Scottish Sheriff Court Decisions

Case Reference No: A1524/07

 

 

 

JUDGMENT OF SHERIFF FIONA LENNOX REITH, Queen's Counsel

 

in the cause

 

MONTGOMERY STEVEN, 29 Tenth Street, Newtongrange, Midlothian,

 

PURSUER

 

against

 

DIRECT LINE INSURANCE plc, a company incorporated under the Companies Acts and having a place of business at 14-18 Cadogan Street, Glasgow, G2 6QN,

 

DEFENDERS

 

 

 

Act: Love, Digby Brown, Solicitors, Glasgow

Alt: Kelly, Harper Macleod, Solicitors, Glasgow

 

 

 

EDINBURGH, 14^th December 2007

 

The Sheriff, having resumed consideration of the cause, finds in fact:

 

1. The pursuer resides at 29 Tenth Street, Newtongrange, Midlothian. He is 62 years of age. He is employed as a roads inspector by Edinburgh City Council.

 

2. The defenders are a company incorporated under the Companies Acts and have a place of business at 14/18 Cadogan Street, Glasgow.

 

3. On or about 10 November 2005 the defenders were the insurers in terms of the Road Traffic Act 1988 for Renault Scenic motor vehicle, registration number X795 FPO owned and driven by Mr F Stark. The defenders are directly liable to the extent that Mr Stark is liable to the pursuer.

 

4. On or about 10 November 2005 at about 11.00 am the pursuer was driving Volkswagen Passat motor vehicle, registration number SC54 GJY. He was driving in a westerly direction along Telford Road, Edinburgh. Said road has two lanes running in either direction. The pursuer was in the offside lane as he approached the junction with Groathill Avenue. The junction was controlled by traffic signals. The pursuer was faced with a red light, so brought his vehicle to a standstill. As the pursuer was in a stationary position suddenly, and without warning, it was struck from behind by said Renault Scenic motor vehicle driven by Mr Stark. The pursuer had no opportunity to avoid the collision. The pursuer was wearing a seat belt at the material time.

 

5. Mr Stark failed in the exercise of reasonable care to keep a proper lookout ahead of him, to keep his vehicle under proper control and to drive his vehicle at a speed commensurate with the road layout and conditions. He failed in the exercise of reasonable care to leave sufficient distance between himself and the vehicle in front, namely that in which the pursuer was travelling, to allow him to stop should he be required to do so. He failed in the exercise of reasonable care not to collide with the vehicle in which the pursuer was travelling in front of him. By his failures he caused the said accident. But for his failures the accident would not have occurred.

 

6. The pursuer was shocked as a result of the said accident. As the shock wore off later that day he began to develop pain and stiffness in his upper back, neck, chest and shoulder area (principally the left shoulder area). He took Paracetamol for pain relief. His symptoms were worse by the next day. He also developed an area of visible bruising over his upper chest. This bruising settled spontaneously over one week and the chest discomfort resolved at two weeks.

 

7. The pursuer continued to attend work as usual. His work involved walking and driving. He found it uncomfortable to get into and out of the car. He also found it uncomfortable to drive and when making movements of his head, such as when trying to turn his head when driving.

 

8. As a result of persisting pain and stiffness in his neck and upper back the pursuer attended his GP, Dr Scales, Gorebridge Group Practice, 15 Hunterfield Road, Gorebridge, Edinburgh on 17 November 2005. His GP recorded that the pursuer was complaining of left shoulder and neck pain, that he had experienced no pain at the time of the accident, that ten hours after the accident he had been aware of his neck being stiff, with pain on moving which had got worse and that it hurt to cough. His GP also noted that on examination there was no spinal tenderness, that the pursuer had a full range of movement of his neck but pain on hyperextension. The GP also noted that the pursuer was tender in the left upper trapezius just above the scapulae, which was the side of pain. The diagnosis was of muscular injury and Paracetamol was prescribed.

 

9. The pursuer experienced ongoing pain in his neck and upper back for four to five weeks after the said accident. His symptoms thereafter gradually settled and had fully resolved by three months after the said accident. The pursuer required to take Paracetamol analgesia for about four weeks following said accident.

 

10. On 23 November 2006 the pursuer was examined by Mr David Steedman, BSc, MBChB, MD, FRCS, FRCPE, FCEM, Consultant in Accident and Emergency Medicine and Surgery at Edinburgh Royal Infirmary, as a result of which he prepared a written Report No 5/1 of process. Mr Steedman concluded that the pursuer had sustained, first, a soft tissue injury to his neck from a whiplash distortion and, second, soft tissue bruising to his chest from the seat belt restraint. However, Mr Steedman found that as at 23 November 2006 the pursuer remained asymtomatic with no abnormal clinical findings.

