Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 81

 

PD452/14

OPINION OF LORD KINCLAVEN

in the cause

GRANT GRUBB

Pursuer:

against

JOHN FINLAY

Defender:

Pursuer:  Bain QC,  Hastie; Digby Brown

Defender:  Smith QC, Springham QC; Clyde & Co

24 May 2017

Overview

[1]        This is a personal injury action arising out of a collision between two motor cars in the forecourt of a Tesco petrol filling station on Kingsway in Dundee at about 7.15 am on Sunday 22 May 2011.   Liability is admitted.  Some matters were agreed by joint minute.  Everything else was fiercely disputed. 

[2]        The case eventually came before me for proof.  It lasted many days split over various diets to accommodate the availability of essential participants.

[3]        Ms Bain QC and Mr Hastie appeared for the pursuer.  They invited me to find in favour of the pursuer and to award damages of £182,880.80.

[4]        Mr Smith QC and Ms Springham QC appeared for the defender.  They invited me to find in favour of the defender.  Indeed, they had invited me to dismiss the action in limine before hearing all the evidence, but I declined to do so for reasons stated at the time.  If the action was not to be dismissed, the defender sought decree of absolvitor.

[5]        Having heard all the evidence, and the submissions of counsel, I shall find in favour of the pursuer to the extent of pronouncing decree for payment by the defender to the pursuer of the sum of £7,321.32.  That sum is in respect of solatium only and is inclusive of interest to date.  I shall reserve all question of expenses.  Parties can enrol for further procedure.

[6]        I would outline the reasons for my decision as follows.

 

The background

[7]        The pursuer sets out his averments in relation to the merits and quantum in Articles 4 and 5 of the Record which can be referred to for its full terms.  Inter alia the pursuer admitted (at page 8 of the Record) that he lost his driving licence in September 2011 but under explanation that it related to a one-off incident when he drove his brother-in-law’s van which was not insured.

[8]        The defender admits liability but averred that the collision occurred at a very low speed.  “Any vehicle damage caused by the accident would have been minimal”.  The defender’s averments on quantum are in Answer 5.  They include, inter alia, that the sum sued for is excessive.  Any C7 and C8 radiculopathy (i.e. nerve root damage) was not caused by the accident.  The extent to which the pursuer can use his arm is at variance with the level of disability reported to experts.  The pursuer is exaggerating his symptoms for financial gain.  He gave no psychiatric history to Mr Roger.  He stated he had not driven since the accident, with the exception of a courtesy car, but he was charged and convicted for driving without insurance in 2011.  He was fit to increase his hours post-accident.  He had been working on a stall in June 2011 when off work sick.  He lied to his line manager and was dismissed for misconduct.  So averred the defender.

[9]        At the conclusion of the proof, both parties lodged detailed written submissions on the evidence (extending to 37 pages and 38 pages respectively).  The defender also lodged a chronology of events (cross-referenced to productions).  All of those documents can be taken as read.

 

Preliminary matters

[10]      There are several preliminary matters to be dealt with.

[11]      Firstly, I shall refuse the defender’s renewed motion to dismiss the action in limine.  That motion is refused because, on the evidence, the defender’s submissions (based on alleged fundamental dishonesty on the part of the pursuer) are not well founded in fact (see further below).  To dismiss the whole action would create injustice.  The pursuer would be deprived of his (now proven) entitlement to damages.  The defender would avoid his (now proven) responsibilities.  The pursuer’s conduct does not merit such a course.

[12]      Secondly, I will repel the pursuer’s objections to evidence in so far as based on lack of Record.  There is no need to plead evidence particularly in a personal injury action where, as here, the evidence related to challenging the pursuer’s credibility.  The averments in Answer 5 give fair notice of the defender’s allegation that the pursuer is exaggerating his symptoms for financial gain.  Both parties make averments in relation to the pursuer being charged and convicted for driving without insurance. 

[13]      Lastly, I will sustain the pursuer’s objection to those lines of defence evidence which were not fairly put to the pursuer for his comment.  It would be unfair to hold such evidence against the pursuer.

