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SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

IN THE ALL-SCOTLAND SHERIFF PERSONAL INJURY COURT

[2024] SC EDIN 36

PIC-PN2280-23 & PIC-PN2279-23

JUDGMENT OF SHERIFF IAIN W NICOL

in the causes

CALLUM FRASER

Pursuer

against

EVELYN MUNRO

Defender

and

BRYNHILDUR HALLGRIMSDOTTIR

Pursuer

against

EVELYN MUNRO

Defender

Pursuer: Henderson, Advocate; Digby Brown LLP, Solicitors, Edinburgh

First Defender: Thomson, Advocate; Clyde & Co LLP, Solicitors, Edinburgh

Edinburgh, 18 July 2024

Preliminary

[1]

This judgment relates to two actions which proceeded to proof under Chapter 36 of

the Ordinary Cause Rules. The actions were not conjoined but arose from the same accident

so the proofs were heard together over 4 days. For reasons of expediency I have issued one

judgment dealing with both actions and will refer to Callum Fraser as the first pursuer and

Brynhildur Hallgrimsdottir as the second pursuer.

The Sheriff, having resumed consideration of the cause, MAKES the following findings

in fact:

[2]

The first pursuer is Callum Fraser. He is 34 years old. He lives in Iceland with his

partner the second pursuer Brynhildur Hallgrimsdottir, age 28.

[3]

The pursuers were involved in a road traffic collision on Balgreen Road Edinburgh at

its junction with Gorgie Road on 13 February 2022 at approximately 6pm.

[4]

The first pursuer was the driver of Audi S4 registration BL18 NKD which was

stationary at a set of traffic lights at the junction with Gorgie Road.

[5]

The second pursuer was the front seat passenger in the first pursuer's vehicle.

[6]

Both pursuers were wearing seat belts.

[7]

The first pursuer was intending to turn right onto Gorgie Road. He had been

stationary for a matter of seconds. The handbrake had automatically engaged.

[8]

The defender was driving a Volkswagen Polo registration number SO12 FXX on

Balgreen Road. Her vehicle was directly behind the first pursuer's Audi.

[9]

As she approached the rear of the first pursuer's vehicle, the defender was travelling

at around 5 mph. She failed to stop in sufficient time to avoid a collision with the Audi. She

attempted to steer her vehicle to the left but in doing so the front offside of her vehicle struck

the side of the Audi's tow-bar attachment and then the rear of the Audi to the left of the tow-

bar.

[10]

The collision was of sufficient force to cause injury to both first and second pursuers.

[11]

The damage to the Polo caused by the collision consisted of i) displacement of the

black trim adjacent to the Polo's black grille; ii) cracking to the area adjacent to the Polo's

towing hook aperture; and iii) a mark to the upper edge of the lower bumper.

[12]

As a result of the collision, the Audi sustained damage to the black plastic

honeycomb grille and white bumper, all situated to the left of the Audi's tow-bar

attachment.

[13]

Immediately prior to impact, the first pursuer was leaning forward to either change a

music track or radio station on the centre console of the Audi. He did not have his hands on

the steering wheel. The left side of his back remained against his seat but the right side of

his back was off the driver's seat.

[14]

Immediately prior to impact, the second pursuer was sitting in a relaxed position

with her back against the passenger seat, facing straight ahead.

[15]

The collision caused both pursuers to be thrown forward. They were restrained by

their seat belts which halted their forward momentum and forced them backwards onto

their respective seats. The heads of both pursuers hit their respective headrests. They were

both disorientated for several seconds before realising a collision had occurred.

[16]

The collision caused the Audi to be pushed forward from its stationary position by

approximately 1 to 1½ feet.

[17]

The first pursuer alighted from his vehicle to speak to the defender and check she

was alright. He asked her to follow him onto Gorgie Road so they could exchange details.

After the first pursuer moved onto Gorgie Road, the defender drove away from the scene

without providing her details.

[18]

The cost of repairing the damage to the first pursuer's vehicle as a result of the

collision was £1263.17, paid for by the first pursuer's motor insurers, AXA.

[19]

During the time the first pursuer's vehicle was being repaired, he was provided with

a Mercedes C Class hire vehicle from Enterprise, for a period of 18 days between

21 February 2022 and 11 March 2022 at a cost of £1189.75. The hire charges were paid for by

the first pursuer's motor insurers, AXA.

[20]

The first pursuer reported the incident to the police immediately after the defender

drove away from the accident locus.

[21]

As a result of the collision the first pursuer had moderate neck pain for

approximately 2 months. He suffered sleep disturbance. His pain gradually resolved over

the next 3 or 4 months and by 6 months post-accident he was asymptomatic. Domestic

activities were not curtailed.

