SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

SC339/10

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	KENNETH SMITH
	Pursuer and Appellant
	against
	DIRECT LINE INSURANCE PLC
	Defenders and Respondents

 

Act: D A McGinn, of Messrs Lloyd Green & Co

Alt: Ms V Clark, of Messrs Brodies LLP

 

 

 

HAMILTON: 14 November 2011

 

The Sheriff Principal, having resumed consideration of the cause answers the three questions of law submitted for his consideration in the Sheriff's stated case in the affirmative; accordingly refuses the appeal and adheres to the Sheriff's interlocutor of 19 November 2010 complained of; finds the appellant liable to respondents in the expenses of the appeal as assessed; remits the cause to the Sheriff Clerk to fix a diet of assessment in respect of the expenses of the principal action and the appeal.

 

 

NOTE:

 

Background to the appeal

 

1.             This is a summary cause action arising out of a road traffic accident. The matter proceeded to proof before the sheriff in Hamilton Sheriff Court on 19 November 2010 on the question of quantum only. Liability was admitted. The only witness led was the pursuer. In addition there was a joint minute of admissions in relation to agreed medical evidence from Mr Michael Foxworthy.

 

2.             The Sheriff, inter alia, made the following findings in fact:

"7. The pursuer was 43 years old at the time of the accident. He was employed as a maintenance supervisor with Robertson's Facilities Management at Erskine Hospital.

8.        As a result of the accident, the pursuer sustained a wipe lash injury to his neck.

9.        Immediately following the accident the pursuer did not note any injury at the time. The next morning he noted pain in his neck and shoulders. He experienced some pain and stiffness in those areas on moving.

10.     The pursuer attended his GP on the day following the accident and was prescribed pain killers. The pursuer took the prescribed pain killers for one week. Thereafter he still experienced some pain in his neck and shoulders and self medicated with paracetamol as and when required.

11.     The pursuer's neck was quite painful for the first four weeks or thereby following the accident. Thereafter the pain subsided very considerably. He experienced occasional aches and pains; his condition improving and fully resolving within 14 to 16 months of the date of the accident.

12.     After the accident the pursuer was off work for the remainder of that week. His absence from work did not affect his pay. He returned to work the following week. His job was physically demanding, sometimes involving lifting and handling of weighty items and materials. His job required him to manoeuvre into small spaces from time to time. He was assigned lighter duties at his work for a period of approximately two weeks following the accident. This did not affect his pay.

13.     The pursuer did not require any physiotherapy following the accident.

14.     In June 2008, at the request of the pursuer's solicitors, in connection with the present action, the pursuer was medically examined by Mr Michael Foxworthy, Consultant Orthopaedic Surgeon. Mr Foxworthy prepared a report, which is lodged in process and the contents of same are agreed by joint minute of admissions. In the "summary and prognosis" section of his report Mr Foxworthy records "It is my opinion that his slowly improving neck symptoms currently are directly related to the index accident, giving the balance of probabilities. It is also my opinion that over the next four to six months that these will continue to slowly improve and his total recovery time will be approximately 14 to 16 months, with the worst of the symptoms lasting for the first two weeks. I would not anticipate any future deterioration in his health due directly to the accident in August 2009 and I would envisage him being able to continue working as an engineer until the normal retirement age."

15.     By the time the pursuer consulted with Mr Foxworthy in June 2009, some ten months of thereby after the accident, the pursuer was occasionally taking paracetamol for toothache, and not for any neck pain.

16.     The injury sustained by the pursuer did not affect or interfere with his personal or professional abilities or capabilities, or any leisure pursuits."

 

3.             The sheriff awarded the appellant £2,000 in respect of solatium. It is against that award that this appeal is now taken.

 

Approach to this appeal

 

4.             It was accepted that this appeal was taken against a decision involving the exercise of judicial discretion. I was referred to Macphail paragraph 18.110:

"It is not the function of the appellate court, in the first instance, to interfere with the judge's exercise of his discretion merely upon the ground that the appellate court would have exercise the discretion differently, and to proceed to exercise an independent discretion on its own. The appellate court's function is initially one of appeal only. It may set aside the judge's exercise of his discretion only for certain reasons. ... and it is only after it has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of those reasons that the appellate court becomes entitled to exercise an independent discretion of its own. ..."