 

The evidence for the pursuer

[14]      In outline, and by way of a brief overview, the witnesses for the pursuer were: 

• Grant Grubb (the pursuer) - who was born on 16 December 1982.The pursuer gave evidence over several days and he was also recalled and gave further evidence.
• Susanne Grubb – the pursuer’s sister who spoke about the family background and some of the pursuer’s complaints after the accident.
• Kevin Smith – a chef who worked with the pursuer at David Lloyd’s at the time of the accident.
• Scott Grubb – the pursuer’s brother who was passenger in the Subaru on the day of the accident.
• Wayne Grubb – another brother, who lived with the pursuer, and spoke to some of the pursuer’s complaints and difficulties.
• Alexander Grubb – the pursuer’s father who presented as unreliable and untrustworthy.His personal failings were not sufficient to undermine the pursuer’s claim.
• Paula Dowie – a physiotherapist who worked for HEAL in 2011.She saw the pursuer in July 2012.
• Sally Kiddie – a physiotherapist and partner in HEAL.She saw the pursuer in August 2011.
• Ilene Duddy – a retired paralegal with Digby Brown who worked with the first response team in Glasgow.She dealt with the pursuer on the phone on 23 May 2011.
• Fraser Ewing – head of Business Intelligence at Digby Brown.He spoke to the firm’s case management system.In relation to the pursuer’s accident, the data referral form from ACM (one of their insurer referrers) was created on their system on 22 May 2011 at 9.28 am.
• Kayleigh Jamieson – a clinical associate in psychology working for Tayside Psychological Therapy Service.She started CBT (i.e. cognitive behavioural therapy) in July 2016 the pursuer having been referred following difficulties with symptoms of anxiety.
• Dr Michael Neil – the pursuer’s treating consultant at the Pain Clinic at Ninewells Hospital in Dundee (who gave evidence on Commission).The pre-clinic questionnaire was completed in October 2012.Treatment continues and the pursuer had been trialled on lidocaine.The pursuer was engaged and motivated to do CBT.
• Julian Summers – a manager with BGC group who explained the claims process and the role of ACM.ACM were a claims handling company for a number of insurance providers.
• Dr Alan Forster – consultant clinical neurophysiologist.He examined the pursuer on 4 December 2013.He carried out nerve conduction studies and electromyography tests (EMG).
• Dr Colin Rodger – consultant psychiatrist.He examined the pursuer on 25 January 2013 and referred to the pursuer suffering from a chronic adjustment disorder.
• Mr Edward Dunstan – consultant orthopaedic surgeon.He saw the pursuer in October 2012.In his final report he referred to the pursuer having been diagnosed as suffering chronic myofascial pain (i.e. muscle pain).
• Dr Craig Grice – consultant in anaesthesia and pain medicine.He examined the pursuer on 6 February 2013 and diagnosed (a) myofascial pain syndrome affecting his neck, left shoulder and upper back, (b) neuropathic pain syndrome affecting his left hand and arm, with possible nerve root impingement and (c) evidence of affected mood, sleep disturbance and increased anxiety levels.
• Dr John Searle – chartered engineer.He estimated the speed of the defender’s car at around 3.76 to 5 miles per hour.
• Mr Nicholson – ergonomics consultant.He thought primarily the pursuer’s cervical spine was laterally rotated.I found his evidence to be of limited assistance.
• Kathryn Thorndycraft Pope – a handwriting expert who gave evidence in relation to invoices.Her evidence was of no real assistance.

