Scottish Sheriff Court Decisions

PD36/09

SHERIFFDOM OF NORTH STRATHCLYDE AT PAISLEY

JUDGMENT

of

SHERIFF PETER G. L. HAMMOND

in causa

THOMAS McKENNA. 23/3 Greer Quadrant, Clydebank, G81 2AY.

PURSUER

against

THOMAS AITCHIESON, 28 Esk Drive, Paisley, PA2 0EP.

DEFENDER

PAISLEY, 12 November 2009.

The Sheriff, having resumed consideration of the cause:

FINDS IN FACT:

(1)         The parties are as designed in the instance. The pursuer's date of birth is 28 March 1938. He is retired. He was aged 69 at the time of the accident, and 71 at the date of proof.

(2)         On 27 January 2008 the pursuer was involved in a road traffic accident on the westbound carriageway of the M8 motorway. He was driving his Ford Focus motor car registration number T983 JCL, when a mattress being carried on a vehicle driven by the defender fell onto the roadway into his path. It had not been properly secured. The pursuer was unable to avoid the mattress on the roadway and collided with it, causing him to suffer injury as a result.

(3)         The accident was the fault of the defender

(4)         The pursuer sustained a whiplash injury to his neck in the accident.

(5)         Following the accident, the pursuer suffered from pain and stiffness in his neck, radiating into his shoulders. His sleep was disturbed. He consulted his G.P. 4 days after the accident and was diagnosed with a whiplash injury and prescribed analgesia. He was also referred for physiotherapy and advised to do exercises.

(6)         The pursuer attended his G.P. on three or four occasions, and attended physiotherapy on four or five occasions.

(7)         The pursuer was diagnosed as suffering from cervical spondylitis in 1988. In 1996 he was involved in a road traffic accident which produced an exacerbation of neck and shoulder pain. He has been free of symptoms from this pre-existing condition for many years. The present accident has caused an acute exacerbation of his underlying cervical spondylosis.

(8)         The pursuer continues to have neck pain, and takes voltarol for pain control once per day. The pursuer's symptoms will have fully resolved by April 2010 (26 months post accident).

(9)         Other than in relation to helping with his sons' wrestling training, the pursuer's symptoms have not interfered to any material extent with the enjoyment of his lifestyle or recreational pursuits.

(10)     The pursuer has suffered inconvenience as a result of the accident. The agreed value of that element of his claim is a nominal £20.

FINDS IN FACT AND LAW.

1.            The pursuer's accident was caused by the negligence of the defender.

2.            The pursuer, having suffered loss, injury and damage due to the defender's negligence, is entitled to reparation from the defender therefor.

3.            The pursuer's losses are reasonably estimated as £3,750 in respect of solatium and £20 in respect of inconvenience.

THEREFORE sustains the pursuer's first and (in part) second pleas-in law; repels the defender's second plea-in-law; grants DECREE against the defender for payment to the pursuer of (1) the sum of THREE THOUSAND SEVEN HUNDRED AND FIFTY POUNDS (£3,750) STERLING, with interest thereon at the rate of four per cent (4%) per annum from 27 January 2008 until the date hereof and thereafter at the judicial rate until payment; and (2) the sum of TWENTY POUNDS (£20) STERLING, with interest thereon at the rate of eight per cent (8%) per annum from 27 January 2008 until payment; reserves meantime all question of expenses and appoints the parties to be heard thereon on at within Paisley Sheriff Court.

NOTE

Introduction

[1.]            This is an action of damages for reparation in respect of personal injuries sustained by the pursuer in a road traffic accident on 27 January 2008. The pursuer suffered whiplash injuries to his neck and claims for some minor associated inconvenience. Liability was admitted, and the only issue in dispute was the quantum of solatium.