I was then referred to paragraph 18.111:

"The appellate court may intervene if it is satisfied that the judge did not exercise his discretion at all, or that in exercising it he misdirected himself in law, or misunderstood or misused the evidence or the material facts before him, or took into account an irrelevant consideration; or failed to take into account some relevant consideration, or if his conclusion is such that, though no erroneous assumption of law or fact can be identified, he must have exercised his discretion wrongly. Expressions which have been judicially employed to describe such a conclusion include "completely" or "plainly" wrong; "wholly unwarranted"; "manifestly inequitable"; "unreasonable"; and "unjudicial"."

As far as assessment of damages is concerned I was referred to paragraph 16.116:-

"... In reviewing an award for solatium for pain and suffering, the appellate court gives weight to the privileged position of the judge who presided at the proof, whose decision may have been influenced by that advantage and by impressions he formed, and will not interfere with his discretion in the assessment of solatium unless the sum awarded is out of all proportion to what the court thinks should have been awarded. The court has regard to the general run of awards and to the upper and lower limits in which, in the court's view, the award should have been made on the facts of the particular case.

 

5.             I was referred to my decision in the case of Hutton v Jack unreported at Hamilton 19 December 2006 where I stated at paragraph 6:

"I consider two questions are relevant in arriving at a decision as to whether the decision of the sheriff might be described as "plainly wrong" or "unreasonable". These are (a) having regard to the case law and other relevant material available, what is a proper and reasonable bracket for solatium in respect of the injury suffered by the appellant in this accident and (b) did the sum award by the sheriff fall within that bracket? If the figure falls within that bracket, the appeal fails. If it does not, it is open to the appeal court to review the award and substitute its own figure for that awarded by the sheriff."

 

6.             Solicitor for the defenders and respondents did not disagree with these submissions. That is the basis on which I propose to consider this appeal.

Submissions for the pursuer and appellant

 

7.             The first submission for the appellant was that the Sheriff had attached insufficient weight to the contents of the agreed medical report and in particular the statements

"It is my opinion that his slowly improving neck symptoms currently are still directly related to the index accident, given the balance of probabilities. It is also my opinion that over the next four to six months these will continue to slowly improve and his total recovery time will be approximately 14- 16 months with the worse of the symptoms lasting for the first two weeks"

 

8.             The second submission was that the Sheriff had placed insufficient weight on the fact that the appellant was absent from his place of employment for one week and placed on light duties for two weeks thereafter.

 

9.             The third submission, which was effectively the nub of the appeal, was whether the Sheriff's award of £2,000 was so unreasonably low as to warrant interference by the court. The Sheriff in her note explains her findings in fact at paragraph 3 as follows:-

"The pursuer gave his evidence in a very straightforward manner. He appeared to be credible and reliable. The evidence he gave was in very short compass. My findings in fact reflected the evidence which he gave. Essentially pursuer's evidence was that he was injured in a road traffic accident which was not his fault whereby he sustained a whiplash injury to his neck which resulted in him taking the remainder of the week following the accident off work. On his return to work, he was assigned lighter duties for a period of about two weeks. On a scale of 1 to 10 he described the pain and discomfort in his neck as being about eight in the four weeks following the accident and soon thereafter reducing to one. By the time he spoke to Mr Foxworthy, some ten months following the accident, he was experiencing occasional discomfort, was not on any medication and his requirement to take paracetimol was in connection with toothache only and not anything ascribable to the injuries sustained as a result of the accident. There was no evidence that the injury sustained by the pursuer having interfered with his life, work or leisure."

It was submitted on behalf of the appellant that the Sheriff had attached too much weight to his oral evidence as opposed to that given in Mr Foxworthy's report. Solicitor for the appellant suggested that his client "let himself down on the day".

However, the Sheriff observes at paragraph 6 of her note:

