Scottish Sheriff Court Decisions

(A888/06)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

LYNN SYMINGTON

Pursuer and Appellant

against

EMMA MILNE

Act: Lewis, Solicitor, HBJ Claim Solicitors LLP

Alt: Ms L A Traynor, Solicitor, DLA Piper Scotland LLP

EDINBURGH, 4 MAY 2007

The Sheriff Principal, having resumed consideration of the cause, sustains the appeal in part; varies the Sheriff's interlocutor dated 13 October 2006 by substituting the sum of £2,500.00 sterling in place of the figure of £1,500.00 sterling contained in said interlocutor; reserves all questions of expenses.

(signed) EFB

NOTE:

1. This appeal arises following proof in an action of damages for personal injuries. The action was not defended on the merits; the medical evidence was in substance agreed and the only witness to give evidence was the pursuer.

2. The pursuer's accident took place on 23 June 2004. The Sheriff made the following findings in fact consequent upon the proof: "(3) that as a result of said accident the pursuer sustained muscular damage to her neck. (4) that the pursuer was seen at the Royal Infirmary Edinburgh immediately following said accident where she was examined and discharged with painkillers. (5) Thereafter the pursuer spent four days in bed as a result of pain suffered by her. (6) Thereafter the pursuer sustained neck pain which was treated by a combination of analgesics and physiotherapy until about the end of the year. (7) That during said time the pursuer was not able to carry out her household duties to the full and was inhibited from playing in any sort of boisterous way her with twin sons aged four. (8) That for said four days the household duties in the pursuer's house was carried out by her partner. (9) That between the time of the accident and about October 2004 the pursuer's mother came regularly to the pursuer's home to do household work to help her. (10) By the end of 2004 the pursuer had to all intents and purposes recovered from the pain and injury caused by said accident".

3. On the basis of these findings, and in light of a number of decided cases cited to him by both parties the Sheriff concluded that the appropriate figure for solatium was £1,250.00. He further awarded the pursuer £250.00 in respect of services received by her from her mother and partner. The appeal proceeds on two grounds. The first of these is that in making finding in fact 10 the Sheriff placed an incomplete or erroneous interpretation on an agreed Medical Report prepared by Professor A H R Simpson on 3 May 2005. It was contended that a proper reading of that Report would lead to an interpretation that the pursuer continued to suffer symptoms beyond the end of 2004. In submissions the solicitor for the pursuer and appellant contended that finding in fact 10 should be altered to reflect the fact that the pursuer had minor neck tenderness and restricted neck movement in 2005 and required physiotherapy in October and November 2005 to relieve the residual symptoms caused by the injury sustained by the accident. In the light of that the sum awarded by way of solatium fell to be revised. The second, and alternative ground of appeal is that even if no such amendment to finding in fact 10 is to be made an award of £1,250.00 by way of solatium was nevertheless unreasonable.

4. The solicitor for the pursuer and appellant accepted the reluctance of an appellate court to interfere with factual findings made by a court of first instance. However he contended that there was sufficient reason to interfere with finding-in-fact 10 made by the Sheriff. The report by Professor Simpson, which had been agreed by parties as true and accurate with the exception of one sentence relating to prognosis, set out that the pursuer had severe neck pain for approximately one month and that thereafter the pain gradually subsided over the follow six months. At the time of his examination in May 2005 Profess Simpson noted that the pursuer had minimal symptoms which were not intrusive in her life in any way but she did have "a minimal restriction of movement of her neck". That in itself did not support a finding of complete recovery by the end of 2004; there was however further support for the view that the pursuer's symptoms persisted longer in the form of a Report from BUPA indicating that she had received physiotherapy between October and November 2005, and the pursuer herself had given evidence to the effect that this treatment was sought because of the "ongoing neck injury", on the advice of Professor Simpson (see Notes pages 16 to 17). This evidence, it was contented, had not been challenged in cross-examination.

5. I am not persuaded that the Sheriff's conclusions unfairly reflect the terms of Professor Simpson's Report. The overall impression conveyed both by the findings and by what is recorded by Professor Simpson as having been related to him by the pursuer, is that recovery was complete in about seven months following the accident. This follows from the pursuer's statement that pain was severe for approximately one month and that it gradually subsided over the following six. That timescale would take one slightly beyond the end of 2004. Finding in fact 10 might be more accurately have reflected Professor Simpson's Report if it had stated that by early 2005 the pursuer had to all intents and purposes recovered but I doubt whether that justifies interference. In any event Finding in fact 6 which sets out that the pain "was treated by a combination of analgesics and physiotherapies until about the end of the year" is a finding which could not be seriously questioned.

