Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

A1143/06

		JUDGMENT OF SHERIFF J C MORRIS, QC
		in the cause
		AILEEN XERRI
		Pursuer
		DIRECT LINE INSURANCE
		Defenders

 

Act:  Docherty, of Corries

Alt:   Paton, of Harper MacLeod

 

Airdrie: 06  March 2007

 

The Sheriff, having resumed consideration of the cause finds as follows:

 

1.             That the parties are designed in the instance of the closed Record.

 

2.             That on 14 August 2005 at about 9.30 pm the pursuer was driving her Fiat Punto vehicle registration number P41 KSD on the A80 trunk road travelling towards Glasgow.  There were two passengers in her vehicle her son, then aged 6 and her niece, then age 13.

 

3.             That the pursuer's vehicle was struck from behind by motor vehicle registration number N516 OSU driven by John Hood.  The defenders are the insurers of the vehicle.

 

4.             That as a result of the collision the pursuer's vehicle spun off the road and eventually collided head on with a lamppost on the grass verge.  The vehicle driven by John Hood also collided with a lamppost.  Both vehicles were damaged.

 

5.             That it is a matter of admission that John Hood was responsible for said collision and that the defenders, as Mr Hood's insurers, are liable to the pursuer for the damage occasioned to her vehicle and the injuries caused to her.

 

6.             That as a result of the accident the pursuer sustained damages in that she had to pay a £250 excess on her insurance policy, her car seat and hands free phone kit were damaged and had to be replaced at a cost of £99.98.  She also incurred sundry services at a cost of £50 and suffered inconvenience which was fairly assessed at £47.50.

 

7.             That as a result of the accident the pursuer was injured.  The pursuer's foot became jammed between the clutch and the brake pedal and it took five or ten minutes to free it.  Her ankle was bruised and swollen as a result.  The following day the pursuer experienced neck and back pain.  The pursuer attended her general practitioner and was advised to take paracetamol.  The pursuer's ankle pain and bruising cleared up within one month.  The back and neck pain persisted for about two months with additional twinges thereafter.  The back pain disrupted the pursuer's sleep pattern and when the pursuer did manage to fall asleep she experienced nightmares about the crash.  These nightmares featured the children screaming.  The nightmares persisted for about four to six months.  After her initial consultation with her general practitioner the pursuer did not attend at the surgery again.  The pursuer also experienced difficulty carrying anything of any weight including shopping and her housework was made difficult.  The pursuer is a single mother and full time housewife.

 

8.             That it is a matter of admission that item no 5/1 of process is a medical report by Dr A A Burton dated 9 February 2006 and its contents are agreed.

 

9.             That the pursuer has fully recovered from her injuries.

 

Finds in Fact and in Law

 

1.            The pursuer, having suffered loss, injury and damage as a result of the fault and negligence of the defenders' insured driver, is entitled to reparation from the defenders therefor.

 

2.            Appropriate solatium for the injury sustained by the pursuer as a result of the accident is £2,244 inclusive of interest.

 

3.            Appropriate compensation for special damages suffered by the pursuer as a result of the accident is £465.50 inclusive of interest.

 

Therefore sustains the pursuer's first and to an extent second pleas in law; repels the remaining extant pleas in law; grants decree for payment by the defenders to the pursuer (a) of the sum of TWO THOUSAND TWO HUNDRED AND FORTY FOUR POUNDS (£2,244) STERLING (b) the sum of FOUR HUNDRED AND SIXTY FIVE POUNDS FIFTY PENCE (£465.50) STERLING both sums with interest thereon at the rate of eight per centum per annum from the date of decree to follow hereon until payment; assigns 9.30 am on 26 March 2007 as a hearing on expenses.

 

 

 

Note:

 

1.                 This action called before me for proof on 26 February 2007.  It was in short compass.  The only witness for the pursuer was the pursuer herself.  No witnesses were called by the defenders.  The pursuer was a single mother and full time housewife and she seemed to me to be a straightforward witness who did not seek to exaggerate the results of the accident itself nor the injuries she sustained. 

