Scottish Sheriff Court Decisions

1. Pursuer is 28 years of age, is employed as an Integrated Circuits Layout Engineer, and resides alone at 27/6 Haymarket Crescent, Livingston, West Lothian.

2. At about 0830 hours on Wednesday 12th November 2003 when the Pursuer was driving his motor car on the M8 Road at Hermiston Gate, Edinburgh, the car in front braked and the Pursuer accordingly did likewise. The motor vehicle driven by the Defender collided with the rear of the Pursuer's car and the Pursuer was injured as a result. For the purposes of this action, the Defender accepted responsibility for the accident.

3. In the collision, the Pursuer was thrown forward in his car but was restrained by the seat belt and felt a momentary, shooting pain down the right-hand side of his neck. The Pursuer was later able to continue his journey into work; but at about 1000 hours when he was seated at his desk, he felt his back seizing up and felt shooting pains down both sides of his neck. He accordingly made an appointment to see his general practitioner, Dr J H Stewart, at noon on the same day.

4. After examination, Dr Stewart recorded that at the time the Pursuer developed pain at the right side of his neck and at his right shoulder. The diagnosis was whiplash injury and the Pursuer was prescribed Ibuprofen 400mg -as a painkiller - three times daily, which he took and continues to take as required.

5. On the morning of Thursday 13 November 2003, on attempting to rise from his bed, the Pursuer felt that his back had seized and it took him approximately 30 minutes to rise from his bed. He remained unfit for and unable to work on that day and the following three days, but was able to return to work on Monday 17 November 2003. Between 13 and 16 November 2003, the Pursuer had felt unable to drive because the vibration in the car caused him pain mostly in his lower back but sometimes also on the right-hand side of his neck.

6. The Pursuer drove to and from work on 17 November 2003 and on subsequent days and, while doing so and while at work, continued to suffer some niggling back and neck pain for a few weeks; but this had resolved by the time the Pursuer was again seen by Dr Stewart on 23 December 2003 for the purpose of preparing the report (No 5/1 of process). On examination by Dr Stewart on 23 December 2003, neither the Pursuer's neck nor back was tender and he had a pain-free full range of movement of his neck and his back.

7. Prior to the said collision, in order to keep fit and for enjoyment, the Pursuer was in the habit of attending a gymnasium for between one and two hours on four evenings each week. On two of the evenings the Pursuer undertook cardiovascular exercises (involving running, rowing and cycling exercises) and on the other two evenings the Pursuer undertook weight training. Although unable to return to the gymnasium for the first few weeks after said collision, the Pursuer had returned there prior to his meeting with Dr Stewart on 23 December 2003. The Pursuer was unable to resume his former routine without suffering back pain the following day. He accordingly reduced his attendance to two evenings per week and restricted his routine to the lighter, cardiovascular work initially for a period of approximately one hour. After some months, the Pursuer was able to increase the period to approximately one to one and a half hours on two evenings per week which did not lead to back pain in the next morning. The Pursuer is still unable to resume his former routine without suffering back pain the following morning. To treat this, the Pursuer follows the advice of Dr Stewart and uses heat treatment along with painkillers as required.

8. Prior to the said collision, the Pursuer enjoyed a long lie in bed occasionally at the weekend without suffering any stiffness or discomfort in his back. Now, after such a long lie in, the Pursuer sufferers some stiffness in his back which lasts for approximately half an hour.

9. As a result of the said collision, the Pursuer suffered a fair degree of discomfort; was unable to work for a period of five days, but the pain in the neck and back as a result of normal day-to-day activities had cleared up in a period of approximately six weeks; was unable to attend the gymnasium for some five or six weeks; has been unable - because of subsequent pain and discomfort - to undertake the full training regime at the gymnasium which he enjoyed prior to said collision; and has been unable to enjoy a long lie in bed at the weekend without suffering some stiffness in his back for some 30 minutes after rising. This whole situation may take a number of months or even up to two years to be completely resolved.

