Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT HAMILTON

A2388/99

Hamilton 2 June 2000

The Sheriff, having resumed consideration of the cause finds the following facts admitted or proved:-

(1) The Pursuer is 26 years old and resides as in the Instance. The Defenders are a limited company who operate passenger buses in Lanarkshire.

(2) On 17^th February 1999 at 9.40 am the Pursuer entered Defenders' single deck bus travelling from Hamilton to Airdrie which collided with the rear of a lorry in Bellshill throwing the Pursuer forwards and backwards in his seat.

(3) As a result of said accident the Pursuer sustained a soft tissue injury to his cervical spine and some bruising to his left index finger and left shin.

(4) On the third day following upon his accident the Pursuer returned to one of his two part- time jobs. This was with Motorola and required him to spend the day mostly crouched over a microscope. This aggravated his neck injury and he was advised to return home.

(5) The Pursuer thereafter contacted a general practitioner when a whiplash injury was diagnosed and he was given a soft collar and analgesic medication.

(6) As the result of the said accident the Pursuer was off work from 17^th February 1999 to 4^th March 1999 and sustained a loss of bonus amounting to £32.80.

(7) Following upon the said accident the Pursuer suffered constant pain for 5 weeks followed by intermittent pain and discomfort for approximately three months. He still suffers some pain when he has been involved in physical activities or gardening for a sustained period. His hobbies are snowboarding and playing the guitar. He was required to give up an annual snowboarding holiday and was unable to play his guitar for several months because of his injury.

FINDS IN FACT AND IN LAW that the said accident was caused by the fault of the Defenders and that the Pursuer has suffered loss, injury and damage as a result.

FINDS IN LAW that the Pursuer is entitled to reparation from the Defenders.

THEREFORE (1) Sustains the Pursuer's pleas-in-law and the Defender's plea-in law to the extent mentioned. (2) Finds the Pursuer entitled to payment by the Defenders of the sum of THREE THOUSAND AND THIRTY TWO POUNDS EIGHTY PENCE (£3.032.80) STERLING together with interest on £3,000 thereof at four per centum per annum from the date of said accident to date. (3) Reserves all question of expenses and appoints parties to be heard thereon on 25^th June 2000 at 10.00 am. Suspends extract of this interlocutor until the expiry of fourteen days from the date on which the question of expenses shall be decided.

NOTE:

This action of reparation and damages came before me for proof on 9 May 2000 limited to quantum only. Miss McManus appeared for the Pursuer and Miss Rushbury for the Defenders. I was grateful for their crisp presentation of the evidence and helpful submissions at its conclusion.

The Pursuer seeks damages for the loss and injuries sustained by him as a result of an accident on 17^th February 1999 when he was a passenger on the Defenders' single deck bus travelling from Hamilton to Airdrie. He was seated on the bus when it collided with the rear of a lorry causing him to be thrown forwards and then backwards in his seat.

As the result the Pursuer claims that he sustained a soft tissue injury to his cervical spine and some minor injuries to his fingers and shin. He lost some work and required for a period to wear a collar and take painkillers.

I heard evidence from the Pursuer himself, briefly from his mother Mrs Margaret Urquhart and finally from Doctor I McLaren. No evidence was led on behalf of the Defenders. The Pursuer sued for £6,000. Miss McManus submitted at the conclusion of the evidence that a sum of around £3,000 would be appropriate. Miss Rushbury suggested a figure slightly below £1,000.

The Pursuer is a young man in his twenties. At the time of the accident he was in full employment but divided between two different jobs. He was a marketing agent with Lloyds TSB for half of the week, and for the remainder he worked as an operator at Motorola. There was no claim for wage loss and the small loss of bonus amounting to £32.80 was agreed between parties.

He described meeting with his whiplash injury on the bus and that he twisted his left index finger and struck his left shin on the seat in front at impact. After reporting the matter to the police he returned home where he lives with his mother. Later he developed pain in his neck but returned to work at Motorola on the third day following upon his accident. His work there however involved inspecting minute equipment through a microscope over which he had to bend continuously. He complained of pain and was sent home from work. He was off work from 17^th February to 4^th March 1999.

Mr Urquhart said that he had attended a GP where a soft tissue injury around the cervical spine was diagnosed. He was given a soft collar and analgesics were prescribed.

He had constant pain for about two and half to three months when he had to take painkillers each day. He moved house but there was constant pain after three or four hours when he was carrying out decorating and other household tasks. He had to lay off gardening after an hour or so.

He thought that the minor injuries to his finger and shin had cleared up within a week or so but he did suffer some shock and had to forego a snowboarding trip which he normally took and because of the pain was unable to pursue his other hobby of guitar playing for around four months.

The pain still persisted after his involvement in any physical activity such as gardening. At the age of twenty five he did not consider that this should be the case and attributed it to the accident.

The Pursuer's mother Margaret Urquhart recalled the accident and remembered that the Pursuer had come home shocked and required painkillers and a collar but that he had gone back to work quite soon afterwards.

Doctor McLaren, a consultant in Accident and Emergency Medicine at Monklands Hospital spoke to his medical report dated 10 July 1999 (production 5/2) and diagnosed a soft tissue injury arising from the accident causing constant pain for five weeks and intermittent pain for a further three. By July the pain came once or twice a week and lasted for one to two hours. At the time he expected the occasional discomfort to be absent within a further two months. In evidence he said he would not be surprised if pain did persist beyond that time with physical activities such as digging the garden due to the small ligaments around the neck.