[22]

Within the first two hours following the collision, and as a consequence thereof, the

second pursuer developed a headache. Symptoms were most acute for 48 hours post-

accident. She also developed minor neck and upper back pain. She made a full recovery by

2 weeks post-accident. The collision curtailed her pre-accident hobby of yoga for a

two week period.

Findings in Fact and Law

[23]

The first pursuer having suffered loss injury and damage as a result of the defender's

negligence is entitled to reparation therefor.

[24]

A reasonable award in respect of the loss injury and damage sustained by the first

pursuer is £6563.55 inclusive of interest to 18 July 2024

[25]

The second pursuer having suffered loss injury and damage as a result of the

defender's negligence is entitled to reparation therefor.

[26]

A reasonable award in respect of the loss injury and damage sustained by the second

pursuer is £1073.39 inclusive of interest to 18 July 2024.

Summary of Witness Evidence:

The Pursuers:

[27]

The pursuers were involved in a road traffic collision on Balgreen Road Edinburgh at

its junction with Gorgie Road on 13 February 2022 at approximately 6pm. The first pursuer

was the driver of Audi S4 registration BL18 NKD which was stationary at a set of traffic

lights. The second pursuer was the front seat passenger in the first pursuer's vehicle. Both

pursuers were wearing seat belts.

[28]

The first pursuer was intending to turn right onto Gorgie Road. He had been

stationary for a few seconds and his handbrake had automatically engaged. He was leaning

forward to change the radio station or a music track so the right side of his back was off his

seat but the left side was still touching the seat. Neither of his hands were on the steering

wheel at the time of impact.

[29]

The first pursuer spoke to hearing a huge metallic sounding bang. The second

pursuer could not recollect whether she heard anything.

[30]

For a few seconds the pursuers were disorientated and then realised their vehicle

had been struck from behind by another car.

[31]

Both pursuers stated that the impact caused the Audi to be shunted forward a short

distance. The first pursuer estimated the distance on one occasion at half a foot and on

another occasion 2 feet. The second pursuer was unsure of the distance. The first pursuer

estimated the Polo had been travelling at 10 to 20 mph although accepted he was

speculating. He considered it to be a substantial impact.

[32]

The first pursuer alighted from his vehicle to speak to the driver of the car which had

struck his vehicle. He intended to obtain her insurance details and check she was alright.

When he spoke to her she became hostile and blamed the first pursuer for causing the

accident. As a result, he started filming their interaction. He asked the defender to follow

him through the junction and park on Gorgie Road so they could exchange details.

[33]

The video footage included views of the front of the defender's car and rear of the

first pursuer's car. The Audi was fitted with a retractable tow-bar which was in the down

position at the time of the collision. The first pursuer described the damage to the rear of his

vehicle and agreed that what is contained in the repair estimate from Estimate Solutions

reflects the extent of the damage. The repair costs totalled £1286.57

[34]

The pursuers were moving to live in Iceland in March 2022. The first pursuer needed

to get his vehicle repaired quickly so he could get it sold before his move abroad. He

therefore arranged with his insurers, AXA, to use a repairer of his choice rather than the

AXA approved repairer.

[35]

The day after the accident the first pursuer gave a statement to PC Beaumont at

Corstorphine Police Office. He could not remember attending the police office for that

purpose, he thought he may have given his statement over the telephone but did recall

attending there in connection with a missing person's enquiry. He described the

circumstances of the accident but the statement does not contain any information about any

injuries sustained in the accident. He did not think the focus of the discussion was on his

injuries and was more to do with what happened at the time of the collision and the

immediate aftermath i.e. issues relevant to whether a crime had been committed of leaving

the scene of a road accident without providing details and failing to report the accident to

police. He did not recall the officer asking about injuries.

[36]

The passage of time is the reason why there is a discrepancy in his police statement

(where he said the car was shunted forward half a foot) compared to the medical report

prepared by Mr Moran on 6 April 2023 (where he said 2 feet).

[37]

The first pursuer did not feel any immediate pain or discomfort but pain began to

develop an hour or so after the accident. He developed a sore head, pain in the neck, his

upper and middle back. Both sides of his body were affected. The neck pain lingered

longest. He struggled at work as a self-employed bricklayer the following day.

[38]

He contacted NHS Lothian's out of hours service on 15 February 2022 and was

advised to attend Edinburgh Royal Infirmary. He was concerned that he had suffered more

than muscular damage. He was seen by a doctor. The letter from the A&E doctor to the first

pursuer's GP records that the history given was "rear ended up approx. 20mph on Sunday

evening, initially very well following this, since Sunday increasing neck pain and pain back

of head , no loc at time, no cabin intrusion, self-extricated, normal rom. Pain of gradual

onset and to right side. Denies hx of other injuries." The impression was one of "muscular

pain and advised to take paracetamol, ibuprofen and codeine and to return if worsening or

concerned."

