Scottish Sheriff Court Decisions

SHERIFFDOM OF NORTH STRATHCLYDE AT PAISLEY

 

ROBERT MacFARLANE PURSUER

Against

ANDREW SAMUEL DEFENDER

Case No. A501/07

 

 

Paisley, September 2007

 

The Sheriff, having resumed consideration of the Cause, Finds in Fact:-

1. The Pursuer is Robert MacFarlane. He resides at 2 Woodlea Lane, Greenock. He is a Project manager. He is 52 years old.
2. The Defender is Andrew Samuel. He resides at 19 St Andrews Drive, Gourock.
3. The Pursuer and Defender were involved in a road traffic accident which occurred on the M8 eastbound slip road to Glasgow Airport. This Court has jurisdiction.
4. On 3^rd April 2006 at about 0810am the Pursuer was driving his motor vehicle Registration Number KN03 KVP eastwards on the M8 motorway near Glasgow Airport. He entered the slip road leading to the airport. He brought his vehicle to a halt.
5. The Defender was driving his motor vehicle Registration Number M11 AIS on the same slip road, in the same direction at the same time, behind the Pursuer. He failed to bring his vehicle to a halt timeously and collided with the rear of the Pursuer's stationary vehicle.
6. After exchanging details the Pursuer drove to the airport and departed on a flight to Southampton on business. As the day progressed he became aware of pain and stiffness in his neck and discomfort in his back.
7. A week after the accident he presented at the Accident and Emergency Department of Inverclyde General Hospital. He was seen, examined and discharged with analgesia.
8. In the next three weeks he suffered moderate pain in the neck which gradually resolved. By the stage of two months post accident the pain and stiffness in his neck had resolved without any further treatment or physiotherapy.
9. The back symptoms continued to deteriorate. The discomfort worsened to continuous moderate pain. The symptoms were worst in the morning, easing off after a couple of hours of movement.
10. In August 2006 he attended his General Practitioner who prescribed pain killers.
11. By October 2006 the symptoms were not improving. His General Practitioner referred him to a Consultant Orthopaedic Surgeon, Mr Di Paolo. He was referred for an MRI scan. A course of physiotherapy was then prescribed which took place on 10 occasions between January and May 2007. The Pursuer also took prescribed pain killers.
12. The course of physiotherapy greatly improved the mobility and pain in the mornings. This resolved by April 2007. The Pursuer continues to take painkillers. A sciatic pain which occurs after standing or walking for a short time remains.
13. As a result of the injuries the Pursuer was not absent from work. Part of his work involves working from home, part travelling and attending meetings.
14. The Pursuer's evening social activities are not adversely affected.
15. Prior to the accident the Pursuer played golf two or three times a week. Since the accident and due to the restriction in his ability to walk distances he is unable to play a full round of golf. He has joined a gym to perform strengthening exercises which assist.
16. As a result of the accident the Pursuer suffered inconvenience.
17. Medical report Number 5/1 of Process is a report by Mr G R Tait, FRCS. It contains a true and accurate account of the nature and extent of the symptoms from which the Pursuer was suffering when examined by Gavin Tait on 13^th November 2006 and of the prognosis.

 

Finds in Fact and Law:-

1. The accident was caused by the fault and negligence of the Defender.
2. The Pursuer has suffered loss injury and damage as a result.

 

THEREFORE Sustains the Pleas in Law for the Pursuer and Repels the Pleas in Law for the Defender; Grants Decree against the Defender for payment to the Pursuer of the sum of THREE THOUSAND FIVE HUNDRED AND FIFTY POUNDS ( £3550 ) STERLING, with interest thereon at the rate of four per centum per annum from 3^rd April 2006 to date and from the date hereof until payment at the rate of eight per centum per annum; Certifies Gavin Tait, Consultant Orthopaedic Surgeon as an expert witness; Finds the Defender liable to the Pursuer in the expenses of the action; Allows an account thereof to be submitted and Remits same, when lodged, to the Auditor of Court to Tax and Report; and Decerns

 

 

NOTE

 

After sundry procedure this case called for proof before me on 11^th September 2007. The Pursuer was represented by Ms Robertson and the Defender by Mr Kelly.

