted with the records, having said she did not go back until Christmas, did not badly affect her credibility as at whole. She had made a mistake about the date.

[32] Counsel submitted that the proper award for solatium was £15000, with two‑thirds to the past, with interest at 4% on that portion. She referred to the Judicial Studies Board Guidelines Chapter 6. She referred to category (A)(c)(ii), minor soft tissue and whiplash injuries where symptoms are moderate and where there is full recovery between a few weeks and a year, which gives a range of £850 to £2750. She submitted that the pursuer was clearly in a category above that. She then referred to category (B)(b)(ii), back injuries, moderate, in which the description is injuries to the back giving rise to backache, soft tissue injuries resulting in exacerbation of an existing back condition or prolapsed discs and the range given is £8000 to £17750. Counsel also referred to the Guidelines Chapter 3 for psychiatric damage, and looked at the category (A) (c) moderate, in which the range given is £3750 to £12250. Counsel referred to the case of Emslie v Bell 2004 GWD 34-698, in which the pursuer suffered a jerking injury and a chipped tooth in a road traffic accident. She suffered pain thereafter which interfered with her ability to teach dancing and gymnastics, and to sleep. She developed depression and anxiety. The court accepted that the pursuer had suffered pain and depression as a result of the accident and had developed a mild to moderate adjustment disorder which maintained and exacerbated her pain and disability. Solatium of £12000 was awarded which updates to £13,680. Counsel then referred to Robb v Salamis 2004 SCLR 672 in which a 34 year old scaffolder suffered a musculo-ligamentous injury to his back, causing him to be off work for six months before resigning. He had peri-facet joint injections for pain relief. He remained in pain by the date of proof, and was fit only for light work. He suffered anxiety and depression. He was awarded solatium of £12000 which updates to£13,800. Counsel then referred to Cochrane v Gaughan 2004 SCLR 1073 in which the pursuer was a woman aged 40 who fell on her back, suffering a soft tissue sprain of the sacro iliac joint. She had difficulty lifting weights, could not raise her hands above her head and at times could not lie down. She gave up work, and seldom went out alone. She would have been awarded solatium of £11000, which updates to £12650.

[33] Counsel valued the services rendered by Drew Logan at £1500.

[34] She then came to what she described as the problematic area of calculation of loss of income past and future. She submitted that there may have to be a broad approach to this. She said the most difficult thing was the past. She emphasised that the court could draw inferences even if there was no direct evidence. She had helpfully prepared written submissions including a schedule of damages. In doing so she had taken figures from the book Fact and Figures edited by Robin de Wilde QC for the Professional Negligence Bar Association to calculate net income.

[35] Counsel submitted that the pursuer worked six days a week before the accident, and would have continued to do so had it not happened. She would be able to fill her appointment book and so make more money than she could by working three days a week, as she had been forced to do as a result of the accident. The loss in the second year was caused by her absence in the first few months of the financial year and her part time working thereafter. The fact that she had built the business up after that when only able to work for three days a week showed her commitment and her skill. The method which counsel sought to use to calculate wage loss was as follows:-

Assume that the pursuer would, but for the accident, have worked 6 days per week for 46 weeks of the year. That would allow for time off for holidays and any illness. The daily rate should be calculated from the amount of earnings shown in the accounts, divided by the number of days worked. Counsel calculated an average daily rate of £114 for the year 2007/2008. Using the figures for the year 2008/2009, when the pursuer worked three days per week, and assuming that she worked for 46 weeks, counsel calculated the daily rate as £177. Counsel lodged a schedule which bore to have calculations made for each year on that basis, but recognised that some errors had been made in the narration in the schedule for the year 2007/2008. As there was no evidence of figures for the year 2009/2010, counsel assumed that the figures were the same as for the year before.

[34] For future loss, counsel submitted that the pursuer intended to retire when aged between 65 and 70. She would continue to suffer loss until retirement as she was not expected to be able to increase her working hours. Therefore future loss should be calculated by using the Ogden tables to obtain a multiplier, and the multiplicand should come from an estimation of the difference between the income she would have been making at the date of proof had the accident not happened and that which she was able to make on a part time basis. She argued for a multiplier of 5 and a multiplicand of £17500. Counsel prepared 2 different schedules using the methodology outlined above; in the first she assumed a 4 day working week in 2007/2008, a 5 day working week 2008/2009 and a 6 day working week from 2009 to retirement. In the second, she assumed a 5 day working week throughout. She assumed work for 46 weeks each year in each schedule. In her written submission counsel confirmed that she did not seek any separate award in respect of lack of employability, that being covered in the claim for loss of income. Counsel moved me to grant decree for £145,855, being the total sum brought out using the first schedule referred to above.

