Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT LINLITHGOW

A1520/07

JUDGEMENT BY SHERIFF DOUGLAS A KINLOCH, ADVOCATE

SHERIFF OF LOTHIAN AND BORDERS

in the cause

Mrs Lynette Valentine, residing at 8 Honeyman Court, Armadale, Bathgate

Pursuers

against

Mr Mark McGinty, residing at 13 Falside Terrace, Bathgate

Defender

Linlithgow May 2008

The Sheriff, having resumed consideration of the cause,

FINDS IN FACT

1.           The pursuer is Mrs Lynette Valentine. She resides at , Armadale, Bathgate. She is 38 years old. She works as a communications officer with West Lothian Council.

2.           The defender is Mark McGinty. He resides at Bathgate.

3.           On or about 6 October 2006 the pursuer was injured in a road traffic accident as a result of the fault and negligence of the defender.

4.           About 10 or 15 minutes after the said accident the pursuer experienced pain in her neck. She was taken St Johns' Hospital, Livingston, where a whiplash injury was diagnosed and she was prescribed painkillers.

5.           For a period of about three weeks after the accident the pursuer experienced pain which required her to take painkillers every four hours. Thereafter, for a further period of about five weeks the pursuer experienced pain which required her to take painkillers first thing in the morning and when required during the day. The pain was mainly at the bottom of her neck.

6.           Over the following five months the pursuer's pain gradually subsided. By the time the pursuer saw Professor Court-Brown in May 2007 she was experiencing some pain on some mornings, but was mostly pain free. By the time she saw Professor Court-Brown she was taking painkillers occasionally as necessary.

7.           By, at latest, one year after the accident the pursuer was entirely pain free.

8.           For a period of three to four weeks after the accident the pursuer had to rely on her husband to help with domestic tasks such as hoovering and looking after her children.

9.           For a period of two to three months after the accident the pursuer was unable to participate in her hobby of aerobics.

10.       The injuries sustained by the pursuer in said accident, and the prognosis in respect thereof, are as set out in a medical report by a Professor Court-Brown which is lodged as Production No. 1 of the pursuer's First Inventory of Productions.

FINDS IN FACT AND IN LAW

1.                 That the pursuer, having sustained injury and damage which was caused by the fault and negligence of the defender, she is entitled to reparation therefor from the defender.

THEREFORE, sustains the pursuer's first plea in law, sustains the defender's first plea in law; decerns against the defender for payment to the pursuer of the sum of TWO THOUSAND TWO HUNDRED AND FIFTY POUNDS (£2,250.00) STERLING, with interest thereon at four per cent per annum from 6 October 2006 until 6 October 2007, and thereafter at eight per cent per annum until payment; reserves meantime all question of expenses, and appoints parties to be heard thereon on at within Linlithgow Sheriff Court.

NOTE:

[1] This is an action of damages which arises out of a road traffic accident which took place on 6 October 2006 on the A89 road near to Bathgate. The defender admits liability for the accident and the circumstances in which the pursuer was injured were not therefore explored before me, but the pursuer briefly explained in her evidence that she was stationary in traffic when the defender's car hit her from behind, pushing her car into the car in front.

[2] The pursuer has lodged in process a medical report from Professor Court-Brown, Professor of Orthopaedic Trauma, at the Royal Infirmary of Edinburgh which is dated 21 May 2007. In relation to this medical report the pursuer lodged a Notice to Admit in terms of Ordinary Cause Rule 29.14 to the effect that the medical report is "an accurate representation of the injuries sustained by and prognosis of the pursuer". The defender did not respond to the Notice to Admit, with the effect under subparagraph (3) of the rule that he is "deemed to have admitted the fact ... specified in the notice" This deemed admission gave rise to a preliminary submission made by the defender at the commencement of the proof, which I have to confess I found somewhat surprising.