 

2.                 The action concerned a road traffic accident which occurred on the A80 trunk road about 9.30 pm on 14 August 2005.  Liability was admitted for the purpose of the action.  The pursuer was driving a vehicle at a speed of approximately 50 mph.  She was struck from behind by a vehicle driven by the defenders' insured. 

 

3.                 The collision caused the pursuer's vehicle to go into a spin whereupon it entered the grass verge at the side of the road and struck a lamppost head on.  The accident was extremely frightening for the pursuer and her young passengers. 

 

4.                 Parties had helpfully agreed a joint minute of admissions which was lodged at the bar and which agreed the special damages as set out in finding in fact 6 and the authenticity of Dr Burton's medical report on the pursuer dated 9 February 2006.

 

5.                 Having made appropriate findings in fact I do not propose to rehearse the medical evidence in any detail.  The pursuer suffered injury to her ankle, her neck and her back.  She also suffered from nightmares relating to the accident.  She visited her general practitioner once on the day after the accident when she was advised to take paracetamol (she was allergic to stronger painkillers).

 

6.                 For the first month after the accident she took two paracetamol every three to four hours.  She reduced this dosage in the second month.  The pursuer's most significant injury was the one to her back which resulted in a constant throbbing pain which became particularly acute at night when she tried to sleep.  Her sleep was therefore disrupted.  When she did manage to sleep she was plagued by nightmares about the incident.  The nightmares concerned the two children in the car screaming after the collision (I understood that both children were very upset as a result of the accident).

 

7.                 The pursuer's pain disappeared after about two months although she did have the odd back twinge after that.  The nightmares lasted a bit longer perhaps four to six months. 

 

8.                 She had by the date of the proof fully recovered.  During the time when she was injured the pursuer had difficulty with gardening, shopping and housework.

 

9.                 The only issue in the present case was the amount of solatium to be awarded.  In relation to this matter each party referred me to a number of cases.  For the pursuer, in suggesting an appropriate figure of £2,500 Mr Docherty referred me to the cases of:

 

1.            Beck v United Closures & Plastics plc 2001 SLT 1299

2.            Threfall v British Railways Board 1988 SLT 535

3.            Nimmo v British Railways Board 1990 SLT 680

4.            Lennox v Lanarkshire Health Board 1997 SLT 1227

5.            Fairley v Thomson 2004 Rep LR 142

 

10.             Mr Docherty also referred me to the Judicial Studies Board Guidelines Seventh Edition.

 

11.             Mrs Paton for the defender referred me to the English case of Smith v Brown 11 July 2005 (Personal Injuries Quantum Database) and to the unreported case of Clements v Cassie judgment from Hamilton Sheriff Court Sheriff Bicket February 2007, in suggesting that the appropriate sum for solatium would be £1,200.

 

12.             Parties agreed that the appropriate way to deal with interest would be to award interest at between 4% and 6% from the date of the accident on whatever sum is awarded by way of solatium and 8% for the special damages agreed.

 

13.             Both parties were agreed that the injuries sustained by Mrs Xerri were at the minor end of the range. 

 

14.             As is usual with such cases the authorities cited gave some guidance to the appropriate level of solatium to be awarded but none were exactly in point. 

 

15.             The English case of Smith v Brown quoted by Mrs Paton was similar to the present one but the accident sustained by the pursuer in the present case was, in my view, a more serious one and her injuries persisted for longer.  The Clements case quoted by Mrs Paton, of all the cases cited, may come closest in circumstances to the present one.  Again in that case however there was no element of sleep deprivation nor any recurring nightmare factor.

 

16.             Taking into account therefore all the circumstances of the case with the assistance of the cases to which I was referred it seems to me that the appropriate figure for solatium would be £2,200 and that is the figure I shall award.

 

17.             Interest on £2,200 for six months (ie from the date of the accident) at 4% amounts to £44 accordingly the final sum to be awarded for solatium will be £2,244.

 

18.             Interest on the special damages (ie £447.48 was agreed at 8% from the date of the accident that is £18.  Accordingly the total amount to be awarded for special damages will be £465.50.

 

19.             Interest will run on both these sums at 8% per annum from the date of decree until payment.

 

20.             Both parties agreed that expenses should follow success but I note that a tender has been lodged in process therefore I shall reserve the question of expenses meantime.