Scottish Sheriff Court Decisions

PAULA BRENNAN v. JOHN FRANCIS CLARK [2000] ScotSC 6 (11th April, 2000)

KILMARNOCK 11 April 2000. The Sheriff having resumed consideration of the cause Finds-in-Fact that: -

1. The parties are designed in the instance.
2. On 24 September 1998 the pursuer was driving her motor vehicle reg. no. K179 BJB on Montgomerie Crescent, Saltcoats near its junction with Winton Street.
3. As the pursuer approached Winton Street which was on her left side the defender driving motor vehicle reg. no. N728 FSD was stationary on Montgomerie Street waiting to turn right. A vehicle came out of Winton Street turning right and passed the pursuer before she reached the junction.
4. The defender attempted to turn right as the pursuer approached to pass Winton Street causing a collision between the two vehicles.
5. The defender was responsible for the accident due to his failure to keep a proper look out for approaching vehicles such as that of the pursuer which had the right of way.
6. As a result of the said accident the pursuer sustained injury. The pursuer suffered neck pain at the time of the collision from a soft tissue injury. She was given anti-inflammatory tablets but pain at the back of the neck stretching up into the head persisted. The pursuer had had neck pain from a previous accident but that did not persist.
7. Sitting at a computer or writing for long periods aggravates her symptoms. Her sleep is disturbed. At the date of the proof eighteen months after the accident she still had neck pains and some restriction in her former activities swimming and aerobics. Her condition is likely to continue.
8. The pursuer lost the use of her vehicle which caused her considerable inconvenience. In the course of her placement as an assistant teacher she had to travel from Stevenston to Ardrossan in the morning and afternoon and also to Craigie College in Ayr. She went by car. She had previously carried student passengers who shared expenses. After the accident she had to use buses and trains which caused extra expense. Her social trips to relatives in Paisley and Ayr were curtailed. She cannot now afford a motor car. The loss of use aspect of her claim lasted for eight months until she completed her course.
9. She had the inconvenience of dealing with the aftermath of owning an accident-damaged vehicle and all that entails. She also had to pay an insurance excess of £250.

Finds-in-Law that the said accident was caused by the fault and negligence of the defender and the pursuer is entitled to reparation from him therefor.

Accordingly sustains the first plea-in-law for the pursuer and the second plea-in-law to the extent aftermentioned and repels the pleas-in-law for the defender. Grants decree against the defender for payment to the pursuer of the sum of FOUR THOUSAND ONE HUNDRED POUNDS (£4,100) with interest thereon as craved. Finds the defender liable to the pursuer in expenses. Allows an account thereof to be given in and remits the same when lodged to the Auditor of Court to tax and to report. Certifies Doctor Hamish Potts as a skilled witness.

Note: -

In this case the pursuer gave evidence on her own behalf and led the evidence of P.C. Gordon Gilmour and Dr Hamish Potts. The defender who acted on his own behalf also gave evidence. This was a simple road accident, which should never have come to court. The defender resorted to a case which was not on record and abandoned his case on Record. There was no real issue of credibility. Although I did not accept everything which the defender said I did not take the view that he was an untruthful witness. He made too many concessions against his own interest for that.

The pursuer had come into court with the case one might expect i.e. that as she was crossing the junction the defender attempted to turn right into her path. The defender's case on Record was that the pursuer was at the time attempting to overtake a line of traffic on her left at the junction which line of traffic was waiting for the defender to turn right. However at the proof he abandoned that in favour of a case where a van in Winton Street waiting to turn right had signalled him to come on and then driven in front of him obscuring his view. On that scenario he admitted that he was to some extent to blame as must be the case he having no right to act on a signal from someone not even on the main road. The pursuer spoke of the van but said it had turned right and gone on its way before the defender started to turn.

For the pursuer Mr Stevenson said that I should prefer the evidence of the pursuer to that of the defender. He had made a manoeuvre when it was unsafe to do so and he could not see the road ahead and that his path was clear. The movement of the van, which he prayed in aid, was not a matter on Record. He said that his case in that respect was incorrect. The pursuer was clear and frank and her narration should be preferred. Even if the defender was right he still should have waited until the road was clear.

Turning to quantum he said that he was not asking for any damage to the vehicle or for storage charges. He asked for £800 for loss of use. The pursuer had to use public transport for eight months and there was further loss of use. £800 was justifiable and a further £50 for inconvenience. The pursuer was also entitled to £250 excess. For solatium he was asking for £3050. Dr Potts spoke to his report indicating that the pursuer continues to suffer pain. As it is ongoing the amount sought was reasonable. He referred to Murphy v MRS Distillers Ltd. 1993 SLT p 786 where the pursuer had been hit on the head and neck and was off for 7 weeks. Solatium there was £3000. The circumstances there were not unlike this case. In McKillop v Chrysler (Scotland) Ltd. 1979 SLT N p 80 the sum was £1800 but inflation had to be taken into account there. He also referred to Jackson v Holder 1990 CLYB 1523 on the question of loss of use. He asked me to grant decree for £4,100. He also asked me to certify Dr Potts as a skilled witness. It was agreed that expenses would follow success.

The defender said that he did not think that he was 100% to blame for the accident. He had not seen the pursuer coming towards him because of the van. He would not have moved off if he had known or seen the pursuer coming. He had had to swerve to go to the back of the van. He said that he felt that the pursuer was not paying enough attention. The van driver was not fully to blame and he himself was partly to blame.

There is no need for me to go into the evidence anent the accident. At the end of the day it was quite clear that the defender was at fault to some extent and the pursuer was blameless. The only issue was quantum and the defender did not make any submissions on that matter.

Dr Potts said that the pursuer suffered neck pain at the time of the collision from a soft tissue injury. She was given anti-inflammatory tablets but pain at the back of the neck stretching up into the head persisted. The pursuer had had neck pain from a previous accident but that did not persist. Sitting at a computer or writing for long periods aggravated her symptoms. Her sleep was disturbed. At the date of the proof she still had neck pains and some restriction in her former activities such as swimming and aerobics.

Dr Potts thought that this condition she had would persist.

The pursuer in the course of her placement as an assistant teacher had to travel from Stevenston to Ardrossan in the morning and afternoon and also to Craigie College in Ayr. She went by car. She had carried student passengers who shared expenses. After the accident she had to use buses and trains which caused extra expense. Her social trips to relatives in Paisley and Ayr were curtailed. She cannot now afford a motor car. The loss of use aspect of her claim lasted for eight months until she completed her course.

I am satisfied that the pursuer should be awarded £800 for loss of use over eight months. That seems much in line with the award in Jackson. She had to pay £250 as the excess on her insurance policy which she should recover. An award of £50 for the usual inconvenience of dealing with insurers and motor repairers which is one of the annoying sequels to involvement in a vehicle accident I regard as very modest.

I have narrated her injuries and their persistent nature. I am satisfied that looking at the updating which would be required in the cases quoted to me for inflation the sum of £3000 in this case although not at the lower end of the scale is justifiable.

I shall accordingly grant decree for £4,100 with interest as craved. I shall find the defender liable to the pursuer in expenses