Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 123
PD2497/11	OPINION OF LORD BANNATYNE in the cause R T (AP) Pursuer; against LOUISE THOMSON Defender: ________________

Pursuer: Murphy; HBM Sayers

Defender: Cowan, solicitor advocate; Simpson & Marwick

16 July 2013

Introduction

[1] The pursuer raised an action of damages against the defender in respect of personal injuries sustained on 2 December 2008. Liability was admitted subject to issues of causation and quantum of damages.

[2] The pursuer was represented by Mr Murphy, advocate. The defender was represented by Mr Cowan, solicitor advocate.

[3] Both representatives in this case lodged written submissions and I am grateful to them for these. I have had full regard to their terms.

[4] The circumstances of the incident giving rise to the claim for damages can be summarised as follows: the pursuer was driving a vehicle which was stationary at a give way sign at a junction, when it was suddenly and without warning struck from behind by a motor vehicle being driven by the defender.

[5] The issues between the parties were these:

1. The pursuer asserted that as a result of the accident he had suffered the following physical injuries: a soft tissue injury to the neck, and pain and stiffness to his neck, left shoulder and lower back, the effects of which had subsided but were continuing.

[6] The defender's position regarding his physical injuries was this: the pursuer had sustained a minor whiplash type injury to the neck and back of short duration.

2. Moreover, as a primary position the pursuer asserted that as a result of the accident he had developed post-traumatic stress disorder ("PTSD") and associated depression. The pursuer had an alternative position regarding the psychiatric aspect of the case and that was to this effect: the accident had exacerbated any pre-existent stress symptoms which may have existed.

[7] The defender's position relative to the issue of any psychiatric effects of the accident was this: the pursuer had not suffered any psychiatric injury as a result of the accident and in particular he had not developed PTSD. The defender averred on record and developed the line in the course of evidence that the pursuer had suffered from hypochondriasis before the accident and had continued to suffer from this since the accident. This explained any psychiatric symptoms from which the pursuer had suffered since the accident. There was no causal connection between any post accident psychiatric symptoms and the accident.

3. The pursuer's position so far as his ability to work was concerned in summary was this: as a result of a combination of his physical and psychiatric injuries he had been unable to work to the date of proof and that these would effect his future employment prospects in a material way.

[8] The defender's position was that he should have been able to have returned to work in or about February 2009 as he had only sustained a very minor physical injury of the type described.

[9] Both sides in the course of submissions accepted that in considering these issues the starting point was the question of the credibility and reliability of the pursuer. In particular Mr Murphy conceded that the pursuer could not be successful with respect to the disputed issues unless I accepted his evidence in its essentials and in particular his evidence regarding both his pre and post accident medical condition.

[10] The parties' position as regards the centrality of the pursuer's credibility and reliability arose particularly from the evidence of the pursuer's two medical experts, namely: Mr S Sinha, (associate specialist) orthopaedic surgeon and Dr Chinta Mani, consultant psychiatrist. Mr Sinha in the course of his evidence said that he accepted that in reaching his opinion regarding the physical injuries sustained by the pursuer and their effect on the pursuer he was very much dependent on the truthfulness of the pursuer as there were no objective signs of a whiplash injury other than straightening of the spine which he said he had found in the pursuer. Equally, Dr Mani in his evidence accepted that his diagnosis of PTSD was essentially based on what the pursuer had told him and therefore his diagnosis was reliant on the pursuer having told the truth.

[11] As an illustration of the importance of the pursuer's truthfulness I would refer to two examples.

[12] As regards what the pursuer had told him when he was examined by him, Dr Mani was asked this in cross examination:

"Agree from what seen (in the GP records) the suggestion of no stress being caused (to the pursuer) by the assault and university (difficulties) is not true?"

He answered: "Yes, significant contradiction".

[13] When asked whether this statement by the pursuer set out in his report was true: "He never thought he had a serious physical illness". He replied that that was what the pursuer had said to him and he accepted "that is not entirely truthful".

The credibility and reliability of the pursuer

[14] I am clearly of the view that it is correct that the issue of the pursuer's credibility and reliability is fundamental to deciding the issues in this case. Accordingly given the centrality of that issue I turn to consider it first.

[15] Mr Murphy's submissions regarding the pursuer's credibility and reliability were set out in his written submissions and were as follows:

"Pursuer perhaps effusive and lacking focus and comprehension in evidence but put forward as honest and reliable in the essentiality of the accident and his condition thereafter. He did not understand the word 'subsequently' with reference to a question about later road traffic accidents. Possibly only misinterpreted when claimed he drove an expensive car (albeit his father's). He corrected his evidence when it was put in plain language. No injuries were reported in the medical notes and no other legal claims made in respect of two other collisions. He was in denial about his 'degree' status but only to the extent of failing to complete a final module. He perhaps exaggerated his promotion hopes but he showed ambition".

[16] These submissions, as I understood them, were in response to points which Mr Murphy believed would be founded upon by Mr Cowan in the course of his submissions as showing that the pursuer was neither credible nor reliable. Mr Murphy did not materially elaborate on his written submissions when addressing me. My understanding of Mr Murphy's overall position was this: I should accept as credible and reliable the pursuer as regards the core of his case and that some support for the pursuer's position could be found in the evidence of his brother, Mr Mani, Dr Sinha and the medical records.

[17] Before turning to Mr Cowan's submissions I would wish to make two general observations. First at no point in his submissions did Mr Murphy suggest that in quoting evidence or in quoting medical record entries or the contents of reports of expert witnesses Mr Cowan had made any inaccurate references or misquoted. I therefore took it to be the case that he was accepting the accuracy of these quotes and references. Secondly in the course of his submissions Mr Cowan made frequent reference to entries in the medical records. With respect to the accuracy of these records I found them to be accurate. In the course of the proof the pursuer appeared to challenge the accuracy of certain entries to which he was referred (although I note in the course of his submissions Mr Murphy did not expressly ask me to reject any entry as inaccurate). In so far as the pursuer challenged the accuracy of the entries I reject his evidence which appeared entirely implausible. I saw no reason to hold any of the records inaccurate.

[18] Mr Cowan in the course of both his written and oral submissions laid out an extremely detailed "root and branch" attack on the pursuer's credibility and reliability. In summary it was his position that substantial areas of the pursuer's evidence could properly be the subject of considerable criticism. In particular it was his position that areas of concern in the pursuer's evidence were in relation to his evidence regarding his pre-accident condition and post-accident condition, with particular reference as to what he was able to do post-accident. Over and above these specific areas there were a significant number of other areas of the pursuer's evidence which he submitted were clearly not credible and reliable. It was his position that the pursuer's evidence as a whole could not be accepted as credible and reliable. The pursuer as regards many material aspects of the case was quite clearly, he submitted, not telling the truth. He invited me to reject the whole of the pursuer's evidence in so far as it related to any matter which was in dispute.

Discussion

[19] I preferred, without difficulty, the submissions made on behalf of the defender to the effect that I should find the pursuer not to be credible and reliable.

