Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT HAMILTON

A637/2000

Mrs Elaine Toumi, residing at

8 St Andrews Court, Bellshill

Lanarkshire

PURSUER

against

Miss J Crossan, residing at

22 Cross Road, Paisley PA2 9QH

DEFENDER

Hamilton 22 February 2001

The Sheriff, having resumed consideration of the cause, makes the following findings:-

(1) The Pursuer has changed her address from that given in the instance to residence in Motherwell and the Defender gave her forenames as May Jane (as I heard it); the parties are sufficiently designed. This Court has jurisdiction.

(2) On or about 29^th September 1999 the Pursuer was driving in a north easterly direction on Carfin Road, Newarthill. She was travelling towards Newhouse and the M8 motorway.

(3) At or around 12.30/12.45 pm she approached the junction of Carfin Road and Silverburn Crescent. Carfin Road was the major carriageway. Silverburn Crecent was on the Pursuer's left handside. The exit from Silverburn Crescent is marked by double, broken give-way lines clearly indicating that Carfin Road is the major carriageway.

(4) As the Pursuer approached the said junction the Defender sought to exit from Silverburn Crescent. The Defender's view to her right, the direction from which the Pursuer was approaching, was interrupted by parked vehicles. In particular it was obstructed by the presence of a transit van parked on her off-side immediately at the junction. The van was parked with one third to one half of its width on the pavement.

(5) The Defender slowly emerged onto Carfin Road in order that she be able to see past that transit van. In order to have a line of sight to her off side she required to enter much further onto Carfin Road than just having her front wheels over the give-way road markings. She was driving a Metro vehicle which does not have a long bonnet section but her wheels are relatively close to the driving position.

(6) It had been the Defender's intention to turn right but she changed her mind and decided to turn left. A left hand turn could initially have been conducted in a manner which would have permitted gradual entry onto Carfin Road without her moving directly forward onto the carriageway to see past the transit van as she in fact did.

(7) The Defender stopped her car when she could see past the transit van. She did not turn left because of a lorry approaching from that direction. She was therefore stationed directly in the Pursuer's line of travel.

(8) When the Pursuer noted the Defender emerging onto her path she did not have time to bring her own car to a halt. She could not swerve into the opposite carriageway because of the oncoming lorry.

(9) The Pursuer did try to take such limited avoiding action as was open to her but the nearside front of her vehicle struck the front off-side of the Defender's vehicle at or around the wheel arch.

(10) The Pursuer suffered a whiplash injury. Her pain increased the following day and she attended at hospital and thereafter on her general practitioner. She received painkillers. She subsequently attended for physiotherapy. Whiplash injuries are of a muscular type and might be expected to settle after some six or seven months, but can be exacerbated by stress or tension arising out of external factors.

(11) The Pursuer had to pay the excess of £150 on her motor insurance policy. She did not have to stay off work. She attended for work the day after the accident. She did not have any significant inconvenience.

(1) The Pursuer having suffered loss, injury and damage as a result of the negligence of the Defender is entitled to reparation therefor; (2) Finds the Defender liable to the Pursuer for payment of her insurance policy excess of £150 together with solatium in respect of her pain and suffering in the sum of £1,750 Sterling with interest on that sum at the rate of eight per centum per annum from the date hereof till payment; (3) Certifies Doctor James Boag, a witness for the Pursuer as a skilled witness; (4) Finds the Defender liable to the Pursuer in the expenses of the action and allows an account thereof to be given in and remits the same when lodged to the Auditor of Court to tax and to report.

Note:

Firstly, let me state that the date from which interest on the solatium is to run was chosen somewhat arbitrarily as the Record did not mention the date of the accident or the date of citation as being the appropriate starting dates.

As to the evidence I had some difficulty in truly understanding the Defender's position. I suspect that she was somewhat nervous and may not have done herself justice. She appeared at times to have her sense of direction totally mixed up, and I could not be sure at what point she had decided to make a left hand turn as opposed to a right hand turn at the junction as was apparently her first intention. In any event she must have been much further onto the main road than she said she was (although she may well have believed what she said). From her description of the positioning of the parked van she could not have had a clear view to her right if the wheels of her very short bonneted car were only on the give-way lines.

I had no information before me which could have given me any reason to believe that the Pursuer was travelling at an excessive speed. I accepted her evidence that she was travelling between 25 and 30 mph. The impact damage which did not prevent either vehicle being driven home by its respective owner was indicative that it had not been a high speed collision.

As regards solatium neither party could provide an authority which was on all fours with the present case. The case of Murphy, reported in 1993 SLT relied upon by the Pursuer involved more serious injuries. For the Defender, who produced more authority than did the Pursuer, the submission that £1,000 would be an appropriate figure was somewhat undermined by the fact that such a sum was awarded in the case of Donegan -v- Dunnigan (August 2000) where the Pursuer seemed to have recovered in just over two weeks.

I did not consider it appropriate to make any award for inconvenience as apart from attending hospital and subsequently her general practitioner together with some phone calls the Pursuer did not present any evidence really in connection with inconvenience.