SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

A829/05

		JUDGMENT   of   SHERIFF DOUGLAS J CUSINE
		in the cause
		ALISON SPINK
		PURSUER
		against
		JAMIE LAWRIE
		DEFENDER

 

 

 

 

 

 

 

 

 

ABERDEEN, 9th May 2006.

 

The Sheriff having resumed consideration of the whole cause, Finds that the following facts are proved or agreed:-

 

(1) On 23^rd March 2004, the pursuer was travelling northwards on the A90 Aberdeen to Ellon road. The defender's vehicle collided with her vehicle. The defender has admitted that he failed to drive with reasonable care and so has admitted liability for the accident.

 

(2) Immediately after the collision, the pursuer was shaken back and forward and was in a panic.

(3) She did not suffer any pain at that point, but as she drove home towards Peterhead, her neck and back became sore.

 

(4) On arrival at Peterhead, she attended the Accident & Emergency Department of Peterhead Hospital. She was seen by Dr. Kennedy. His report is agreed. The pursuer had typical muscular pains around her neck, shoulder and back, with a reduction of movement in the cervical spine and tenderness to her lower back. She was given painkillers and anti-inflammatory drugs, and was advised that she would suffer a lot of pain over the ensuing 7 days.

 

(5) The pursuer was off work for a week following the accident and she suffered pain in her back, neck and shoulder.

 

(6) After a week the pursuer returned to work because the pain was less severe and was manageable. She took Ibroprofen, a painkilling drug, which is available without prescription.

 

(7) Despite returning to work, the pursuer was still in a lot of pain. She could not sit for any longer than two hours, after which she required to go for a walk.

 

(8) Immediately following the accident, the pursuer was terrified of driving and she continued to be scared at junctions, something which lasted for about a year.

 

(9) At the time of the accident, the pursuer's daughter was one year and four months old. The pursuer felt sorry for her daughter as the pursuer frequently had to go to her bed when she was in pain and she was unable to lift her daughter and otherwise give her the attention which she felt appropriate.

 

(10) The pursuer's husband has to go shopping with the pursuer as she is unwilling to lift heavy items for fear of causing herself pain. She no longer does any gardening for the same reason. The pursuer's pain does not prevent her from going out for meals, which is her main social activity. The pursuer is not able to identify any particular activity or kind of activity which induces these episodes of pain.

 

(11) She continues to suffer episodes of pain across her shoulder and/or down her spine and/or in her lower back. The pain is moderate. The episodes of such pain are less frequent than they were, but the pain is no less severe. On a scale of severity of pain of 1 to 10, the severity is usually 6 or 7, but on occasions is worse.

 

(12) These episodes used to last about a week; they now last 3 to 4 days. If the pursuer does suffer pain, she goes to her bed and her husband takes over the household chores.

 

(13) Nine months after the accident, the pursuer was seen by Mr Niall Craig, a consultant orthopaedic surgeon at Aberdeen Royal Infirmary.

 

(14) He ascertained that the pursuer had suffered lower back pain before the accident, but the last episode of that was in 1999 shortly after the pursuer's daughter was born. The pursuer has no previous history of shoulder or back pain.

 

(15) Mr Craig is unable to say whether the pursuer will, at some time, be completely free of pain as a result of the accident. The shoulder and back pain are directly attributable to the accident and he thinks it is unlikely that she will make a full recovery. He is unable to say whether the lower back pain is in whole attributable to the accident or is pain exacerbated by the pre-existing back pain problem.

 

(16) In Mr Craig's experience, and as demonstrated by the medical literature, many people recover fully after 2 years, but some do not. The literature also reveals that of patients who still have symptoms after 3 months, a high proportion-86%--will still have such symptoms after 2 years. In his opinion, following an examination of the pursuer in December 2005, her pain may improve, or it might get worse, but the episodes will continue indefinitely.

 

(17)           In his opinion, physiotherapy may help to prevent exacerbation of the pain.

 

Finds in Fact and in Law

 

(1)   The defender owed a duty of care to other road users, including the pursuer, to drive with reasonable care. The defender was in breach of that duty when he drove his vehicle in such a way that it collided with the pursuer's vehicle.

(2)   The injuries caused to the pursuer were a reasonably foreseeable consequence of the defender's breach of said duty.

(3)   The pursuer is entitled to reparation from the defender for the injuries so caused.

(4)   An appropriate sum in respect of solatium for these injuries is £5250.00

(5)   An appropriate sum for services rendered to the pursuer by her husband as a result of these injuries is £400.00

(6)   An appropriate sum for inconvenience caused to the pursuer as a result of these injuries is £50.00.

 

THEREFORE SUSTAINS the pursuer's second and third pleas-in-law; GRANTS DECREE against the defender for payment to the pursuer of the sum of FIVE THOUSAND, SEVEN HUNDRED POUNDS with interest thereon at the rate of eight per centum per annum from 23 March 2004 until the date of payment; RESERVES meantime all question of expenses; APPOINTS parties to be heard thereon and ASSIGNS 22 May 2006 at 9.30 am

 

as a diet therefor.

 

NOTE.