[39]

Notwithstanding what the medical records recorded regarding the location of pain,

the first pursuer was clear that there was pain across his neck and back. It gradually got

worse on the right side. His symptoms lasted for 6 months. Both sides of his body were

affected. He was working as a self-employed brick-layer at the time and felt awful when he

went to work the day after. He was far slower than normal and felt guilty for slowing up

the other members of the team.

[40]

The pain in his neck lasted for 2 months or so and caused him difficulty with

moving, bending and sleeping. He was taking Ibuprofen and paracetamol and possibly

stronger pain killers. He would wake with the pain 2 to 3 times per night. It gradually

resolved to the point he was completely symptom free by 6 months post-accident.

[41]

Some time was spent in dealing with his insurers, police and repairers.

[42]

A repair, unrelated to the collision, was required to the front of his Audi but this had

been completed prior to the collision repairs being approved and he was invoiced for the

former directly and paid for those repairs himself.

[43]

In response to the suggestion the contact between the vehicles was very light, the

first pursuer queried how damage could have been done to his bumper where he had a tow

bar in position if the contact was light.

[44]

The second pursuer thought the vehicle she was in was stationary for maybe 20 to 30

seconds before the impact. She confirmed the automatic handbrake of the Audi was

engaged and she was sitting straight. On impact, the Audi was shunted forwards as was

she. The seatbelt restrained her and caused her to be thrown back, harshly hitting the seat.

She could not recollect how far forward the Audi moved. Her head and neck came into

contact with the headrest. She remained in the vehicle whilst the first pursuer spoke to the

defender. On his return to the vehicle the first pursuer recounted what was said to him by

the defender. Her recollection accorded with what the first pursuer had said in his evidence.

The defender did not provide her details and left the scene. The second pursuer provided a

statement to the police over the telephone on 14 February 2022. The second pursuer did not

know the speed of the defender's vehicle she estimated it at 5 to 10 kilometres per hour.

[45]

Following the accident, the pursuers drove to the first pursuer's parents' house in

Inverkeithing. During the journey the second pursuer developed a headache. The headache

became more severe that night and was at its worst for 48 hours. She attended Edinburgh

Royal Infirmary with the first pursuer on 15 February 2022, was examined and prescribed

pain relief. The note in the medical records states "minimal muscular pain". The headaches

and neck pain persisted for about 10 days and were fully resolved by 2 weeks post-accident.

[46]

Under cross examination, the second pursuer was asked if the Audi physically

moved forward. She thought so. In her opinion it moved forward. She could feel it go

forward.

[47]

The medical report from Mr Moran does not outline what allegedly happened. She

thought she told the consultant.

[48]

She thought the first pursuer went to the police station to give his statement on a

different day to when she gave her statement. She was adamant that she sustained injuries.

PC Charles Alexander Francis Beaumont.

[49]

He was assigned the crime report for the accident. He did not attend the scene. He

took statements from the 2 occupants of the Audi, obtained some video footage from the

first pursuer and spoke to the driver of the Polo. Ultimately she was not prosecuted for

failing to stop / report or driving without due care and attention as she agreed to surrender

her driving licence.

[50]

He created the Crash Report and inputted the data as it appears on the report.

[51]

The words in the statement of the first pursuer were his. This was taken on

14 February 2022 between 17.01 and 17.24. He could not recall whether he was told by the

first pursuer if he was injured. It is something he would normally ask but it's possible this

was overlooked.

[52]

He took the second pursuer's statement over the telephone between 21.11 and

21.20 hrs on 14 February 2022.

Thomas Leitch

[53]

His business arranged the estimate for repairs to the first pursuer's Audi through an

independent estimator who prepared an Audatex report. The estimate for repairs was

£1286.57. AXA approved the estimate and the repairs were undertaken. He spoke to the

nature of the repairs. He confirmed all the work required to be carried out and he

considered the cost for what was done to be reasonable. The total of the invoice was slightly

less than the estimate and amounted to £1263.17. The invoice was dated 15 March 2022

although the customer satisfaction note was signed by the first pursuer on 11 March which

might suggest the work was completed a few days prior to the invoice being issued. AXA

paid his invoice.

Alan Bathgate

[54]

He is a consulting automotive engineer. In his 37 year career he has inspected

around 60,000 to 63,000 vehicles of all types. He initially worked in the motor trade starting

as an apprentice and working his way up to service manager in after sales. Since joining

T&T Technical Services he has obtained further qualifications with the Institute of

Automotive Engineer Assessors, gained in 1989 at West Lothian College, and the

International Federation of Automobile Experts (no date, place or further details given). He

felt able to speak authoritatively about the structure of, and damage to, cars. Part of his

IAEA qualification related to accident reconstruction and that included a section on

calculating forces. No further details were given.