   

  The evidence for the defender

  [15]      In brief outline, the witnesses called by the defender were as follows:

• John Finlay (the defender).He confirmed the collision while he was reversing but said that he did not suffer any pain and did not have a sore neck.
• Aaron Grubb – a brother of the pursuer.I did not find Aaron Grubb to be credible or reliable on any material issue.
• David Good – manager at Batley’s Cash and Carry.His evidence was largely neutral.He could not say that he had actually witnessed the pursuer loading or unloading a trolley.
• David Snelle – who had been a sports manager at David Lloyds between 2007 and 2015.He spoke of the pursuer being suspended and disciplined at work.He did not think that the pursuer had been treated too harshly but he was unaware of many aspects in the run up to the disciplinary meeting.
• Sean Duff – who worked as a chef at David Lloyds.He was supposed to have the day off on 19 June 2011 but he was asked to come in to work because the pursuer was off sick.Mr Duff went to Errol Market before his shift to record the pursuer “working” there.He resented the pursuer and tried to get the pursuer into trouble but he knew little of the actual background to the pursuer’s absence.
• Iain Kinney – who knew the pursuer and his cars.The pursuer used to borrow Iain Kinney’s van and the pursuer had other vehicles.The pursuer had also helped to move furniture.
• Dr Alan Wylie – who diagnosed the pursuer as having developed recurrent depressive disorder.However, in his second report (after he had been provided with additional information from the defender) he considered malingering under reference to alleged inconsistencies (7/11 at pages 8 and 9).The pursuer contended those “inconsistencies” were not significant.
• Dr Jon Stone – who initially took the view that although the accident was very minor it was sufficient to trigger a chronic pain syndrome, migraines and anxiety.However, he was not convinced that cervical radiculopathy was caused by the accident.He held that view because the pursuer did not report symptoms consistent with that at the time of the accident.In his second report Dr Stone changed his opinion in the defender’s favour largely as a result of being provided with information by the defender in relation to (a) the pursuer allegedly lying to staff about his whereabouts in June 2011 when the pursuer was supposed to be sick, (b)the lack of any mention in the pursuer’s employment records of any restriction in arm movement and (c) surveillance evidence.Dr Stone was not convinced that the entire story had been concocted but he felt he could no longer adhere to his previous diagnosis.He felt a link between the accident and cervical radiculopathy was possible but very unlikely.

   

  General discussion

  [16]      Issues of credibility and reliability lie at the centre of this case.  A recurring theme throughout the proof, and in the evidence of all the skilled witnesses, was the fundamental proposition that their expert views depended critically on whether and to what extent the court accepted that the pursuer was being truthful and reliable.

  [17]      The pursuer was not entirely credible and reliable on all things but, having seen and heard the evidence, I do not accept the defender’s contentions that his claim is fundamentally dishonest.  On the contrary, I accept the pursuer’s evidence relating to the accident and I accept (as outlined below) that the effects of the accident lasted for a period of about 12 months.  I reject the defender’s submissions in relation to that period. 

  [18]      I go further in the pursuer’s favour.  I accept that the pursuer had symptoms after that 12-month period, and continues to do so.  However, in light of Dr Stone’s evidence, I am unable to hold that those later symptoms were caused by the accident.  To that extent I give effect to the defender’s criticisms – but no further. 

  [19]      In short, the pursuer succeeds on liability and in establishing loss, injury and damage in relation to that 12 month period post-accident - but he fails in relation to causation beyond that 12 month period.

  [20]      The defence case was robustly presented, as one would expect, but it had a relatively weak evidential foundation in relation to material matters.  Some of the defence witnesses were neither credible nor reliable (such as Aaron Grubb).  Other lay witnesses for the defence were partial and unreliable (such as Sean Duff).  The defender’s skilled witnesses (unwittingly) gave evidence which was diminished by their having been provided with material (prejudicial to the pursuer) which was unfounded or unsubstantiated or departed from.

   

  The pursuer’s case

  [21]      There are several areas where I was unable to accept the pursuer’s evidence as credible and reliable.  For example:

