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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Armstrong v. Brake Brothers (Frozen Foods) Ltd [2003] ScotSC 2 (17 January 2003)
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Cite as: [2003] ScotSC 2
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Armstrong v. Brake Brothers (Frozen Foods) Ltd [2003] ScotSC 2 (17 January 2003)
SC1152/00
JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC
in the cause
ALEX ARMSTRONG
PURSUERS
against
BRAKE BROTHERS (FROZEN FOODS) LTD
DEFENDER
Act: J Kelly, Miler Samuel & Co, Solicitors.
Alt: Ms Hall, Simpson & Marwick, Solicitors.
GLASGOW, 17 January 2003.
The Sheriff Principal having resumed consideration of the cause answers the questions in the Stated Case in the affirmative and allows the appeal; recalls the decree complained of dated 18 September 2002 and decerns against the defender for payment to the pursuer of the sum of THREE HUNDRED POUNDS AND FIFTY (£350) with interest at 8% per annum from 6 August 2002; finds the defender and respondent liable to the pursuer and appellant in the expenses of process including the expenses of the appeal on the Summary Cause scale.
NOTE:
[1] This is the first appeal to call before me arising out of the disposal of a summary cause action at a first hearing under the provisions Rule 8.2 of the Summary Cause Rules 2002 which came into force on 10 June 2002. Although the sum of money involved is small the case is of some practical importance.
[2] The claim is for the sum of £1500 being damages for personal injuries arising out a straightforward road traffic accident. The pursuer sets out in his Statement of Claim that on 9 June 2001 he was driving a vehicle in Sauchiehall Street when the defender drove a lorry into the rear of his vehicle. These averments are a matter of admission.
[3] The pursuer goes on to aver that as a result of the accident he was injured. He says simply that he suffered an injury to his neck, back and shoulder. He goes on to aver that "he was in pain" and reference is made to a medical report from Dr J Marin Simpson lodged with the summons. It is then averred that "the sum sued for is claimed to compensate the pursuer for his loss, injury and damage". The pursuer did not, as required by Rule 34.2 (which applies to actions of damages for personal injuries) lodge a form C10 being a form of statement of valuation of claim.
[4] The relevant part of the answers lodged on behalf of the defenders is in the following terms:
"The extent of any loss, injury and damage sustained by the pursuer is not known and not admitted. Quoad ultra denied. Explained and averred that in any event the sum sued for is excessive. The pursuer did not attend his general practitioner or the Accident and Emergency Department of his local hospital. He did not take any time off work as a result of the accident. The accident did not affect his leisure activities or his domestic duties. Esto that the pursuer was injured (which is not known and not admitted) explained and averred any injury was of a minor nature."
Although Rule 34.5 provides that each party to an action who is not required elsewhere to do so shall make a statement of valuation of claim in Form C10 this step was not taken on behalf of the defenders.
[5] When the case called before the sheriff for a first hearing in terms of Rule 8.2 she noted that the only issue for determination was quantum. The Stated Case sets out the following:
"A medical report was lodged in support of the pursuer's claim. On the basis of this report I assessed solatium at £150. I found no expenses due to or by. I could see no justification for claiming £1,500 for a very minor injury. The sum I selected as appropriate for solatium was so modest that I considered that a finding of no expenses due to or by was appropriate".
[6] In the present appeal the pursuer maintains that the sheriff was not entitled to adopt this approach, firstly, because she did not, in terms of Rule 8.3(2)(b) "seek to negotiate and secure settlement of the action". It was contended that the case should be remitted to the sheriff for that purpose. That initial submission is not entirely without foundation because the sheriff makes no reference to any attempt to negotiate settlement of the case. The requirement to take that step must, however, be applied with regard to the circumstances of the situation with which the sheriff is faced. Although neither of the agents who conducted the appeal was present at the hearing before the sheriff I was advised that the sheriff had asked each side what value they placed on the pursuer's claim, it being one of pure solatium. The pursuer's agent had apparently said that it was worth £1500 whilst the defender's agent said that it was worth £150. These submissions were not particularly helpful and can scarcely be regarded as a genuine attempt at quantification. However, if that is indeed what was said it appears to me that the sheriff was entitled to conclude that parties were so far apart that further "negotiation" would serve little purpose. It could be said that on a broad view the possibility of settlement was explored. There must be circumstances in which the duty to "seek, negotiate and secure settlement of the action" will go no further than ascertaining that settlement is an impossibility. In these circumstances I would not criticise the sheriff for moving to the next stage of the procedure and I am not prepared to uphold the pursuer's first submission.