[20] I am satisfied that there are a large number of individually significant reasons to find the pursuer not to be credible and reliable. Moreover, in my view when taken together these reasons form a compelling case for holding the pursuer's evidence not to be credible and reliable. I am persuaded that the pursuer's credibility and reliability is wholly undermined and that his evidence must in all its essentials be rejected.

[21] In holding the pursuer not to be credible and reliable I have had regard to the following factors:

(a) The basic circumstances of the accident, as I have earlier related them, were not in dispute. However, when the detail of the accident was turned to I did not accept the pursuer's evidence as credible and reliable. The pursuer in his evidence on a number of occasions expressly stated that the collision was a forceful one and in support of his said position referred to a beam in the car which he was driving being fractured and he said he had hit his head on the steering wheel (although wearing a seat belt) again seeking to suggest a forceful collision. In addition it was his evidence that the other car involved in the accident was probably written-off. However, aspects of his own evidence tended to contradict this and to point to a minor and low speed collision. In particular he stated in evidence that: the driver's airbag in his vehicle did not deploy; he was able to drive his vehicle away following the accident; and his car, although the hand brake was not on and his foot was not on the brake, only moved a short distance as a result of the accident. These pieces of evidence did not fit in with a forceful collision. Accordingly when looked at on its own the pursuer's evidence as regards the nature of the accident did not appear consistent.

[22] Moreover evidence was given by the defender. I accepted that the defender was clearly a nervous witness who did not want to appear in court. However, she gave her evidence regarding the circumstances of the accident in a clear manner. She had no axe to grind in relation to this matter. The case had been taken over by her insurers. I could identify no reason why I should not accept her evidence regarding the circumstances of the accident as credible and reliable. Mr Murphy submitted that she had no clear and accurate recollection of the circumstances of the accident. In my view she had a clear and accurate memory of the accident. I had no difficulty in preferring her evidence to that of the pursuer on these matters. Her evidence regarding the accident was this: it was a low speed bump (5 to 10mph); her airbag did not deploy; the damage to her car was insignificant and no repairs were required to her car (her car was a small one).

[23] It appeared to me that it was of some significance that the pursuer could not be accepted as regards an important aspect of the event which founded his claim. He was in my view clearly materially exaggerating in his evidence as regards this matter.

(b) Further regarding the circumstances of the accident I accepted the submission made on behalf of the defender that the pursuer, both in examination-in-chief and cross-examination, stated that a truck had passed in front of the vehicle he was driving shortly before the collision. However, when speaking to Dr Mani his position was that he thought he had nearly gone under a big truck. This was a material difference, particularly in the context of the pursuer seeking to establish a diagnosis of PTSD. It again appeared to be exaggeration on his part and again cast doubt on his credibility and reliability.

(c) In examination-in-chief the pursuer was asked, as I have it noted: "have you ever been in a car accident before (the instant action)? - he answered "No". He was then asked "Subsequently" and he answered "No". On the evidence which I accepted the pursuer had in fact been involved in no less than two car accidents subsequent to the instant accident.

[24] In cross-examination when the subsequent accidents were put to him, his position was that he had misunderstood the questions put to him in examination-in-chief. This was also his position in re-examination and Mr Murphy submitted I should accept this. This position seemed entirely unlikely as the two questions could not have been clearer or more straightforward. I believe the explanation for the difference between his evidence in examination-in-chief and cross-examination was this: the pursuer was not telling the truth in examination-in-chief.

(d) In addition, as regards the subsequent accidents. It was submitted by Mr Cowan in his written submissions:

"The pursuer was not truthful as to the circumstances of subsequent accidents and whether suffered any injury in those accidents. In evidence, the pursuer sought to downplay the severity of the two accidents which he eventually agreed that he had been involved in. He also contended that he had not suffered injury in either. However, the medical records entirely contradict him. With regard to the accident in late January 2010, the pursuer claimed that it was a 'minor scrape in a car park'. However, 6/2/73 of process (dated 1 February 2010) states 'involved in car accident on Thursday, Friday started to get a stiff neck, now very sore'. It also states 'sore neck and upper back 3 days....was involved in RTA 4 days ago used ice and analgesia then but pain remains'. In evidence, the pursuer stated that he was referring back to the index accident but that clearly cannot be correct. He also seemed to suggest that the accident a few days previous was only discussed because the nurse had asked him whether there was 'anything else'. He also said that he had told the nurse about the December 2008 accident albeit there is no reference to that accident in the note.

With regard to the accident in March 2011, the pursuer's evidence was that he had been travelling at a speed of 5mph but the relevant entry dated 31 March 2011 (6/2/1) includes 'was travelling 30 mph'. The pursuer initially said that he could not remember speaking to his GP about the accident but he then suggested that he had had a general conversation with his GP and had made reference to 'too many mad drivers'. He then suggested that he had said to his GP that it was a 30mph road.

It is not even clear that there were only two subsequent accidents. According to the medical records (6/2/60), the pursuer attended Accident and Emergency on 10 May 2010. The diagnosis noted in the records is 'right arm - muscular pain following RTA'. The pursuer again claimed that the road traffic accident in question was the index accident".

[25] It appears to me that the pursuer was seeking to materially downplay these events and their effect on him.

[26] I am unable to identify any reason why the contemporaneous medical records should be inaccurate. I believe that the pursuer was not being truthful in his evidence about these matters. These matters were clearly of relevance to his establishing his claim.

[27] It is also I accept perhaps noteworthy that the pursuer did not believe it appropriate to draw these to the attention of either of the two orthopaedic surgeons who examined him for the purpose of these proceedings.

(d) In considering the pursuer's credibility and reliability, a matter which I regarded as being of critical importance was his evidence regarding his pre-accident health and in particular the question of whether he had suffered from stress prior to the accident.

[28] The pursuer was referred in the course of his cross-examination to medical records recording that he was stressed prior to the accident with which I was dealing. He maintained he was not. In re-examination he was still insisting that he was not stressed prior to the accident: that he did not tend to be stressed and that "before the accident I was perfectly fine".

[29] He told Dr Fraser (the defender's consultant psychiatrist) when examined by him: "completely healthy, both mentally and physically".

[30] In the course of submissions Mr Cowan reminded me of the following entries in the pursuer's GP records regarding stress and stress related symptoms. These entries were as follows:

"The relevant entries are at 6/2/42 - dated 18 August 2004, 24 August 2004 ('very stressed' and medical certificate for 'stress'), 6 October 2004 ('highly stressed' - also medical certificate), 11 November 2004 ('still stressed, medical certificate and insomnia++'), 8 May 2006 ('sleep poor', 'worried++' and 'probably all anxiety related'), 31 May 2006 ('still very stressed') and 19 June 2006 (sleep difficulties and 'stress management'); at 6/2/41 - dated 27 October 2006 ('lots of stress in life'), 3 November 2006 ('stress +++'), 16 April 2007 ('long chat re stress'), 4 May 2007 ('stress at present+++'), 13 July 2007 ('stressed still ++'), 25 July 2007 ('stressed ++' - also medical certificate for two weeks for eczema); at 6/2/125 (patient health questionnaire dated 21 August 2008 which confirms the presence of symptoms including little interest or pleasure doing things; feeling down, depressed or hopeless and sleep difficulties); at 6/2/137 (form dated 25 January 2008 completed in connection with application to CICB which refers to 'stress and anxiety'); and at 6/2/40 dated 25 January 2008 ('under lot of stress'), 21 August 2008 (includes reference to a referral to STEPS) and 21 October 2008 ('stress +++')".

