Scottish Sheriff Court Decisions

(A(D)77/07)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

DOUGLAS ASHTON

PURSUER AND appellant

against

ANNETTE SKEWS

Act: Stewart, Solicitor, HBJ Gatelay Waring

Alt: Goodbrand, Solicitor, Simpson & Marwick

edinburgh, 19 January 2009

The Sheriff Principal, having resumed consideration of the cause, sustains the appeal; recalls the Sheriff's interlocutor complained of dated 14 May 2008 in so far as it decerns against the defender for payment to the pursuer of the sum of £1,500; of new decerns against the defender for payment to the pursuer of the sum of £2,000 with interest thereon at the rate of 4 per centum per annum from 27 January 2007 until payment; reserves all questions of expenses.

(signed) E Bowen

NOTE:

1. This is an appeal against an award of damages by way of solatium for personal injuries. It raises a short point.

2. The Sheriff's findings record that on 25 January 2007 the pursuer was sitting at the wheel of his motor car at road works at the A1 when it was struck from behind by a vehicle driven by the defender. The defender's vehicle is said to have been travelling at about 60mph at impact.

3. The findings go on to record that as a result of the collision the pursuer was treated with oxygen by emergency services as he suffered an asthma attack. He did not require to be taken to hospital but attended at Berwick Infirmary on the following day complaining of pain in his neck and lower back. Whiplash injury and bruised muscles were diagnosed. The pursuer was signed off unfit for work for one week by his general practitioner and was advised to take non prescription pain killers. Thereafter he returned to his work as a grounds worker and was given light duties for a week. He continued to have some pain in his lower back and experienced that intermittently two or three times a week if carrying out strenuous work.

4. Finding in Fact 8 records that the pursuer attended for examination by an orthopaedic consultant on 17 April 2007 and that the terms of the consultant's report are agreed. Finding in Fact 10 records that the pursuer was "symptom free towards the end of October 2007".

5. In his Note the Sheriff said "I found the pursuer to be a wholly credible witness. I express some reservation about his assessments about his level of pain on a scale of 1 to 10 but such assessments are entirely subjective and did not otherwise detract from the quality of his evidence. I was satisfied that he sustained soft tissue injury to the neck (whiplash) which resolved after three weeks and soft tissue injury to the back which resolved fully after six months". The Sheriff repeated these observations in a paragraph headed "Decision", in which he concluded that the appropriate award for solatium was £1,500.

6. The solicitor for the pursuer and appellant pointed out that the observations that the pursuer's symptoms "resolved fully after six months" were not consistent with Finding in Fact 10 which indicated a period of nine months from the date of the accident. That, it was argued, meant that the Sheriff's assessment of solatium was not based on a "careful analysis of all the relevant facts" (cf JM v Fife Council 2008 CSIH 63 at para 16); indeed this was a situation where the Sheriff had "used the wrong facts" in making his assessment. In consequence this was one of the exceptional situations in which an appellate court should interfere with the Sheriff's award.

7. The pursuer's solicitor maintained that an appropriate award for solatium on the facts found ought to be in excess of £2,500. He founded on a number of cases involving back and neck injuries, notably Kinross v Stirling Precast Limited 2002 SCLR 397; Margaret Haddow v Glasgow City Council 2005 CSOH 157; and Morris v Sutherland (unreported) Sheriff Dunbar, Dunfermline Sheriff Court, 3 August 2006. Kinross was a claim by a gardener for a back injury. Although absolvitor was granted by Lord Clarke the appropriate awards for solatium on a number of different hypotheses was considered. An indication was given that solatium of £2,000 would be appropriate where the pursuer's symptoms should have settled in 6 to 12 weeks. Haddow was another Court of Session case in which absolvitor was granted. It involved a claim for a back injury caused after a fall. At paragraph 30 Lord Macphail indicated that solatium of £2,000 would have been awarded on the basis that the pursuer had sustained "only local lumber contusions to her back and left elbow; the contusions to the elbow were resolved within 2 weeks and those to the back within 12 weeks". Morris was a case of a road traffic accident which occurred on 18 March 2004. The pursuer suffered pain in his back and hip and was off work until 19 April. The Sheriff found that he was "completely pain free" by about the beginning of August 2004 and awarded damages of £2,750. The pursuer's solicitor maintained that an award of £1,500 was unreasonable even if the pursuer had recovered after six months. On the basis that the appropriate period of time for recovery was nine months it ought to be substantially higher than £1,500.