• The pursuer did not give a full and frank account of his driving abilities and he was not as forthcoming as he should have been in relation to his attending Errol Sunday Market and the Cash and Carry.The pursuer used to borrow Iain Kinney’s van and the pursuer had other vehicles.He had several post-accident driving convictions.He had also helped to move furniture.
• The pursuer’s explanation for not revealing the reason for termination of his employment with David Lloyd (embarrassment) was less than convincing.
• The pursuer was recalled to give evidence in relation to advice given to him by his solicitor and Aviva phone calls (7/40/21) and his explanations on those two matters were less than convincing.He said he felt paranoid and anxious because of surveillance by the defender (which I accept) but that does not provide a full explanation.Kaleigh Jamieson spoke to the letter No 7/51 of process (dictated on 30 June 2016).Amongst other things, she noted the pursuer as having said that “a Solicitor has advised him not to do certain things and he feels that his Solicitor wants him to look as if he is ‘on deaths door’”. The pursuer said that he felt he was at death’s door.He had psychological problems.The pursuer had subsequently told Kaleigh Jamieson that it was not his intention for her to have the interpretation she did.In cross, however, her understanding was that what was written in the letter (7/51) was correct.
• The pursuer also accepted that he lied when he said his father was in jail but he said that he (the pursuer) had panicked.His father’s name was on the policy because “to be honest it was cheaper”.

[22]      Such failings and shortcomings can have serious consequences for any pursuer in relation to credibility, reliability, causation and quantum of damages – and properly so. 

[23]      However, there was also independent support for many of the pursuer’s complaints – some of them long after the accident.  Contrary to the defender’s assertions of fabrication, several of the pursuer’s claims were supported by objective signs spoken to by skilled witnesses.  For example:

• Dr Foster confirmed that the pursuer could not manufacture the responses to nerve conduction and EMG.In response to defender’s suggestions to the effect that the pursuer had conned everybody, Dr Foster did not think that the pursuer was that sharp.I agree with that conclusion.
• Dr Grice found evidence of spontaneous tremor in the fingers of the left hand which was difficult to make up.He also felt that the surveillance footage tended to support rather than detract from the pursuer’s case.
• Sally Kiddie also said that muscle spasms seen, and probably felt, could not be manufactured.

[24]      In the result, I accept some but not all of the pursuer’s evidence - with the consequences outlined below. 

 

The defender’s case

[25]      Those acting for the defender clearly formed a view at a fairly early stage that the pursuer had fabricated his whole claim and that the claim was fundamentally dishonest.  However, having heard all the evidence, I reject those extreme conclusions. 

[26]      I did not share the defender’s considerable antipathy towards the pursuer.  The pursuer was a poor historian but his character failings and flaws and lack of candour were not enough to warrant depriving him of an entitlement to damages.  The defender sought to criticise almost every aspect of the pursuer’s case but, on the evidence, I found that approach to be unjustified.

[27]      For example, the defender put various detailed allegations to the pursuer and other witnesses on the basis that Aaron Grubb would say certain things (against the pursuer’s interests) but Aaron Grubb did not make all those allegations in evidence other than in general terms.  It was put to witnesses that the pursuer climbed ladders many times a day – yet Aaron Grubb said in evidence that the pursuer never climbed ladders. 

[28]      Dr Wylie’s evidence was also diminished (unwittingly on his part) by the fact that the defender had provided him with some extraneous information which was not substantiated in evidence (such as allegations said to have been made by Mr McBirnie).  Ms Bain went as far as to suggest to Dr Wylie that he was not giving his evidence in an entirely impartial way but I reject that more extreme conclusion.  His evidence was, however, undermined by extraneous considerations.

[29]      Dr Stone also said that there were clearly other things that he had been told by the defence that did not form part of these proceedings.  It goes without saying that those representing litigants must be careful to avoid influencing the views of witnesses – even unwittingly.  However, Dr Stone’s views on causation were persuasive.

 

Liability

[30]      I have no difficulty finding that the pursuer is entitled to reparation from the defender.  Liability is admitted. 

[31]      Despite the defender’s determined efforts to persuade me that the pursuer’s case was a complete fabrication and fundamentally dishonest, there was no doubt that on the evidence the defender is liable and that the pursuer suffered some injury as a result of the defender’s negligence.  The collision was recorded on CCTV (Nos 6/38 and 7/17 of Process).  I did not accept the defender’s submission that the pursuer’s account was flatly contradicted by the CCTV evidence.  On the contrary, I was satisfied that at the material time and place the pursuer was in the driver seat of the Subaru Impreza sports car registered number N752 AMS.  His brother, Scott Grubb, was in the (front/only) passenger seat.  The Subaru was stationary at a petrol pump at the locus when the defender negligently reversed his vehicle at about 4 miles per hour into collision with the front of the Subaru shunting it backwards.  The defender was driving a Peugeot 409 registered number X928 MSN which was fitted with a tow bar to the rear.  The impact from the Peugeot was sufficient to cause significant damage to the Subaru and to cause injury to the pursuer and his passenger. 