"As observed, I took the view that the pursuer was a credible and reliable witness. I also formed the view that he, quite rightly in my opinion, did not in his evidence make a great deal of the injury which he suffered. While not wishing to unduly minimise the pain and discomfort which the pursuer undoubtedly suffered, most acutely and persistently, in the four weeks immediately following the accident, I came to the view that this case could be described as being in the lowest threshold of personal injury cases. Immediately following the accident, fortunately, Mr Smith did not require admission into hospital; indeed, immediately following the accident he was not aware of any injury. The following day he became aware of a sore and stiff neck and shoulders requiring a visit to his GP later that day. He thereafter took prescribed painkillers for a period of one week and then self medicated with paracetamol as and when required for a period thereafter. By the time he met with Mr Foxworthy some 10 months following the accident, he was not taking any paracetamol at all in connection with any neck discomfort and in essence described the improving situation. Fortunately also, the accident did not interfere to any real extent with the pursuer's employment. He stayed off work for the rest of the week immediately following the accident. There was no evidence that this was on medical advice. His wages were unaffected by his days of work. On his return to work, he was ascribed lighter duties for a period of about two weeks. This did not have any effect financially. The pursuer required only one consultation with this GP following the accident; one visit with Mr Foxworthy who prepared the medical report in the present case. He did not require any physiotherapy. There was no evidence of any interference with the pursuer's general life, daily living tasks, work (other than the two weeks or thereby following the accident). There was no evidence of any interference with any pastime, hobbies or leisure activities. There was no evidence of any interference with his general enjoyment of life. According to Mr Foxworthy's report the pursuer's acute symptoms lasted for a very limited period after the accident i.e. for the first two weeks and thereafter began to settle slowly. There was full resolution of residual pain within 14 to 16 months following the accident."

The Sheriff accordingly set out clearly the basis on which she made her award of £2,000.

 

10.         In seeking to argue that this was an unreasonable exercise for discretion, I was referred by solicitor for the appellant as follows:-

(1) Judicial Studies Board Guidelines - issued by the Judicial Studies Board of England and Wales. I was referred to the tenth edition, chapter 6, which deals with orthopaedic injuries. The entry included the following:

"(c) Minor

Minor soft tissue and whiplash injuries and the like where symptoms are moderate:

(i) and a full recovery takes place within about two years £2,850 - £5,150

(ii) with a full recovery between a few weeks and a year £875 - £2,850"

It was suggested that the appellant's injury was in the bracket of (i) i.e. between £2,850 and £5,150. £2,000 was considerably lower than the lower end of that bracket. While I note this submission, I would comment that this is an English publication and has no regard to Scottish decisions.

(2) Symington v Milne unreported 4 May 2007 at Edinburgh Sheriff Court - Sheriff Principal Bowen. In that case £2,500 was substituted for £1,500. While these are the figures in the interlocutor, in the narrative it appears that the original figure was £1,250 and it was increased on appeal to £2,250. In June 2004 the pursuer sustained muscular damage to her neck. She was seen in the Royal Infirmary and discharged with pain killers. She was four days in bed. She was treated by a combination of analgesics therapy until the end of the year. During that time she was not able to carry out her household duties and was inhibited in playing in a boisterous way with her twin sons. By the end of 2004 i.e. slightly more than six months after the accident, she was to all intents and purposes recovered. (It was submitted on behalf of the respondent that the claimant had been in bed for four days. There was neck pains analgesic and physiotherapy for six months. An inability to carry out household duties and play with her boisterous twins. Although a shorter period, this was a much more serious one than the present one.) I would comment that while, the period in that case was very much shorter the nature and extent of the disability was considerably greater than that described by the Sheriff in this case.

(3) Pugh v Scott 20 May 2002 at Edinburgh Sheriff Court - Sheriff Mackie 2002 GWD 25-823. Neck injury in road traffic accident. Advised by GP to remain mobile and carry out exercises. Pursuer did not take time off work, but was unable to drive himself to and from work for several weeks and suffered curtailment of his social activities for a total of seven weeks. Driving duties at work returned to normal after four months and all symptoms fully resolved within five months. £2,600 was awarded in May 2002 -now worth £3,458 to allow for inflation. It may be observed in this case that although the total period of incapacity was only five months, the nature and extent of the symptoms during that period were substantially greater than those in this case.

(4) Spencer v Baron unreported 4 February 2008 Edinburgh Sheriff Court - Sheriff Morrison. On 11 June 2006 the pursuer sustained a whiplash injury. The next day her neck became stiff. Over the next few days she felt stiffness in her neck and a tingling sensation down her left arm. A muscle spasm was diagnosed. She was prescribed ibuprofen. She resumed running after a couple of weeks. Stiffness in the neck was getting a lot better after six months. After a year she was back to normal apart from the tingling in her arm which was an irritant. In that case £3,500 was awarded. It was suggested that the symptoms in that case were less than the current case. (It was argued for the respondent that some 18 months post accident the claimant was still suffering tingling in the left arm. In this case the appellant was fully recovered within 14 to 16 months. It was 6 months before Miss Spencer's symptoms were substantially resolved, while Mr Smiths were resolved within two weeks and at the most four weeks).