[31] It seems to me that it would be fair to say that the pursuer's medical records were littered with entries relating to stress pre-accident, and that these entries continued to be made until shortly before his accident. His evidence was diametrically opposed to the content of these parts of the contemporaneous GP records. It is of course possible that an entry in the medical records may not be accurate. However, it seems impossible that all of these entries are inaccurate. The pursuer gave no real explanation as to why these records should be inaccurate. The inevitable conclusion is that the pursuer is not telling the truth about whether he suffered from stress pre-accident. This issue was a very important matter in the context of the medical dispute between the parties. Holding that the pursuer was not telling the truth when giving evidence in relation to this important issue in my view fundamentally undermined his credibility and reliability.

(e) Many of the GP entries refer to the causes of the pre-accident stress being either problems at university or an incident in 2004 which resulted in a court case in which, as I understood it, the pursuer was the complainer or at least a witness.

[32] The pursuer stoutly refused, despite the terms of the medical records, to accept that either of these events had caused him stress.

[33] It was impossible to reconcile the pursuer's evidence with these entries. It again appeared to me that the pursuer was not credible in relation to these matters. Again, given the nature of the dispute between the parties his failure to be truthful on these matters was of some considerable materiality.

(f) An issue arose regarding the pursuer's post-accident attendance at a gym and his carrying out weightlifting while there. This issue, once more, was of some importance in the context of the matters at issue in this case.

[34] In their written submissions the defender directed me to the following entries in the pursuer's medical records and made the following submissions in relation to them:

"The first entry is at 6/2/115 (dated 20/2/09). It bears to relate to an attendance at the Out of Hours services in the early hours of the morning. The record includes the words 'weight lifting today'. The pursuer denied that he had been weight-lifting. His explanation for what appears in the record was that 'if this person thinks going to gym and weight lifting are the same thing...not my fault'. However, for the same date, there is an entry at 6/2/40 of process. That includes 'yesterday at gym...after strenuous exercise'. The pursuer suggested that he had no idea what the reference to 'strenuous exercise' was all about but he also said that he could remember the conversation and that the GP had told him to 'calm down and cut down on exercise'. On the face of it, that is consistent with the pursuer having reported that he had been doing strenuous exercise otherwise why would the GP feel the need to advise him to cut down? Further, the reference to 'strenuous exercise' is consistent with the OOH Services' entry regarding weightlifting.

The pursuer contended that any lifting of weights (whether at that time or subsequently) would only be as recommended by his physiotherapist. However, there is an entry in the GP notes dated 2 February 2010 (6/2/37) which includes "not stopped weight lifting and not being seeing physio reg or doing exercises they recommended - advised should try". That entirely flies in the face of the pursuer's contention that he was only doing as much as his physiotherapist had recommended.

As to how frequently he attended the gym after the accident, the pursuer claimed in evidence that he only went "once or twice a week or not even that" but there is reference in an entry in the GP records dated 9 December 2009 (6/2/39) to him going to the gym four times a week.

There is also the issue of what the pursuer reported to the various medical experts regarding attendances at the gym. Mr Sinha notes that the pursuer is "prevented...from going to the gym" (6/3/4). Dr Mani refers to the pursuer going to the gym and not being able to do exercise but "sitting in the steam" (6/5/2). Mr Fazzi (the defender's orthopaedic expert) notes that the pursuer goes to the gym "occasionally to swim and perform his physiotherapy exercises" and for "social reasons" (7/1/6). Dr Fraser notes that the pursuer has given up going to the gym (7/3/3)".

[35] On the basis of the foregoing it was submitted that the pursuer was being less than truthful regarding his post-accident attendance at the gym. I find myself in agreement with that submission. This also undermined my ability to accept the truthfulness and reliability of the pursuer's evidence.

[36] In the course of evidence the pursuer was questioned about the circumstances surrounding his leaving university. The pursuer's position in evidence was that he was not expelled but rather had failed a course but could have gone back (Feb 2007). In addition he denied fighting any legal battle in relation to his having to leave university.

[37] However, he told Dr Fraser that he had been expelled and had been involved in a legal battle relative to this. (page 4 of 7/2 of process).

[38] Additionally, when one turns to his GP records there are references to his advising his doctor regarding his expulsion and taking the university to a tribunal: 19 June 2006 which refers to "Still lot of uni problems", (6/2/42) 27 October 2006 which refers to being "kicked out uni...taking uni to a tribunal via lawyer'; (6/2/41) 16 April 2007 which refers to "uni dispute" (6/2/41) and 20 March 2009 which refers to "uni problems".

[39] The pursuer's only explanation for these entries was that it was his doctor who said that he should get a lawyer relative to his not being able to do a 4^th year at university. This did not ring true and did not explain the terms of the said GP entries.

(h) In addition there was a further issue regarding his university education. In evidence he accepted he had not obtained a degree. However, he told Dr Mani, Peter Davies (Employment Consultant) and Dr Fraser that he had obtained a degree. Mr Murphy sought to persuade me that this was an unimportant matter. I do not agree. In my view it is a part of a pattern of behaviour which has caused me not to accept the pursuer's evidence.

(i) Even in relation to a matter which was not truly relevant to the proof, namely the ownership of the vehicle he was driving at the time of the accident the pursuer's position at different stages was inconsistent as contended by Mr Cowan in his written submissions:

"Near the beginning of cross-examination, he was asked how long he had owned the vehicle he was driving at the time of the accident and his answer was 41/2 years. However, later in cross-examination, when he was being asked about telling the medical experts that he had sold his car following the accident and that he no longer owned a vehicle, he stated that the vehicle involved in the accident was actually owned by his father. Consistent with him owning the vehicle, he stated that he had produced evidence of the purchase price to the defender's vocational expert, Mr Dewar. The pursuer suggested in evidence that what he had spoken to Mr Dewar about was not that he owned the vehicle but rather that the finance for a £33,000 car had been in his name but it is far from clear why he would possibly have considered that to be relevant. The pursuer also advised Dr Fraser that he had purchased the vehicle for £33,000 (7/2/3)".

[40] The pursuer's lack of consistency in relation to this matter again cast doubt on his credibility and reliability.

(j) Turning again to an aspect of the pursuer's health, namely: whether, chest pains were an issue post-accident, the pursuer claimed they were not. However, yet again, there were a number of entries in his medical records which were to a contrary effect: these were on 9 December 2009 (6/2/39), 26 March 2010 (6/2/37), 10 February 2011(6/2/23) and 6 January 2012 (6/6/9).

[41] Once again the pursuer was caught out when he was referred to contemporaneous records, which I accepted as accurate. Again this lack of truthfulness related to matters of some materiality.

