Scottish Sheriff Court Decisions

A340/07

 

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF

SHERIFF G J EVANS

in causa

Calum MacDonald

residing at

MRCC Forth, Fifeness, Crail, Fife, KY10 3XN

PURSUER

against

Roy Bruce

residing at

6 Hill Street, Monifieth, Dundee, Angus, DD5 4JQ

DEFENDER

 

CUPAR, 8 August 2008. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

 

1.      The parties are as designed in the instance. The pursuer is aged 49 (DOB: 6.04.59) and is employed as a coastguard.

2.      On 25 February 2007 at about 1.15pm the defender lost control of his Suzuki Baleno motor vehicle registration number V36 DSN on the A97 some three miles south of St Andrews, causing his vehicle to cross over to the wrong side of the road and collide with the offside of the Peugeot 206 motor vehicle registration number SK53 LZM being driven by the pursuer and travelling in the opposite direction approaching a bend.

3.      The defender admits on Record that he is liable to the pursuer for the loss, injury and damage sustained by the pursuer as a result of said road traffic accident.

4.      As a result of said accident, the pursuer was thrown from side to side, with his right arm hitting the dashboard and his head the door. He was wearing a seatbelt in a seat fitted with a head restraint.

5.      The pursuer suffered a whiplash injury to his neck and was left with intermittent neck pain and headaches, severe low back pain and right elbow pain, both of which took 6 weeks to settle after said accident. Bruising and a cut to the right side of his head settled in 2 weeks. The neck pain and headaches settled within 7 months of said accident.

6.      At the time of said accident, the pursuer felt shocked, shaken and in pain. Over the next 12 weeks he suffered travel anxiety with flashbacks, had low moods and felt fed up. These psychological symptoms cleared up after 12 weeks.

7.      When the pursuer contacted the accident and emergency department on the day of the accident, he was advised to rest and not to do any heavy lifting. The following day, he attended his GP and was advised that he was not seriously injured and to come back if no better. He was given a sick note and prescribed painkillers in the form of a month's supply of diclofenac.

8.      The pursuer's right arm was physically unusable and meant that he could not initially lift anything with it. He was off work for 10 days and was unable to drive at all during that time. He had problems with tiredness when he did return to work, as he worked a 12 hour shift.

9.      His activities around the house were affected. He was unable to go shopping, do housework or gardening, or walking his two Huskies. He had poor sleep for 2 weeks due to pain on his right side and he put on weight.

10.  The pursuer had previously enjoyed keeping fit by going to the gym and taking part in marathons. He had to stop both and give up marathon running for some 4 to 5 months thereafter.

11.  Seven months after said accident, the pursuer had made a full recovery.

12.  The report prepared by Doctor Mark Innes Birgin, BM, BCH, BA and dated 9 June 2007, forming No 5/1 of Process, is an accurate record of the facts contained therein and of the examination of the pursuer carried out by said Doctor Birgin on 2 June 2007 and of his opinion and prognosis thereon.

 

FINDS-IN-FACT-AND-IN-LAW:-

 

1.       The defender is liable to the pursuer for any loss, injury and damage sustained by him as a result of said accident.

2.       The amount of solatium suffered by the pursuer is reasonably estimated at £2,600 with all the pain and suffering attributable to the past.

 

Sustains the second and third pleas-in-law for the pursuer to the extend awarded; Repels the second and third pleas-in-law for the defender to the extend awarded; accordingly Grants Decree for payment by the defender to the pursuer of the sum of £2,600 with interest thereon at 4 per centum per annum from the date of said accident, viz 25 February 2007 to the date of full recovery, viz 25 September 2007 and thereafter at the full judicial rate of 8 per centum per annum until payment; Reserves meantime the question of expenses and Fixes 19 September 2008 at 10.00am as a hearing thereon.

 

 

 

 

 

Sheriff

 

NOTE:-

 

This was a proof on quantum arising out of a road traffic accident in which the only evidence there was came from the pursuer, his medical report from Doctor Birgin (vide No 5/1 of Process) having been the subject of an unanswered notice to admit (vide No 5/10 of Process). Mr Barber, Solicitor, Glasgow appeared for the pursuer and Mr Dyer, Solicitor, Glasgow for the defender. Both agents invited me to dispense with the necessity for a shorthand writer and I agreed to do so. As there was no attack on the credibility and reliability of the pursuer's evidence, I have made Findings-in-Fact that combine his evidence with the information contained in the medical report.