[32]      Prior to the proof the defender had lodged a vehicle examination report (7/12) by a Mr Jack McBirnie dated 30 October 2014 purporting to suggest that there was little or no vehicle damage.  However Mr McBirnie did not give evidence and his report was not insisted upon.  In evidence, the defender himself admitted that he had caused damage.  Before me, it was ultimately a matter of agreement that the parts needed to repair the Subaru were a front bumper cover, a front grille, a bonnet and a bonnet landing panel.  The cost of parts, labour and paint was such that the Subaru was deemed a total loss with a value of £2,200.  The bonnet was deformed (“V’d” up in the middle) by the impact.

[33]      In relation to the events on 22 May 2011, I accepted the evidence of the pursuer’s brother to the effect that the impact caused him injury.  He was also referred to No 6/48 of Process in relation to his injuries.

 

The effects of the accident and causation

[34]      The most difficult question in the present case is “what were the effects of the accident and how long did they last for?  Various scenarios have been presented to me.  They all depend to some extent on my assessment of the pursuer.  The difficulty with pain is that it cannot be measured and its report is subjective.

[35]      Mr Dunstan, consultant orthopaedic surgeon, saw the pursuer in October 2012.  He referred to “whiplash” type injury (albeit an imprecise term).  The mechanism of the accident was consistent with such an injury.  He took the view that in the ordinary course the symptoms of such an injury would have settled within 12 months.  I reject the defender’s criticisms of Mr Dunstan as being unfounded.

[36]      I also accept the evidence of Dr Grice to the effect that the pursuer sustained a hyperextension injury to his neck and a jarring injury to his left arm as a result of the Peugeot reversing into the Subaru.  His initial injury resulted in a myofascial pain syndrome.  That is a condition affecting the soft tissues of the neck, shoulder and arm.  It commonly occurs following a muscular and ligamentous strain or injury.  The muscles and the fascial layers in and around the injured area tighten and contract putting pressure on nerves resulting in generalised increased sensitivity of the injured and surrounding areas.  Normal movements are painful due to “over amplification of normal nerve signals”.   Depressed mood and anxiety are recognised factors that can exacerbate the problem.  

[37]      Dr Grice felt that he pursuer did not show any evidence of wilful exaggeration when he examined him.  The pursuer had deteriorated thereafter with reports of sudden spasms and jerks in his left arm and hand.  As mentioned above, he also found evidence of spontaneous tremor in the fingers of the left hand which is difficult to make up.  The surveillance footage tended to support rather than detract from the pursuer’s case. 

[38]      Even Dr Stone was prepared to say that he thought the pursuer was injured in the accident and that there was some pain afterwards.  He accepted that a very minor accident could be the cause of the pursuer’s pain (even one involving lifting something heavy).  However, Dr Stone thought it extremely unlikely that the index accident caused cervical radiculopathy.  That was possible but very unlikely.

[39]      Causation is a problem for the pursuer.  Signs or symptoms experienced after the accident are not necessarily caused as a result of the accident. 

[40]      With some hesitation I have reached the conclusion that the defender’s criticisms of the pursuer’s case, and the evidence of the defender’s witness Dr Stone, are sufficient to prevent me from holding that the effects of the accident extended for more than a period of twelve months. 

[41]      In short, I am satisfied that on a balance of probabilities the pursuer suffered soft tissue injury as a result of the accident and that the effects lasted for a period of about 12 months or so.  However, I cannot attribute subsequent complaints to the accident even although those complaints may seem real to the pursuer and even although they find some support in the expert evidence.  The necessary causal link has not been established to my satisfaction in relation to the later complaints.