Submissions for Defenders

[35] Counsel submitted that the pursuer suffered an injury to her lumber spine and that she suffered some pain in the neck and back as a result of the accident. She was off work until mid October 2007 and she now works three days week. The question he said was what effect on her work and quality of life had this had. Her credibility was important because the diagnoses were based on self reports. He referred to the record at page 6C and said that the pursuer offered to prove that she had "constant pain" but she had not succeeded in doing that. He submitted that the pursuer could not be seen as a reliable witness, in light of her evidence about her past medical history which did not accord with the records, and her error in the date for resumption of work.

[36] Counsel mounted an attack on the psychiatric component of the claim on the basis that Dr Rodger was not able to explain why he thought that the pursuer fulfilled the criteria for the diagnosis of an adjustment disorder. It just amounted to him saying that she had the disorder because he said so. Counsel referred to the case of Davie v The Lord Provost Magistrates and Councillors of the City of Edinburgh 1953 S.C. 34 at 40 for Lord President Cooper's opinion on the function of expert witnesses. He argued that Dr Rodger had not furnished the court with the necessary scientific criteria for testing the accuracy of his conclusion. Rather he had simply given a bare statement of his opinion.

[37] He submitted that solatium should be between £5,000 and £8,000. He made reference to the case of Lyons v WM Morrison Supermarkets PLC
[2010] CSOH 50 in which the pursuer, a 39 year old man, sustained back injuries in two accidents. The result was accelerated onset of inevitable back pain, given pre existing degenerative changes in his spine. He was able to do his work, but his capacity to do body building, walk distances, sit for lengthy period and play with his son was reduced. Solatium of £5000 was awarded. In the case of Urquhart v Fife Primary Care NHS Trust 2007 SCLR 317 the pursuer, a woman in her fifties, suffered an injury at work causing pain in her back and altered sensation in her foot. Similar symptoms would have emerged in five years in any event. Solatium was awarded in the sum of £7500.

[38] Counsel did not take issue with £1500 as a reasonable sum in respect of services rendered by Drew Logan to the pursuer.

[39] As regards the loss of earnings, counsel argued that only restricted past loss should be awarded. He produced a schedule. He argued that there had been some loss in the first year after the accident, 2007/2008, and suggested that it should be seen as a loss of £5,540 which he explained was the profit made the previous year added on to the loss made that year.

[40] Counsel argued that the pursuer had not proved that the accident had caused her to lose income after 30 June 2008. She had chosen to work for three days per week, and she was exaggerating her pain and discomfort. She had not proved any psychiatric consequences.

[41] Counsel referred to Lord Diplock's speech in the case of Mallet v McMonagle 1970 AC 166. That is a Northern Irish case concerned with the legislation on fatal accidents then in force and I did not find it helpful in the present case.

[42] In any event he argued that her evidence about her income was insufficient to enable the court to assess her loss. He argued that there was insufficient evidence and that evidence from a forensic accountant was required. She had not led evidence about her most recent year of trading, beyond a vague assertion that it had been the same as the year before. She had led no evidence about her post tax income, despite having said that she had a pension as well as income from the tattoo parlour. It was therefore not appropriate to assume her net income from Facts and Figures, based only on the income from her business.

[43] As I understood him, counsel argued that the pursuer's past medical history was such as to show that she would not have been likely to work for six days a week up or beyond the age of 65, and that any future loss award should be limited. He also produced a schedule of damages in which he valued the claim at between £13406 and £16717.

Discussion

[44] I believed that the pursuer felt that the accident affected her substantially in her work and in her social life. I accepted that her work was physical and that her back was sore and she needed to rest. In light of Miss McQueen's evidence I accepted that her back pain was caused by the accident. I accepted that she was to the extent she described disabled from dancing, hill walking and going round shops with her friends. I noted from her medical records put to her in cross-examination that she had had difficulties with these hobbies in the past. In my opinion Dr Rodger's evidence was acceptable expert evidence and I accepted from him that the pursuer does have an adjustment disorder, in which the distress the accident has caused her is in excess of what one might expect. I accept that she has a tendency to ruminate about it, and I formed the impression that she is inclined to blame every difficulty in her life now on the accident. The pursuer was vague and unreliable about her past medical history. She was wrong in asserting that she did not go back to work until between Christmas and New Year of 2007. When the inaccuracy was pointed out to her from the medical records she did accept that she had started back at work in October 2007. I accepted that the pursuer had given evidence favourable to her case and only departed from it when shown the medical report. I did not accept that the pursuer had been brought out of the car on a board, preferring the written record to her recall of an unpleasant and frightening experience. I did not however form any impression that the pursuer exaggerated in describing how she felt, and I found her basically credible, though not completely reliable. The discrepancy between her and her son on the time when the personal trainer had been employed was not in my opinion of any importance. I accepted the pursuer's evidence on that and decided that her son had simply made a mistake. I did not think that the surveillance evidence showed the pursuer doing anything she had claimed to be unable to do.