[3] It was argued that the effect of the Notice to Admit when taken together with the fact that there was no notice of Non-admission was the same as a Joint Minute of Admissions, namely to exclude all other or additional evidence regarding the facts which had been agreed. As the only issue in the case (liability having been admitted) was the appropriate level of damages for solatium in respect of the pursuer's injuries, and as her injuries had been agreed, there was simply nothing about which the pursuer could competently give evidence. It was argued that in these circumstances I could not hear at all from the pursuer in evidence as this would be extrinsic evidence which was excluded.

[4] It respectfully seems to me that the defender's argument was misconceived, and I had little difficulty in rejecting it.

[5] In Macphail, Sheriff Court Practice, 3^rd Edition, para 16.28, it is suggested that a Joint Minute of Admissions constitutes a contract whereby the parties accept as true the facts stated therein, and the effect of this is that, unless the contrary appears, it excludes all other or additional evidence upon the matters contained in it. The authority for these propositions is given by the author to be found in Stair and Erskine, and also in the cases of Scottish Marine Insurance Company v Turner (1853) 1 Macq 334, B Carswell & Son v Finlay (1887) 24 SLR 643; Bowers v Strathclyde Regional Council (1981) SLT 122; Lewis, Evidence, page 15, Thomson and Middleton, page 401. None of these cases or text books was produced to me, but I have no difficulty in accepting as accurate the statement in Macphail which accords with my own understanding of the law.

[6] I can readily accept also that the effect of a Notice to Admit under OCR 29.14 which is not challenged is equivalent to a Joint Minute of Admissions. As mentioned above, under the rule a party who is called upon to admit for the purposes of a particular cause any facts relating to an issue averred in the pleadings, and who does not admit such a fact, "shall be deemed to have admitted the fact". This, it seems to me, achieves just the same effect as a contractual Joint Minute of Admissions.

[7] It is therefore correct, as I see it, that the Notice to Admit has excluded all other or additional evidence upon the matters contained in it. However, and this is the crucial point, the Notice to Admit in this case has simply resulted in an admission that the medical report contains "an accurate representation of the injuries sustained by and the prognosis of the pursuer". In other words, the deemed admission only relates to the medical evidence. While all other evidence regarding these particular matters, that is to say, her injuries and prognosis, has been excluded, that, in my view, is the extent of the admission.

[8] So, while it would not have been open to the pursuer to seek to lead evidence from herself, or on her behalf, to the effect that she had sustained other than a whiplash injury as diagnosed by Professor Court-Brown, it was my view that it was competent for me to hear from the pursuer regarding any other matters not directly concerned with her injuries or prognosis, subject of course to the defender having been given fair notice by way of averments regarding these.

[9] I would comment that it would be a very strange result indeed if agreement as to medical evidence regarding the nature of injuries sustained prevented a court from hearing anything at all from the pursuer as to, for instance, how these injuries affected her, or whether she had to take time off work, whether she required help in the house, or other matters not covered by the deemed admission. There are very many cases indeed involving personal injuries where there is agreement as to medical evidence, but I have never heard it suggested that such agreement excludes the pursuer's evidence altogether regarding the effect of the injuries or about other matters.

[10] I accordingly repelled the defender's submission.

Evidence

[11] As liability for the accident was admitted, and as the nature of the pursuer's injuries and her prognosis were also admitted, the evidence at the Proof was very brief, and there was no challenge to the pursuer's credibility. I accordingly accept her evidence as credible and reliable.

[12] The pursuer's injuries and the effect thereof are as set out by me in the findings in fact. I would mention that her evidence, which I accept, was that her injuries were the result of a low speed impact from the rear. This caused her to sustain a soft tissue whiplash injury, which, as I read Professor Court-Brown's report, caused asymptomatic degenerative changes in her spine to become symptomatic. Her evidence, which I accept, was that she experienced pain in her neck about 10 or 15 minutes after the accident, and was taken to St Johns' Hospital, where a whiplash injury was diagnosed. She thereafter experienced pain in her neck which was sufficient to cause her to have to take prescription painkillers at about four hourly intervals for a period of about three weeks. For about five weeks thereafter she had to take painkillers on awakening in the morning, but only when required during the day. For about the next five months (that is until May when she saw Professor Court-Brown) she had to take painkillers occasionally. Over the following five months her pain gradually subsided and she was entirely symptom free after the end of one year from the accident. The pursuer had thus a short period of two to three weeks when the pain was at it worst, but after six to seven months she had largely recovered, and had fully recovered after ten to twelve months.

