SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

Judgement

Of

Sheriff Kathrine EC Mackie

In causa

MR MARK ADAMS residing at 20a Binny Park Broxburn EH52 6NP

PURSUER

against

THE NATIONAL INSURANCE AND GUARANTEE CORPORATION LIMITED a company incorporated under the Companies Act and having a place of business at Kirkstane House 139 St Vincent Street Glasgow G2 5JF

DEFENDERSS

SC 858/08

Edinburgh June 2009

The Sheriff having resumed consideration of the cause Finds the following facts admitted or proved:-

[1]. The pursuer is aged 48 years. He resides at 20a Binny Park Ecclesmachan. He is an Information Technology specialist.

[2]. The defenders are an insurance company having a place of business at Kirkstane House 139 St Vincent Street Glasgow. Miss Wanda Milne is covered by a policy of insurance with the defenders to drive a motor vehicle registration number J30 BEN.

[3]. On 27^th July 2007 the pursuer was driving his motor vehicle registration number M550 APU in Queensferry Road Edinburgh. He was stationary at traffic lights. The defenders' insured, Miss Wanda Milne, driving motor vehicle registration number J30 BEN collided with the rear of the pursuer's vehicle.

[4]. The collision was the fault of the defenders' insured.

[5]. As a result of the collision the pursuer sustained a flexion extension movement resulting in some tearing of the muscles in his left upper back and soreness in his left shoulder.

[6]. The pursuer attended his General Practitioner and was prescribed ibuprofen. He was referred to a physiotherapist. Between 27^th August and 13^th December 2007 the pursuer received about 20 sessions of manipulation, massage, acupuncture and laser treatment. His sleep was disturbed. Initially he suffered constant pain. His upper body movement was restricted.

[7]. The pursuer did not take time off work. He reduced the amount of driving he would normally undertake. He was unable to resume his hobbies of yoga, woodworking and fishing until after he had completed physiotherapy.

[8]. He recovered within 12 months from the date of the accident although he continues to suffer some discomfort following periods of activity or inactivity.

THEREFORE grants decree against the defenders for payment to the pursuer in the sum of (First) Four Thousand Pounds (£4,000) Sterling with interest at the rate of 4 per cent per annum from 27^th July 2007 until 26^th July 2008 and at the rate of 8 per cent per annum from 27^th July 2008 until payment; (Second) Forty Pounds (£40) Sterling with interest at the rate of 8 per cent per annum from the date of decree until payment and (Third) Seventy Five Pounds (£75) Sterling with interest at the rate of 8 per cent per annum from the date of decree until payment; Finds the defenders liable to the pursuer in expenses and fixes a hearing for the assessment of expenses to take place within the Sheriff Court House 27 Chambers Street Edinburgh on

NOTE

[1]. The pursuer claims damages for the loss injury and damage caused by the defenders' insured in the accident on 27^th July 2007. Liability was admitted. Prior to proof a joint minute of admissions was lodged whereby it was agreed that the medical report by Dr WA Campbell dated 18^th (sic) March 2008 was to be treated as the medical evidence in the case, that the pursuer had recovered within the time period stated in Mr (sic) Campbell's prognosis, namely within 12 months from the date of the accident, that the pursuer had suffered loss of use in the sum of £40 inclusive of interest and inconvenience in the sum of £75 inclusive of interest. Only the amount of solatium was in dispute.

[2]. On 27^th July 2007 the pursuer was driving his motor vehicle registration number M550 APU in Queensferry Road Edinburgh. While he was stationary at traffic lights the defenders' insured driving motor vehicle registration number J30 BEN collided with the rear of his vehicle.

[3]. The pursuer gave unchallenged evidence about the consequences of the accident. Initially he suffered soreness to his left shoulder and left upper back. He had limited movement and constant pain. He attended his GP and was prescribed ibuprofen. On a scale of 1 to 10 the pain was about 8. He did not take time off work but restricted the amount of driving and worked more from home. His area of responsibility was the whole of Scotland. He was referred to a physiotherapist and underwent about 20 sessions of manipulation, massage, acupuncture and laser treatment. At the conclusion of the physiotherapy sessions the pain was about 5 on the scale of 1 to 10. It was agreed with the physiotherapist that further sessions would be of minimal value. His sleep was disturbed. He had difficulty driving because of his restricted movement. He was unable to pursue his hobbies of yoga, fishing and woodworking until he had completed the physiotherapy sessions. He had resumed his yoga on a restricted basis and could carry out his woodworking with assistance in lifting. By March 2008 the pain had reduced to about 2 on a scale of 1 to 10. He continued to suffer pain in his back particularly after a period of inactivity or activity. He was able to tolerate the level of discomfort.