 

This action went to proof on 27 April 2006. The defender had admitted liability for the accident in the course of which the pursuer was injured. The only issue at proof was quantum. The parties had agreed the contents of the report by the GP, Dr. Kennedy, and that the appropriate award for inconvenience is £50.00.

 

The evidence led at the proof came from the pursuer and Mr Craig, an orthopaedic surgeon. The pursuer was an impressive witness who gave her evidence in a clear and straightforward manner. I had no difficulty in accepting what she said-which was not seriously challenged---as being both credible and reliable.

 

Although the pursuer did not suffer any pain, or discomfort immediately on impact, she began to suffer pain on her way home and visited the A & E department of her local hospital, where she was seen by Dr. Kennedy. She was prescribed pain-killing and anti-inflammatory drugs. She was told by him that she would be in severe pain for a week which turned out to be correct, and the pursuer she was off work for that time.

 

On her return to work, she was at first terrified of driving, and then became very wary when driving, particularly when approaching junctions. Although she did return to work, she could not sit for longer than 2 hours without requiring a break. She would have paid in her lower back, her neck and her shoulder, on any combination of these. Her colleagues were supportive of her. She took Ibroprofen to deal with the pain.

 

She continues to suffer such episodes of pain which, while less frequent, are still as intense as before. She was seen by Mr Craig, a consultant orthopaedic surgeon, on 23 December 2004, some 9 months after the accident. His report is No. 5/1/2 of Process. He reported that she had significant neck and low back pain if she sat for too long in the one position, but that the episodes were getting less frequent. His report discloses that of patients who have symptoms after 3 months, 86% will still have symptoms after 2 years. He examined the pursuer again on 16 November 2005, and the report is No. 5/2 of Process. In it, he records that she is still suffering episodes of pain, and his prognosis was that the episodes of pain would continue indefinitely. I found Mr Craig, like the pursuer, to be both credible and reliable, and his evidence was not seriously challenged either.

 

The pursuer avoids lifting heavy items of shopping, and is accompanied by her husband. She also avoids gardening. She avoids both because she does not want to bring on an episode of pain, the cause of which is not identifiable. She avoids lifting her young daughter for the same reason. Her husband assumes responsibility for the household chores when the pursuer suffers an episode of pain.

Submissions for the pursuer

Miss Boyle for the pursuer submitted that I should find the pursuer to be both credible and reliable and accept that the account which she gave was free of exaggeration. I should accept that she was still suffering from episodic pain and although the episodes are less frequent, they are of the same intensity. I should also accept that the pursuer's husband takes on the responsibility for the housework and household tasks when the pursuer is in pain. I should also accept that the pursuer's husband has to lift heavy shopping and do the gardening without the pursuer's assistance. I should also accept the effect which the accident has had and continues to have on the pursuer's relationship with her child.

 

It was submitted that I should accept Mr Craig's evidence that the pursuer is likely to continue to have pain and that the pain in her neck and shoulders is directly attributable to the accident.

 

The following authorities were cited namely Ennis v Abba Blinds (Airdrie Sheriff Court) January 2006; Black v Stewart (Kirkcaldy Sheriff Court) February 2006; Urquhart v Coakley Bus Company (Hamilton Sheriff Court) June 2000; Hawkes v Wynn 2002 SLT 1227 (OH); Frame v Parker 2004 SLT (Sh. Ct.) 111; Moir v Wilson (Kilmarnock Sheriff Court) July 2002; Edwards v Ford [2202] 3 QR 6; Horsburgh v Smith [2003] CLY 3175; Aston v LAD [2003] 4 QR 7; McInulty v Alam 1995 SLT (Sh. Ct.) 56; Cameron v Brown & Broker Direct Plc, (Falkirk Sheriff Court) March 2005; 7^th edition Judicial Studies Guidelines.

 

Amongst these cases, reference was made to Ennis in which the award for solatium was £3,000. That was based on a prognosis that the pursuer would recover after a period of 9 months. That was a case in which there was a special reference to childcare and the bond between mother and child. In Black, the award was £3,000, that was based on an 18-month recovery period, but in that case the pursuer had a significant history of lower back pain. In Urquhart, the award was £3,000, which was based on discomfort for 6 months and reference was made to an English case as a guide. In Hawkes, the award was £3,500, which was based on continuing pain for a period of 12 months with some pre-existing condition. The pursuer in that case had not taken time off work.

 

The pursuer in the present case was and is stoic in her approach and that therefore ought to attract a higher award in that she has more severe episodes of pain than any of the pursuers in the cases cited and there is no evidence that she will make a full recovery. In the case of Horsburgh, an award of £4,500 was made on the basis that the pursuer had been off work for a week, but the continuing pain and discomfort were less severe than in this case.

 

So far as the services' element is concerned, in the case of McInulty, two weeks of such services were required and an award of £200 was made. In the present case, it was submitted, the pursuer has had more problems. In the case of Cameron, the pursuer was off work for 2 weeks; he had to care for a disabled wife, but for a shorter period and an award of £300 was made.