(5) Conway v Wood unreported 28 October 2001 Kirkcaldy Sheriff Court - Sheriff Wood. A whiplash injury. The morning after the accident pain was developed in the pursuer's neck and upper back. Anti-inflammatory tables and advice to wear a neck brace for a few hours every day. Off work for five days but felt uncomfortable and left work. Off for a further two weeks. Various treatments by physiotherapists over a three month period and had 12 appointments. Discharged from treatment five months after the accident. However referred back five months after the accident as spasms in the neck and lower back discomfort. Stiff neck every morning. What is described as "a fair degree of discomfort" for a period of six months. Sporting activities were restricted. At the time of the proof (October 2001) he did not go to the gym for exercise as he was sore the next day. He no longer plays squash, football or golf. He does have some pain when he drove some 17 months after the accident. He was awarded £3,000 on 26 October 2001, the equivalent of £4,034 today. (It was submitted for the respondent that the claimant required to take anti-inflammatory drugs and wear a neck brace. She was off work for three weeks with three weeks physiotherapy. There was six months of severe discomfort. At proof 17 months after the accident the pursuers sporting activities were still restricted. It was said that it was submitted the symptoms in this case were much more serious than the current case). It may be commented in this case that although the periods are much the same, the nature and extent of the injuries would appear to be significantly greater.

(6) Moir v Wilson unreported 1 July 2002 Kilmarnock Sheriff Court - Sheriff McKay. Again a whiplash injury. Pain in neck, back and shoulders. The smallest neck movement caused pain and two inflammatory tables for three weeks. Thereafter analgesics. The problem persisted for at least four months before she was more easily able to turn her head to the left or right. Sleep interrupted. Unable to attend keep fit classes for four months. Fully recovered for seven months. Awarded £3,000 - equivalent now of £3,997. (It was said on behalf of the respondent that although the claimants symptoms were fully resolved within 7 months, her symptoms were more severe and had much more impact on her life than in the present case) Again this is a shorter period than in the current case but the symptoms would appear to be more severe.

(7) Urquhart v Coakley Bus Co Ltd. Unreported 2 June 2001 Hamilton Sheriff Court - Sheriff Cameron. Soft tissue injury to surgical spine and bruising to left finger and left shin. Given whiplash injury diagnosed given a soft collar and analgesic medication. Off work from 17 February 1999 to 4 March 1999. In constant pain for five weeks followed by intermittent pain and discomfort for three months. Eighteen months after the accident he still suffered pain when he was involved in physical activities or gardening. Required to give up annual snow boarding holiday and unable to play his guitar for several months. Awarded £3,000 in 2001, equivalent now of £4,109. (It was said on behalf of the respondent that there were injuries to the spine, index finger and left shin. Claimant had to wear a soft collar and take analgesic medicine. She was in constant pain for five weeks. Although absent from work for only two weeks, she was still suffering at the date of the proof, 16 months after the accident. It was said that the symptoms in this case were more severe, lasted longer, and had more of an impact on the claimants life than the current case). Again it seems to be that his injuries were more severe than those incurred by the appellant in the present case.

(8) Buxton v Direct Line Insurance.unreported 29 December 2010 Edinburgh Sheriff Court - Sheriff Holligan. Whiplash injury, low back pain, travelling anxiety. Feeling panicky, weary and stressed. Five or six sessions of physiotherapy, found lifting and reaching painful. Suffered discomfort during sleep. Movement at work was restricted because of pain. Low back pain settled within six months of the accident and travel anxiety settled within four months of the accident. Full recovery within six months. Awarded £2,000 in December 2010.(It was said on behalf of the respondent that although the period in this case was not as long the symptoms were substantially worse than the current case).

(9) Ashton v Skews unreported 19 January 2009 Edinburgh Sheriff Court. Sheriff Principal Bowen increased £1,500 to £2,000. Whiplash injury and bruised muscles. GP prescribed pain killers. Given light duties at work. Symptom free by end of October 2007 i.e. nine months of the accident. Full recovery nine months after the accident. In 2009 £2,000 was awarded, now £2,231. It was suggested this was a less significant case than the present case.

 

12. It was submitted that I should have regard to all these cases and conclude £3,500 was a reasonable figure for solatium. If I took that view, it was clear that the award of £2,000 by the Sheriff should be considered plainly wrong and unreasonable and I should interfere with the Sheriff's decision.