 

Evidence was led from the Pursuer alone. There was a Joint Minute agreeing the Medical Report prepared by Mr Tait.

 

In the course of submissions I was referred to the following authorities:-

1. Fyfe v Kennet Ltd , Edinburgh Sheriff Court, 7^th January 2004 (unreported)
2. Morris v Sutherland, Dunfermline Sheriff Court, 3^rd August 2006 (unreported)
3. McGuire v Nicholson, Stonehaven Sheriff Court, 6^th November 2002 (unreported0
4. Brown v Forsyth and the MIB, Aberdeen Sheriff Court, 17^th August 2001 (unreported)
5. Urquhart v Coakely Bus Company Limited, Hamilton Sheriff Court, 2^nd June 2000 (unreported)
6. Conway v Wood, Kirkcaldy Sheriff Court, 26^th October 2001 (unreported)
7. Fairley v Thomson 2004 GWD 28-591
8. Young v Churchill Insurance Co ltd, Glasgow Sheriff Court, 12^th December 2005 (unreported)
9. Clements v Cassie, Hamilton Sheriff Court, February 2007 (unreported)

 

The Defender admitted liability to make reparation to the Pursuer in respect of the injuries arising from the road traffic accident on 3^rd April 2006. Proof was therefore restricted to the question of quantum. The only real area of dispute was the level of award to be made .There was a submission that the current sciatic pain might not be referable to the accident.

 

Parties had agreed the evidence of Gavin Tait, Consultant Orthopaedic Surgeon by Joint Minute.

 

Accordingly the only evidence led was that of the Pursuer himself.

 

The Pursuer's evidence was measured, straightforward and not exaggerated. He narrated the circumstances of the accident in a concise and clear manner. I formed the impression that he had taken every step possible to minimise the inconvenience of the accident and the resultant injuries. He had attended appropriately at his General Practitioner and the Consultant to whom he was referred. He had taken the medical advice tendered. He had fully co-operated with treatment and had around ten sessions of physiotherapy. He had joined a gym to enable him to continue to carry out the strengthening exercises recommended by the physiotherapist.

 

The Findings in Fact reflect the evidence he gave which I accepted.

 

The only area of slight dispute was in relation to the sciatic pain currently felt by the Pursuer which comes on after standing or walking and inhibits his ability to play a full round of golf. I have no difficulty in accepting as truthful the Pursuer's evidence that he suffers this pain. The Defender's Agent argued that the Court could not be satisfied on the Pursuer's evidence alone that this pain was referable to the accident. The Pursuer himself had clearly related the neck pain to the accident and accepted the Doctor's advice that the back pain was also referable to the accident.

 

The Defender's accept that the back pain which was resolved by the physiotherapy was related to the accident. On a balance of probabilities and given that prior to the accident the Pursuer did not have back pain or problems I am satisfied that the current sciatic pain which comes on after standing or walking is related to the accident. It followed on seamlessly after the back pain which was present was resolved by physiotherapy. The Pursuer said that his Consultant had advised that the physiotherapy had solved the low back pain but would not assist the sciatic pain.

 

The difficulty which I have is in assessing the prognosis in relation to this pain. Parties had agreed the evidence of Mt Tait which related to an examination in November 2006. At that time the back pain suffered by the Pursuer had not been treated by physiotherapy. The prognosis was for a gradual and full recovery by the time of the anniversary of the accident in April 2007.

 

I accept the Pursuer's evidence that he has been told that the initial back pain has resolved and that this sciatic pain is not treatable by physiotherapy. I am not clear from his evidence as to the prognosis for this residual problem. I am clear that the Pursuer is not exaggerating his difficulties and is doing everything possible to resolve it and not to let it interfere with his life. I take the view that the Pursuer is entitled to reparation for the full extent of his difficulties and on the basis that the prognosis in Mr Tait's report was optimistic. I have assumed that the residual sciatic pain will resolve in early course.

 

In making submissions both Agents gave detailed assessments of quantum with reference to authority.