 

Looking to the Judicial Studies Guidelines, the pain should be classed as moderate which would merit an award of between £4,250 and £7,750. It was submitted that the appropriate award in this case would be between £5,000 and £5,500, that the appropriate award for services would be £500 and that interest at 8% should be awarded from the date of the accident until payment. I was also asked to certify Mr Craig as an expert, both in respect of his attendance at court and for his provision of a report. I was asked to reserve the question of expenses meantime.

 

Submissions for the defender

Mrs Stewart for the defender submitted that there had been an initial period of severe pain lasting a week, that the pain was now less severe and less frequent and I was asked to take into consideration the fact that physiotherapy may improve the pursuer's position. I was asked to accept that the pain could be classed as moderate and that the pursuer may have had lower back pain in any event. Although the pursuer was off work for a week, she was not prevented from going to work and she is otherwise able to carry out her hobbies which consist mainly of socialising.

 

The defender cited the following authorities. Leng v Goldsmith, (June 2001) Kemp para. K2 - 078.8; Mason v Car Collection Services, (October 1995) Kemp para. E3 - 119; Whyte v Onions, (November 1996) Kemp para. E2 - 145; Meeds v Hamilton, (October 2001) [2002] CLY 3570, Kemp para. K2 - 077; Shabiar v Iqbal, (July 2001) [2002] 2 Q.R.17, Kemp para. K2 - 108.1; Hodkinson v Crutchley, (December 2001) [2002] 6 Q.R. 16, Kemp para. PRK - 022; Pitcher v Stewart, (January 2002) [2002] 6 Q.R. 18, Kemp para. PRK - 012; Vanneck v Sluggett, (August 1999) [2002] CLY 1700, Kemp para. K2 - 055; Alldis v Myer, (June 1997) [1997] CLY 1939; O'Brien v Rotherham Engineering Steels Ltd.,(1997) Kemp para. 12 - 450; Ferguson v City Refrigeration Holdings (UK) Limited (Aberdeen Sheriff Court) June 2005, Judicial Studies Guidelines 7^th edition, chapter 6 [A] and [B].

 

Reference was made to Leng where the pain lasted 48 hours; it was severe for a period of 4 weeks and flared up every 3 months. The adjusted value of the claim is £2,555. In Whyte, there was immediate pain for which the plaintiff had physiotherapy where the award has an adjusted value of £2,400. In Meeds, there was a whiplash injury which was aggravated and the plaintiff still had pain 6 months after the accident. The award was £2,785. In Shabiar, the symptoms continued for 18 months and resulted in an award of £2,200. In Hodkinson, the award was £2,790. In Pitcher, the plaintiff had a week in hospital. There were episodes of pain and the award was £3,000. In O'Brien, a case involving a knee injury, the award was £2,180, but the plaintiff was debilitated as a result. In Ferguson, the award was £2,250. It was submitted that I should make an award of solatium in the sum of £2,750. In respect of services, £250 and an agreed figure of £50 in respect of inconvenience. I should reserve the question of expenses.

 

Decision.

 

It was not argued by the defender that the pursuer's case did not fall within the category of "moderate" in the Judicial Studies Guidelines (7^th ed.) Chapter 6 (A) and (B) and I am of the opinion, therefore that an award for solatium falls within the range of £4250.00 and £7750.00.

 

Having considered the authorities cited by both agents, in my opinion, the closest factually are two cited by the pursuer, viz:- Urquhart and Horsburgh, and of these Horsburgh bears the closest resemblance to the present case. In Horsburgh, the plaintiff was 30 years old at the time of the accident. She was a chiropodist, who, as the result of a road accident, suffered initial pain and stiffness in her neck and had disturbed sleep for a week, during which time, she was off work. After that, she suffered dull ache and stiffness in her neck, but that gradually diminished until 16 months after the accident when she gave birth. For a year thereafter, she suffered permanent aching in her neck and had difficulty turning her head from side to side, as a result of prolonged breast-feeding. Her symptoms then further improved, but she did suffer occasional minor episodes of pain and discomfort for short periods every one or two weeks. She did not return to work after the birth. The occasional residual symptoms were expected to be permanent. The award was £4750.00.

 

In the present case, the pursuer suffered initial serious pain for one week, during which time, she was off work. However, the episodes of pain while less frequent now than they were, are no less severe, and are more severe than those of the plaintiff in Horsburgh. Like that plaintiff, the pursuer's pain episodes are likely to be permanent. The pursuer, in the present case has not undergone physiotherapy, but that course is recommended. In all the circumstances, I am of the opinion that an aware of £5,250.00 is appropriate under the head of solatium.

 

So far as an award for services is concerned, of the cases cited, McInulty appears to me to be the closest to the present. The pursuer had to be looked after by her husband for 1 week when she was extremely ill. An award of £200.00 was made. In the present case, the husband's services are an on-going requirement and I am of the opinion that a much higher award is appropriate. I therefore award £400.00 under this head.

 

Parties were agreed (a) that the appropriate award for convenience was £50.00 and (b) that expenses should be reserved. I was asked to certify Mr Craig as an expert in respect of his report and attendance. I shall, however, deal with that in the hearing on expenses.