[13] I have also found that for a period of two to three months after the accident the pursuer was unable to undertake her "aerobics" and that she required help from her husband with domestic tasks such as using a vacuum cleaner and helping with her two girls, for a period of three to four weeks. I should record that there was an objection by the defender to the pursuer's evidence regarding these two matters on the basis that there is no record for this. I heard this evidence under reservation, and now repel the objection. I do so on the basis that the medical report refers to the pursuer as being unable to do these things, and the pursuer avers that the medical report is "lodged in process herewith and referred to for its terms". It may be that on a very strict view, it could be argued that the terms of the medical report have not been adopted in the pleadings, but I consider that the phraseology used is equivalent to that having been done, and I therefore consider that this is sufficient notice to the defender of the fact that the pursuer is claiming she was unable to undertake her hobbies and required help with domestic chores for a short time.

Damages

[14] The only claim in this case is for solatium, the pursuer's solicitor having expressly disavowed any other head of damages. Most of the time at the proof was taken up with submission on behalf of both parties as to the appropriate level of solatium.

[15] The pursuer's solicitor submitted that the appropriate award of solatium was £3,500.00. On behalf of the defender it was suggested that £2,000.00 was appropriate.

[16] Both the pursuer's and defender's solicitors accepted that the appropriate starting point in valuing solatium is the Judicial Studies Board Guidelines for the assessment of damages in personal injury cases which are now in their 8^th edition. Neither party seemed to have any real difficulty either in placing the pursuer's injuries in an appropriate bracket in the guidelines. Both parties suggested that the pursuer's injuries ought to be classified as a "minor" neck injury (as opposed to "severe" or "moderate", being the other two categories), and that the injuries fell within the lower bracket of the minor injuries categorisation. I would agree that this is the appropriate categorisation. The pursuer's injuries clearly do not fall within the JSB's "severe" category. While the "moderate" category can involve whiplash injuries, that category applies to cases where there is either permanent discomfort or where recovery has taken a number of years. The lower category of "minor" injuries applies to cases where recovery takes place within a year, and that, it seems to me, is clearly the appropriate category here. The suggested range of damages for solatium for an injury of this category is £750.00 - £2,550.00.

[17] Despite conceding the validity of the JSB guidelines, both the pursuer's and the defender's solicitors proceeded to refer me to a large number of decided cases from the Sheriff Court and elsewhere in support of their suggested figure for damages. Had there been a difficulty in fitting the pursuer's injuries into a particular category, or had it been argued that the JSB guidelines were incorrect or misleading in some way then I could have understood this, but the only real justification suggested to me for embarking on such a lengthy examination of decided cases was a suggestion by the pursuer's solicitor that there was a perception that the JSB guideline figures were too low, for which no real support was produced.

[18] The pursuer's agent referred me to no less than 10 cases, and although for my part I found the examination of these cases a largely fruitless exercise, it is probably appropriate that I record the cases to which I was referred. Copies of the cases have been lodged in process, and a very brief summary will accordingly suffice. All the cases involve whiplash injuries to the neck. The cases are as follows:

(i) Steven v Direct Line, Sheriff Fiona Reith, 14 December 2007.

Neck and upper back pain. Recovery after three months. £1,600.00

(ii) Jackson v Dundee City Council, Sheriff Elizabeth Munro, 25 February 2008.

