Scottish Sheriff Court Decisions

in causa

LAURETTE McGUIRE ......................PURSUER

Against

KEITH NICHOLSON ......................DEFENDER

A107/02

Stonehaven 6 November 2002

The Sheriff having resumed consideration of the cause Sustains the Pursuer's pleas in law and Repels the Defenders; Grants decree against the Defender for payment to the Pursuer of the sum of £3851.54 with interest thereon at the rate of 8% per annum from 29 January 2002 until the date hereof and thereafter at the judicial rate until payment; Finds the Defender liable to the Pursuer in the expenses of the action and Allows the Pursuer to lodge an account thereof and Remits same when lodged to the Auditor of Court to tax and to report.

The following facts were admitted or proved

1. The Pursuer is Mrs Laurette McGuire who resides at 6 Viking Place, Portlethen. She is 49 years of age and is a self employed taxi driver.
2. The Defender is Keith Nicholson who formerly resided at 30 Kirkburn, Laurencekirk and now resides at 14 School Terrace, Seaton, Aberdeen. He is 36 years of age and is employed as a welder.
3. On 29 January 2002 the Pursuer drove in her motor car registration number Y93 VGD in the course of her employment as a taxi driver, to the farm road at Cairnwell Farm, Portlethen to uplift a passenger Mr John Mitchell who had made a booking by telephone. Mr Mitchell wished to be taken to the Asda Store in Portlethen. The Pursuer drove her vehicle from the Cairnwell Farm road end onto the A90 dual carriageway travelling north, then drove up the slip road to the flyover between Badentoy Road roundabout and Muirend Road. At the top of the slip road the Pursuer turned right across the flyover and was intending to turn left at the roundabout on the eastside of the flyover. The roadway over the flyover is a single lane carriageway in each direction with a centre line marking.
4. At about 12.15pm the Pursuer had just crossed over the flyover and was approaching the roundabout at which she intended turning left towards Asda Stores. As she approached the roundabout a car registration number E834 ANM driven by the Defender, came round the roundabout and joined the road leading to the flyover travelling in the opposite direction to the Pursuer. The Defender was leaning over towards the passenger side of his motor car as if he was trying to retrieve something from the glove compartment. The Defender crossed over the centre line and encroached on the Pursuer's side of the road. The front driver's corner of the Defender's vehicle struck the rear passenger door and side of the Pursuer's motor car. The Pursuer had braked but had been unable to avoid a collision. The Defender stopped his motor car a short distance over the flyover. The Pursuer's passenger left the vehicle and walked back to the Defender's vehicle to note the registration number.
5. The police were called by the Pursuer. They noted statements and then cautioned and charged the Defender with reckless driving. No proceedings have been taken against the Defender.
6. As a result of the collision the Pursuer's head was jerked forwards and then sideways. She sustained whiplash injuries to the neck. She did not seek medical help at that time but some 4 hours later she began to have a considerable amount of pain and so consulted her general practitioner who prescribed pain killing tablets which she took for some 10 days. Two days after the accident, because she was still having so much pain, she visited a chiropractor, who after having x-rayed her has treated her with massage and manipulation some 15 of 16 times. The Pursuer was off work for 9 days but she was able to return to her work although she was still in pain. Her condition has gradually improved although she still experiences pain if she stands for any length of time carrying out household duties such as ironing. She also has been unable to return to her hobby of walking as she finds that she cannot walk for any great distance because of the pain in her lower back and neck. It is expected that she will make a full recovery from the accident.
7. The medical report production 5/1 is an accurate record of the examination of the Pursuer by Dr Derek Gray on 11 April 2002. After examination of her x-ray records a supplementary report dated 10 May 2002 Production 5/2 was prepared by Dr Gray. The reports confirm his opinion and prognosis for the Pursuer.

 

8. The Pursuer's insurance policy excess amounted to £250. As a result of the accident the Pursuer was absent from work for 9 days and incurred loss of income in the sum of £351.54. The loss to the Pursuer through inconvenience caused by the accident was agreed at £250.
9. The Pursuer suffered pain and discomfort from the injury sustained in the accident. She was off work for some 9 days and despite still having pain she was able to return to her employment as a taxi driver. She attended her general practitioner and a chiropractor. She still attends the chiropractor on a regular basis. Her condition has much improved albeit not totally. Solatium for the pain and suffering is reasonably assessed at £3,000.

1. It was the duty of the Defender to exercise reasonable care to keep his

vehicle under proper control, to keep a proper look out and to avoid colliding with the Pursuer's vehicle. In particular, it was his duty so to drive his vehicle on his own side of the road and not to encroach onto the other side of the road. In these duties the Defender failed and so caused the collision and damage. As a result of his failure the accident occurred in which the Pursuer was injured. The Defender's failure was negligent.

2. The Pursuer sustained injury and loss through the negligence of the Defender and is entitled to reparation therefore.
3. The sum of £3,851.54 is a reasonable estimate of the Pursuer's said loss, injury and damage.