 

11. As a result of the said accident, when driving the pursuer became anxious about cars approaching from the rear. When examined by Mr Steedman he was still anxious and hyper-vigilant when driving, particularly for cars approaching from the rear. However, he did not experience any nightmares or flashbacks or other significant stress symptoms. The pursuer does not now experience his anxiety to the extent that he did immediately after the said accident. He has not required to seek medical treatment or attention for this at any stage.

 

12. The pursuer enjoys playing indoor and outdoor bowls. He played indoor bowls twice a week prior to the said accident. As a result of the said accident he stopped playing bowls for three to four weeks. The pursuer also enjoys pheasant shooting. He went shooting once a week prior to the said accident. He stopped pheasant shooting for four weeks as a result of the said accident. He had been a bit apprehensive at first when returning to pheasant shooting. However, he fully recovered his pre-accident ability, free from any discomfort, to play bowls and to go shooting by early February. By this time the pheasant shooting season, which had ended on 31 January 2006, had been replaced by clay pigeon shooting.

 

Finds in Fact and in Law:

 

1. That the accident to the pursuer was caused by the fault and negligence of Mr F Stark for which the defenders are directly liable to the pursuer.

 

2. That the pursuer having sustained loss, injury and damage thereby is entitled to reparation therefor from the defenders.

 

Therefore sustains the first and second pleas-in-law for the pursuer to the extent of ONE THOUSAND SIX HUNDRED POUNDS (£1,600.00) STERLING and quoad ultra repels the parties pleas-in-law; grants decree for payment by the defenders to the pursuer of the sum of ONE THOUSAND SIX HUNDRED POUNDS (£1,600.00) STERLING, with interest thereon at the rate of 4 per cent a year from 10 November 2005 until 10 February 2006 and at the rate of 8 per cent a year from 11 February 2006 until payment; reserves meantime all questions of expenses and appoints parties to be heard thereon on 11 February 2008 at 9.45 am within the Sheriff Court House, 27 Chambers Street, Edinburgh.

 

NOTE:

 

1. In this action for damages the pursuer seeks reparation for injuries he suffered in a road traffic accident. The case came before me for proof on 26 November 2007. Liability had been admitted. Proof was accordingly restricted to the question of quantum.

 

2. The pursuer gave evidence on his own behalf. A Joint Minute had also been entered into between the parties in terms of which it was agreed that a medical report No 5/1 of process, prepared by Mr David Steedman, Consultant in Accident and Emergency Medicine dated 24 November 2006, represented his evidence and was to be held as constituting a full proof as to the nature and extent of the injuries sustained by the pursuer and his treatment and prognosis. No evidence was led on behalf of the defenders.

 

3. The evidence led for and on behalf of the pursuer, including the agreed medical report, was not challenged by the defenders in any negative sense. Cross-examination was limited to what was in effect clarification of certain matters. In particular, it was not suggested that the pursuer was other than a credible and reliable witness. Having seen and heard the pursuer myself in evidence I am satisfied that he was an entirely credible and reliable witness whose evidence I had no hesitation in accepting. He gave his evidence in an entirely straightforward and restrained manner without any element of exaggeration. Although it is plain that the pursuer experienced pain and discomfort to the extent of requiring to take Paracetamol analgesia for four weeks following the accident he did not take any time off work. He explained that this was just the sort of person he was. His attitude had been that the accident had been "just one of those things". All of the findings in fact have been made on the basis of the pursuer's evidence and the medical report on the basis agreed between the parties, all against the background of the admitted position on Record. I therefore do not propose to repeat the evidence.

