Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON

 

A307/09

 

Judgement by

 

SHERIFF DOUGLAS A KINLOCH,

ADVOCATE

 

Sheriff of Lothian and Borders

 

in the cause

 

Mrs Bernadette Skillen residing at 89 The Avenue, Whitburn, Bathgate, West Lothian EH47 0BS

 

Pursuer

Against

 

NIG Limited, 14/18 Cadogan Street, Glasgow G2 6QN

 

Defenders

 

 

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LIVINGSTON December 2009

 

The Sheriff, having resumed consideration of the cause,

 

 

FINDS IN FACT:

1        The pursuer is Mrs Bernadette Skillen. She resides at 89 The Avenue, Whitburn, Bathgate, West Lothian. She is employed by Burton's biscuits. At the date of the proof she was 41 years old.

2        On or about 19 July 2008 the pursuer was injured in a road traffic accident as a result of the fault and negligence of another driver for whom the defenders provided insurance.

3        At the time of the accident the pursuer was a front seat passenger in a motor vehicle driven by her husband. The car was stationary at a roundabout when a car driven by the other driver collided with the rear of the pursuer's vehicle.

4        As a result of the said road traffic accident on 19 July 2008 the pursuer sustained a soft tissue injury to her neck from a whiplash distortion, and a soft tissue injury to her lower back in the lumber region which exacerbated symptoms associated with pre-existing degenerative changes of the lumber spine. After the accident she was off work for a period of about two to three weeks. She made a full recovery from her injuries within 10 months of the accident.

5        The nature and extent of the injuries sustained by the pursuer, and her treatment and prognosis in respect thereof, are as set out in a medical report by Mr David Steedman, Consultant in Accident and Emergency Medicine and Surgery, Royal Infirmary of Edinburgh, dated 30 January 2009, which is lodged as production number 1 of the pursuer's First Inventory of Productions.

6        Prior to the said road traffic accident, in or around December 2004 the pursuer had sustained an injury to her lower back during the course of her employment. This caused her back pain for a period of about 2 years thereafter.

 

 

FINDS IN FACT AND LAW:

1        That the pursuer, having sustained injury and damage caused by the fault of the defenders' insured driver, she is entitled to reparation therefor from the defenders.

2        Therefore, sustains the pursuer's 1^st plea in law and decerns against the defenders for payment to the pursuer of the sum of (1) ONE THOUSAND EIGHT HUNDRED POUNDS (£1,800) STERLING, with interest thereon at 4% per annum from 19 July 2008 until 19 May 2009, and thereafter at 8% per annum until payment; and (2) the sum of £50 sterling inclusive of interest; reserves meantime all question of expenses, and appoints parties to be heard thereon on at within Livingston Sheriff Court.

 

 

NOTE:

Background

[1] The pursuer seeks damages for injuries sustained in a road traffic accident on 19 July 2008, when she was a front seat passenger in a car driven by he husband. On that date another car ran into the rear of their car at a roundabout. This case called before me at Livingston Sheriff Court for proof on the 9 and 10 November 2009. As the defenders have admitted their liability to make payment of damages to the pursuer, the proof was on quantum only. The pursuer was represented by Mr Alan Macdonald, HBJ Claim Solutions, Solicitors, Glasgow, and the defenders by Ms Amy Devlin, Messrs Harper Macleod LLP, Solicitors, Glasgow.

 

[2] The only witness at the proof was the pursuer. There were no medical witnesses as the parties had entered into a Joint Minute of Admissions, no 12 of process (more properly, I think, a Joint Minute of Agreement, as it agrees certain evidence) in terms of which they agreed that a medical report prepared by Mr David Steedman, a Consultant in Accident and Emergency Medicine and Surgery at the Royal Infirmary of Edinburgh, represented "an accurate description of the nature and extent of the injuries sustained by the Pursuer and her treatment and prognosis". The medical report is to be found as production no 1 of the pursuer's First Inventory of Productions.

 

[3] Prior to the road traffic accident the pursuer already suffered from back problems. It was not disputed, and I will therefore hold it as established, that her back problems resulted from an accident at work which took place about three and a half years before the road traffic accident. This works accident appears to have resulted in the pursuer attending at her GP on a number of occasions between December 2004 and January 2007 in respect of back pain, and being certified as being unfit for work by her GP on at least 4 occasions during that period. In this connection, it is effectively agreed by way of the Joint Minute that, as set out in Mr Steedman's Medical Report, prior to the road traffic accident the pursuer already had mild degenerative changes of her lumber spine, as confirmed by an x-ray taken in August 2007.