[42]      In other words the pursuer’s claim for damages succeeds in principle.  It extends to the loss injury and damage complained of by the pursuer during the period of about 12 months from the accident but it does not extend beyond that period.  Subsequent complaints may well have felt real to the pursuer (at least to some extent) but, on a balance of probabilities, I cannot attribute them to the accident.

 

Conclusions

[43]      In the result, on the evidence, the loss injury and damage caused to the pursuer as a result of the defender’s admitted negligence can be outlined as follows.  At the time of the incident, on 22 May 2011, the pursuer had been sitting in the driver’s seat leaning over to pull the petrol cap lever when he felt the force of the collision on his left arm which was on the steering wheel.  There was a sharp shooting pain that went along his arm up into his neck.  His head moved forwards and backwards and hit the headrest.  The pain got worse as the day went on.  The pain went all the way down his left arm to his hand and little finger and radiated up the lateral aspect of the arm into his neck and shoulder.  He phoned the insurance company later that day (22 May 2011).  He attended his general practitioner on 23 May 2011 and was referred for X-ray.  When he attended his GP on 20 June 2011 it was noted that his shoulder was still quite sore.  There was also reference to a chest infection which the pursuer stated was the reason he was not at work (at David Lloyd) on 19 June 2011.  The pursuer was referred to physiotherapy.  He reported pain in his left arm down to pins and needles in his left pinkie.  He also reported headaches.  He received physiotherapy until the end of August 2011.

[44]      I am satisfied that the effects of the defender’s negligence persisted for a period of about 12 months after that accident and that during that period the effects of the accident in relation to solatium were broadly as described by the pursuer. 

[45]      Contrary to the defender’s protestations of fundamental dishonesty, I found the pursuer’s account to be acceptable in essentials in relation to that limited period. 

[46]      As mentioned above, I found that some of the defender’s witness lacked credibility and reliability.  Many of the defender’s criticisms were not established in evidence or related to collateral rather than critical matters. 

[47]      However, I am prepared to give the defender the benefit of the doubt in relation to the question of causation.  I am not satisfied that on a balance of probabilities the effects of the accident continued beyond that initial 12 month period.

[48]      I do not go so far as to say that there is no substance in the pursuer’s complaints after that date – simply that they cannot be attributed to the accident.  The same applies to neuropathic pain and psychological complications. 

[49]      The conduct of the litigation and the surveillance instructed on behalf of the defender may well have had an adverse effect on the pursuer’s psychological well-being – but I cannot link those complaints to the negligent driving of the Peugeot. 

 

Assessment of damages

[50]      Ms Bain invited me to award £182,880.80 – all as set out in the pursuer’s schedule of damages.

[51]      The defenders sought decree of absolvitor. 

[52]      Both parties referred me to the JSC Guidelines 13^th Edition.  Ms Bain also referred to Kerr v Stiell Facilities Ltd 2009 SLT 851 and Kieran Murphy v Ministry of Defence [2016] EWHC 0003 (QB), 2016 Kemp and Kemp C5-005.1.  

[53]      Having regard to my findings on liability and the question of causation, the pursuer’s claim will be limited to one for solatium only.

[54]      In respect of the relevant period of 12 months following the collision on 22 May 2011 I assess solatium for pain and suffering at £6,000 exclusive of interest.  An allowance for interest to date (based on the figure of 4% used by the pursuer) would add a further £1,321.32.  That gives a total for solatium inclusive of interest to date of £7,321.32.

[55]      I was not satisfied that the pursuer had established any of his other heads of claim. 

[56]      Having regard to the defender’s submissions, I agree that the pursuer has failed to establish any material wage loss or any claim for services or any liability to pay for physiotherapy.

 

Decision
[57]      In the whole circumstances, I shall find the pursuer entitled to reparation from the defender and I shall pronounce decree for payment by the defender to the pursuer of the sum of £7,321.32 inclusive of interest to date.  Quoad ultra I shall refuse the pursuer’s claim.

[58]      I will reserve all question of expenses.  Parties can enrol for further procedure.