(k) Two further matters were founded upon by Mr Cowan in the course of his submissions regarding the pursuer's credibility:

"There is reason to doubt the pursuer's evidence regarding his absence record at Santander. In examination-in-chief, his evidence was that he had not had any days off work with Santander prior to the accident. In cross-examination, that became 'one day' and in re-examination it had increased to a 'day or two'. However the entries in the GP records dated 25 July 2007 and 17 August 2007 (both at 6/2/41) refer to medical certificates for two and four weeks respectively. That was whilst the pursuer was employed at Santander. There is also the reference to 'OSP' in his payslip dated 19 November 2008 (6/4/1). It seems more probable than not that 'OSP' was a reference to occupational sick pay although it is accepted that Mr Pickles was not able to assist with that.

The pursuer has not been consistent as to whether his job application to Tigercom was successful. His evidence was to the effect that his application was successful and that he had undertaken a short period of training but that he had found that he could not cope when he started the job proper. However, he reported to Mr Davies (para 4.7 of 6/13) that his application had been unsuccessful".

[42] These were minor issues, however, again they cast doubt on the pursuer's credibility and reliability.

[43] Overall, looking to the pursuer's evidence I find that in large measure it did not ring true. Specifically, his evidence as to why his position differed very markedly from the terms of a large number of entries in the medical records was wholly implausible.

[44] I also had the advantage of seeing the pursuer in court. The pursuer was still in his evidence complaining of back and neck pain. He spoke to having spasms of pain, which stopped him sleeping. He said that he could not sit at a desk too long as it gave him pain. His mental state was not as it had been before the accident.

[45] Against that picture which the pursuer sought to paint in the course of his evidence, I noted that during a long period while giving evidence he seemed to be able to cope in the box without apparently being in any pain. Throughout his evidence he regularly turned his neck to the right and left, again apparently without pain. He appeared able to concentrate and answer a very large number of detailed questions. His demeanour in court I feel did not fit in well with the picture he sought to present about his medical condition.

[46] In summary: on almost every occasion where his evidence was compared to a medical entry or report it was found to be materially at variance from the contents of these documents; his position on a large number of matters appeared to materially alter over time and his explanations for all of the foregoing simply did not stand up to any scrutiny.

[47] The only other witness who was led on behalf of the pursuer to speak to his pre and post-accident condition was his brother. His evidence was in very short compass and was very much lacking in detail. He did generally speak to the pursuer's physical condition and his behaviour, character and emotional state before and after the accident. He spoke to the pursuer having changed post-accident. However, as regards this evidence he stated that prior to the accident the pursuer was "perfectly fine". That does not fit in with the medical records.

[48] As regards the period post-accident he appeared to believe that the pursuer had given up going to the gym. Again the medical records, which I accepted, gave a contrary view.

[49] There of course may be good reasons why he did not know about the pursuer's pre-accident stress related difficulties. The pursuer may not have told him about these. He is some years younger than the pursuer and was at school at the material time and may simply not have been paying any great attention to these types of matters.

[50] Looking to his evidence I believe he was doing his best to tell the truth, however, his evidence it appeared to me was not reliable. I do not believe as submitted by Mr Murphy that his evidence in any material way supported the credibility and reliability of the pursuer's evidence. His evidence does not cause me to change my views on the pursuer's evidence.

[51] As regards the pursuer's two medical experts they do not offer any support for the pursuer's credibility and reliability as their views were based on his being a truthful witness and I hold he was not. Equally for reasons I have stated the medical records do not support the pursuer's position.

[52] In the whole circumstances I am not prepared to accept the pursuer's evidence on any disputed matter as credible and reliable.

The expert medical evidence

[53] I now turn to consider the evidence given by various medical experts on behalf of both the pursuer and the defender.

[54] The first of these was Mr Sinha.

[55] As I earlier set out Mr Sinha's opinion as regards the pursuer was predicated on the pursuer having been a truthful historian as to inter alia what had happened to him in the accident and his symptoms both past and current. As I have held that the pursuer could not be regarded as a credible and reliable witness, I have it follows to put to one side the opinion of Mr Sinha. His opinion cannot be accepted as the essential basis of his opinion, the truthfulness of the pursuer has not been established.

[56] Having said that there are a number of observations about the evidence of Mr Sinha that I would wish to make.

[57] Mr Murphy submitted I should prefer his evidence to Mr Fazzi (the defender's consultant orthopaedic consultant). Mr Cowan submitted I should prefer the evidence of Mr Fazzi.

[58] It was submitted by Mr Cowan that I should reject Mr Sinha's evidence not only because its underpinning, namely: the truthfulness of the pursuer had not been established but also because it was his position that Mr Sinha seemed to be anxious to support the pursuer's case.

[59] In his written submissions he said this:

"On more than one occasion, he took the opportunity to volunteer information which appeared to be designed to serve that purpose, [namely to support the pursuer's case]. For example, when an entry in the GP records noting a free-range of movement was being discussed, Mr Sinha volunteered that it was possibly a good day for the pursuer. Perhaps most striking was Mr Sinha's attempt to suggest that an entry in the records which included reference to 'low abdominal pain' proved that the pursuer had reported symptoms in the left iliac crest - his reasoning being that this was the 'same area'".

He submitted that for this reason his evidence should not be accepted.

[60] I agree with this submission. I noted other examples which seem to me to support this submission: first, when asked if he had noted an entry in the GP records relating to the pursuer weightlifting at the gym following the accident, his evidence was that he had noted this, however, he went on to add this: "When it comes to back problems part of treatment is mobilisation".

[61] Secondly when asked about another entry relative to the pursuer's weightlifting and whether that was not inconsistent with what the pursuer had said about his symptoms he answered: "Not in a position to comment - he is quite keen to get on with his activities".

[62] This anxiety to support the pursuer's case caused me to have concerns as to the extent to which I could accept the evidence of Mr Sinha.

[63] It was further submitted by Mr Cowan that over and above this anxiety, Mr Sinha did not appear to have reviewed the GP records with any real thoroughness. In particular he submitted that Mr Sinha had not picked up on pre-accident attendance for back pain and when it was put to him that he was in error when stating that the pursuer did not have any pre-accident history, his response was a rather unconvincing "big history is what I meant".

[64] In my view that submission is equally well made. It appeared to me that the witness had been too willing to accept the pursuer's version of events at face value and had not with sufficient critical rigor examined the pursuer's position in light of in particular the GP records. Again this was a further factor which caused me concern in relation to the issue of accepting Mr Sinha's evidence.

[65] Looking to the one piece of objective evidence upon which Mr Sinha relied, namely, the straightening of the pursuer's spine it was put to him in cross-examination that Mr Fazzi had said in his report that the back was normal. Mr Sinha disagreed with this.

[66] When Mr Fazzi gave his evidence, he said regarding this issue: "That classical training was to the effect that straightening of the back was a sign of muscle spasm. However, since the early to mid-80s there have been papers published that showed that it did not support such a conclusion". I understood it from his evidence that this was now the accepted position. In addition to referring to papers he explained that the connection between muscle spasm and straightening of the back did not fit anatomically. It was his position that such a finding was accordingly not a clinically significant finding.