6. As to the evidence of physiotherapy in 2005 the difficulty is that the Sheriff observed in a short paragraph on page 4 of his Note that "the further physiotherapy received by the pursuer is not in evidence related to injuries caused to her by the accident". I find it slightly difficult to know what to make of that. It is certainly the case that the pursuer gave evidence to the effect that this physiotherapy was given on the advice of Professor Simpson and was related to the neck injury. Whilst the pursuer was asked in cross-examination (see Notes page 22) whether that physiotherapy was necessitated by a pre-existing problem of sciatica no evidence was led on behalf of the defender to that effect. That would tend to support the submissions made on the pursuer's behalf, but it may well be that the Sheriff simply found the pursuer's evidence unconvincing in the light of Professor Simpson's Report which indicated a recovery around the end of 2004. This whole area of evidence is rendered even more opaque by the terms of the Joint Minute of Admissions in terms of which Professor Simpson's Report was accepted as true and accurate with exception of the sentence which reads "I consider that she may benefit from a further course of physiotherapy to help her regain full movement (maximum of six sessions)". The implication of that must be that the suggestion that the pursuer required physiotherapy in 2005 for injuries caused in the accident was the subject of challenge. The position is not assisted by the fact that the agreement in relation to the BUPA Report states that it is to be "treated as a true and accurate copy of the pursuer's discharge form". That does not seem to me to amount to more than an agreement that the pursuer received physiotherapy in the autumn of 2005. Overall the picture presented is not one in which I could with confidence reach the conclusion that the evidence presented to me on the printed page justifies interference with the Sheriff's conclusion that it was not proved that the physiotherapy in the autumn of 2005 related to the injury sustained in the accident.

7. I accordingly turn to the second ground of appeal which relates to the amount awarded by way of solatium for the pursuer's injuries. In this respect her solicitor accepted that this was a matter in which an appellate court would not interfere with the discretion exercised at first instance "unless the sum awarded is out of all proportion to what the court thinks should have been awarded": (see Macphail Sheriff Court Practice 3^rd Ed paragraph 18 116 and the authorities cited therein). Accepting that the pursuer sustained muscular damage to her neck which resulted in four days in bed followed by neck pain which required analgesics for a further six months; inability to carry out household duties or play with her twin sons and a set back in returning to work he nevertheless contended that the figure of £1,250.00 awarded was wholly unreasonable. In reviewing a number of reported decisions on quantum on similar cases the pursuer's solicitor started with a decision of my own in Armstrong v Brake Brothers Ltd 2003 SLT 58 in which I indicated that a stiff neck resulting from whiplash injuries could be a painful and debilitating condition which justified an award of solatium of £350.00 even when it lasted only for a matter of a few days. In Pugh v Scott (2002 Rep LR 112) Sheriff Mackie in this court awarded £2,500.00 by way of solatium to a 32 year old pursuer who suffered severe pain for the first four weeks after the accident but was not off work, did not require physiotherapy and whose symptoms had fully resolved in about five months following the accident. That award, it was suggested, would with the effect of inflation be the equivalent of about £2,800.00 now. In Monaghan v Sim (Sheriff Baird, Glasgow Sheriff Court 29 September 2005) an award of £3,000.00 was made. The pursuer there had visited his GP on five occasions and physiotherapist on four occasions. He required to take painkillers for two months and suffered pain and discomfort for six months following which he made a full recovery. Lastly, in Morris v Sutherland (Sheriff Dunbar, Dunfermline Sheriff Court 3 August 2006 unreported) £2,750.00 was awarded to a pursuer who sustained injuries resulting in pain in his back and hip which lasted for about five months. These decisions it was contended all pointed to solatium for a whiplash injury which resulted in six months or so of suffering to be of the order of £2,500.00 to £3,000.00. On the basis that this was at least twice that awarded by the Sheriff it would be appropriate to intervene.