[4]. Dr WA Campbell, General Practitioner, examined the pursuer on 18^th March 2008. His report dated 28^th March 2008, which was agreed, states that the pursuer suffered a flexion extension movement resulting in some tearing of the muscles in his upper back. On examination there was some tenderness over the muscle below the left scapula but movements were otherwise full. Prolonged physiotherapy was considered to have been successful and the pursuer was largely symptom free. No long term sequelae were expected.

[5]. It was agreed that the pursuer had recovered within 12 months from the date of the accident although on the basis of the pursuer's evidence the pursuer's agent submitted that recovery was to a nuisance level rather than full recovery.

[6]. The pursuer's agent submitted that a reasonable value for solatium was the sum of £4,000, that interest should be applied at the rate of 4% from the date of the accident for a period of 12 months and at the rate of 8% thereafter. In support of her submission I was referred to the following:-

1)     Urqhuart-v-Coakley Bus Co Ltd 2000 GWD 27-1047

2)     McGuire-v-Nicholson 6 November 2002 Unreported (Sheriff Jessop Stonehaven)

3)     MacDonald-v-Bruce 8 August 2008 Unreported (Sheriff Evans Cupar)

4)     Moir-v-Wilson 1 July 2002 Unreported (Sheriff Mackay Kilmarnock)

5)     Spencer-v-Baron 4 February 2008 Unreported (Sheriff Morrison Edinburgh)

6)     MacQuarrie-v-McKinstray 2007 SLT(Sh Ct) 120

7)     The Judicial Studies Board Guidelines for the assessment of General Damages in Personal Injury Cases (9^th Edition)

[7]. With regard to the Judicial Studies Board Guidelines the pursuer's agent submitted that the pursuer's injuries fell between a moderate neck injury and a minor back injury resulting in a range of awards between £2,750 and £5,000. She submitted that the pursuer had made a fairly protracted recovery with residual nuisance level discomfort.

[8]. The defenders' agent submitted that a proper value for solatium was in the range between £1800 and £2250. She agreed that interest should be applied at the rate of 4% for a period of 12 months and thereafter at the rate of 8%. In support of her submission I was referred to the following decisions:-

1)     Hall-v-Cockburn 16 February 2009 Unreported (Sheriff Hammond Ayr)

2)     Sharp-v-Watt 19 March 2008 Unreported (Sheriff Muirhead Linlithgow)

3)     Fairley-v-Thomson 2 September 2004 Unreported (Sheriff Allan Edinburgh)

4)     Valentine-v-McGinty 20 May 2008 Unreported (Sheriff Kinloch Linlithgow)

5)     Traynor-v-Kidd 1 August 2008 Unreported (Sheriff Paterson Dundee)

[9].      With regard to the Judicial Studies Board Guidelines the defenders's agent submitted that the Guidelines had not been "in force" at the time of many of the decisions referred to on behalf of the pursuer. Subsequently she agreed that they were no more than guidelines.

Discussion

[10].  The only issue in dispute at proof was the amount of damages for the pain and suffering of the pursuer as a result of the injuries sustained by him in the accident on 27^th July 2007. Liability was admitted. Dr Campbell's report dated 28^th March 2008 was agreed as the medical evidence in the case. Further the amount of damages for loss of use and inconvenience was agreed.

[11].  The pursuer gave evidence in a straightforward manner. There was no attempt to embellish or exaggerate. It was his evidence that he continued to suffer discomfort after periods of activity or inactivity at a pain level of 2 in a scale of 1 to 10. That implied that there had been little, if any, improvement in his condition since the examination by Dr Campbell in March 2008. However it was agreed that "the pursuer recovered within the time period stated in Mr (sic) Campbell's prognosis; namely within 12 months from the date of the accident". There is no time period for full recovery contained within Dr Campbell's report. All that is stated is that he does not "expect any long term sequelae from this accident". A letter dated 16^th May 2008 from Dr Campbell in which it is stated that "If this improvement was maintained I would expect that within 4 months of my examination ie by the middle of July he should be free of symptoms" is lodged in process. However no witness spoke to its terms nor were they the subject of agreement. Nonetheless it is clear from the terms of the joint minute of admissions that parties have agreed that the pursuer recovered within 12 months from the date of the accident. Perhaps recognising the inconsistency between the terms of the joint minute and the pursuer's evidence the pursuer's agent sought to suggest that "recovery" may not mean full recovery but recovery to a nuisance level. If "recovery" was intended to be qualified parties had the opportunity to express any such qualification and have not done so. It is also significant that parties were also agreed in the treatment of interest whereby interest at 4% is to be applied for a period of 12 months and thereafter interest at 8% is to be applied. In my opinion it is clear that parties are agreed that solatium is all in the past and all in the period of 12 months from the date of the accident. Accordingly, notwithstanding the evidence of the pursuer, in terms of parties' agreement damages require to be assessed on the basis that the pursuer recovered from the consequences of the accident within a period of 12 months.