[67] I found Mr Fazzi unlike Mr Sinha to be a most impressive witness. His evidence was given in a clear, careful and professional manner. He had in detail reviewed the background material and considered its impact on the pursuer's case. His opinions were fully reasoned and properly supported. Beyond that his conclusions were consistent with the terms of the medical records whereas Dr Mani's were not.

[68] As regard the issue of Mr Fazzi's views on the materiality of the straightening of the back I accept as submitted by Mr Murphy that this in detail was not put to Mr Mani in cross-examination and it would have been better if it had been. However, Mr Mani was given an opportunity to comment on the views of Mr Fazzi that the x-rays were normal and I believe that that was enough to make it fair for me to consider this difference in evidence between the two experts and prefer Mr Fazzi's evidence.

[69] I have no difficulty in preferring Mr Fazzi's evidence to Mr Sinha's evidence on all disputed matters.

[70] Accordingly it is my view that for the foregoing additional reasons I could not accept the evidence of Mr Sinha.

[71] Beyond the issue of the physical effects on the pursuer of the accident, there was the issue of whether the pursuer had established that as a result of the accident he had developed post traumatic stress disorder.

[72] The expert witness for the pursuer as regards this aspect of the case was Dr Mani.

[73] Mr Murphy's position was that I should accept Dr Mani's evidence and prefer his evidence to that given by Dr Fraser.

[74] As I have earlier indicated Dr Mani accepted that his opinion, to the effect that the pursuer was suffering from PTSD was predicated on the pursuer having been a truthful historian as to what had happened to him at the time of the accident and as regards his symptoms both past and present. As I have held that the pursuer could not be regarded as a credible and reliable witness, I have to put to one side the opinion of Dr Mani. It cannot be accepted as the essential basis of his opinion, the truthfulness of the pursuer has not been established.

[75] Having said that, there are, however, a number of further observations I would wish to make regarding Dr Mani's evidence.

[76] Mr Cowan made substantial submissions regarding the evidence given by Dr Mani.

[77] Mr Cowan began by making certain observations regarding the basis for Dr Mani's evidence:

"Dr Mani readily agreed that his conclusions were reliant on the pursuer's truthfulness regarding his history and symptoms. At one point in cross-examination, he stated that he had to rely on what he was told as being '100% truth'. When the GP records were put to him, Dr Mani agreed that there were contradictions (indeed 'significant' contradictions) and that what he was told and what was in the records did not 'fit together'. At one point, he conceded that the pursuer had not been 'entirely truthful'. At another point, he accepted that the pursuer had been 'worrying a lot' and that it seemed 'more than muscle weakness'. He also agreed that there may be an element of the pursuer representing his problems as being as a result of the accident for the purposes of his claim. However, despite all of that, Dr Mani remained confident in his diagnosis. That is despite what the records disclosed, particularly regarding the pursuer's pre-accident history".

[78] In my view there is substantial merit in this submission. Given the doctor's views as to the importance of the truthfulness of the pursuer, and his evidence regarding that issue outlined above I am persuaded that the doctor's continued insistence on his diagnosis of PTSD was not soundly based and therefore could not be accepted. It seems to me that on the doctor's own evidence the essential underpinning of his diagnosis was not there.

[79] Secondly, Mr Cowan submitted:

"What may be regarded as particularly startling with regard to Dr Mani's evidence was his lack of knowledge as to the contents of the GP records. Whilst the court may have some concerns that Dr Mani felt able to express a firm diagnosis in terms of his first report despite the fact that he had not had the opportunity to review the medical records, he cannot be criticised for the fact that the records were not provided to him. However, the records had been provided by the time of the second interview and it was quite clear that he had not reviewed those in any detail".

[80] Again it seems to me that there is some force in this submission. It did appear to me as he was taken through the GP records that the witness had not considered them in the detail which was required given their nature and relevance to the issues before the court.

[81] In addition Mr Cowan submitted that Dr Mani had accepted in his evidence that his area of experience and expertise was in the area of psychiatry, of learning disability. He did not appear to be someone who dealt with principally or had a substantial amount of experience in the area of the diagnosis of PTSD.

[82] As I understood it I was not being asked to hold that Dr Mani was not in a position to give expert evidence, but that he was less well qualified to comment on this issue than the defender's expert Dr Fraser. I believe that there is some substance in this submission. This was I believe shown particularly when the question of the way that Dr Mani dealt with the diagnosis criteria for PTSD, which was the next matter upon which Mr Cowan made detailed submissions. In his written submissions he said this:

"Dr Mani had a rather inconsistent approach to the DSM criteria. When considering a diagnosis of PTSD, the DSM criteria did not require to be met in full and were merely 'guidelines'. However, he was quite happy to challenge Dr Fraser's diagnosis of hypochondriasis on the basis that the criteria were not fulfilled.

Dr Mani was also inconsistent as to what constituted 'serious' in the context of an injury or disease. For the purposes of his diagnosis of PTSD, a whiplash injury was 'serious'. However for the purposes of a diagnosis of hypochondriasis, a 'serious' disease was something such as cancer or a brain tumour.

Dr Mani's attempts to shoe-horn the pursuer's symptoms into the DSM criteria for PTSD led him to suggest that any accident was sufficient to constitute a traumatic event for the purposes of criterion A. He also put forward the proposition that recounting the accident during the course of interviews for medico-legal reports amounted to flashbacks for the purposes of criterion B. With regard to criterion C (3) - 'inability to recall an important aspect of the trauma'. Dr Mani felt able to say that it was partly satisfied but was unable to say what 'important part of the trauma' could not be recalled. Finally, with regard to criterion D(1) - 'difficulty falling or staying asleep', Dr Mani suggested that the 'criteria doesn't say only if symptoms not present before' despite the fact that the preamble to criterion D includes the words 'not present before the trauma'".

[83] This submission appeared to me to be well founded.

[84] Criterion A of DSM-IV, Criteria for Post Traumatic Stress Disorder is in the following terms:

"The person has been exposed to a traumatic event in which both of the following have been present:

(1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.

(2) the person's response involved intense fear, helplessness, or horror."

Dr Mani's position on satisfaction of this particular criterion was that: "Any accident can be serious, whiplash can be serious".

[85] In my view on the evidence the pursuer did not satisfy this part of criterion A(1). There was no event which involved actual or threatened death or serious injury or threat to the physical integrity of the pursuer or others. The pursuer was involved in a low speed collision; causing little damage to either vehicle; in which neither vehicle's airbag deployed; in which he received minor physical injuries and nobody else was injured or threatened with injury. I cannot see how such circumstances can fulfil this part of the criteria.

[86] I prefer the evidence of Dr Fraser that what was required to satisfy the said criterion was an accident "outwith normal day to day experience....catastrophic or near death experience". The foregoing formulation is consistent with the court's approach to PTSD in cases such as Whyte v Nestle (UK) Ltd 1998 SLT 1071 at 1072I and Ward v Leeds Teaching Hospital NHS Trust [2004] Ll.R Med 530 at 535, para 21 and McEwan & Paton on Damages for Personal Injuries in Scotland paragraph 9-09 and 9-10.