 

4. For the purposes of this Note, it is sufficient to record that my principal findings were to the following effect:

 

(a) that the pursuer experienced initial shock immediately following the accident;

 

(b) that after this wore off later in the day the pursuer began to develop pain and stiffness in his upper back, neck, chest and shoulder area;

 

(c) that the pursuer also developed an area of visible bruising on his upper chest. This settled in one week and the chest discomfort resolved at two weeks;

 

(d) that the pursuer continued to attend work but found it uncomfortable to get into and out of his car and uncomfortable to drive when making movements of his head;

 

(e) that as a result of persisting pain and stiffness in his neck and upper back he attended his GP on 17 November 2005;

 

(f) that the pursuer experienced ongoing pain in his neck and upper back for four to five weeks after the accident and that his symptoms thereafter gradually settled and had fully resolved by three months after the accident;

 

(g) that the pursuer required to take Paracetamol analgesia for about four weeks following the accident;

 

(h) that by 23 November 2006 when the pursuer was examined by Mr Steedman the pursuer remained asymtomatic with no abnormal clinical findings;

 

(i) that as a result of the accident the pursuer became anxious about cars approaching from the rear when he was in a car. The pursuer experienced this worst immediately after the said accident. He remained anxious and hyper-vigilant when driving, particularly for cars approaching from the rear, when examined by Mr Steedman on 23 November 2006. When this was explored with the pursuer in evidence in chief, he responded: "I don't think it ever leaves you". However, he went on to explain that although he still experienced anxiety about this it was not to the extent he had experienced immediately after the accident. He confirmed that he had not required to see his General Practitioner about this particular issue;

 

(j) that the pursuer had to stop playing bowls for three to four weeks following the accident;

 

(k) that the pursuer had to stop pheasant shooting for four weeks following the accident;

 

(l) that by early February 2006 the pursuer had fully recovered his pre-accident ability, free from any discomfort, to play bowls and to go shooting.

 

5. Mr Love, on behalf of the pursuer, invited me to assess solatium in the region from £1,750.00 to £2,000.00, all to the past, with interest at half the judicial rate from 10 November 2005 until 10 February 2006 and thereafter at the full judicial rate until payment.

 

6. I was referred by Mr Love to the following cases in support of his position:

 

Amanda Doyle -v- Timothy McCandliss, Ayr Sheriff Court, 22 November 2004;

Alexander Dingwall -v- Hilda Todd, Inverness Sheriff Court, 24 March 2006;

Emma Bodey -v- Michael O'Hogg, Inverness Sheriff Court, 5 May 2005;

Paul Pugh -v- Anita Scott, Edinburgh Sheriff Court, 20 May 2002;

Nicola Easton -v- Mr G Smith, Perth Sheriff Court, 9 July 2002; and

Michelle Laytham -v- Timinh Wong, Canterbury County Court, 14 August 2001.

 

7. Both parties were agreed that proper account should be taken of changes in the value of money and that the appropriate multipliers were to be found in the inflation table in Kemp and Kemp: The Quantum of Damages.

 

8. Mr Love submitted that the pursuer should not be penalised simply because he was the type of person who got on with his job without taking time off work following the accident.

 

9. Mr Kelly, on behalf of the defenders, invited me to assess solatium in the sum of £1,200.00. He agreed with Mr Love's submissions on the question of interest. He also very fairly accepted that it would not be appropriate to penalise the pursuer simply because he had continued to attend work. I was however quite properly reminded that the pursuer had not required any medical treatment or assistance in relation to the anxiety about which he had spoken in evidence.

 

10. I was referred by Mr Kelly to the following cases in support of the defenders' position:

 

Kathleen Hutton -v- Simon Jack, 19 December 2006, Hamilton Sheriff Court;

Steven Yuill -v- Nicola Ritchie, 15 June 2005, Dunfermline Sheriff Court;

Choudhury -v- Rashid, [2006] 4 CL 308; and

Cucchi -v- Gibber & Capital Garden Landscapes, [2006] 5 CL 466

 

11. Each case requires to be considered on the basis of its own facts and circumstances. Unsurprisingly, none of the cases to which I was referred was entirely in point with the facts and circumstances of the present case. However, I was grateful to both Mr Love and to Mr Kelly for their careful submissions and for referring to me the cases mentioned above for general guidance.

 

 

12. As has often been observed, the proper approach in assessing solatium is to make an award that will represent, and will generally be regarded as, reasonable compensation to a pursuer for the loss suffered as a result of the accident in question. Previous awards may be of some assistance, but it is rare for the facts and circumstances of a given case to be entirely in point with those in another case.

 

13. In my opinion, on the basis of the evidence I have accepted, I consider that solatium is fairly assessed in this case at a figure of £1,600.00. I agree with the approach suggested by both Mr Love and Mr Kelly in relation to the question of interest.

 

14. In these circumstances, and for all of these reasons, I have sustained the pursuer's first and second pleas-in-law to the extent of £1,600.00. The question of expenses has been reserved as requested by both parties. The question of certification of any expert witnesses can also be addressed at that stage.