10. The Pursuer had no previous difficulties of symptoms with his neck or back prior to said collision.

1. That accident in which the Pursuer was involved was caused by the fault and negligence of the Defender.

2. That the Pursuer, having sustained injury thereby, is entitled to reparation from the Defender.

3. Therefore sustains the First and, pro tanto, the Second Pleas-in-law for the Pursuer and Sustains, pro tanto, the Plea-in-law for the Defender; Finds the Pursuer entitled to decree against the Defender for payment of the sum of ONE THOUSAND SEVEN HUNDRED POUNDS Sterling together with interest on Eighty five percent thereof at the rate of 5 per centum per annum from 12 November 2003 until payment; Appoints parties to be heard of the question of expenses within the Sheriff Court House, Chambers Street, Edinburgh on 4 October 2004 at 10.00 am.

1. In this action of damages, the Pursuer seeks reparation for the injuries which he sustained following a road traffic accident on Wednesday 12th November 2003.

Liability was not disputed and a Joint Minute (No 12 of Process) had been lodged agreeing the terms of the medical report of Dr J H Stewart (No 5/1 of Process).

Accordingly, the only issue in dispute at the proof was the quantification of solatium to be awarded to the Pursuer in respect of the pain and suffering and the nature and extent of any restriction in the social activities suffered by the Pursuer.

2. I heard evidence in this proof on 3 August 2004 and the only witness from whom I heard oral evidence was the Pursuer himself. I found the Pursuer to be a credible and reliable witness who did not seek to exaggerate his symptoms. He took a minimal time off work and, after he had returned, continued to suffer some niggling back and neck pain for a few weeks. As I have found, this had resolved by the time the Pursuer was seen again by Dr Stewart on 23 December 2003. Dr Stewart found that, at that date, neither the Pursuer's neck nor back was tender and he had a pain-free full range of movement of his neck and back.

3. So far as his leisure and recreation time is concerned, the Pursuer is still unable to resume his former routine without suffering back pain the following morning. He is also unable to enjoy a long lie in bed at the weekend without suffering some stiffness in his back which lasts for approximately half an hour.

4. Mr Stevenson, the solicitor for the Pursuer, submitted that the Pursuer had suffered a fair degree of discomfort, was unable to work for a period of five days, but that the pain in his neck and back as a result of normal day-to-day activities had cleared up in a period of approximately six weeks, that he was unable to attend the gymnasium for some five or six weeks, has been unable - because of subsequent pain and discomfort - to undertake the full training regime at the gymnasium which he enjoyed prior to the collision, and has been unable to enjoy a long lie in bed at the weekend without suffering some stiffness in his back for some 30 minutes after rising. He also referred to the view of Dr Stewart that the whole situation might take a number of months or even up to two years to be completely resolved.

5.1 To assist in assessing the appropriate figure for damages, Mr Stevenson drew attention to the case of Pugh -v- Scott (unreported) (Edinburgh A3095/01) where the Pursuer had suffered pain and tenderness in the neck and upper back, was treated with painkillers, had no time off work and whose symptoms took some five months to resolve fully. The award was £2,500.

5.2 Mr Stevenson also drew attention to the case of Joyce -v- Lucey (1998) Kemp & Kemp K2-166/1 where the Pursuer had suffered whiplash injury to her neck, had worn a collar for three weeks, was off work for between one and two weeks, and had persisting pain and discomfort for a further two months, with a good recovery after three months. £1,300 had been awarded.

5.3 The case of Conway -v- Wood (unreported) where £3,000 had been awarded was considered by Mr Stevenson to be considerably more serious than the present case.

5.4 Mr Stevenson submitted that this present case fell somewhere in between these two awards (in Pugh and Joyce) and he submitted that a figure of £2,000 would be reasonable, especially in view of the continuing symptoms.

6. He accordingly sought decree in the sum of £2,000. As regards interest, he submitted that a lower rate than 8 percent would be appropriate; and he submitted that a figure of five percent would be appropriate from the date of the accident.

7. Ms Wyles, the solicitor for the Defender, did not attack the credibility of the Pursuer and referred to only one point which might have raised a question about the reliability of the Defender. (In the event, I regarded the point as being of no significance and I was fully satisfied with both the credibility and reliability of the Pursuer.)

8.1 Ms Wyles submitted that, on the basis of the medical report from Dr Stewart, the impact had not been a severe one. The Pursuer had attended the doctor once (on 12 November 2003) for treatment which had consisted of painkilling medication.