[12].  It has been said on many occasions that the purpose of an award of damages is to compensate the pursuer in so far as money can for the loss suffered as a result of the accident. Each case requires to be considered on its own facts and circumstances. Each individual's reaction to and the consequences of an accident will inevitably differ. While there may be some similarities between cases there are also likely to be as many differences, such as the ages of the pursuers, the nature of their occupations, their levels of fitness and range of normal activities, their resistance to pain and their attitude towards medical intervention. While no two cases are identical "justice requires that there be consistency between awards" as Lord Donaldson said in his foreword to the first edition of the Judicial Studies Board Guidelines in 1992.

[13].  The JSB of England and Wales produced the Guidelines with a view to assisting Judges in the difficult task of assessing the amount of damages in an action where personal injury had been suffered. They were not intended to be a ready reckoner or to fetter judgement in the particular case. The Guidelines are, as Lord Justice Waller said in his foreword to the ninth edition, a "framework for the assessment of damages in personal injury cases". Each edition of the Guidelines has taken account of the impact of inflation and decisions reached subsequent to the issue of the previous edition.

[14].  Despite the somewhat inexplicable initial suggestion by the defenders' agent that the Guidelines were not "in force" at the time of some of the authorities referred to by the pursuer's agent it was accepted that the Guidelines are no more than guidelines. It is clear from the authorities produced that the Guidelines are not always referred to and where they are referred to they may or may not be influential.

[15].  The framework of the Guidelines is to identify different types of injury and then to categorise them in terms of severity providing a range of awards for each category of each type of injury. As can be seen in this case, some injuries do not fit easily into one category. The pursuer's agent's submission that the injury suffered by the pursuer fell somewhere between a moderate neck injury and a minor back injury was not challenged by the defenders' agent. According to the pursuer's agent that would produce a range of awards between £2750 and £5000, although in the Guidelines that range appears to apply to minor soft tissue and whiplash injuries where the symptoms are moderate and a full recovery takes place within about two years.

[16].  Both agents referred to a number of largely unreported decisions which were considered by them to demonstrate the level of awards made in similar cases. It was by no means a comprehensive review of decisions, which may be wholly impractical particularly where unreported decisions are also relied upon, nor was it a review of decisions made since the ninth edition of the Guidelines was produced. It is unsurprising that the decisions referred to by the pursuer resulted in higher awards than those referred to by the defenders. The awards range from £1910 to £3780 allowing for inflation.

[17].  It is neither necessary nor helpful to analyse each decision to which I was referred. None of the cases appears to me to be directly comparable to the circumstances in this case. While in all the cases the pursuer is said to have suffered a whiplash type injury the nature of that injury and the pursuer's reaction to it differs, as is to be expected. The injury sustained by the pursuer in this case appears to me to be more severe than that described in the decisions to which I was referred. The defenders' agent appeared to me to attempt to minimise the extent of the injury sustained. Dr Campbell reported that the flexion extension movement caused by the accident resulted in some tearing of the muscles in the pursuer's upper back. That appears to me to be significant and describes a more severe injury than those described as a soft tissue injury in the decisions referred to which may be more in the nature of bruising of the tissue rather than a tearing of muscles. Dr Campbell also reports that the pursuer underwent an "extensive" course of physiotherapy from which I infer that the physiotherapy undertaken was more than might be considered the norm. The pursuer's evidence was that after about 20 sessions a point was reached whereby further sessions would be unlikely to bring about any further recovery. He was prescribed ibuprofen and his sleep was disturbed. As with many individuals, particularly those who are self-employed, the pursuer continued to work notwithstanding the pain and limitations caused by the injury but he was unable to do the amount of driving he would normally do. His hobbies were restricted completely for about 5 months and thereafter he was able to reintroduce them although still to a lesser extent than prior to the accident and in the case of his woodworking with assistance. Some 8 months after the accident the level of pain suffered had reduced from 8 out of 10 to 2/3 out of 10. The pursuer had largely recovered in about one year from the accident. It may be that the pursuer's hobbies in particular yoga may have contributed to the speed with which he did recover.

[18].  In all the circumstances of this case and having regard to the decisions to which I was referred and the Judicial Studies Board Guidelines I consider that an appropriate award of solatium is £4000. As agreed between parties interest will run on that sum at 4 per cent from the date of the accident for one year and thereafter at the rate of 8 per cent.

[19].  It was also agreed that expenses would follow success. A hearing for the assessment of expenses will be fixed unless these are capable of being agreed.