Scottish Sheriff Court Decisions

JUDGEMENT OF SHERIFF K.A. VEAL

IN THE CASE OF

Al13/04

v

Forfar, 7th November 2005. Act: Sinclair Alt: Maillie

The sheriff, on joint motion, allows the Joint Minute of Admissions to be received and to form number 15 of process; thereafter, having heard all the evidence in the cause and submissions from parties' procurators, makes avizandum.

Forfar, 17th November 2005.

The sheriff, having resumed consideration of the whole cause, finds in fact:

(1) The pursuer is a housewife. She was born on 26th December 1947. She resides at

19 Laburnum Lane, Peterhead. She resides at that address with her husband,

Norman Buchan, and her unmarried adult daughter.

(7) The defenders accept liability for this accident.

(One) that the pursuer suffered loss injury and damage as a result of an accident involving a car in which she was a passenger being in a collision with a vehicle driven by an employee of the defenders in the course of his employment on 22nd June 2001;

(Two) that the said accident was caused solely the fault and negligence of the defenders' employee;

(Three) that the defenders are vicariously liable for the actings of their employee in the course of his employment;

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(Four) that the pursuer is entitled to reparation from the defenders;

(Five) that an appropriate sum for solatium for the injuries sustained by the pursuer as a result of said accident is Three Thousand Five hundred Pounds sterling (£3,500), in respect of which Two Thousand Five hundred Pounds Sterling (£2,500) is allocated to past pain and suffering, and One Thousand Pounds Sterling (£1,000) to future pain and suffering;

(Six) that interest on the past element of solatium at half the judicial rate of 8% from the date of the accident to November 2005 will cover a period of 4 years and 5 months and is calculated at a figure of Four hundred and Forty one pounds Sixty five pence Sterling (£441.65);

(Six) that the pursuer has incurred expenditure to date on services of One Thousand Pounds Sterling (£1,000) and that the proportion of the family expenditure, in respect of the pursuer personally, on services in the future is properly quantified at Two Hundred and Fifty Pounds (£250) annually. An appropriate multiplier for future services would be two, thus quantifying future services in the sum of Five hundred Pounds sterling (£500).

(1) Sustains the first plea in law for the pursuer and the plea in law for the defenders;

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This action is pursued following a road traffic accident on 22nd June 2001, when a motor vehicle belonging to the defenders, and driven by their employee, Paul Todd Whyte, crossed the main A90 dual carriageway at its junction with the A932, in the path of a Cadillac Seville motor car, being driven by the pursuer's husband. The pursuer was a front seat passenger in that car. She was wearing a seat belt at the time of the accident. The two vehicles came into collision with each other.

Liability is admitted by the defenders and the proof, which proceeded on 6th November 2005 was restricted to quantum only. Helpfully, a Joint Minute was lodged at the commencement of the proof, (this document forming number 15 of process), and this agreed the pursuer's GP records.

For the pursuer, evidence was led from the pursuer herself; her husband, Mr. Norman Buchan of 19 Laburnum Lane, Peterhead; her home help, Mrs. Lesley Green, Glendaveny Cottage, Glendaveny, Peterhead; and Mr. James McLauchlan FRCS, a now retired Consultant Orthopaedic Surgeon, who formerly was at Aberdeen Royal Infirmary. He had 29 years experience as a Consultant Orthopaedic Surgeon. The defenders' evidence only came from Mr. Peter H. Gibson FRCS, a Consultant Orthopaedic Surgeon at Woodend General Hospital, Aberdeen.

Following the accident, the pursuer was taken to the Accident and Emergency Department at Ninewells Hospital in Dundee. Her injuries, as stated to the staff at Ninewells Hospital in Dundee that day, were pains in the right side of her chest, with extensive bruising from the left shoulder, over the anterior chest and then across the lower abdomen, the very sort of bruising that one would expect when there has been an impact and the passenger within the car had been restrained with a seatbelt.

The pursuer's adult daughter travelled from Peterhead to Ninewells Hospital, Dundee, on the day of the accident, to collect her mother and take her home to Peterhead. The following day, when she was still feeling very unwell and was still shaken as a result of the accident, the pursuer observed that one of her eyes was swollen and blood shot,

and her left hand had become swollen. She thus went to the local hospital in Peterhead, where a tubigrip was applied to her left arm and hand.

It was agreed that the next medical involvement was on 26th June 2001, when the pursuer attended at the surgery of her General Practitioner, Dr. R. MacInnes in Mintlaw. On this occasion, she complained for the first time of a whiplash injury, as well as continuing muscular pain in her left arm.

An examination of the pursuer's GP records shows that, apart from entries dated 12th July 2001, 28th August 2001 and 13th January 2003, there is no mention of neck pain. (See Production number 6/1, and pages 2.10 and 2.11.) The most telling of these entries - and the one that has caused the defenders to hesitate in dealing with this claim - is dated 12th July 2001. It reads: -" "Clicking" (R) lower ant. chest since RTA. (L) hand still swollen and bruised Seat belt damage. Long standing neck pain. Private Physio."