[45] The pursuer's medical history showed that she had been subject to various conditions in the past which had caused her to have time off work. I formed the impression that the pursuer was inclined to believe that the contrast between her condition before the accident and after it was more marked than was justified. For example, she had had difficulty in her hobbies before the accident as well as after it. I accept that she had got back to these hobbies after the earlier difficulty and that the accident once again prevented her enjoying them. According to Miss McQueen back pain might be expected when the pursuer reached her late sixties. Therefore her present condition was an acceleration of a condition which may have happened anyway, with the onset being more gradual.

[46] So far as the non physical consequences of the accident were concerned I accepted that her confidence had been affected. Except in relation to driving, her evidence was that confidence was returning. I hold that the pursuer had chosen to accept that her driving days are over. I noted that the medical evidence was that treatment could assist. The pursuer did not wish to take any such treatment. It was not argued for the defenders that she had failed to mitigate her loss.

Solatium

[47] I value solatium at £10,000 with two thirds to the past. It seemed to me that the pursuer was less affected than were the pursuers in the cases referred to by counsel for the pursuer; and that the Judicial Studies Board Guidelines for back injuries in paragraph (B)(b)(ii) were an indication of the appropriate range, in which she was close to the lower end. I did not think it appropriate to add on anything in respect of the adjustment disorder, as the symptoms of the back injury are included in it.

Services under the Administration of Justice Act 1982

[48] I accepted that her son had rendered her services necessary because of the accident. While counsel did not formally agree this head of damages I understood there to be agreement that £1500 should be awarded in respect of all services, with no sum in interest sought.

Loss of income

[49] I accepted the undisputed evidence from the pursuer and from her customers that she was a talented tattoo artist with a loyal following of customers. Some of them had to wait for appointments and would prefer not to do so. I accepted that had the accident not happened she would open her shop for 5 or 6 days per week. The impression from the evidence was that the pursuer enjoyed being in her tattoo parlour and I hold that would open it even if she did not have appointments for the day, if she felt fit to do so. There was no evidence which would enable me to hold that she would have been as busy every day, were she to open six days per week, as she had been when open three days a week.

[50] The evidence of money made in the past is sparse. The agreed accounts showed the following:-

	Year 2006/2007	Year 2007/2008	Year 2008/2009
Income	£19778	£13193	£24561
Direct costs	£1382	£648	£665
Overheads	£ 13764	£13453	£13021
Profit/loss	£ 4632	-£908	£10875

[51] It is clear that in the second year of operation she made a loss. In year three things improved as she made a profit. The direct costs in the first year were much higher than in the later two years, and overheads were nearly constant. No documentary evidence was led about the year ending at the date of the proof, and the pursuer said little about it other than that it was similar to the year before.

[52] What would have happened but for the accident is hard to say. It cannot be assumed that the business would grow year on year because there is a limit to how much work a sole practitioner can do, and how many customers there are, even if the shop were to open more hours. The takings in the first year were less than in the third year, despite the parlour being open for twice as many days every week. I accept that the business had been built up and that clients would be referred by other clients, and that the business had grown to some extent. I do not accept that the pursuer would have had twice as much business in her third year had she been open six days per week; nor do I accept that in the future she could reasonably expect to be busy every day of a six day week. I am of the opinion that it would be fair and reasonable to estimate that if the accident had not happened the pursuer would have been working for the equivalent of four days each week, even though she may have opened the parlour for six days.

[53] Counsel for the defenders was correct to argue that the evidence about loss of income was sparse. I do not agree with him however that a forensic accountant is needed in a case of this sort. It seems to me reasonable to have agreed the pursuer's accounts, and to seek to draw inferences from them. He was also correct in pointing out that there was no evidence about her pension and so any estimation of her post tax income was bound to be inaccurate. It seems to me that it is inevitable that in a claim of this sort there is an element of estimation, or a broad brush approach. However there was no evidence in this case about the pursuer's income to the year ending 30 June 2010, a day on which proof was heard. There was no explanation for this; accounts would not have been prepared in the normal course at that date but some estimation could have been given. The accountant was on the list of witnesses but was not called. The pursuer gave the impression that she handed her paper work to him and that she was not personally very well informed about it. I have considered carefully whether it is correct to award the pursuer any sum in respect of loss after 30 June 2009, being the last date for which accounts are produced. I have decided with some hesitation that there is just sufficient evidence to require me to do so. The pursuer has said that she has worked for three days a week and that her business has been similar to the year before. It seemed to me proportionate in a case of this sort where the business involved is a small one person business making relatively small amounts not to require forensic accountancy and I have accordingly allowed loss on the basis sought. Counsel's calculations were not in my view correct in every respect. The most significant figure is that for future loss. She contended for a multiplicand of £17500 which was effectively to argue that the pursuer would have been as busy every day were she open six days a week as she was when open three days a week. That would mean that her business would have been double its current level had the accident not happened. As stated above I do not accept that argument and have used as a multiplicand the lower figure of £6521 which is a post tax estimate of the extra sum the pursuer would have been able to obtain over an effective four day week.