 

The pursuer's injuries

[4] Turning now to the injuries which the pursuer sustained in the road traffic accident, the pursuer's evidence, both in chief and in cross examination, was very brief indeed, and it might have been of assistance to me had her evidence been at greater length. However, unfortunately her evidence, such as it was, was in some important respects entirely different from the account of matters which she gave to Mr Steedman, and although Mr Steedman suggests in his report (at page 7) that the pursuer gave "a clear account of the effect of her injuries and does not exaggerate", it is my respectful view that however helpful it is intended to be, it is not really appropriate for a doctor to put forward such an opinion in a medical report, when the reliability of a parties evidence is almost always a matter entirely for the court, and a doctor may be basing his opinion on limited information.

 

[5] The first of the inconsistencies was that she stated in her evidence in court that at the time of the road traffic accident in July 2008 she was taking painkillers, indeed a substantial amount of painkillers as she claimed to be taking 6 tablets per day. The reason for taking these, as I understood it, was because of pain in her back which was the result of the previous accident at work. Her evidence does not square, however, with the terms of Mr Steedman's medical report where he states (at page 6) that "she last had an episode of back pain in January/February 2007 which was associated with absence from work. She told me however that she has had no problems since." She therefore seems to have told Mr Steedman that she had been pain free since January or February 2007, that is, for a period of about 18 months prior to the road traffic accident.

 

[6] Her evidence was that she had been prescribed these painkillers by her GP. Although she did not state this in explicit terms, she stated that she had repeat prescriptions and that after the road traffic accident the strength of the painkillers had been put up. This can only mean put up by her doctor. However, it is difficult to understand why any doctor would prescribe painkillers if, as she stated to Mr Steedman, she had not experienced any back pain for around 18 months prior to the road traffic accident. Unfortunately, Mr Steedman only had sight of the GPs medical records up to October 2007, as the records after that date were not available to him. The medical records which Mr Steedman looked at show prescriptions of painkillers in December 2004, November 2006, and December 2006, but it does not appear that there was any prescription of painkillers between December 2006 and October 2007. I do not know whether the medical records from October 2007 to the date of the road traffic accident in July 2008 would show the prescription of painkillers, and I am left with evidence in court regarding painkillers which is very difficult to reconcile with the statement to Mr Steedman that there had been no back pain for about 18 months prior to the road traffic accident.

 

[7] It is difficult to see that the pursuer could have been mistaken about whether or not she had been suffering from back pain at the time of the accident, although somewhat perplexingly it is also difficult to understand why she would have any reason to try and deceive anyone about this. Nevertheless, this is a very substantial difference in her position, and very considerably undermines the weight that can be put on her evidence.

 

[8] The next discrepancy was that she stated in her evidence that at the time of the accident she had pain at the bottom of her back and in her leg. This seemed to be an indication of pain in her lower back which was radiating down into her leg. However, Mr Steedman's medical report contains an examination of her GPs medical records, and although she consulted her GP on, it would seem, 8 occasions between December 2004 and January 2007, her complaints were always recorded as being back pain, or back ache, only. There is no record made by her GP of pain radiating into her leg. Moreover, Mr Steedman narrates (under the heading "Present Condition") that she "does not complain of any neurological symptoms in her lower limbs", which is consistent with the GP's records.

 

[9] This would also seem to be a serious discrepancy in the pursuer's position. It would appear that she never mentioned to her GP the question of pain in her leg, even though she consulted him on quite a number of occasions, and did not make such a claim to Mr Steedman, but claimed in her evidence in court that she had been suffering from this.

 

[10] The result of the inconsistencies referred to above is that I simply could not accept her evidence as reliable. There is no admission on Record of the nature and extent of the injury sustained by the pursuer, but it was never maintained on behalf of the defenders' that the pursuer was not injured in the accident. However, I find that I am unable to hold that she has established anything more than the injuries which Mr Steedman has diagnosed her as sustaining, and which have been agreed by way of a Joint Minute. As reflected in my findings in fact, I only feel able to hold that she has sustained soft tissue injuries to her neck and to her lower back. I am therefore, unfortunately, unable to accept any of the evidence which the pursuer gave as to the precise effects of the accident on her, such as the necessity to take painkillers, the amount of any painkillers said to have been taken, the nature of her pain, and the effect on her life.