[2.]            The proof proceeded before me on 21 September 2009. The pursuer was represented by Ms. McDonald, solicitor. The defender was represented by Ms. Devlin, solicitor. Both parties' preliminary pleas to relevancy and specification were repelled, in advance of the proof, on 13 August 2009. The only parole evidence led at the proof was from the pursuer himself. The parties tendered a joint minute of admissions, in which it was agreed that the medical reports prepared by Mr. Grant, Consultant in Emergency Medicine (production 5/1) and by the pursuer's General Practitioner, Dr. Jamieson, (production 5/2) were to be taken as accurately reflecting the nature and extent of the pursuer's injuries, and his treatment and prognosis. In particular, it was agreed that the pursuer will have fully recovered from his injuries within 26 months of the date of the accident (by April 2010).

Evidence

[3.]            Very little of the evidence was in dispute. The pursuer gave evidence in a straightforward way. I found him to be credible and reliable. The symptoms spoken to by him were entirely consistent with the views expressed in the agreed medical reports, and there is no question, in my view, of the pursuer exaggerating his symptoms.

[4.]            The findings in fact which I have made are taken from the pursuer's evidence and the agreed medical reports. He suffered a whiplash injury in a road traffic accident and suffered neck pain radiating into his shoulder. His symptoms will subsist for 26 months following the accident and then be fully resolved. He sought medical attention a few days later and has been on prescribed pain killers since. He has attended at the General Practitioner on a few occasions and also a few physiotherapy sessions.

[5.]            In 1988 the pursuer was diagnosed with cervical spondylitis. In 1996 he was injured in a road traffic accident which exacerbated his neck and shoulder pain. Prior to the accident which is the subject of the present action, his pre-existing underlying condition had been symptom-free for many years. It is clear according to the medical reports that the current accident brought about an acute exacerbation of the underlying condition.

Pursuer's submissions

[6.]            The pursuer referred me to a number of authorities, including unreported decisions:

(a)   Hunter v National Coal Board 1988 SLT 241

(b)  Conway v Wood, Kirkcaldy Sheriff Court 26 October 2001.

(c)   Moir v Wilson, Kilmarnock Sheriff Court, 1 July 2002.

(d)  Spencer v Baron, Edinburgh Sheriff Court, 4 February 2008

(e)   Judicial Studies Guidelines, 8^th Edition, chapter 6

[7.]            The pursuer submitted that I should award £5,000 for solatium; £3,500 of that being in respect of past loss. Ms McDonald argued that the recent cases referred to by her all demonstrated awards of £3,000 or more for whiplash injury. The longest recovery period was 17 months (Conway), and this contrasted with the agreed recovery period of 26 months in the present case. The pursuer was still suffering pain because of the exacerbation of the asymptomatic underlying spondylosis.

Defender's submissions

[8.]                                                                                                           The defender also referred me to a number of unreported decisions:

(a) Fairley v Thomson , Edinburgh Sheriff Court, 2 September 2004

(b) Hall v Cockburn, Ayr Sheriff Court, 16 February 2009.

(c) Sharp v Watt, Linlithgow Sheriff Court, 19 March 2008

(d) Traynor v Kidd, Dundee Sheriff Court, 1 August 2008.

(e) Sivewright v Sands, Dundee Sheriff Court, 6 May 2009

[9.]                 Ms. Devlin, for the defender, submitted by reference to her authorities that a reasonable award for solatium would be £3,500. That was all attributable to past loss, and, in accordance with the usual formula, interest thereon should be awarded at half the judicial rate from the date of the accident until the date of decree, and thereafter at the full judicial rate.

[10.]             Ms. Devlin drew to my attention that the pursuer had stopped attending physiotherapy largely because it interfered with his domestic arrangements, and it could therefore be argued that he had not done all he could to mitigate his loss. She also reminded me that the pursuer had suffered intermittent neck pain in the 1980's and 1990's, and full recovery would take place within 26 months of the date of the accident.