 

SUBMISSIONS FOR PURSUER

 

Mr Barber sought an award for solatium of £2,750 with interest, which was agreed with Mr Dyer would run on any award from the date of the accident to the date of cessation of symptoms at half the judicial rate and at the full judicial rate thereafter. Mr Barber tendered a number of cases for my consideration which gave an indication of the band of awards for injuries of similar scope and nature. These were:-

 

1.      Pugh v Scott, Edinburgh Sheriff Court 20^th May 2002 (£2,600)

2.      Symington v Milne, Edinburgh Sheriff Court 4^th May 2007 (£2,250)

3.      Spencer v Baron, Edinburgh Sheriff Court 4^th February 2008 (£3,500)

4.      Moir v Wilson, Kilmarnock Sheriff Court 1^st July 2002 (£3,000)

 

The modern approach to this type of case was to be found in the decision of the Sheriff Principal (Bowen) in Symington v Milne supra:-

 

"... 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 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." (vide paragraph 8 at page 5)

 

SUBMISSIONS FOR DEFENDER

 

Mr Dyer pointed out that the pursuer's medical report made no mention of him having ever made a second visit to his GP. He did not require physiotherapy or counselling. He had hired a car and been able to travel by car after the accident. On examination by the doctor which was carried out on 2 June 2007, there was mild tenderness in the various areas highlighted in the report at paragraph 7. The impact in the instant case had not been a severe one and did not merit the range of award sought by Mr Barber. I was referred to the following cases:-

 

1.      Quinn v Bowie (No 1) Court of Session, 1 April 1987 (current value of award = £1,479)

2.      Fairley v Thomson, Edinburgh Sheriff Court, 2 September 2004 (CVA = £1,944)

3.      Akhtar v McGeever, Birmingham County Court, 19 February 2007 (CVA = £2,000)

4.      Suliman v Balmer, Edinburgh Sheriff Court, 19 March 2003 (CVA = £1,972)

5.      Hibbert v Dean, Manchester County Court, 4 December 2007 (CVA = £2,394)

6.      Fraser v Chester, Salford County Court, 19 February 2007 (CVA = £2,118)

7.      Sharp v Watt, Linlithgow Sheriff Court, 19 March 2008 (CVA = £2,250)

 

The last case cited was for injuries that took almost a year to resolve and thus a more appropriate award of damages in the instant case would be in the region of £1,600 to £1,700.

 

DECISION

 

The salient features of the pursuer's injuries were that they affected both his neck, back and right elbow. The pain and discomfort for the back and right elbow resolved after 6 weeks and the neck pain and associated headaches took 7 months to resolve. He also had psychological symptoms associated with travel for 12 weeks. The only treatment he received was to be prescribed painkillers for a month and there was no hospitalisation or physiotherapy. He was, however, off work for 10 days and could not drive. A hire car was used by his wife to collect him but he personally did not drive. He could not lift anything with his right arm and this affected his activities round the home and outside in not being able to do any housework, gardening or walking his dogs. His hobbies were keeping fit and running marathons and he could not do either for some 4 to 5 months. After 7 months he did however have a full recovery.

 

The group of previous decisions on similar injuries cited on behalf of the pursuer appear to me to be mutually consistent and to provide the safest guidance on the appropriate level of award. They show, to my mind, that the expected range of award for such injuries which have required anything from 5 to 7 months to fully resolve should be between £2,250 to £3,000, depending on the individual circumstances. The three English authorities cited for the defender, while comparable on their facts, bring out a different yardstick, viz similar injuries which take up to 10 to 12 months before recovery should expect an award between £2,000 and £2,400. That is too low to be in line with the pre-dominance of cases in Scotland and falls to be rejected. In my view, the yardstick is Sheriff Principal Bowen's persuasive decision in Symington supra which not only takes into account some of the authorities relied on by the defender (viz Quinn v Bowie and Fairley v Thomson supra) but also a similar Scottish case not cited for the defender, viz Ferguson v City Refridgeration Holdings (UK) Limited (vide McEwan and Paton CN5-07H), to which I would add the additional case of Lindsay v Walker (vide McEwan and Paton ibid CN5-07H. This whole range of cases would justify an award of at least £2,500 in this case. The case of Sharp v Watt, which is a 2008 case and is thus recent enough to take into account the case of Symington and indeed purports to follow the same, appears to favour a lower range than that cited above as, discounting the £250 awarded for anxiety over lumps on the breast, it only awarded the sum of £2,000 to a woman whose symptoms had fully resolved after 11 months from the accident. That of course is longer than the period in the instant case. In that case, however, the range of injuries involved only bruising and neck pain. The range of injuries in the instant case is far wider. The pain was not just in the neck but radiated out to the back and there was also pain in the right hand, which disabled the pursuer from lifting anything for a time. On top of all these physical injuries the pursuer in the instant case had considerable psychological symptoms for a full 12 weeks. His hobbies too were fairly physical ones and the effect on them has also to be taken into account. Taking all these factors into account as against the various cases cited by each side, I would fix a reasonable award of solatium as being £2,600. Interest, as agreed, will be awarded on that at half the judicial rate from the date of accident until the symptoms resolve and thereafter at the full judicial rate. I have reserved the question of expenses to a future hearing.