 

[11] With regard to the question of how quickly the pursuer recovered from her injuries, she stated in her evidence that she still had not recovered. However, in terms of the Joint Minute it is agreed that all her symptoms resolved within 10 months of the road traffic accident, and her Solicitor accepted, properly in my view, that the terms of the Joint Minute meant that I had to ignore that evidence, and access damages on the basis of a full recovery from these injuries within 10 months.

 

Submissions regarding solatium

[12] Most of the proof was taken up the submissions from both parties as to the appropriate level of damages for solatium. In this connection, the pursuer lodged copies of 6 decided cases (5 of them being unreported Sheriff Court cases and 1 being from the Outer House of the Court of Session), and the Defenders gave me copies of 7 unreported cases (all from the Sheriff Court). The approach of each of the parties was to take me through nearly all of the numerous cases, copies of which are to be found in process. Each sought, as might be expected, to highlight and emphasise particular features of particular cases which they felt supported their position, and to distinguish the features of cases which they felt were against them. Thus, it was pointed out to me that the recovery time in certain cases differed by a few months, or that in certain other cases the pursuer was not able to participate in leisure activities for a certain while, or that the mechanism of an accident was different from the present case, and so on.

 

[13] I drew the parties attention to the views which I expressed in a decision of my own, Valentine v McGinty, dated 20 May 2008, in which I emphasised my own view as to the desirability of assessing damages in most cases by reference (at the very least as a starting point) to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases, which sentiments I see where endorsed by Sheriff Davidson in a case decided in Dundee Sheriff Court (Sivewright v Sands, 6 May 2009, and by Sheriff Hammond in the case of McKenna v Aitchieson, decided in Paisley Sheriff Court on 12 November 2009. The Solicitor for the pursuer accepted that in many cases the JSB guidelines would be an appropriate starting point, but suggested that because there were 2 separate injuries here (to the neck and to the back) it was difficult to apply the guidelines which have separate categories for neck and back injuries, and separate levels of damages also. The defender's solicitor also did not seek to refer me to the JSB guidelines, for, I think, similar reasons.

 

[14] The cases to which I was referred all involved back or neck injuries which were comparable to the injuries in the present case, and yet the awards ranged (updated for inflation in relevant cases) from £1,800 to £3,400. Such differing awards in apparently similar circumstances to my mind simply reinforces the truth of comments made by Lord Justice Clerk Grant in the case of McCallum v Paterson 1968 SC 280 where he said as follows:-

"No precise rule can be laid down as a yardstick for solatium awards, which must of necessity be of a somewhat arbitrary character. Money cannot compensate for pain and suffering and it is impossible, by a monetary award under this head, to put the victim in the situation in which he would have been had the accident not occurred. The test must always be what is fair and reasonable in the circumstances and, because of that, and because of the absence of any specific rules for quantification, reasonable men may very considerably in their assessment of what the appropriate award should be"

 

The Lord Justice Clerk also said that:

"...provided that one makes the comparison on a fairly broad basis and keeps in mind differentials in regard to age, loss of expectation of life, the nature and extent of disability and so on, it is possible, having isolated the solatium element with reasonable accuracy here, to obtain some assistance from recent awards by Judges in respect of pure solatium in paraplegic or analogous cases ... These awards can be no more than a rough guide in the present case".

 

In the same case Lord Cameron said:-

"Guidance in very general terms can be obtained from considering judicial awards in cases which present certain similarities of outline and circumstances. I am far from saying, however, that it is possible or even desirable to lay down on a tariff of damages. Circumstances of particular cases vary infinitely even where the actual injuries are similar ...".

 

[15] Other judicial pronouncements by distinguished judges over the years are to much the same effect. For example, it was said by Lord President Clyde in the 1922 case of Elliot v Glasgow Corporation 1922 SC 146 that:

"every case must depend on its own circumstances and the award made in one case cannot be used to fix an unsurpassable limit, or to help in forming a proportional scale or standard by which the amount of a reasonable award can be artificially determined in another case. Uniformity and standardisation are alike impossible councils of perfection in such a department as this."

