SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT FORT WILLIAM

 

SC18/11

 

 

JUDGMENT

 

by

 

SHERIFF PRINCIPAL DEREK C W PYLE

 

in causa

 

 

DAVID JAFFRAY, residing at 9 Wades Road, Kinlochleven, Argyll PH50 4QX

Appellant

 

against

 

SABRE INSURANCE COMPANY LIMITED, a company incorporated under the Companies Acts and having a place of business at Sabre House, 150 South Street, Dorking, Surrey RH4 2YY

Respondents

 

 

 

 

Background

[1] This is a summary cause action arising from a road traffic accident as a result of which the appellant suffered certain injuries. Liability was admitted by the respondents and proof was restricted to quantum. The appellant now appeals against the sheriff's award of solatium.

The Sheriff's Decision

[2] In the stated case the sheriff makes findings in fact, the relevant ones for present purposes being as follows:

"4. After the accident, the pursuer was unaware of any injury; he drove about 5 miles to work and undertook his work as a carer until 5pm. That evening, his neck felt sore on both sides but slightly worse on the right. He suffered neck pain and stiffness but not paraesthesia or numbness. He controlled his pain with CoCodamol. He also used "deep heat" cream.

5. The pursuer did not, however, consult his GP about the accident until 13 October 2010 when he went at the request of his insurance company. This was the only occasion on which he received medical treatment or advice. No radiographs have been taken or indicated at any stage. No medication was prescribed.

6. When seen on 13 October, the pursuer's sternocleidomastoid was in tender spasm. No bony tenderness was found. His range of motion was restricted especially rotation and lateral flexion. His shoulders were OK. He had no numbness. The GP recommended physiotherapy but this does not appear to have materialised; rather, the pursuer undertook the neck exercises his GP showed him for about a month after the consultation.

7. The pursuer did not take time off work or from driving.

8. When seen by Mr Cox on 24 August 2011, almost exactly one year after the accident, the pursuer had no daily symptoms; if he drove for more than about two hours, he could suffer discomfort in the muscles on the sides of his neck, possibly slightly worse on the right side. No activities were prevented although the pursuer had avoided ski-ing which he would previously have undertaken frequently during the season.

9. On examination, Mr Cox found slight tenderness in the region of the right trapezius muscle with slight discomfort on the right side when rotating the head to the left. He found that the pursuer had made a near-full clinical recovery from the soft tissue injury sustained on 14 September 2010.

10. To all intents and purposes, the pursuer made a full recovery by the date of the proof, 191/2 months after the accident. His residual symptoms of a feeling of tightness with longer periods of driving are likely to have improved at least to the extent that all that remains of the accident is slight neck discomfort with longer periods of driving. There are no other likely sequelae."

 

The sheriff awarded the appellant £2,500 for solatium with interest and £25 for inconvenience.

 

Appellant's Submissions

[3] The test for interfering with an award of solatium by an appellate court is that the sheriff stepped beyond the scope of his discretion, but that is not the same as applying a Wednesbury-style review. (G v G [1985] 1 WLR 647; Appa UK v Scottish Daily Record [2007] CSIH 82; 2008 SC 145) The sheriff ought to have awarded £4,500. He had insufficient regard to the Judicial College Guidelines (formerly the Judicial Studies Guidelines), Chapter 6, Section A(c) ("Minor" neck injuries). (Mullen v Churchill Insurance, unreported, Glasgow Sheriff Court, 14 February 2012, Sheriff Reid; Valentine v McGinty 2010 Rep LR 3) Reference was also made to Conway v Wood, unreported, Kirkcaldy Sheriff Court, 26 October 2001; Frame v Parker, unreported, Airdrie Sheriff Court, 23 June 2004; MacFarlane v Samuel, unreported, Paisley Sheriff Court, 20 September 2007; Kelly v Shah, unreported, Luton County Court, 10 August 2001) The sheriff was wrong to conclude that the appellant had made a good recovery. In any event, the sheriff recognised that the appellant had not made a recovery within a year. That of itself meant that a higher award was appropriate. The sheriff ought to have decided that the range from within which he should select the appropriate sum was between £3,100 and £5,600 (the Judicial College rates adjusted for inflation).

 

Respondents' Submissions

[4] The correct approach for an appellate court in considering an appeal against an award of solatium is that it will interfere only where the award is out of all proportion to the award which the court thinks should have been granted. (Macphail, Sheriff Court Practice, 3^rd edition, para 18.116) Applying that test to the instant case, the court should not interfere with the award. The sheriff had properly taken into account all of the relevant considerations and had not taken into account irrelevant considerations. Reference was made to the Judicial College guidelines; Symington v Milne 2007 Rep LR 63; Tennant v Direct Line Insurance 2010 SLT (Sh Ct) 71; Valentine v McGinty 2010 Rep LR 3; Pollock v Westall 2010 SLT (Sh Ct) 167; Mullen v Churchill Insurance (supra).