 

Submissions for the respondents

 

13 I was greatly assisted by very substantial written submissions which were produced by solicitor for the respondents. A large proportion of these submissions related to the law regarding the circumstances in which I was permitted to intervene. I have set out my views in paragraphs 4 to 5 hereof and do not propose to comment further. It was submitted on behalf of the respondents that the Sheriff had not erred in her assessment of solatium and had placed sufficient weight on the content of the medical evidence and the appellant's absence from work. I was required to give full weight to the privileged position of the judge who presided at the proof. It was suggested I should not interfere as the award was not out of all proportion to what could reasonably have been awarded. It was suggested there was no basis for the court taking the view that this award was wholly unreasonable.

 

14 Solicitor for the respondents referred to paragraph 3 of Sheriff Cunninghame's note:-

"The pursuer gave his evidence in a very straightforward manner. He appeared to be credible and reliable. The evidence he gave was in very short compass. My findings in fact reflected the evidence which he gave. Essentially pursuer's evidence was that he was injured in a road traffic accident which was not his fault whereby he sustained a whiplash injury to his neck which resulted in him taking the remainder of the week following the accident off work. On his return to work, he was assigned lighter duties for a period of about two weeks. On a scale of 1 to 10 he described the pain and discomfort in his neck as being about eight in the four weeks following the accident and soon thereafter reducing to one. By the time he spoke to Mr Foxworthy, some ten months following the accident, he was experiencing occasional discomfort, was not on any medication and his requirement to take paracetimol was in connection with toothache only and not anything ascribable to the injuries sustained as a result of the accident. There was no evidence that the injury sustained by the pursuer having interfered with his life, work or leisure."

She continued at paragraph 6:

I took the view that the pursuer was a credible and reliable witness. I also formed the view that he, quite rightly in my opinion, did not in his evidence make a great deal of the injury which he suffered. While not wishing to unduly minimise the pain and discomfort which the pursuer doubly suffered, most acutely and persistently, in the four weeks immediately following the accident, I came to the view that this case could be described as being in the lowest threshold of personal injury cases. ... In all the circumstances of the present case I assess the appropriate level of solatium as £2,000. I observe that in my view the defenders' agent was perhaps generous in stating that £2,000 was an appropriate award. That being the position, I decided therefore not to interfere with that amount."

As far as the proposition as to whether £2,000 for solatium was reasonable in all the circumstances I was asked to consider that, in addition to considering the medical evidence and the pursuer's return to work, the Sheriff gave consideration to the fact that the pursuer did not require admission to hospital and was not aware of any injury following the accident. He was financially unaffected by the accident. He did not require physiotherapy. There was no evidence of any interference with the pursuer's general life, daily living tasks or work other than the two weeks or thereby following the accident. There was no inference of any interference of any pastime, hobbies or leisure activities. There was no evidence of any interference of his general enjoyment of life. The Sheriff had heard the appellant's evidence and considered that the injury was not a severe one and did not have any significant effect on the appellant.

 

15.         I was referred by solicitor for the appellant to the following cases:

(1)          Skillen v NIG 2010 RLR 7. A 41 year old female sustained a soft tissue injury to her neck and lower back with exacerbated pre-existing degenerative changes in her lumber spine. She was off her work for two to three weeks. She made a full recovery within 10 months. £1,800 of solatium. The Sheriff noted at paragraph 22 of his note that he was not sure that he would have made such a high award had it not been that the defenders suggested that solatium award. While the duration of symptoms was less, this was for multiple injuries and the amount awarded would have been less had the defenders' solicitors submitted a lower amount.

(2)          Tennent v Direct Line Insurance 2010 SLT (Sh Ct) 71. A 19 year old female, headaches following the accident, travel anxiety; did not go back into a car as a passenger for one month following the accident. Travel anxiety lasted six months. Wore a neck collar for one month. Pain killers on a daily basis. One week off work. Required to modify her mode of work (hairdresser) as injury made it painful to stand for long periods. Pain for 13 months after the accident. £2,000 awarded. It was suggested that this was a more severe injury than that sustained by the present appellant. She wore a neck collar for a month. Her social life was substantially affected by the accident, her work duties had to be altered on her return. She suffered travel anxiety, pain in her upper arm and torso in addition to neck pain. It was submitted that the pursuer's injuries in that case were much more severe than those of Mr Smith and the worst of her injuries latest for a longer period than the two weeks that Mr Smith suffered.