She noted that there had been no need to return for additional treatment and that the next occasion the Pursuer saw Dr Stewart was on 23 December 2003 for the purpose of the medical report.

8.2 Ms Wyles noted that, by five or six weeks after the accident, the Pursuer had no neck pain, nor back pain and he had a full range of pain-free movement of his neck and back. She noted that the Pursuer had reported a little stiffness when rising from bed in the morning, his circuit training had been restricted as regards weights but he was still undertaking a minimum of two hours per week which he had returned to doing at some point before he saw Dr Stewart on 23 December 2003.

8.3 Ms Wyles submitted that, on the basis of the Pursuer's own evidence, his injuries had settled quickly and he had been able to drive to and to resume work on the Monday after the accident - without assistance but with some discomfort as a result of vibration. He had suffered niggling back pain for a few weeks but that this had cleared up by the time he saw Dr Stewart for the report.

8.4 Accordingly, Ms Wyles submitted that, on the basis of the evidence of the Pursuer and the medical report from Dr Stewart, it was clear that the pain in the neck and back as result of normal day-to-day activities had cleared up by some 5 1/2 weeks after the accident. The only exception was in relation to residual symptoms affecting training at the gymnasium.

8.5 As regards the residual symptoms, Ms Wyles submitted that the evidence demonstrated that the Pursuer could more or less go about his normal activities without suffering any consequences such as pain as result of the accident.

Certainly, she submitted that the Pursuer could undertake all his household tasks himself and he was pain-free doing these.

Ms Wyles submitted that the only reported, ongoing consequences were stiffness if he had a long lie at the weekend and some restriction of movement for approximately one hour if he "over did it" at the gymnasium.

9.1 Referring to the cases to which reference had been made on behalf of the Pursuer, Ms Wyles submitted that in the case of Pugh -v- Scott, the Pursuer's injuries were of a different order to those in this present case. She noted that in Finding 4 in that case, a stronger painkiller had been prescribed, in Finding 5 the Pursuer was slightly more apprehensive when being driven than before the accident, and in Finding 6, some four and a half months after the accident, the Pursuer still had some tenderness in the neck and upper back and in the surrounding soft tissues and there was some restriction on movement. She therefore sought to distinguish that case from the present case.

9.2 So far as the case of Joyce was concerned, a collar had been worn and there had been constant pain and stiffness for some three weeks. In addition, she noted that the pain had not been just after a heavy workout but presumably as result of daily activities. She therefore submitted that that was a more serious case than the present case.

9.3 So far as the case of Conway -v- Wood was concerned, Ms Wyles noted that the Pursuer had been off work for some three weeks and that, in Finding 13, the Pursuer's sporting activities were still restricted some 17 months after the accident. She submitted that the injuries in that case were much more severe than the present case.

10.1 In support of her own submissions, Ms Wyles made reference to the case of Armstrong -v- Brake Brothers (unreported) (Glasgow SC1152/0), which had been a decision of the Sheriff Principal in an appeal in a Summary cause. Ms Wyles said little about this case and the circumstances of it were rather special. I did not find it to be of any assistance in determining the present case.

10.2 Next Ms Wyles made reference to the Guidelines for the Assessment of General Damages in Personal Injury Cases compiled for the Judicial Studies Board of England and Wales. She noted that, in relation to minor neck injuries, where there were minor soft tissue and whiplash injuries and the like, where symptoms are moderate and a full recovery takes place within a year, the reported awards (up to July 2002) range from £500 to £2,000; and where a full recovery takes place within about two years, the reported awards range from £2,000 to £4,000.

10.3 Ms Wyles submitted to that, notwithstanding the residual symptoms affecting the Pursuer's work at the gymnasium the symptoms here resolved pretty quickly and the figure should therefore be at the lower end of the £500 to £2,000 range.

11. Thereafter, Ms Wyles made reference to the cases of

and submitted that the facts were sufficiently similar to the present case as to be of assistance.

12. Broadly, Ms Wyles submitted that the value of the claim in this present case was about £750, and with interest on approximately two-thirds of that sum at the rate of four percent from the date of the accident, the remaining one-third being a minor ongoing condition. On reflection, Ms Wyles revised that submission and suggested that the ongoing symptoms were simply an inconvenience which should not be so recognised.