[87] Turning to part (2) of criterion A Dr Sinha stated that the pursuer's position regarding the accident was one of "intense fear and helplessness". I did not note at any point in his reports where this is said by the pursuer. The pursuer did say to the doctor he feels "hopeless helpless" but this does not appear to relate to the time of the accident and the accident itself. The pursuer as I recall did not give evidence that at the time he felt intense fear and helplessness. Rather his position was that after the accident there had been an exchange of insurance details etc, he had driven off his car, gone home and thereafter gone into work. It appears to me that on the evidence this part of the criterion is equally not fulfilled.

[88] It was Dr Mani's position that the pursuer had had flashbacks therefore fulfilling criterion B. He accepted that there was no reference to flashbacks in the GP records, although he said patient may not use that term. "Accepted surprising not mentioned to doctors that cannot stop seeing the accident". It was put to him that the pursuer had never mentioned flashbacks in his evidence. He answered "depends what asked". Despite the foregoing Dr Mani maintained his position that the pursuer fulfilled this criterion. In my view in the light of the evidence he was clearly not entitled to maintain his position on this issue.

[89] It was submitted by Mr Cowan that Dr Mani had advanced a position that PTSD could be established even if not all the diagnostic criteria of the DSM-IV Criteria for Post Traumatic Stress Disorder could be satisfied. That was disputed by Dr Fraser. I accept Dr Fraser's evidence on this, as if not correct: undermines rationale for the DSM-IV criteria.

[90] I believe that when looked at as a whole these criticisms seriously undermine the evidence of Dr Mani. For these further reasons I am not prepared to accept his evidence on this matter and I am not prepared to accept his diagnosis of PTSD. Accordingly even if there had not been the difficulty regarding the pursuer's credibility and reliability I would not have been prepared to hold on the basis of Dr Mani's evidence, looked at on its own, that the pursuer was suffering from PTSD.

[91] Beyond that, I now turn to the evidence of Dr Fraser. I have no difficulty in preferring it to the evidence of Dr Mani. I accordingly accept Dr Fraser's position that the pursuer has not as a result of the accident sustained PTSD. Rather I hold that the pursuer's pre-accident suffered from hypochondriasis and has continued to do so since the accident.

[92] The position of Dr Fraser can be summarised by reference to his medical report which he spoke to in the course of his evidence:

"To turn to the psychiatric aspects of (the pursuer's) case, what he claimed to me was that his ongoing pain from the road traffic accident of December 2008 and his consequent inability to return to work (and secondary financial problems which this caused) had resulted in his becoming depressed and irritable. He further claimed that he had been completely healthy, both physically and mentally, prior to the accident of December 2008 and that the effect of the accident had been to deprive him of a promising and lucrative career in the Bank where he worked at the time, his social life, a planned marriage and buying a house of his own.

The evidence contained within his Medical Records however is very much at variance with this. What the Records show is that he has been troubled by psychological symptoms since August 2004 when he was the victim of an assault. This incident resulted in a protracted Court Case. Another stress around this time appears to have been in relation to his university studies. The evidence suggests that (the pursuer) was expelled from Caledonia University around June 2006 following which he became embroiled in a legal battle to be re-instated.

As a consequence of the stresses outlined above, the evidence suggests that the pursuer became anxious and that he experienced this anxiety mainly in the form of somatic (physical) symptoms. With the passage of time however this continuing tendency to present, usually in crisis, seeking reassurance regarding a wide range of physical symptoms is much more in keeping with a diagnosis of Hypochondriasis as described under Section 300.7 in the DSM-IV Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.

From reading the Medical Records, there is no clear evidence that this disorder worsened significantly following the accident of December 2008. The presence of this disorder may explain (in the absence of any other satisfactory explanation) why (the pursuer) was unable to make a successful return to work in February 2009. In any event, according to the entries in the GP records dated 11.05.09 and 07.07.10, the main stresses influencing (the pursuer's) psychological symptoms are considered to be the assault of 2004 and his dispute with the university in 2006.

In addition to the diagnosis of Hypochondriasis there is the issue of whether (the pursuer) is also suffering from a depressive illness. The nature and degree of the symptoms which he describes are in keeping with an additional diagnosis of a Major Depressive Episode (as described under Section 296 in the DSM-IV). Against this diagnosis however there is scant mention of depressive symptoms within the Medical Records and the findings on examination were dominated by features of hypochondriacal anxiety".

[93] I found Dr Fraser to be a very impressive witness who had thoroughly reviewed all of the relevant papers. He put forward a well reasoned and fully supported argument for his opinion. In my view he was at no point shaken in his views when cross-examined. He at no point was caught out in cross-examination. His evidence coincided with the medical records of the pursuer, which the evidence of Dr Mani did not.

[94] Mr Murphy submitted that I should not accept the diagnosis of hypochondriasis as it did not conform to DSM IVTR, namely: a preoccupation with disease or bodily symptoms had not been made out. Mr Cowan's reply was this:

"Dr Fraser's opinion is that the pursuer suffered from hypochondriasis prior to the index accident and that he continued to suffer from the condition thereafter. He was confident that the pursuer fulfilled the DSM criteria for hypochondriasis. The pursuer had, and has a 'preoccupation with fears of having...a serious disease based upon [his] misinterpretation of bodily symptoms'. That is evidenced by the terms of the medical records. Those show that prior to the accident, the pursuer frequently sought emergency treatment with complaints such as chest pains, palpitations and breathing difficulties. Post-accident, the pursuer has continued to complain of chest pains and palpitations (for example 6/2/34 - 30 July 2010). He also complained about faint heartbeat (6 December 2009 - 6/2/82) and it was noted at that time that he had experienced 'previous similar episodes due to stress'. As to whether the pursuer's fears were of having a serious disease, Dr Mani referred to chest pain as falling within the same category as cancer and a brain tumour. In his evidence, the pursuer accepted that the chest pains were a source of concern. He did refer to 'sharp pains start worrying'. There is also reference in the records to the pursuer being 'worried he isn't going to wake up in the morning' (6/2/40 - 21 August 2008), feeling that 'his heart stops' (6/2/40 -21 October 2008), being 'concerned as could not feel his heart beat' (6/2/82 - 6 ~December 2009) and being 'concerned' that he had suffered a heart attack (6/2/23 - 10 February 2011).

It is also the case that the pursuer's preoccupation has persisted despite 'appropriate medical evaluation and reassurance' that there is nothing wrong with him. Finally, the preoccupation has caused 'clinically significant distress or impairment in social, occupational or other important areas of functioning'. Dr Mani suggested that someone 'still functioning' would be excluded from a diagnosis of hypochondriasis but that represents a misunderstanding of the criteria. It is sufficient that the preoccupation 'causes clinically significant distress' and that is certainly present with the pursuer".

[95] In my judgment these submissions are well founded and I am satisfied that the pursuer does meet all the requirements of DSM IVTR.

