SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

 

Case Reference No: A601/05

		JUDGEMENT   of   SHERIFF ALEXANDER POLLOCK
		in the cause
		ALEXANDER DINGWALL
		Pursuer
		against
		HILDA TODD
		Defender

 

 

 

Act: Miss Boyle, Solicitor, Glasgow

 

Alt: Mr Thomson, Solicitor, Inverness

 

 

INVERNESS, 24 March 2006

 

The Sheriff, having resumed consideration of the proof and whole cause,

 

FINDS IN FACT that:

 

1. The pursuer resides at Fir Chlis, Craggie, Daviot, Inverness, IV2 5XQ. He is aged 43, and is married. He is a computer analyst.

 

2. The defender resides at 32 Sunnyside, Culloden Moor, Inverness, IV2 5ES.

 

3. On 30^th September 2004 the pursuer was driving his motor car registered number N20 PAS within Inverness Business and Retail Park, Inverness. At or about the same time, the defender was driving a Nissan Micra green motor car on a roundabout within the said park. As the pursuer was approaching the roundabout, the car driven by the defender came off the roundabout and crossed on to the pursuer's lane, colliding with his vehicle's offside front wheel.

 

4. For the purposes of this action only, liability for the said accident has been admitted by the defender.

 

5. As a result of the collision the pursuer's vehicle came to a very abrupt stop. The pursuer was jolted forwards, suffering injury.

 

6. The pursuer was also involved in a road accident in 1980. He sustained a T6 spinal injury at that time, and has had complete paralysis and sensory loss from the T6 level down for the last 24 years. Because of said previous spinal injury, he is restricted to a wheelchair. He is able to drive his motor car by means of hand controls.

 

7. On the night of the accident, when trying to get out of his wheelchair, the pursuer's back went into a spasm. The day following the accident the pursuer saw his GP, Dr. Keith Jones, Ardlarich Medical Practice, Inverness. In addition to his back spasm, the pursuer was complaining of neck pain and headache. His doctor diagnosed a soft tissue or mild whiplash injury to his cervical spine. He advised the pursuer to avoid sharp movements. He did not prescribe any medication, and expressed the view that paracetamol or Neurofen would give adequate pain relief. Other than that the injury needed time to settle.

 

8. The pursuer's back spasm lasted for some two days. Getting out of bed was uncomfortable, and for two or three nights the discomfort was such as to disrupt the pursuer's sleep.

 

9. The pursuer suffered from constant headaches for three days after the accident. Thereafter he suffered from occasional headaches for a further four days or so, particularly through the day while at work. With the assistance of painkillers, the pursuer had taken no time off work following the accident.

 

10. For two weeks after the accident the pursuer suffered severe neck pain. During that period he was taking painkillers every day.

 

11. Although the main discomfort had settled after two weeks, the pursuer continued to suffer some pain and discomfort thereafter. To push his wheelchair he needed to lean forward, thereby putting pressure on his neck and causing strain on the neck muscles. After a few hundred yards, he was liable to suffer pain, chiefly in the neck and shoulders, but also in the back.

 

12. The pursuer's mobility was also restricted as regards transferring in and out of bed and getting in and out of his car. Driving as such was not too much of a problem, although he did experience discomfort if carrying out any slow movements or manoeuvres.

 

13. The pain suffered by the pursuer restricted his ability to accompany the family dogs when they were being exercised within his own ground or on walks elsewhere.

 

14. The pursuer also required to take particular care as to how he sat when eating a meal or watching television, since otherwise his shoulders and neck would get sore. Likewise, at work, he had to be particularly careful for some six to eight weeks as to his posture at the keyboard.

 

15. The pursuer's social life was somewhat restricted. His leisure activities, apart from the dogs, tend to be house-based.

 

16. No physiotherapy was required. The pursuer took painkillers as and when necessary.

 

17. All the pain and discomfort attributable to the said accident on 30^th September 2004 had settled completely at three months from the date of the accident.

 

18. On 9^th February 2005 the pursuer was examined by Mr Sean M. Kelly, Consultant Orthopaedic Surgeon, Inverness. The medical report from Mr Kelly thereanent is dated February (sic) 2005 (No. 5/1/1 of process): insofar as its content relates to injuries suffered by the pursuer as a result of said accident on 30^th September 2004, it is a true and accurate report.