13. While I was grateful to parties' solicitors for the references to the earlier cases, the four main ones referred to by Ms Wyles and the case of Joyce referred to by Mr Stevenson are all brief digests and do not provide the detail needed to make these cases of real assistance. I found the reasoning in the cases of Conway and Pugh to be of assistance, which reasoning was similar to that in the case referred to in both of those cases, namely the case of Urquhart -v- Coakley Bus Company (unreported - hhtp:/www.scotcourts.gov.uk/opinions/A2388_99.html).

14. In particular, I agree that the proper approach in a case such as this is to award such a sum as will represent and be generally regarded as reasonable compensation to the Pursuer for the loss which I have held that he has suffered as result of the accident. As I have indicated, reference to previous decisions carries considerable risks since the reactions of an individual to the consequences of an accident will inevitably differ. An injury such as occurred in this case can be both painful and debilitating, even if its main consequences last for only some five or six weeks.

Some persons may withstand pain more readily than others; some may feel able to return to work earlier than others; some may have recourse to their doctor more readily and more frequently than others; and so on.

15. In this case, I have set out in Finding 9 my conclusions on the consequences of this accident for this Pursuer. I have held that the Pursuer suffered a fair degree of discomfort, was unable to work for a period of five days, and had pain in the neck and back as a result of normal day-to-day activities for some five or six weeks. After that period of some five to six weeks, neither the Pursuer's neck nor back was tender and he had a pain-free full range of movement of his neck and back.

16. As I have set out in Finding 7, prior to the accident in order to keep fit and for enjoyment, the Pursuer was in the habit of attending a gymnasium for between one and two hours on four evenings each week. As result of the accident, the Pursuer had been unable to attend the gymnasium for some five or six weeks. Thereafter, because of subsequent pain and discomfort the following day, the Pursuer had been unable to undertake the full training regime at the gymnasium which he had enjoyed prior to the accident. He had accordingly reduced his attendance at the gymnasium to two evenings per week and had restricted his routine to lighter work - initially for a period of approximately one hour but later increased to one and a half hours on two evenings per week. At the date of the proof on 3 August 2004, the Pursuer was still unable to resume his former routine without suffering back pain the following morning, which was treated following the advice of Dr Stewart by heat and painkillers as required.

In addition, although perhaps a more minor matter, the Pursuer was now unable to enjoy a long lie in bed occasionally at the weekend without suffering stiffness or discomfort in his back which lasted for approximately half an hour.

The medical view was that this whole situation might take a number of months or even up to two years to be completely resolved.

17. In her submissions, I formed the view that Ms Wyles was unjustifiably and perhaps somewhat unreasonably attempting to minimise the pain and suffering sustained by the Pursuer - particularly during the five or six weeks between the date of the accident and the meeting with Dr Stewart for the purposes of the medical examination on 23 December 2003. I also considered that she tended to play down the significance of the restriction on the recreation and leisure activities enjoyed by the Pursuer prior to the accident. One of the purposes of an award of damages is to restore an injured party, so far as can be achieved by monetary award, to the position in which he or she had been prior to the wrong or negligent act for which the other party was responsible. In this case, the activities of the Pursuer have been restricted to the extent I have found, and they continue to be restricted as I have also set out.

18. In this context, concerning the Guidelines compiled for the Judicial Studies Board of England & Wales, I do accept that this case falls within the description of a relatively moderate neck injury including minor soft tissue and whiplash injuries and the like. I also accept that there has been a good recovery from the main symptoms within a period of five to six weeks but that there have been and continue to be unresolved residual symptoms affecting the recreational and leisure activities of the Pursuer. That situation has continued for some eight months and is not yet completely resolved. That being so, I consider that the case is far removed from the bottom of the range of awards (at £500) and is much closer to the top end of the range (at £2,000).

19. In these circumstances, taking account of the cases to which I was referred and balancing factors which are important in one case with other factors which are important in others, I am of opinion that the appropriate award of damages in the present case is £1,700, of which I consider 85 per cent is referable to the past. I consider that interest on 85 per cent of the award would appropriately run at 5 percent from the date of the accident.