[96] Mr Murphy, so far as the psychiatric aspect of the case was concerned, submitted that if I were not with him in relation to his submission that PTSD had been established, then his position in the alternative was this: nevertheless the pursuer could still be successful based on the following passage in his pleadings: "In any event said accident exacerbated any pre-existing stress symptoms which may have existed".

[97] The first difficulty in relation to this argument is this: I accepted Dr Fraser's evidence that the pursuer was suffering from hypochondriasis and that this was not causally connected to the index event and this excluded the establishment of the foregoing averment. In addition reviewing Dr Mani's evidence, I do not believe that he at any stage departed from his diagnosis of PTSD. Furthest he would go was to agree that the pursuer had some stress and anxiety symptoms pre accident but this did not have any effect on his diagnosis of PTSD. It did not appear to me that he spoke to the accident exacerbating pre-existing stress symptoms. Dr Fraser at no point in his evidence spoke to any such exacerbation arising from the accident. There is accordingly no basis in the medical evidence which would entitle me to hold that this averment is proved.

[98] Mr Murphy appeared to suggest in the course of his submissions that even if this were the case, I could take, what I might describe as a broad axe approach namely: prior to the accident the pursuer was able to go to work, socialise and although suffering from some stress symptoms, in broad terms was able to lead a reasonably normal life. Since the accident he submitted there had been a complete change in him and he was unable to work and did not socialise, so on any view he submitted his stress symptoms had got worse. Thus given the connection in time between the accident and the worsening of the pursuer's symptoms, the accident had caused exacerbation of his pre-existing stress symptoms.

[99] In my view this approach is not one open to me. First I have accepted the diagnosis of Dr Fraser. Secondly, even if the position had been that I had not accepted Dr Fraser's evidence regarding hypochondriasis and had also not accepted the diagnosis of PTSD, I do not believe the alternative approach of the pursuer is one that it is proper to take.

[100] The pursuer's counsel's approach is one of post hoc ergo propter hoc. In my judgment that is a dangerous approach at any time and one which should be resorted to only in exceptional circumstances. However, in the circumstances of this case, where there is no medical evidence supporting this and where the pursuer's whole evidence I have rejected on all of the disputed issues it is not an approach which I believe would be open to me.

Damages

[101] Bearing in mind my foregoing findings I now turn to the parties' submissions on quantum of damages under the various heads sought.

Solatium

[102] Given my views on the psychiatric aspect of the case I make no award for any psychiatric damage. With respect to psychiatric damage I have in summary held that the pursuer is not suffering from PTSD and associated depression; he has not established an exacerbation of stress symptoms caused by the index event; he is suffering from hypochondriasis; he has suffered from this since prior to the index event; the hypochondriasis is not causally connected to the index event. Accordingly I make no award for any psychiatric damage.

[103] As regards the pursuer's physical injuries, I prefer the evidence of Mr Fazzi on this issue to that given by Mr Sinha.

[104] Mr Murphy's submissions as to quantum of solatium were that I should award a total figure of £42,000 (excluding interest). This figure was based on my accepting that the pursuer suffered from moderate to severe and chronic PTSD.

[105] In support of that portion of the foregoing figure which related to the whiplash injury to neck, back and shoulder Mr Murphy relied on the following material:

"References Kemp & Kemp 'Quantum of Damages' case cited as markers:-

Upper value -	F1-001 (2006) £60,000 key case on similar facts F1-002 (2001) £25,000
Bottom end valuation	F1-003 - F1-005 £16,000 to £20,000 e.g. F1-004 (2000) £16,000
JSB Guidelines	Neck 042 - Moderate £17,850 to £27,500 Back 044 - Upper minor £5600 to £8900 Shoulder 046 - Minor £3100 to £5000"

[106] Mr Cowan's position on solatium was in summary this: with respect to physical injury, he did not contend that the pursuer did not suffer any injury at all. However, his submission was, all that has been proved was a minor whiplash-type injury to the neck and back of short duration. He submitted that: the majority of the pursuer's neck and back symptoms had resolved by February 2009 - less than 3 months post-accident. By then, the pursuer was able to undertake strenuous exercises at the gym, such as weightlifting. Further, it had been recommended by both his GP and physiotherapist that the pursuer return to work. Mr Fazzi considered that the terms of the GP records suggested that by mid to late February, any residual symptoms were minimal. Mr Sinha agreed that two to three months would not be a surprising rate of recovery from whiplash-type injuries and Mr Fazzi expressed the view that some patients recover within 6 weeks.

[107] As regards the pursuer's evidence that symptoms had continued beyond February 2009, he invited me to reject this in that the pursuer was not credible and reliable. In addition, in relation to this, he relied on the following evidence of Mr Fazzi in his report:

"Mr Fazzi (7/1/14) expressed the view that any back pain from which the pursuer presently suffers is not attributable to the index accident. In this regard, he places reliance upon the variation in the leg pain which the pursuer has complained of - initially left-sided and now right-sided. In cross-examination, in response to it being put to him that the pursuer continues to suffer from neck and back pain, Mr Fazzi stated that that suggested a further injury.

In this regard, it is perhaps of relevance that the pursuer suffered from low back pain prior to the accident. The two relevant entries are dated 3 June 2004 (6/2/42) and 20 September 2007 (6/2/41). With regard to the second of those two entries, the pursuer complained that his back pain was associated with him suffering from a fever but when it was pointed out to him that the entry includes the words 'no temperature', he claimed that the appointment was later in the week and that his temperature had actually receded by the time of the appointment. In any event, Mr Fazzi was of the view that the pre-accident history of back pain suggested that the pursuer was 'more prone to recurrence in the future'.

Mr Fazzi also noted inconsistencies in the pursuer's presentation of symptoms affecting his neck. The pursuer reported that flare-ups of neck pain were precipitated by both rest and activity (7/1/13). In evidence, Mr Fazzi expressed the view that it was unusual for neck pain to be precipitated by rest. Mr Fazzi also noted that the pursuer's neck movements on clinical examination were somewhat more hesitant than they had been during the earlier part of his examination (7/1/14).

On the first day of the Proof, the pursuer appeared to stand for a lengthy period of time without any apparent discomfort. When questioned about this in cross-examination he stated that the first day of Proof was an 'average day' but then suggested that his lower back was in a lot of pain. As discussed below in the context of his fitness to work, Mr Davies made a similar observation with regard to the pursuer's ability to sit for an extended period.

In the circumstances, the defender would respectfully submit that the Court cannot be satisfied that physical symptoms attributable to the index accident continued to any degree subsequent to February 2009 and that prior to February 2009, the only such symptoms were neck and back pain".

[108] Against that background he submitted that I should make an award under this head of damage of £1,750.

[109] In support of that submission he referred me to Wilson v Riaz, unreported, Sheriff Principal Dunlop, 4 August 2009; Symington v Milne, unreported, Sheriff Principal Bowen, 4 May 2007; Ashton v Skews, unreported, Sheriff Principal Bowen, 19 January 2009; JSB Guidelines for Neck Injuries, Minor p 830 and Kemp & Kemp on Damages Myles v Mylward; Pollit v O'Dell and Newell v Woolley.