 

19. The pursuer also felt back pain to a minor degree over the T6 region. This was non-intrusive. In particular, he suffered some minor needles at his mid-thoracic spine region at Christmas time, 2004. The non-intrusive mid-thoracic spinal pain was related to the previous spinal injury at the T6 level.

 

20. Reasonable compensation for the pursuer's pain and suffering in respect of the said accident on 30^th September 2004 is £1,600, of which 100% is attributable to the past.

 

Finds in Fact and Law:

 

1. That the pursuer, having sustained injury and damage as a result of the fault and negligence of the defender, is entitled to reparation from the defender .

 

THEREFORE:

SUSTAINS the second plea-in-law for the pursuer; SUSTAINS in part the third plea-in-law for the pursuer; REPELS the second plea-in-law for the defender; SUSTAINS in part the third plea-in-law for the defender; DECERNS against the defender for payment to the pursuer of the sum of ONE THOUSAND SIX HUNDRED POUNDS (£1,600.00) STERLING, with interest thereon at the rate of six per centum per annum from 30^th September 2004 until the date hereof, and on that whole sum at the rate of eight per centum per annum from the date hereof until payment; RESERVES meantime the question of expenses; APPOINTS parties to be heard thereon; and ASSIGNS 5^th May 2006

at 10 am within the Sheriff Court House, The Castle, Inverness, as a diet of hearing thereon.

 

"A. Pollock "

Sheriff

 

Note

 

Introduction

 

[1] In this action the pursuer seeks damages in respect of personal injury sustained as a result of a road accident.

 

[2] The matter came before me by way of proof. At the outset it was confirmed by way of joint minute that liability was admitted. The proof was thus restricted to a proof on quantum. In that regard, the terms of a medical report from Mr Kelly (No. 5/1/1/ of process) were also agreed.

 

[3] Miss Boyle, solicitor, Glasgow, conducted the proof on behalf of the pursuer: the defender was represented by Mr Thomson, solicitor, Inverness.

 

[4] The pursuer gave evidence on his own behalf.

 

Closing Submissions for Pursuer

 

[5] Miss Boyle submitted that the chief injuries suffered by her client were neck and back pain, of which the neck pain was more restrictive. He had a problem sleeping; his lifestyle, which was already restricted, was further restricted for a period of three months; he had to be more careful regarding his social life; and his mobility was restricted in respect of walking with his wife and caring for the dogs.

 

[6] Miss Boyle then referred to a number of cases as providing guidance on a suitable sum for solatium. She cited in particular the following Sheriff Court cases: Ennis -v- Abba Blinds (January 2006, Airdrie Sheriff Court,unreported); Pugh -v- Scott (May 2002, Edinburgh Sheriff Court, reported at 2002 GWD 25-835); Urquhart -v- Coakley Bus Company Limited (June 2000, Hamilton Sheriff Court, reported at 2000 GWD 27-1047); and Clark -v- Stoddart (September 2004, Glasgow Sheriff Court, unreported). The awards in those cases ranged between £1,750 and £3,000.

 

[7] On the basis of those decisions, Miss Boyle submitted that an appropriate award for solatium in the present case was £3,000. That would properly take account of the restrictions suffered by the pursuer, and his positive attitude towards his difficulties.

 

[8] On the matter of interest, it was agreed that interest should run on any award at the rate of 6% per annum from the date of the accident to the date of the court`s interlocutor.

 

[9] She invited the court to reserve the question of expenses.

 

Closing Submissions for Defender

 

[10] Mr Thomson began his submissions for the defender by noting that the pursuer's pleadings were silent on the matter of any back injury. Moreover, the report from Mr Kelly seemed to indicate that any back injury was pre-existing: and although the pursuer described his neck pain as going down to the top of his back, there was nothing to suggest any separate back pain beyond the whiplash injury sustained.

 

[11] Regarding the evidence of the pursuer himself, the defender accepted that he was a credible and reliable witness, who seemed to have done all that he could in assisting in his own recovery.

 

[12] The evidence suggested an initial period of more severe pain, involving sleep disruption and discomfort in carrying out day-to-day tasks: after that initial period, there seemed to be residual discomfort for no more than three months. During the later period, the pursuer was being very cautious in order to avoid aggravating any pain: however, no physiotherapy was required, and after the fortnight following the accident, painkillers were only taken when required. The pain had not been so severe that the pursuer had to stay off work, nor had there been any great impact on his lifestyle, apart from the cautious adjustments required to help the healing process.