[11.]             With regard to the authorities founded on by the pursuer, she submitted that the cases of Conway and Moir were more serious than the present case. In Conway, for example, there was a more intensive requirement for physiotherapy, and impact on the pursuer's sporting activities. Moir could be distinguished as that was a case involving multiple injuries. Spencer, which resulted in an award of £3,500 (£3,533 when updated to allow for inflation) was a much better comparator.

[12.]             Turning to her own authorities, Ms. Devlin submitted that these demonstrated examples of more modest whiplash awards. The unreported cases she had selected to show me disclosed figures in the range of about £1,900 to £2,250 for solatium, although she accepted that the longer duration of symptoms in the present case would justify a higher award. £3,500 would be reasonable, and is supported by the authorities.

Comment

[13.]             This is yet another case presented by both sides on the basis of selective citation of unreported authorities. I would draw to agents' attention the dicta of Sheriff Kinloch in Valentine v McGinty (Linlithgow Sheriff Court 20 May 2008) and Sheriff Davidson in Sivewright v Sands (see the defender's list of authorities referred to above) to the effect that appropriate reference to the Judicial Studies Board Guidelines would be preferable. This was included in the pursuer's list of authorities, but I was not referred to the part of the Guidelines which might have been of assistance in relation to this case.

[14.]             The case of Kennedy v UK Insurance was referred to by the pursuer, but the court was only provided with a copy of a page from an unspecified book which mentioned the case in three lines. I did not find this helpful and was not able to place any reliance on it. The proper practice is that a full copy of the judgement should be provided so that the court can be satisfied what was actually decided and see the judicial reasoning behind the decision.

Decision

[15.]             I have given taken into consideration all of the authorities referred to by the parties in the course of their submissions. However I consider that only two are of direct relevance in providing a like for like comparison with the present case; Conway v Wood, and Spencer v Baron.

[16.]             In Conway v Wood, the pursuer sustained whiplash in a road traffic accident. The day after the accident he developed pain in his neck and shoulders. He was prescribed anti-inflammatory tablets and advised to wear a neck brace a few hours per day. He was off work in all for about 3 weeks, and attended for physiotherapy over the following 3 months or so. The pursuer did not have any previous underlying difficulties, but his sporting recreations were restricted for a while and he suffered a fair degree of discomfort for 6 months or so, with his symptoms fully resolving after 17 months. The court awarded £3,000 in 2001, which would be the present day equivalent of approximately £3,600.

[17.]             In Spencer v Baron, in 2008, Sheriff Morrison considered another whiplash case. The pursuer had received a whiplash injury to his neck. He had fully recovered from the injuries after six months, except for tingling in the left arm. Her symptoms resolved after 21 months. The court awarded £3,500 in 2008, which would be the present equivalent of approximately £3,533.

[18.]             I consider that both of the foregoing cases are comparable to the instant case. Althought it could be argued that some of the symptoms were worse, it is in my opinion significant that the present pursuer's recovery time was somewhat longer at 26 months in total.

[19.]             Having regard to the submissions made on behalf of the parties, and such guidance as can be gleaned from the previous decisions which were canvassed before me, I have come to the view that the cases founded on by Ms Devlin fall short of the realistic valuation, but her concluding suggestion of £3,500 is somewhat closer to the mark. However, as has been repeatedly stated judicially in the past, each case inevitably turns on its own facts. Taking all of these matters into account, I assess solatium in the sum of £3,750.

[20.]             In their submissions, both parties approached solatium on the basis that it was to be regarded as relating substantially to past loss for interest purposes It follows that interest thereon will fall to be awarded on the whole sum at half the judicial rate from the date of the accident and at the full judicial rate from the date of decree.

[21.]             The parties were agreed that the pursuer had suffered unspecified inconvenience as a result of the accident, and I was invited to make a nominal award under this head in the agreed sum of £20. This is reflected in my interlocutor. I shall award interest on the sum of £20 at the full judicial rate from the date of the accident.

[22.]             In accordance with the parties' wishes, I will reserve the question of expenses meantime. The case will be put out for a Hearing on Expenses in the event that agreement cannot be reached on the matter.