[54] In my opinion counsel for the pursuer was basically correct in her method of calculating past lost, which I preferred to the method submitted by counsel for the defenders. I accepted that the pursuer would have worked in the period between the accident and 23 October 2007 had the accident not happened. I also accepted that she would have been trying to build up her business, and that she would have succeeded in establishing a regular clientele during her second year which may have built up further in her third year. The calculations of loss on the limited information before me should be done by calculating the average daily income achieved and from that, the income achievable in an appropriate number of working days. The pursuer maintained that she had been open six or occasionally seven days per week in the eleven months ending 30 06 07, that is before the accident. There was no contradictory evidence. On some of those days she must have dealt with only one or two customers, as her income from customers was £19778, which equates to an average daily rate (on a six day week) of approximately £90. As a cross check, the pursuer said that she charged £45 per hour, and that before the accident she would work on a customer for an hour then have time cleaning up and allowing the customer to rest before restarting or taking a new customer. Allowing for meal breaks in an eight hour day the chargeable time would be about 5 hours, assuming clients were available. That equates to £225 per day. At that daily rate, the pursuer would have made her income in 88 days. In eleven months there are approximately 330 days and so is obvious that the pursuer did not have customers available to fill each working day. That accords with the pursuer's evidence that she built the business up as time passed.

[55] In her calculations counsel for the pursuer recognised that she should take 46 rather than 52 weeks per year, to allow for illness and holidays. I agree with that approach for future as it is fair and reasonable to anticipate some time when the pursuer will not be working. It is not however the correct approach on the evidence for calculation of past loss, as the pursuer claimed to have worked for more than 46 weeks. Thus past daily rates should not be calculated in that way. In my opinion the evidence showed that if the accident had not happened the pursuer would have opened the parlour as much as she could during the years 2007/ 2008, 2008/2009, and 2009/2010, and that she would have been limited in the income she could make by the availability of customers. I do not accept counsel for the pursuer's calculation for average daily rate for the first year after the accident as £114. In that year, the pursuer worked for 6 days a week between 1 July and 15 August, then did effectively no work until 23 October, working three days a week thereafter. I calculate her average daily rate as approximately £97, and so use that figure to calculate what she would have made if she had worked 4 days a week for 46 weeks. From that has to be deducted what she did make, and then the resultant figure after tax has to be compared to her actual figure after tax. The same exercise has to be done for the two succeeding years. I have used a daily rate of £157 for each of those years. That has been reached by estimating the number of weeks at 48 and the days at 3. I am of the view that the progression of the business shown in the accounts is such that it is likely that she would have achieved that average daily rate for 46 of the weeks in each of those years for 4 days each week. I am also of the view that the evidence is such as to suggest that for future she would have achieved that average daily rate for 4 days per week, for 46 weeks of the year.

The multiplicand

[56] As the pursuer is working three days per week her loss for future is one day per week, for 46 weeks of each year. I have assumed that the pursuers' fixed costs would not vary, that being the approach of counsel for the pursuer and no other approach being suggested. It appears consistent with accounts for 2007/2008 and 2008/2009. I have taken a net figure from Facts and Figures as suggested by counsel although it is a broad brush approach as her net income is not known to me. The multiplicand sought by counsel for the pursuer was £17500. That is in my opinion too high. I have selected a multiplicand of £6251 based on the pursuer missing out on one day every week for 46 weeks at a daily rate of £157, adjusted to take into account tax as provided in Facts and Figures.

The multiplier

[57] Pursuer's counsel had taken the figure of 5 for a multiplier by starting with table 10, which is for women retiring at 65, in which the figure is 6.30. She then went to table 11 which is for women retiring at age 70, and took the figure there of 10.01. The midpoint is 8.15. The figure given for adjustment in table C do not apply given the pursuer's age, but counsel recognised that some deduction was appropriate and suggested the figure 5. Counsel for the defenders did not argue with this. I therefore accept a multiplier of 5.

[58] I have calculated interest to 1 September 2010.

Summary

[59] I intend to pronounce decree as follows

Solatium	10000
Interest	803
Services	1500
Past income loss 2007/2008	2500
Past income loss 2008/2009	6521
Past income loss 2009/2010	6521
Interest on past income loss	1890
Future income loss	36113
Total	65848

[60] I will put the case out by order to discuss any arithmetical errors.

[61] I reserve all questions of expenses.