Neck and upper arm. Recovery after one year. Off work 10 weeks. £2,000.00

(iii) Pugh v Scott, Sheriff Mackie, 20 May 2002.

Neck injury. Recovery after five months. £2,600.00 (would now be worth more due to inflation).

(iv) O'Halloran v Siba Speciality Chemicals, Lord Glennie, 2 February 2007.

Neck, shoulder and back pain. Recovery after two months. £1,500.00.

(v) Symington v Milne, Sheriff Principal Bowen, 4 May 2007.

Neck pain. Recovery after seven months. £2,250.00.

(iv) Xerri v Direct Line Insurance, Sheriff J C Morris, 6 March 2007.

Neck and back pain. Recovery after two months. Continuing anxiety. £2,200.00.

(vii) Spencer v Baron, Sheriff Nigel Morrison, 4 February 2008.

Neck pain. Recovery after six months. £3,500.00

(viii) Moir v Wilson, Sheriff Mackay, 1 July 2002.

Neck pain. Recovery after seven months. £3,000.00 (would now be worth more).

(ix) MacGuire v Nicholson, Sheriff Jessop, 6 November 2002.

Neck pain. Recovery after ten months. £3,000.00 (would now be worth more).

(x) Brown v Forsyth, Aberdeen Sheriff Court, 17 August 2001.

Neck pain. Recovery after three months. £2,500.00 (would now be worth more).

[19] The solicitor for the defender referred me to five cases. Copies have also been lodged. They are as follows:

(i) Fairley v Thomson, Sheriff Douglas Allan, 28 August 2004.

Neck pain. Recovery after one to two years. £1,700.00.

(ii) Suliman v Balmer, Sheriff Roger Craik, 19 March 2003.

Neck pain. Recovery after eight months. £1,650.00.

(iii) Sharp v Watt, Sheriff Donald Muirhead, 19 March 2008.

Neck pain. Recovery after one year. £2,000.00

(iv) Ahad v Bryne, Manchester County Court, 8 January 2007.

Neck pain. Recovery after nine months. £1,950.00.

(v) Hibbert v Dean, Manchester County Court, 16 November 2006.

Neck pain. Recovery after ten months. £2,250.00

[20] The pursuer's cases accordingly show roughly similar awards (ranging between £1,600.00 and £3,500.00) for roughly similar injuries (where recovery time varied between two months and a year). The defender's cases show awards (updated for inflation) all in the region of £2,000.00.

[21] Prior to the publication of the Judicial Studies Board, lawyers and courts had no alternative but to try and obtain such guidance as they could from reported cases, especially from awards made in the higher courts. The difficulty involved in this was the whole reason for the publication of the Judicial Studies Board Guidelines. The foreword to the First Edition (by Lord Donaldson of Lymington), which was published in March 1992, stated the reason for the guidelines being published as follows:-

"Paradoxical as it may seem, one of the commonest tasks of a judge sitting in a civil court is also one of the most difficult. This is the assessment of general damages for pain, suffering or loss of the amenities of life. Since no monetary award can compensate in any real sense, these damages cannot be assessed by a process of calculation. Yet whilst no two cases are ever precisely the same, justice requires that there be consistency between awards.

The solution to this dilemma has lain in using the amount of damages awarded in reported cases as guidelines or markers and seeking to slot the particular case into the framework thus provided. This is easier stated than done, because reports of the framework cases are scattered a variety of publications and not all the awards appear, from the sometimes brief reports, to be consistent with one another. Furthermore some of the older cases are positively misleading unless account is taken of changes in the value of money and the process of revaluation is far from being an exact science."

[22] The working group under the Judicial Studies Board sought to "distil the conventional wisdom contained in the reported cases", that is, it did not set out to lay down a tariff representing the views as to damages of the working party, rather it set out to reflect the amount of damages actually being awarded by the courts. Successive editions have continued to do that, with some guidelines being revised to reflect a change in practice in decided cases where appropriate.