 

[13] It was important for the court to keep in mind that solatium only fell to be awarded in respect of the pain and suffering caused by the injuries in the later accident.

 

[14] With regard to authorities, Mr Thomson referred the court to the Guidelines of the Judicial Studies Board (6^th Edition) for England and Wales, Chapter 6, at page 31. Following a review of the authorities cited by the pursuer, Mr Thomson referred the court to one further case, namely Fairley -v- Thomson (September 2004, Edinburgh Sheriff Court,unreported).

 

[15] Looking at the cases overall, Mr Thomson submitted that none was directly correlated to the facts in the present case. Each case had to be considered on its own merits, which meant in the present instance having to take the victim as found. In that regard, the pursuer had said in evidence that it might take longer for him to get over his discomfort than would be the case for an able-bodied person, and that was accepted by the defender. Nevertheless, the injuries suffered were in Mr Thomson's submission comparatively minor, from which he argued that any award should not exceed £1,000.

 

[16] He confirmed that interest should run as agreed. He likewise invited the court to reserve the question of expenses.

 

Conclusions by the Court

 

[17] In coming to a considered view on matters, I was much assisted by the careful and courteous presentation of their respective material by Miss Boyle and Mr Thomson. In particular, their agreement prior to proof on the issues of liability, medical evidence, and interest helped considerably in narrowing the focus during proof to the main issue in dispute, namely quantum.

 

[18] So far as the matter of relevancy quoad the pursuer's injuries is concerned, Mr Thomson was right, in responding to Miss Boyle's submissions, to remind the court of the case for the pursuer as pled on record. His case is succinctly put in Condescendence 4, viz.: "The pursuer suffered neck-pain and headaches as a result of the accident.". On the matter of back pain the pleadings are indeed silent - no doubt understandably so, given the terms of Mr Kelly's report, which unequivocally (see especially paragraph 12.6) relates any non-intrusive mid-thoracic spinal pain to the previous spinal injury in 1980. While therefore any pain described by the pursuer as being neck pain going down to the top of his back may be regarded as relevant to the present claim, I have left out of account the testimony in respect of any separate back pain beyond and apart from the whiplash injury sustained by the pursuer in this more recent accident.

 

[19] The terms of the medical report of Mr Kelly having been agreed pre-proof, the only oral evidence came from the pursuer himself. So far as his evidence is concerned, I fully endorse Mr Thomson's ready acceptance of him as being both a credible and reliable witness on his own behalf. Indeed, the whole impression left by his testimony was that of a man who, in spite of grievous mishaps in his life, was determined to move forward with as positive an attitude as possible. I was therefore entirely satisfied that he was in no way exaggerating the consequences for him of this accident.

 

[20] In cases of this kind it has often been observed that the proper approach is to make an award for solatium that will represent, and be regarded as, reasonable compensation to the pursuer for the loss suffered as a result of the accident in question. To that end, previous awards may indeed be of some general assistance, but only rarely do the circumstances or characteristics of each pursuer match those of another.

 

[21] Of the various cases cited by Miss Boyle in support of her suggested figure of £3,000, it is apparent that in Ennis -v- Abba Blinds, Pugh -v- Scott, and Urquhart -v- Coakley Bus Company, the injuries sustained were both longer-lasting and more significant in their impact. The circumstances of Clark -v- Stoddart are arguably more similar, but there also the injuries were more significant (with one more week of acute pain, and subsequent pain in the lower back - although not enough to seek further treatment or physiotherapy). Likewise, in Fairley -v- Thomson, cited by Mr Thomson, the pain and suffering may be fairly regarded as having been worse than that suffered by the present pursuer. The Judicial Studies Guidelines for England and Wales point to an appropriate award lying somewhere between £500 and £2,000.

 

[22] When due regard is had to the factors behind those different awards, and proper recognition is given to the particular circumstances of the present pursuer, including his assertion (accepted on behalf of the defender) that he might take longer to get over his injuries than an able-bodied person, I have concluded that in the whole circumstances the appropriate award for solatium (all attributed to the past) is £1,600.

 

[23] As agreed between parties, I have awarded interest thereon at the rate of six per centum per annum from the date of the accident to the date of decree. Interest will run at the rate of eight per centum per annum on that composite sum from the date of decree until payment.

 

[24] I have still to be addressed on expenses.