NOTE:

In this action the Pursuer seeks damages from the Defender for loss, injury and damage sustained as a result of a motor accident which occurred on 29 January 2002. The action had been raised in June 2002 and proceeded at exemplary pace to a proof on 23 October 2002. On that date I heard evidence from the Pursuer, a passenger in her car, and from the Defender. A Joint Minute was lodged in which it was agreed that the Pursuer's insurance policy excess amounted to £250, the loss of wages incurred by the Pursuer was £351.54 and that the loss to the Pursuer through inconvenience caused by the incident amounted to £250. In addition, the medical reports dated 11 April and 10 May 2002, prepared by Dr Derek Gray, were agreed as being true and accurate reports and accurately recording the extent of and treatment for the injuries sustained by the Pursuer.

Neither liability nor quantum were agreed and the case therefore proceeded to proof on these issues. The Pursuer was represented by Mr Garden, Solicitor, Stonehaven and the Defender by Miss Morton, Solicitor, Glasgow.

I found the Pursuer to be a genuine, credible and reliable witness. She gave evidence that she had picked up Mr Mitchell who had booked her taxi and was conveying him to Asda Stores in Portlethen. She came off the A90 up the slip road, round the roundabout and crossed over the flyover over the A90. Her intention then was to turn left at the roundabout at the end of the flyover to go to Asda Stores. As she reached the end of the flyover and was approaching the roundabout, she observed a motor car driven by the Defender, travelling towards her. She gave her evidence in a clear and credible fashion that she had observed the Defender leaning across to his left as if he was trying to find something in the glove compartment. His car began to veer over the centre white line and although she braked she was unable to avoid a collision. The front offside corner of the Defender's motor car struck the rear driver's door of her car and then scraped along the side of her car. Damage was caused to both vehicles. Evidence was led from Mr John Mitchell a passenger in the Pursuer's motor car who also spoke to observing the Defender's vehicle coming towards the Pursuer's car and noticed that the driver was leaning well over to his left as if looking for something in the glove compartment. He saw that the car driven by the defender was veering towards the Pursuer's motor car and described how it crossed over the white line and missed the front of the Pursuer's car but struck the rear driver's side of the Pursuer's motor car. When the Defender gave evidence as to the cause of the accident, he claimed that the Pursuer had crossed over the road and struck his car. When there are two people in one car and only one in the other, the court always looks at the evidence with great care. On this occasion however, I was entirely satisfied that the Pursuer and her passenger, who was a fare in her taxi and not a person who knew the Pursuer, were entirely credible and reliable. I did not find the Defender to be credible nor reliable. The damage to the respective vehicles was entirely consistent with the Pursuer's account of the accident. In these circumstances therefore I was entirely satisfied that the accident was caused by the Defender not paying attention, crossing over the white line and colliding with the Pursuer's motor car. There was no negligence whatsoever on the part of the Pursuer to justify any award of contributory negligence.

In regard to the quantum of the claim, the sum of £851.54 was agreed by joint minute in respect of the excess on the Pursuer's insurance policy, her loss of wages, and inconvenience. In regard to her injuries I found the Pursuer to be credible and reliable. She explained that she had not been able to work for 9 days after the accident because of a whiplash injury sustained in the collision. As she was a self employed driver she had however returned to work after 9 days as she stated she found the pain to be "bearable". I accepted her evidence on this point and was satisfied that she had returned to work perhaps somewhat earlier than a person in normal employment might well have done. I also accepted her evidence that she had attended a chiropractor for some 15 or 16 occasions and was still attending the chiropractor from time to time. She agreed that the pain was much improved but still said that she experienced pain if she stood for any length of time ironing or doing other household duties. In particular she had loved walking but was unable to walk for any distance because of pain in her back and neck. The medical reports which were agreed indicated that she would probably make a full recovery by about June 2002, but I accepted the Pursuer's evidence that whilst the pain was much improved she still suffered on occasion from pain. I accepted however that she was likely to make a full recovery in the near future.

In respect of the award to be made for the pain and suffering of the Pursuer I was referred by the Pursuer's solicitor to the Sheriff Court decisions in Urquhart v Coackley Bus Company Limited; Moir v Wilson and Brown v Forsyth & The Motor Insurers Bureau. Copies of these decision were provided for me. The Pursuer submitted at the conclusion of the evidence that a sum of around £3,000 would be appropriate. The Defender referred me to the English authorities of Storry v Gallagher; Clark v Singh; C v Peers and Bibi v Hussain in which similar injuries had resulted in awards of £1400 to £1900. The Defender submitted that the Pursuer's injuries were at the bottom end of the scale.

After giving careful consideration to the matter, it appeared to me that the injuries sustained by the Pursuer were consistent with the Scottish Sheriff Court decisions to which I had been referred and to the cases referred to in the judgements produced. I therefore considered that the appropriate award for solatium was £3,000. The Pursuer had originally sued for £2,801.54 but a minute of amendment to which no objection had been taken had been lodged increasing the sum sued for to £4,051.54. I have made an award of £3,851.54. Parties were agreed that expenses should follow success and therefore as the Pursuer has been successful and the award made very close to that of the sum sued for as amended, I have award expenses against the Defender. No motion was made regarding interest other than that contained in the crave. I have therefore awarded interest as craved by the Pursuer.

I was grateful to both agents in this case for focussing on the issues in the proof and to having agreed several of the heads of damages. The fact that this ordinary action was raised in June and decided after proof in October is a rare occurrence but reflects well on the solicitors involved in this particular action.