[23] The Judicial Studies Board has therefore carried out the work formerly carried out by lawyers and courts. To some extent, the guidelines are a victim of their own success, in that, as stated in the foreword to the latest edition, the "body of data available as source material has if anything shrunk even further than has been the case in earlier years, and decisions, especially by High Court and circuit judges, on general damages are now in relative terms view and far between". It seems likely, as the JSB recognise, that this is at least partly the result of the fact that more cases settle more easily as practitioners are able to predict more accurately the likely award of damages by reference to the guidelines. There is a danger, therefore, that the guidelines rather than reflecting court practice will actually determine it.

[24] Nevertheless, it is my view that unless there is some obvious difficulty in applying the guidelines, such as a difficulty in fitting a case into an appropriate category or a clearly recognised discrepancy between the guidelines and court practice, the guidelines are at the very least an appropriate starting point in determining damages, and in most cases it seems to me that there will rarely be any difficulty in actually awarding damages by reference to them. This does not, however, fetter the discretion given to all judges to award such compensation as they think appropriate, provided that discretion is exercised within recognised limits. Although the guidelines have been produced by an English working group, there is authority in Scotland that there should be no real difference between awards of damages for pain and suffering between England and Scotland.

[25] As mentioned above the JSB guidelines suggest that in the present case damages should be assessed at between £750.00 and £2,550.00. In a number of the cases to which I was referred by the pursuer's solicitor, however, the awards do not seem to match those of the guidelines. One of these in particular is worth noting, as the award seems to have been well above the guidelines. It is the case of Spencer v Baron, decided by Sheriff Nigel Morrison at Edinburgh Sheriff Court. As mentioned above, recovery took place within six months, but the award of the solatium was £3,500.00. I note from Sheriff Morrison's judgement that he does not seem to have been referred to the JSB guidelines. For that reason it is my respectful view that the award can perhaps be seen as generous.

[26] There is another case to which I must refer. It is the decision of Sheriff Principal Bowen in Symington. The facts of the case are very similar indeed to the present. The pursuer sustained neck pain from she had fully recovered after seven months, although she had required some physiotherapy. The Sheriff awarded £1,250.00 as solatium, but the Sheriff Principal increased this on appeal to £2,250.00. The Sheriff Principal was referred to the JSB guidelines and a number of decided cases. He took the view that solatium ought to be set at £2,250.00. This is within the JSB guidelines range but towards the upper end.

[27] Had it not been for the case of Symington v Milne the figure which I would have had in mind to award as damages would have been £2,000.00, as representing a figure within the JSB bracket and as appropriate for substantial recovery within about 6 - 7 months and full recovery within 10 - 12 months. As I understand it, however, decisions of the Sheriff Principal of Lothian and Borders are binding upon me as a Sheriff of that Sheriffdom: see the Stair Encyclopaedia, vol 22, para 300. Although each case turns on its own facts, it is difficult to distinguish the case of Symington in any material respect from the present case. I have therefore come to the conclusion that the appropriate award of damages for solatium in the present case should be the same as that awarded in the Symington case, namely the sum of £2,250.00.

[28] With regard to interest, the parties were agreed that interest should run on the whole of solatium from the date of the accident (6 October 2006) at half the judicial rate, that is 4%, for a period of one year, and thereafter at the full judicial rate (8%) until payment. Their agreed approach to interest is, I think, correct. It proceeds on the basis that there was a continuing loss for a period of one year (to the date that the pursuer recovered from her injuries), and interest at half the judicial rate is appropriate for that continuing loss. Thereafter there is a loss which is wholly in the past, and interest at the full judicial rate then becomes appropriate (see Personal Injuries Damage in Scotland, S A Bennett, 2^nd Edition, Chapter 4).

[31] For all the above reasons I assess the solatium at £2,250.00. and award interest thereon in the manner set out above.

[32] The parties were agreed that the question of expenses would have to be reserved until after my decision on quantum, and I have accordingly not made any finding thereanent.