[7] The second submission was that in making an award of £150 the sheriff erred in law by proceeding to make that award without hearing evidence. Further, it was argued, that this award was in any event too low. Dealing with the first of these arguments I am in no doubt that this was a case in which the sheriff was entitled as provided by Rule 8.3(2)(d) to "hear parties forthwith" and to grant decree. The power to take that step is dependent on the sheriff being satisfied that the facts of the case are sufficiently agreed. It is a power which ought to be exercised whenever the facts are readily ascertainable. What was presented to the sheriff was a case where it was admitted that the defender had driven a lorry into the rear of a vehicle driven by the pursuer. A whiplash injury arising from that type of event is a daily occurrence. The medial report, based as it was on an examination of the pursuer almost eight months after the accident, merely set out by that stage the pursuer was clear of all symptoms but had given to the doctor an indication of what he suffered, described as "in keeping with the likely outcome of events". In substance what he said was that he suffered anxiety for about 24 hours; that pain and stiffness in his neck developed several hours after the accident; that he did not attend for medical treatment but took paracetomol for pain relief, and that the symptoms settled after about six days. It was, in summary, a whiplash injury at the lowest end of the scale. The fact that the defenders were prepared to value it the claim at £150 infers that they accepted this to be the position. Upon that view it is difficult to see what the purpose of a proof would have been. Putting the matter another way the facts were "sufficiently agreed".
[8] Of greater difficulty is the submission that the award of £150 was so low as to be unreasonable. In this respect it appears that the sheriff had no material on which to base her award other than the above mentioned competing submissions of parties, and her own experience. I was informed that there was a dearth of recent Scottish authority as regards the appropriate level of solatium for minor whiplash injuries. A number of English cases, extracted from current law, was referred to by the pursuer's agent. Only one of these L (a child) v Crawford (June 2002) appears to me to have any similarities since all the other cases were more serious. In that case a child of 11 suffered a whiplash injury which required an attendance at her GP who prescribed painkillers to deal with a complaint of headache and a pain in the neck. Pain and stiffness in the neck appeared 24 hours after the accident and persisted for about three days. General damages awarded amount to £500. That, I have to say, strikes me as what somewhat generous. In the general note under the heading "Neck Injuries" in the guidelines for the assessment of general damages in personal injury cases compiled by the Judicial Studies Board in England and published in McEwan & Paton on Damages (2nd ed) it is observed that a neck injury "giving rise to symptoms for no more than a couple weeks would attract no more than about £500" by way of general damages.
[9] On the other hand I consider that there is a danger in under stating the value of a claim for whiplash injuries. A stiff neck can be a most painful and debilitating condition even if it lasts for only a few days. Some individuals are able to bear this stoically without resort to medical treatment in the hope that the symptoms will clear up as they often do. Others may be more prone to have resort to medical advice. There seems to me no reason why those in the first category should necessarily be penalised for bearing the pain without complaint. Whilst I share the view of the English Judicial Studies Board that £500 is about as much as could reasonably be expected for a whiplash injury which clears up after a short interval of time I am equally of the view that the sum of £150 in this case was much too low. My own figure would be £350; upon the basis that this is more than twice what the sheriff awarded I conclude that the award made was unreasonable and ought to be reviewed.
[9] That leaves the question of expenses. The only justification given by the sheriff for finding no expenses due to or by either party was that the sum selected as solatium was "so modest". Aside from the fact that I disagree about the sum awarded I do not with respect consider that the mere fact that damages awarded are modest disentitles the pursuer from recovering the expenses involved in vindicating his right to claim. I am therefore in no doubt that the sheriff erred in law in refusing to make an award of expenses. The defenders' agent indicated that there were a number of matters which might have been laid before the sheriff which indicated that the pursuer's claim had never been properly intimated before the raising of the action. She quite properly conceded, however, that these were not matters which had been placed before the sheriff. Even if they had been, in the light of the defenders' failure to tender, or to lodge their own valuation of the pursuer's claim, I am far from convinced that the general rule that expenses follow success was one which ought to have been departed from. In these circumstances I am satisfied that an award of expenses ought to have been made in favour of the pursuer. I shall take that step now and in addition award him the expenses of the appeal.
[10] A further issue arises in relation to the scale on which expenses ought to be awarded having regard to the amount now decerned for. A complication arises in that respect. The pursuer's agent informed me that the present action required to be raised as a summary cause because it was not now possible to bring a claim for damages for personal injuries by way of small claim. The defenders' agent initially concurred in this view, stating that she had experience of a small claim summons seeking such an award being rejected by a sheriff clerk. Enquiry of the sheriff clerk's office in this court reveals that this indeed was the view and that an instruction had been given to sheriff clerks that personal injury actions could only proceed by way of summary cause. This instruction was erroneous. When the new Summary Cause and Small Claim Rules were promulgated it was anticipated that at the same time orders would be made increasing the monetary jurisdiction levels. At the same time an amendment would have been made to the Small Claims (Scotland) Order 1988 excepting from the "Small Claim" process claims for damages for personal injuries. In the absence of any change to the jurisdiction levels that amendment has not been effected. The guidance to sheriff clerks was issued in anticipation of the amendment but was premature. In these circumstances it would have been open to the pursuer in the present to have proceeded by way of small claim. The reality, however, is that he would have had grave administrative difficulty in doing so, a position which the defenders' agent accepted. In these circumstances I do not consider it realistic to hold that the present case should have been brought as a small claim. Expenses are accordingly awarded on the Summary Cause scale; the sum awarded being below £1,000 they will, however, be subject to a deduction of 50% in terms of Regulation 14 of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993 (as amended).