Miss McManus submitted that the Pursuer was entirely credible and was generally supported by Doctor McLaren in relation to the injury and the period of discomfort. She referred me to Macphail Sheriff Court Practice (2^nd Edition) para 16.100 where the learned author indicated that in actions for damages for personal injuries awards in comparable English and Scottish cases may be cited. She accordingly referred me to a number of authorities, almost exclusively English including Bowles -v- Smith, Basingstoke County Court 1989, Kemp and Kemp Ref: E2-138, Wilson -v- Fenlon Birkenhead County Court Judgement 1995, Kemp and Kemp Ref: E2-141, Evans -v- Jibb, Bolton County Court Judgement 1995, Kemp and Kemp Ref: E2-140, Southeran -v- Singh, Leicester County Court 1998, Kemp and Kemp Ref: E2-141/1, Lyons -v- Chambers, Mayor's and City of London County Court 1993, Kemp and Kemp Ref: E2-137, Boyce -v- Secur-scan (UK) Ltd, Salisbury County Court 1998, Kemp and Kemp Ref: E2-123/2, Vaughan -v- B T Whelan, Southampton County Court 1998, Kemp and Kemp E2-115-3, Mahoney -v- Williams, Reading County Court Judgement 1996, Kemp and Kemp Ref E2-111, Girvan -v- Inverness Farmers Dairy (No 2), SLT 1996 Reports Page 631, Judicial Studies Board Guidelines Extract Number 6 - Orthopaedic Injuries.

Miss Rushbury conceded that the injuries were consistent with the impact but the level of pain was not. The Pursuer had said that the pain began to ease off and the doctor confirmed this after his examination in July 1999. She considered that two and half to three months, after which there had been improvement and the Pursuer had cut back on painkillers, was appropriate. The Pursuer did not have to return to his doctor and Doctor McLaren considered that the pain would have decreased in two months or so. She referred me to Lennox -v- Lanarkshire Health Board (1997) SLT Reports on CD - Rom 1227 and Urquhart -v- Biwater Industries Ltd 1998 SLT on CD- Rom 576 and Southworth -v- Tabener 1996 Kemp and Kemp K2 - 199 and re Hajid 1997 Kemp and Kemp K2 - 203.

I considered the evidence led by the Pursuer and his witnesses and the authorities which had helpfully been copied for my consideration, most of which related to the kind of soft tissue or whiplash injury with which this action was concerned.

So far as the evidence was concerned, the Pursuer struck me as a most pleasant, articulate and industrious young man who made every attempt to resume work within a few days, despite what was clearly a very painful injury and had to be sent home and compelled to consult a doctor. The Defenders' insurers may be more used to dealing with persons who find themselves unable to return to work for many months after sustaining injuries of this nature. In any event I am sure I detected the Defenders' solicitor blushing as she sought to make some minor capital out of the Pursuer's return to work so soon after the accident.

It is clear that Doctor McLaren shared my opinion of the Pursuer when he states that on examination he found him to be pleasant, co-operative and making no attempt to exaggerate the severity of his complaint (production 5/2). When Miss Rushbury put it to the doctor that the Pursuer had not seen fit to return to his GP for further treatment, the doctor replied, memorably if a little wearily, that there were persons who turned up at his Accident and Emergency Department complaining of "twisted eyebrows" and others who never came despite the possible severity of their injuries or complaints. In all the circumstances, the Pursuer has to be commended, rather than condemned for his attempt to get back to work quickly and to "suffer without complaint". I had no difficulty in accepting that, while the pain lessened, it did persist when he was involved in many of the physical tasks which should be carried out by someone of his age, and did so well into 2000.

I turn to the various authorities. It seems to be generally accepted that for some reason the Scottish Courts are less generous than the English ones. While this may be generally accepted at the upper end of the scale of awards, I do not detect much difference at the lower end and the English cases are of some assistance when considering the appropriate level, particularly in whiplash type injuries encountered in this case. In Bowles, Wilson, Evans and Southeran the awards of the English Courts for whiplash injuries vary from around £1,100 to £1,500 in today's values. The discomfort however in these cases was not of long duration. In more recent cases such as Boyce, Mahoney, and Vaughan, where the symptoms endured a good deal longer, the awards are between present values of £2,500 and £3,200.

In Lennox there was an award of £1,500 but there was pain for only fourteen days and minor symptoms for a short time thereafter. There was a similar award in Urquhart where the soft tissue injury was resolved within three months.

In this case I was satisfied from the evidence of the Pursuer and Doctor McLaren's oral evidence that the Pursuer did suffer some continuing discomfort for around six months and that this returned when he required to do any sustained physical, household or gardening work. He was also deprived of a snowboarding trip and from participating in his other hobby of guitar playing for some months after the accident.

In all these circumstances, and with considerable guidance from the authorities, I consider that a sum of £3,000 solatium is appropriate in this case. That opinion was reinforced by a very recent decision of Sheriff T M Croan at Kilmarnock where he awarded the same sum as solatium where the Pursuer suffered pain and inflammation to her neck that disturbed her sleep, was likely to continue and at the time of proof still caused her some restriction in former activities such as swimming and aerobics. (Brennan -v- Clark GWD 19 May 2000 para 685).

Accordingly I have awarded the Pursuer damages, including the agreed loss of bonus, amounting to £3,032.80 with interest on the solatium of £3,000 at 4% from the date of the accident to this date.