 

Discussion

[5] It is certainly the case that on the sheriff's findings in fact his award is outwith the range of awards set out in the Judicial College Guidelines (p 31). The upper limit of awards for minor soft tissue and whiplash and the like where symptoms are moderate and where there is a full recovery between a few weeks and a year is £2,850. On that basis, therefore, the award should have been between that sum and the next limit, namely £5,150. In Conway v Wood, the pursuer's injuries were more severe than in the instant case, but the period for almost full recovery was similar. The award was £3,000 (£4,105 at present day value after adjustment for inflation). Again, the effect of the whiplash injury, particularly the level of pain, was more severe in Frame v Parker, in which the court awarded £3,000 (£3,830 at present day value). In MacFarlane v Samuel, the long term effect of the injury was sciatic pain which further physiotherapy would not assist. The court awarded £3,500 (£4,013 at present day value). In Kelly v Shah, the extent of the pain and the restriction of movement were again higher than in the instant case, albeit that medical opinion was that the plaintiff would make a full recovery within two years. The court awarded £4,100 (£5,620 at present day value). In Tennant v Direct Line Insurance, the court awarded £2,000 (£2,125 at present day value) where the pain was described as moderate and where there was full recovery within 13 months. In Valentine v McGinty, the pain suffered was marginally more severe than in the instant case but there was a full recovery within, at latest, one year. The court awarded £2,250 (£2,495 at present day value). In Pollock v Westall, the pursuer made a full recovery from back pain within nine months but her level of pain was complicated by a pre-existing condition. The court awarded £2,750 (£2,933 at present day value). Again, in Mullen v Churchill Insurance the level of pain was more severe and indeed in the back as well as the neck, but full recovery occurred after nine months. The court awarded £2,350 (in March this year).

 

[6] I accept that before overturning the decision of the sheriff I have to be satisfied that his award of solatium is out of all proportion to what I consider should have been awarded. That was the approach taken by Sheriff Principal Bowen in Symington v Milne. While it is important that there should be a degree of consistency in awards for injuries of a similar nature (op cit, para [10]), each case must be considered on its merits. There will of necessity be an element of subjectivity in the description of symptoms and pain by claimants, as well as the effect of the injury on their lives. The reference to previously decided cases must not reduce the task to some form of mathematical calculation. The severity of the injuries as well as the time taken to full recovery (or not as the case might be) are critical factors for the court to take into account, but they are not the only factors. [7] While I agree with Sheriff Kinloch's opinion in Valentine v McGinty that the Judicial College Guidelines are an appropriate starting point in determining damages, it is important to recognise their necessary limitations. They are, as Sheriff Kinloch noted, a distillation of conventional wisdom. And to be of practical use they are required to be set out in broad categories where only some of the relevant factors are identified. In relation to minor whiplash injuries, for example, the only factors listed are the identification of the injury and its level of severity, the severity of the symptoms and the period taken for full recovery. That is doubtless why broad ranges are then identified under the headings, but it also does not mean that in every case the court is bound to make an award within the chosen range. Nor, it seems to me, can a sheriff be automatically criticised if in a particular case he chooses to depart from the Guidelines and does not explain such departure at length. Counsel did not state in terms that this was required, but he relied heavily on the Guidelines in support of his preferred award. In Mullen v Churchill Insurance, Sheriff Reid (at para [52]) described them as "an exceptionally useful cross-check". I agree with that. But that does mean that they should be elevated to the status of being determinative of the range of awards.

 

[8] No evidence was led at the proof. Instead the parties relied upon the medical report of Mr Cox, a consultant orthopaedic surgeon, who examined the appellant eleven months after the accident. Counsel for the appellant criticised the sheriff's findings in fact in their summary of the report. In particular, he said that the sheriff was not entitled to find that the appellant had made a full recovery by the date of the proof (finding-in-fact 10). All that Mr Cox had said was that the appellant would continue to improve over the six to twelve months after he saw him, but that full resolution was only possible. I do not consider that this is a fair criticism of the sheriff. In fact the sheriff merely says that "to all intents and purposes" the appellant has made a full recovery and then qualifies that further by setting out accurately what his residual symptoms are and the likelihood of improvement. That is an accurate summary of Mr Cox's opinion and, in any event, it is worthy of note that in an earlier passage (p 6, point 8) he records that the appellant "has achieved a near-full clinical recovery". Mr Cox is able to say only that full resolution was possible, rather than to the normal standard of proof, but the sheriff does not find that full recovery has in fact taken place. In my opinion, the correct analysis of what the sheriff finds is that near full recovery had been achieved and the extent to which it fell short of full recovery was a minor factor, albeit one which he still took into account in assessing the appropriate award. On the evidence, I cannot criticise him for that approach.

 

[9] In my opinion, in considering the above cases the sheriff was correct to characterise the cases relied upon by the appellant as ones where the symptoms were more serious than the appellant's. I also agree with him in his conclusion that the cases upon which the respondents rely were more recent and in point.

 

 

 

Decision

[10] In these whole circumstances, I cannot criticise the overall approach taken by the sheriff. I accept that his award is a modest one, but I do not consider that it is out of all proportion to an award he otherwise could have properly awarded. The appeal falls to be refused.

 

It was agreed that expenses should follow success.

Fort William, 03 December 2012

 

The sheriff principal, having resumed consideration of the cause, Refuses the appeal; Adheres to the sheriff's interlocutor of 28 March 2012; Finds the appellant liable in the expenses of the appeal; Allows an account thereof to be lodged and remits same to the auditor of court to tax and report.