It is unfortunate that there was no evidence from the GP as to why the reference to a long standing neck pain is in the medical records. Certainly, before that entry, there is no entry to alert anyone examining the medical file that the pursuer was suffering from such a condition prior to the accident.

It is clear to me - and it was not seriously disputed by the defenders' solicitor at the proof - that the pursuer did indeed suffer a whiplash injury as a result of the instant accident. The question for the court is whether or not the symptoms which the pursuer now exhibits arise as a direct result of the accident or whether they are the result of a pre-existing condition.

The defender's expert, Mr. Gibson, in his report number 6/1/1 of process, states in his conclusions that Mrs. Buchan has "restriction of cervical spine movement which would be in keeping with underlying cervical spondylosis. There are no abnormal neurological findings in the upper limbs and no restriction of joint movement". The medical records also make mention of a long-standing psoriasis problem (on her left hand) in respect of which the pursuer has received treatment in the past. Mr. Gibson

opines in the same report: - "Patients with psoriasis do sometimes get an arthritis associated with the skin disease and can develop joint swelling in the fingers."

The pursuer's expert, Mr. McLauchlan, in his later report number 5/3/1 of process and dated 16th June 2005, concludes that the pursuer "continues to have residual symptoms. It is now over two years since her accident and these symptoms are unlikely to resolve and on the balance of probabilities relate directly to the accident" Mr. McLauchlan backs up his conclusions by pointing to world wide studies of patients with whiplash injuries, that "the symptoms following whiplash injury are unlikely to alter after two years from the injury". Mr. McLauchlan came to that conclusion, having considered the apparently opposite conclusions of Mr. Gibson, the defenders' expert, in his report number 6/1/1 of process.

For my part, I consider that there is much force in the observation of Mr. McLauchlan on page 6 of his report 5/3/1 of process that "there is no evidence that (Mrs. Buchan) has had any previous neck problems of any significance. If she had, one would have expected her to have attended her own doctor on a regular basis. There is no evidence of this. She does however admit to attending a chiropractor prior to the accident with a neck problem which completely resolved after treatment."

In coming to his conclusion, the defenders' expert, Mr. Gibson, appears to have taken the view that Mrs. Buchan's ongoing complaints must emanate from a pre-existing neck problem. However, that pre-existing neck injury is never mentioned anywhere in the pursuer's GP records.

I have to make a decision as to my opinion of the pursuer and the evidence that she gave. This is crucially important with regard to the state of her health and her medical history, (particularly as to her evidence about any old neck injury).

I have to record that I found Mrs. Buchan to be a very straightforward, credible and honest witness. I was at the time of proof and remain firmly of the opinion that she was not exaggerating her injuries. She answered all questions that were put to her and never attempted to evade any questions. What was clear to me was that she had a pain free existence prior to her accident, and that she attended to all the household chores.

Her way of life has been dramatically changed by the events of 22nd June 2001. That former pain free state of affairs no longer exists and she now is in the position of having, against her own wishes and certainly against her own independent streak, to employ a home help to assist in the more major of the domestic chores. For an independently minded Scottish housewife such as Mrs. Buchan to contemplate, let alone agree to, the hiring of a home help demonstrates to me that she was absolutely at the end of her personal tether and that her injuries were such that, despite her best endeavours, she was unable to do the domestic duties that she formerly regarded as her contribution to the family.

I am not satisfied that there was in fact a pre-existing neck injury which has been exarcerbated by the events of 22nd June 2001. It is my judgement that all medical input and treatment with regard to her whiplash injury emanates directly from the accident, and I further hold that the pursuer's injuries are ongoing and are likely to remain with her, in some form, for the foreseeable future.

The necessity for the employment of a home help was spoken to, not only by the pursuer, but also by her husband, Mr. Norman Buchan. He spoke to his wife doing "all the tasks before the accident" and how the "roles had to change after the accident". In addition, the home help herself gave evidence. Mrs. Lesley Green spoke to the pursuer having had an accident and "not being able to do her own housework". She confirmed the evidence of both the pursuer and her husband that her duties were restricted to three hours on one morning per week, and that she had been initially paid at the rate of £5 per hour. This had been increased since she first started working for the pursuer, and she was now remunerated at the rate of £5.50 per hour.

Whether one uses £5 or £5.50 per hour as a calculation tool, the end result is that the total cost per annum for the domestic assistance is rounded out, in the order of £750 per year. There are three adults in the Buchan household, and the proportion for the pursuer is thus one third, with an annual outlay attributable to the pursuer personally is £250 per annum. The costs incurred to date for the pursuer are for the period between November 2001 and November 2005, and this is calculated in the sum of 4 x £250, namely £1,000.

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For future services, the pursuer is 59 years of age, and her husband, (a contractor for suspended ceilings), is 60 years of age. Their daughter, who lives at home, is an adult. But for this accident, I have no doubt at all that the pursuer would not have even contemplated having a home help for many years to come. The multiplier of two (2) for future services was suggested by the pursuer's agent, whereas Mr. Maillie for the defender thought that a figure of 1.25 would be more applicable. The sum claimed in respect of ongoing and future services is indeed modest. The extent of involvement of a home help with maintenance at the present number of hours depends upon the physical condition of Mrs. Buchan not further regressing. Having regard to the pursuer's age and the relatively modest claim for services, I propose that the multiplier for future services be two (2), giving a figure of £500 for future services. The total award in respect of services, in terms of Sections 8 and 9 of the Administration of Justice (Scotland) Act 1982 is thus £1,500.