(3)          Wilson v Riaz unreported Dunfermline Sheriff Court 11 February 2009. - Sheriff M P Anderson A 62 year old female was given paracetamol. The pain became worse and she went to her GP twice. Given a surgical collar and took more painkillers for two to three weeks. Resumed playing bowls after three months. Could not use the computer for one month due to stiffness. £2000 awarded. While a shorter overall period, being 12 months, her symptoms were more severe. These severe symptoms lasted longer than the current appellant and had more of an impact on her social life.

(4)          Fairley v Thomson 2004 RLP 142. A 28 year old male, whiplash resulting in pain in his neck and back. Unable to work for five days. Pain in neck and back cleared up six weeks later. Unable to attend gym for five to six weeks. At date of proof, nine months after the accident, still unable to undertake full training regime he had previously enjoyed. At proof it was noted it could take up to two years from the incident to be completely resolved. £1,700 was awarded. Taking interest into account this amounted to £2,023 at the date of proof.

 

16.         Comments on the appellant's authorities - Solicitor for the respondent commented on a number of the cases which had been relied upon by Solicitor for the appellant. I have incorporated a summary of these comments in brackets in my synopsis of these cases in paragraph 11 of the submissions on behalf of the appellant in this note.

17.         Solicitor for the respondent concluded that, having reviewed the findings in fact, the medical report, the sheriff's comments, and the reported cases to which I have referred, it could not be said that the Sheriff had exercised her discretion unreasonably. I was asked not to interfere with her decision.

 

DECISION

 

18.         I have found this case a narrow one. It turns on it's own facts, and in particular the appellants evidence. The Sheriff found that the appellant gave his evidence in a straightforward manner and she accepted his evidence as credible and reliable. She attached weight to his evidence in coming to her decision. It is unusual to have the solicitor for an appellant counselling me not to attach too much weight to his client's oral evidence. He suggested the appellant may have "let himself down on the day". I do not think that is a course open to me. The Sheriff was in a position to assess the appellant's evidence in light of the agreed medical report. She had the advantage of seeing the appellant in the witness box. She heard him state that after the first four weeks following the accident the pain resulting from the neck injury was at number one at a scale of 1 to 10. This does not speak to a significant injury. She accepted his evidence.

 

19.         The Sheriff emphasises that on his return to work after less than one week the appellant was assigned lighter duties for a period of about two weeks. His work involved handling heavy weights. She emphasises that the appellant did not require any physiotherapy. There was no evidence of any interference with the appellant's general life, daily living tasks and work, other than the two weeks or thereby following the accident. There was no interference with any pastime or leisure activities. There was no evidence of any interference with his general enjoyment of life. This is not a case where the evidence of the appellant was to the effect that there was a gradual subsiding of substantial symptoms after four weeks. His evidence was clear. After four weeks on a scale of 1 to 10 the pain in the neck injury was at number one. The appellant may have been at the time been unfair to himself, but the fact of the matter is that that was the appellant's evidence and that evidence was accepted by the Sheriff.

 

20.         In my opinion the decided cases to which I have referred require to be looked at in light of the actual facts as found by the Sheriff in this case. Had the evidential position found by the Sheriff been to the effect that there was a significant degree of pain for 14 to 16 months, albeit gradually reducing after the major trauma had subsided four weeks after the accident, it could in my view well be said that the Sheriff had erred. However, on the facts which the Sheriff has found on the basis of the appellant's evidence to her I do not, in the particular circumstances of this case, take the view that the Sheriff's decision in awarding £2,000 for solatium is either plainly wrong or unreasonable. The award is perhaps at the lower end of the appropriate scale. Looking at the case in the manner I suggested in the case of Hutton v Jack (see paragraph 5 hereof) a proper and reasonable figure for an award of solatium in this case I consider to be in the bracket of £2000 to £2500. In these circumstances I am not prepared to interfere with the exercise of the Sheriff's discretion.

 

21.         Parties were agreed that the Sheriff's decision that interest of 4% per annum from 19 August 2008 until 19 November 2010 and thereafter at 8% per annum from 20 November 2010 until payment was correct. I do not therefore seek to interfere with the Sheriff's decision on interest.

 

22.         The respondents have been successful in the appeal. They are accordingly entitled to the expenses of the appeal as assessed. I accordingly remit the case to the Sheriff Clerk to fix a diet of assessment of the expenses in respect of the principal action and the appeal.