8. In response the solicitor for the defender and respondent argued that the pursuer had not demonstrated that the Sheriff's award was "out of all proportion" to what ought to have been awarded. He commenced his submissions by stressing that an award of solatium for pain and suffering was primarily a matter for the Judge of first instance and depended "to a great extent on impression and imponderable considerations": Purdie v William Allan & Son 1949 SC 477 at 480. In relation to the factual findings on which his assessment was based, the Sheriff had properly referred to the consultant orthopaedic surgeon's report, the terms of which were agreed. The examination on which that was based was carried out three months after the accident. At that stage the pursuer was complaining only of pain in his back "on approximately three occasions per month when engaged in heavy digging or lifting duties". It was apparent that by that stage the effects of the injury were not great and any limitation to the pursuer's activities were small. Finding in Fact 9 contained an acceptance of the pursuer's evidence that neck pain occurred over about 2 weeks over the summer. That was consistent with the resolution of symptoms after about six months, a matter which the Sheriff had referred to three times in the course of his Note.

9. Turning to the decided cases the defender's solicitor contented that £1,500 was not inconsistent with the type of award being made in cases of a similar nature. Kinross was not a satisfactory guide as it was based on a somewhat complex hypothesis involving a range of variable factors. Haddow was a more serious case than the present, complicated by the fact that the pursuer had not returned to work. The pursuer in Morris was off work for about a month and was restricted in his social activities. It was important in every case to examine what affect the injuries had on the life of the pursuer, and in the present case there was very little restriction.

10. The guidelines for the assessment of general damages in personal injury cases issued by the Judicial Studies Board in England gave a range of £750 to £2,500 for minor soft tissue and whiplash injuries with full recovery within a few weeks and a year. This case might properly lie at a mid-point in that scale. In Fairley v Thomson (unreported Sheriff Allan, Edinburgh Sheriff Court 27 August 2004) £1,700 was awarded for whiplash injuries. The pursuer was described as suffering a fair degree of discomfort and whilst the immediate pain cleared up in a period of approximately six weeks he continued to suffer intermittent symptoms of stiffness about a year after the accident. In Grey v ASA Autohouse GMBH & Co (unreported 13 March 2008) Sheriff Allan had made an award of £1,650 to a pursuer who suffered symptoms of backache for a period of approximately six months. Reference was also made to Lloyd v Arthurs (unreported, Coventry County Court, 9 May 2007) and Raiyat v Andrews (unreported, Walsall County Court, January 2007. Finally, the defender's solicitor referred to the decision of my own in Symington v Milne (2007) RepLR 63) in which I considered that an award of solatium of £2,250 was appropriate to a pursuer who experienced whiplash injuries resulting in four days in bed and neck pain for a period of about six months. The pursuer in that case was inhibited from playing in any sort of boisterous way with her four year old twin sons and required assistance from her mother to carry out household work. That, it was contended, was a more serious case than the present. The pursuer in the present case was not bed ridden and his lifestyle was not materially affected. It was thus apparent that an award of solatium in the present case could not be as high as £2,250.

DECISION

11. Short though the issue may be I find this a slightly difficult case to decide because I have a measure of sympathy with both sets of submissions. Finding in Fact 10, read in conjunction with Finding in Fact 9, appears to me to bear the clearest implication that this is a case in which the pursuer suffered some symptoms, albeit slight, until approximately nine months after the accident. That in point of fact is consistent with the terms of the agreed medical report in which the surgeon states under the heading "Prognosis": "I anticipate a further improvement over the next six months and at the end of this period I would anticipate his back pain is likely to have resolved completely and his function will be normal". It may be that it is this passage which led the Sheriff to observe that the pursuer's symptoms were fully resolved after six months, but it is to be noted that the medical examination was carried out some three months after the accident.

12. In these circumstances I do not think it can be said that the assessment of solatium has been carried out strictly in accordance with the found facts. That is a situation in which, I consider, I am entitled if not obliged to give consideration to what the award ought to have been. On the other hand I accept the submissions made on behalf of the defender and respondent that solatium could not be assessed at anything like the figure of £3,500 which the pursuer's solicitor argued for. I do not consider that it is necessary to cover the authorities in detail. In my view the case is not dissimilar in many respects to Symington v Milne. Both cases involved soft tissue injuries to the neck and the need to take analgesics. In Symington the injury occurred in June and there was complete recovery by the end of the year. The pursuer, however, required both analgesics and physiotherapy throughout that period. In the present case the recovery period was longer but the symptoms more intermittent. In consequence the effect on the pursuer's lifestyle was less than that in Symington and in all the circumstances I consider that solatium could properly be assessed at £2,000. In the somewhat unusual circumstances I shall vary the Sheriff's interlocutor to that extent.