I now turn to the solatium aspect of this claim. Mrs. Buchan cannot perform the household chores that she formerly carried out. She cannot clean the car nor can she "potter" in her garden. Today, over 4 years after her accident, she is taking paracetamol "permanently" - as she put it - for the ongoing pain. Whilst formerly she would have lifted almost anything, she cannot now even lift a small box of bottled water out of her family car. She formerly went to aerobic classes, (until a year before the accident), and to swimming, but these pleasures and physical exercises are no longer available to her. For all practical purposes, she had had no problems with her neck prior to the accident. In accordance with the view expressed by Mr. McLauchlan, It is my opinion that the pursuer's condition has stabilised and is unlikely to see any marked change for the better in the years ahead.

Whilst the pursuer had formerly suffered from psoriasis, I am of the opinion that this did not impact in any way on the injuries sustained in the accident or the pursuer's recovery therefrom. The pursuer's psoriasis, from which she had suffered for a substantial number of years, has been absent for twenty years. I consider that any problem with her left hand, as alluded to by the defender's expert, Mr. Gibson, is entirely attributable to the accident. I am reinforced in that view, because the evidence from both the pursuer and her husband was to the effect that she was able to wear her wedding ring prior to the accident, (and that she cannot wear that ring now because of

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constant swelling of her left ring finger), and also because she could with ease lift different messages of varying weights prior to the accident. Any substantial "domestic" lifting is now very much within the province of her husband.

The quantum of an award of solatium will vary in each case, according to the individual circumstances of the litigant, and no two sets of circumstances are ever exactly the same.

For the pursuer, Mr. Sinclair referred me to the cases of Urquhart -v- Coakley Bus Company Limited, (an unreported decision from Hamilton Sheriff Court dated 2^nd June 2000, concerning a man who was in his middle 20's at the time of the accident); McGuire -v- Nicholson, (a decision of Sheriff A.S. Jessop at Aberdeen Sheriff Court, reported at 2002 GWD 1313, concerning a female taxi driver aged 49; Moir -v- Wilson, (an unreported decision of Sheriff C.G. McKay at Kilmarnock Sheriff Court dated 1st July 2002, concerning a 32 years old lady, and Conway -v- Wood, a decision of Sheriff B.C.T. Wood at Kirkcaldy Sheriff Court dated 26th October 2001, concerning a 23 years old stock controller). In every one of these whiplash cases, an award in the region of £3,000 had been made.

In these circumstances, Mr. Sinclair submitted that an award in the present case ought to be in the region of £3,000 to £5,500.

For the defenders, Mr. Maillie suggested altogether lower figures. His submissions were predicated on my accepting that there was a pre-accident condition from which the pursuer was already suffering. That being the case, so the submission ran, any figure for solatium must require to be set at the lower end of the scale.

Reference was made to the case of Armstrong -v- Brake Brothers (Frozen Foods) Ltd. (a decision of Sheriff principal E.F. Bowen Q.C. at Glasgow Sheriff Court on 17^th January 2003 SLT (Sh. Ct.) 58, concerning a male, who made a rapid recovery from his whiplash injuries); Fairley -v- Thomson, (an unreported decision of Sheriff J.D. Allan at Edinburgh Sheriff Court dated 27^th August 2004, concerning a 28 years old Integrated Circuits Layout Engineer); and also to the Judicial Studies Guidelines 2004 Orthopaedic Injuries.

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The pursuer in this case is rather older than any of the other pursuers. She will also continue to suffer as a result of this accident. That "long-term" factor is absent from the cases to which I was referred. That being so, I consider that I must award a figure in excess of the £3,000 awarded in certain of the cases above mentioned.

Having regard to the injuries that she suffered as a result of this accident, the ongoing pain which she is still suffering, will continue to suffer, and that she has had to endure for the last four years, I am of the opinion that an award of £3,500 should be the level of award that ought to be made to the pursuer in this present case. £2,500 will be allocated to past suffering and £1,000 to the future.

As I have alluded to earlier in this judgement, an award at this level seems to sit comfortably not only with the decisions that were presented to me during submissions, but also takes on board the fact that, unlike the above cases, there is an ongoing problem, with which the pursuer will have to live, and to which she will have to adapt over the years.

The interest on the element of past solatium, which covers a period of four years and five months at half the judicial rate (i.e. 4%) is quantified at £441.65. The total award for solatium, including interest, is thus £3,941.65. The total award to the pursuer for both solatium and services is thus £5,441.65, and decree will pass for that amount.

I was asked to reserve all questions of expenses and I have put out the question of the expenses and the certification of expert witnesses in this case to a Procedural hearing, which will take place on Wednesday 30th November 2005 at 10.00 a.m.