 

[16] It is true that these comments were made in the context of examining the question of whether the damages awarded by a jury were excessive, and I accept that in cases where there is difficulty in applying the JSB Guidelines it is a valid, and indeed necessary, approach to refer the court to other decided cases which indicate awards of solatium in comparable cases, in order to try and ensure consistency of awards. But it respectfully seems to me also that both parties perhaps placed too much emphasis on these various unreported Sheriff Court Cases, and also sought to carry out too detailed an analysis of them, weighing the differences between them too finely in the balance. The assessment of damages for solatium is necessarily both artificial and arbitrary, and what is a fair award of solatium is consequently a matter of fact, and largely a matter of the Judge's impression of the seriousness of the injuries and their effects (see also Allan v Scott 1972 SC 59 at page 63, and H West & Son Ltd v Shephard [1964] AC 326 at 364; Robertson's CB v Anderson 1996 SC 217 at 220).

 

[17] While reference to the guidelines in the present case is more difficult than in some other cases because of the fact that there were what can been seen as two separate injuries, both injuries involve an injury to the spine and it seems to me that there is much overlap between them as they were both caused by the same whiplash injury. I therefore think that, contrary to the position of the parties, there is considerable assistance to be gained from reference to the guidelines.

 

[18] I will therefore use as a very general starting point the JSB Guidelines for minor back injuries where recovery is made within 2 years which suggests that the award ought to be no more than about £5,000. The pursuer here recovered within 10 months, so even though there is also a neck injury this might suggest an award of less than half of that figure. The guide lines suggest that for a minor neck injury, such as minor soft tissue and whiplash injuries where recovery takes place within a year, the appropriate award ought to be between £850 and £2,750. The neck injury guidelines suggest also, to my mind, that the award should not be more than £2,500. These figures give a very general bracket within which damages should fall.

 

Factors relevant to assessment of solatium

[19] In seeking to apply these guidelines to the present case, I took into account that the pursuer's neck and back injuries were both caused by the same whiplash mechanism. They are both injuries to the spine, although the pain manifests itself in two different areas. I think that to some extent there is therefore an overlap between the injuries. I further took into account that when asked to explain how the road traffic accident affected her the pursuer mentioned only the pain in her back and the claim of pain in the leg, and it was only when prompted (to some extent) by her solicitor that she mentioned that she had a sore neck. The fact that the pursuer concentrated on her back pain in describing the effects of the accident upon her suggests to me that the neck injury was of lesser significance than the back injury. I would mention, in this connection, that although the fact of a neck injury had been agreed and admitted by the parties, it would have been better in my respectful view if the pursuer had not been led in her evidence, especially when an assessment of her reliability was an essential part of the proof.

 

[20] I also took into account the fact that she had a pre-existing back problem, although it is simply not clear because of her differing accounts whether it had been asymptomatic or whether it had been troubling her immediately prior to the accident. However, the fact that she already suffered from back problems must be a factor which tends to bring damages down.

 

[21] My assessment of the pursuer's evidence must also count against her to a considerable extent. It is clear that her injuries must have caused her some pain. The initial back pain meant that she needed to take time off work, but had fully recovered within 10 months. Beyond that, however, it is not really possible to say how the accident affected her. For instance, on my view of her evidence it is not established whether, and to what extent, she had to take painkillers. Moreover, even before the accident she had already suffered from a sore back. I do not find it proved that this was a serious injury, with seriously incapacitating effects.

 

 

Decision

[22] The pursuer's agent submitted that I ought to award £3,250 as solatium. The defender's agent submitted that solatium ought to be quantified at £1,800. Had it not been for the fact that the defenders' agent submitted that damages ought to be assessed at £1,800, I am not sure that I would have made an award as high as that for the injuries which have been proved. Nevertheless, as the defenders' agent urged that figure on me, and as it accords with the general impression which I formed of the seriousness of the pursuer's injuries, that is the award I will make. It seems to me to be within the range of awards indicated by the JSB guidelines, and to be roughly commensurate with the cases to which I was referred.

 

[23] For the all the above reasons I will accordingly make an award of solatuim of £1,800, together with interest (as agreed) on that sum at 4% per annum from 19 July 2008 until 19 May 2009, and thereafter at 8% per annum until payment, together with the sum of £50 inclusive of interest as an agreed amount for inconvenience.

 

[24] The parties were agreed that the question of expenses needed to be reserved meantime.