 

Ms Robertson informed me that it was agreed that in addition to solatium the Pursuer was to be awarded the sum of £50 in respect of the inconvenience caused by the accident.

 

In relation to quantum and with reference to the cases of Fyfe, Morris, McGuire, Brown, Urquhart and Conway all supra she argued that the appropriate level of award for solatium was £3600. This figure was to include an element for the sciatic back pain. Conway, Urquhart and McGuire supra were all said to be close to this one in terms of facts and applying the RPI inflation factor, in award. The awards in these case were £3000 (updated value £3550) in Conway; £3000 (updated £3650) in Urquhart; and £3000 (updated £3480) in McGuire.

 

Based on those cases she assessed solatium at £3600. In addition she sought interest at 4% from the date of the accident to date and at 8% from decree until payment. She also sought the expenses of the action.

 

Mr Kelly argued that the award of solatium should be based on Mr Tait's Report and that the late onset sciatica could not be related in fact to the accident. On that basis he valued solatium at £2000. He agreed with the appropriate rates of interest to be awarded and that expenses should follow success.

 

In discussing the authorities he sought to distinguish Urquhart supra on the basis that the pursuer in that case was a much younger man who had a number of activities restricted by the pain associated with the injury.

 

He also sought to distinguish Brown supra because extreme limitation for a short period was reflected in the award. There was also a damaged disc which was not accident related.

 

Mr Kelly then referred to the cases of Fairly, Young and Clement supra as authority for the proposition that the appropriate level of award is £2000. He submitted that the injuries and consequences were similar to the cases of Fairly and Young supra and that they provided the best indicators of the appropriate level of award.

 

 

DECISION

 

In assessing solatium, I have taken account of the description of injury given by the Pursuer in evidence and also contained in Mr Tait's Report. The Pursuer sustained a moderate whiplash injury which persisted for a month followed by a further month of minor whiplash injury. During this time he also suffered a discomfort in his back. By the time the whiplash resolved the back pain escalated to moderate. That lasted until around April 2007, a period of around ten months. Thereafter the Pursuer still suffers a sciatic pain brought on by standing or walking for prolonged periods.

 

During the course of his recovery the Pursuer did not require to take time off work. His social activities were relatively unaffected. However his ability to play a full round of golf was compromised. By the date of Proof in September 2007 he was still unable to complete a full round. I have no evidence to enable me to ascertain how long this restriction is likely to continue.

 

Mr Tait's prognosis in relation to the neck pain which had resolved and the back pain from which the Pursuer was suffering when examined by him was accurate. The sciatic pain does not have a prognosis. The valuation proceeds on the basis of the Pursuer's testimony about it, which I accept. There is no evidence other than that about the sciatic pain. I am satisfied that it is accident related and that further physiotherapy will not assist it.

 

I found the cases of Urquhart, McGuire and Conway supra to be most helpful.

 

Although the Pursuer in Urquhart supra was considerably younger, his pain lasted around three months with continuing symptoms on exertion for around a year post accident. Urquhart had to forgo a holiday and could not play the guitar for some months. I consider that to be similar to the instant case where the intermittent pain has lasted well beyond one year post accident.

 

In McGuire supra the Pursuer was expected to make a full recovery in six months. The Court accepted that some 10 months post accident she suffered intermittent pain on standing walking and ironing. Again the Pursuer in this case suffers continuing intermittent pain some 17 months post accident. I consider his injuries to be no less serious than those suffered by McGuire.

 

In Conway supra the Pursuer believed he was 99% recovered after 17 months. His residual symptoms were not dissimilar to those suffered by the Pursuer in this case. He too had given up playing sports including golf.

 

I took the view that the authorities quoted by the Defender's Agent in support of his valuation involved cases where the injuries and lasting effects were less serious than those in this case. .

 

Taking account of the authorities to which I was referred I assess solatium at £3500. To that figure is added £50 for inconvenience. Interest at 4% runs from 3^rd April 2006 and at 8% from decree until payment. I have certified Mr Tait as an expert witness. Since parties were agreed that expenses should follow success I have awarded those to the Pursuer.