8. In reply on this issue the solicitors for the defenders submitted that the Sheriff's award fell within a proper and reasonable bracket. On any view it was not so low as to be wholly unreasonable. The figure given in the guidelines for the assessment of general damages in personal injury cases compiled by the Judicial Studies Board in England (7^th Ed 2004) gave a range of £750.00 to £2,500.00 for minor soft tissue and whiplash injuries where the symptoms were moderate and full recovery took place within a few weeks and a year. On the basis that the pursuer recovered in six months £1,250.00 would be reasonable if the award was one of general damages. In Quinn v Bowie 1987 SLT 575 the pursuer sustained a whiplash injury which required him to be fitted with a collar. The pain in the middle of his back took two to three months to pass off and he had continuing discomfort for a total period of around eight months. The award was £700.00 which would be approximately £1,400.00 now. Reference was made to D (a child) v Bernard Shenton Ltd Current Law Cases (2003) 1QR 15 in which the brief note indicates that by way of general damages £1,750.00 was awarded to a 15 year old male for symptoms of whiplash injury which took 12 months to resolve. That would now be worth slightly more than £2,000.00. £1,000.00 was awarded in Andrews v Hill (Romford County Court 21 May 2004, unreported) for whiplash injuries in which the prognosis was a recovery within seven to ten months of the accident. Reverting to Scottish cases, reliance was placed on Fairley v Thomson, a decision of Sheriff Allan in this Court on 2 September 2004. In that case it was noted that 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". It was further noted that the pursuer was unable to undertake a physical training regime which he was accustomed to and that "the whole situation" might take a number of months or even up to two years to be completely resolved. The award therein was £1,700.00. £2,250.00 was awarded by Sheriff K M Stewart in Ferguson v City Refrigeration Holdings (UK) Ltd 2005 Rep LR 117. In that case the Sheriff had observed that although the pursuer had regarded himself as being fully recovered from his injuries some seven months after the accident he still had some discomfort. It was suggested that this was a case where the symptoms were of a much longer duration than the present. Lastly, in Chambers v Forbes (Sheriff Miller, Ayr Sheriff Court 12 August 2005 unreported) an award of £2,500.00 was considered appropriate in a case where the pursuer's symptoms lasted for a year.

9. There are two general comments which I wish to make before turning to my conclusions in relation to these submissions. The first is that, whilst the older cases serve as some guide I am inclined to the view that awards for whiplash injuries may be proportionally higher than they were some years ago. This increase reflects a greater awareness of the debilitating effect of injuries of this type which, as I observed in Armstrong v Brake Brothers, can be of a most painful nature. Secondly, whilst there is no question that the approach to valuing solatium for soft tissue injuries should take into account primarily the severity of those injuries for the purposes at arriving at a position on the scale of appropriate awards, it is also necessary to take into account elements of subjectivity which arise in every case. The pursuer here was a lady who had two boisterous children to care for. It is appropriate to distinguish that from the case, for example, of a fifteen year old as in D v Bernard Shenton, although the injuries themselves may not be dissimilar. Most cases involve their own particular features, for example, in Fairley v Thomson the pursuer was very active and the injury resulted in restriction of his physical training regime.

10. Nevertheless it is important that there should be a degree of consistency in awards for injuries of a similar nature and in this respect it is very difficult to reconcile the award made by the Sheriff here with that in Pugh v Scott. In both cases the pursuer was in his/her 30s. The pursuer in Pugh was not off work. Whilst he was restricted in what he could do he had fully recovered after a period of about five months. About the most that could be said to justify the higher award in that case was that the injuries restricted his preparations for Christmas. Although the award made in Pugh does strike me as being on the high side - indeed it was at the top end of the scale suggested by the pursuer's solicitor - I do not consider that it was inconsistent with other cases. Ferguson v City Refrigeration Holdings was I consider a case very similar to the present. The period of recovery was almost exactly the same. There was only one attendance for medical treatment. Whilst the Sheriff accepted that at the date of the proof the pursuer still had "an occasional twinge in the shoulder" that does not seem to me to be far removed from the finding in the present case that the pursuer has "to all intents and purposes" recovered.

11. The Sheriff in the present case gives no particular reason for determining the figure of £1,250.00 to be appropriate, nor does he compare the circumstances with those of any of the cases cited to him. In my view an appropriate award of solatium would have been £2,250.00 which is substantially higher than that awarded and such, I consider, as to justify interference.

12. In all these circumstances I shall vary the interlocutor of 13 October by increasing the sum awarded by £1,000.00. As requested I have reserved all questions of expenses.

(signed) EFB