[110] In my view the general practitioner's records and in particular the entries of 5 January 2009, 6 February 2009, 16 February 2009, 20 March 2009, 13 August 2009 and 9 December 2009 support the view advanced by Mr Cowan. In the entry of 6 February 2009 the doctor notes this: "call from PT, (physiotherapist), nil neurological on examination. Managing all physical activity she suggests. She is concern not going back to work and she is encouraging back to work". This evidence of the physiotherapist coincides with the advice of the GP when he sees the pursuer on 16 February 2009 "had a chat to patient. Not keen to go back to work, no reason not to...". Then on 20 February 2009 there is an entry "gym felt sudden pain...after strenuous exercise. Managed to complete exercise...". Thus as at mid February both the physiotherapist and GP believe he can return to work and the pursuer himself has gone to the gym and done strenuous exercise. All 3 of these entries are I believe clear pointers particularly when read together, that the pursuer has in all material senses recovered from the accident and is able to return to work. I note that when the views on these medical records were put to Mr Fazzi together with 6/2/115 - his view was that any residual symptoms were not causing any serious disability. He opined that whiplash recovery periods were variable, recovery he said could take 12 to 18 months but patients could recover in 6 weeks. He also when referred to an entry of 13/8/09 at 6/2/39 saying full range of movement, this he commented suggested that by that stage he was non-symptomatic. From his own report at page 8, 3^rd paragraph, he confirms that any condition the pursuer had had was mild He described there being a discrepancy between described disability and the clinical abnormalities he found. I accept Mr Fazzi's evidence set out at pages 12 and 13 of his report that the pursuer had not sustained a left sacroiliac injury or an injury to his shoulder. I believed his reasoning as regards these matters was convincing.

[111] It seems to me overall that Mr Fazzi's evidence supports the conclusion of a mild whiplash injury affecting neck and back where in all real senses the pursuer had recovered after approximately 3 months. Any back and neck problems thereafter which are causally connected to the index event have been mild.

[112] Looking to Mr Fazzi's evidence and that of Dr Fraser, the pursuer's symptoms have apart from mild neck and back problems been associated with hypochondriasis and not causally connected to the index event. I am satisfied the evidence as a whole supports the view that the pursuer should have returned to work after a period of about 3 months.

[113] Lastly, and in any event, I could not find the pursuer credible and reliable about his alleged symptoms post-February 2009 for the reasons which I have already stated.

[114] I turn against the background of those findings regarding the pursuer's injuries to consider the appropriate award for solatium.

[115] Given that I have rejected the approach advanced by Mr Murphy relative to the extent of the pursuer's physical injuries and accepted the defender's approach the cases to which Mr Murphy referred are not relevant as they were predicated upon my accepting his approach.

[116] As regards the cases and guidelines relied upon by Mr Cowan I did find these to be of assistance. Each of the authorities I believe dealt with injuries and periods of recovery which were broadly similar to those I have found in relation to the pursuer. In addition it appeared to me that the pursuer's case fell within the JSB guidelines for minor neck injuries to which I was referred.

[117] The authorities and guidelines suggested an appropriate range of awards for such injuries of between £1200 and £3100. In my view looking to these cases I believe an appropriate award for the pursuer would be £2500 and that the whole of that award should be attributable to the past.

[118] As regards interest thereon I have based my figure on that produced by Mr Cowan in his written submissions (4% 2^nd December 2008 to 28^th February 2009 and 8% thereafter giving a figure of £616.53 to 11^th June 2013) and increased it, to allow for the slightly higher figure I have awarded for solatium (and for the period beyond 11^th June to the date of my opinion) and therefore hold an appropriate figure for interest to be £903.

Wage loss

[119] I have accepted the defender's figure of £408 as set out in his written submission (£2,991.99, what would have earned less what received £2,584.45). This figure was calculated on the basis that an appropriate period for him to be off work was 3 months. I did not understand Mr Murphy to challenge that figure, if I was not with him that symptoms causally connected to the accident had gone beyond that particular time period. The figure for interest thereon, I have again accepted the figure put forward by Mr Cowan in his written submissions which is £144(calculated as above) and added to this a figure for the period post 11^th June being £3 giving a figure of £147) (again I did not understand Mr Murphy to dispute this if I held the appropriate period to be off work was 3 months).

[120] As regards the pursuer's out-of-pocket expenses claim this related to chiropractic treatment. It related to a period post-April 2009 (see 6/7 of process). Given that I have accepted the defender's approach that any symptoms post-February 2009 causally connected to the accident were of a minor nature, I accept that the costs cannot be said to have been reasonably incurred as a result of the accident and I accordingly refuse the pursuer's claim under this head.

[121] Given that I have accepted the defender's approach, as to when the pursuer should have returned to work, I have not required to consider the evidence of Mr Peter Davies, employment consultant, as it would only have been of relevance had I been accepting the pursuer's approach regarding this. I accordingly make no award for future loss of income.

[122] There were damages claimed under two other heads: first was loss of supercheques, Mr Pickles, a business manager, at Santander gave brief evidence relative to this, as did the pursuer. In summary that evidence of Mr Pickles was that on an ad hoc basis, in order to drive what was described as a short term focus a salesman who was the best operator on the day would be given a form of voucher which could be redeemed at a large store. The value of these vouchers seemed to vary. The pursuer claimed that he had received approximately £1,000 per month in supercheques. Mr Murphy submitted I should award him £1,000 for every month I held he should have been off work. Mr Cowan submitted there was insufficient evidence to make such an award. He pointed to the fact that cheques had been produced in court, showing the pursuer had not redeemed these.

[123] There was no specific evidence that during the 3 month period I have held was appropriate for the pursuer to be off work that such ad hoc awards were being made. Nor was there any evidence at what rate they were being paid during the three month period. Nor was there specific evidence that the pursuer would have received any payments during that period. Lastly I believe in his evidence that the pursuer has often exaggerated his position and I am not prepared to accept his figure of £1,000 per month. Overall there is not sufficient acceptable evidence before me to make an award under this head.

[124] Lastly, there was a claim for loss of earnings for the pursuer from a part time job he had undertaken in his father's restaurant. The pursuer said that he worked at weekends in the business (which was owned by his father) and he would be paid £30-£40 per day. His brother confirmed he worked there and earned £50 for working for one day, £100 for two days. The evidence on this matter was in short compass. At some stage the father's business was sold, however, the pursuer stated that he was doing weekend work up to the time of the accident. I believe I am entitled to hold that up to February 2009 the father owned the business. It was not clear to me from the evidence that the pursuer worked every weekend for his father and if he was working for him he did so for 1 or 2 days each weekend, I believe I can only reflect this head of damage by taking a broad approach to it and awarding a figure of £600 including interest.

Decision

[125] For the foregoing reasons I make the following awards to the pursuer:

Solatium	£2,500
Interest	£ 903
Loss of wages (past)	£ 408
Interest	£ 147
Out of pocket expenses	ZERO
Supercheques	ZERO
Loss of income (Restaurant) Loss of income (future) (Total)	£ 600 ZERO
TOTAL	£4,558

I have reserved all questions of expenses.