[55]

He is instructed by both pursuers and defenders as a skilled person. He had

prepared a report, number 6/1 of process dated 15 January 2024. He adopted the report as

part of his evidence. It did not contain his Curriculum Vitae. It briefly mentioned some

professional organisations of which he is a member.

[56]

He had physically inspected the VW Polo on 13 January 2024, 23 months post-

accident. He had not inspected the Audi. He did not find any areas of repair or

refurbishment on the Polo.

[57]

Image (b) on page 5 of his report showed a close-up view of a split at the outer edge

of the tow eye cover on the Polo. It is possible this is the area that came into contact with the

tow-ball attachment on the rear of the Audi. On the model of the Polo involved in the

accident, the tow-eye is attached to the chassis leg, not the inner support beam (or, as the

first pursuer referred to it, the crash bar). This is contrary to what Mr Vaquerizo says in his

report. Mr Vaquerizo has erroneously included a photograph (Figure 20, page 28 of his

report) of a more recent model of a Polo where the inner support beam extends further

across the front of the vehicle. In particular it extends as far as the towing eye aperture

whereas on the defender's Polo it does not. There is a void of several inches behind the tow

eye cover on the defender's Polo providing no rigid support at the point of impact.

[58]

The inner support beam is part of the crumple zone on a vehicle. There are 3

different parts to the crumple zone. The first is the outer cover. On the defender's Polo, this

is the white bumper cover, made of plastic. Its purpose is to absorb impacts up to 5 mph.

That is part of the vehicle construction and use regulations which all vehicles have to

comply with. The outer cover, on impacts up to 5 mph, will attempt to return to its original

shape and position, sustaining only cosmetic damage with no additional damage beyond the

outer cover.

[59]

The next area of the crumple zone is the inner support beam behind the outer cover

in the centre section of the vehicle. On this particular Polo the beam extended across an area

behind the vehicle registration plate in a horizontal line, the ends of which are below the

inner edges of each headlight. It is designed to collapse progressively between 5 and

12 mph, absorbing the force of an impact without extending that force rearwards into the

chassis structure. It will remain collapsed and damaged after impact i.e. unlike the outer

cover, it will not return to its original shape.

[60]

The third area of the crumple zone is the vehicle chassis.

[61]

The inner support beam was correctly located with no evidence of damage or

rearward displacement. This led Mr Bathgate to conclude that the Polo must have been

travelling at less than 5mph or else greater damage would have been evident.

[62]

From documentation provided and/or from his inspection of the Polo, he observed

the following damage to the Polo:

Displacement to the front offside black trim adjacent to the front grille;

ii.

A crack adjacent to the towing eye aperture;

iii.

A scuff mark below the front offside headlight;

iv.

Scuffing to the lower offside bumper;

A dent to the front offside wing.

[63]

From photographs provided, he observed the following damage to the Audi:

A split in the black honeycomb trim to the left of the tow ball;

ii.

A contact mark on the white bumper above the damaged area of the

honeycomb trim.

[64]

The only damage to the Polo probably caused by the impact with the Audi was the

crack to the bumper adjacent to the tow-eye aperture.

[65]

The damage to the Audi was not caused by the impact with the Polo. It was

probably caused as a result of a direct impact from something with a small surface area. The

damage is consistent with the Audi having reversed too far when coupling with a trailer or

caravan or the trailer / caravan has rolled forward into the rear of the bumper. There is no

corresponding part of the Polo which would cause that.

[66]

The Polo first made contact with the tow-ball fitted to the rear of the Audi. The

contact between the "soft" front of the Polo and the hard tow ball of the Audi would not be

enough to shunt the Audi forward with its handbrake on. The force needed to do that

would mean the Audi's tow-ball would extend into the bumper cover of the Polo,

destroying the bumper cover which would split and allow the tow ball to access the forward

section of the chassis leg on the right of the Polo. Before the front of the Polo could make

contact with the rear of the Audi, the Audi tow-ball would have to split, destroy and fully

extend into the bumper structure of the Polo to make contact with the chassis prior to the

two bumpers coming into contact with each other. There was no sign of that having

occurred. The damage to the Polo is slight. The speed of the Polo was certainly less than

5 mph and probably as low as 1 to 2 mph.

[67]

If there had been a "collapse and reform" of the Polo's bumper there would be tell-

tale signs on the painted surface of both vehicles to indicate where the collapse and reform

had been because the paintwork on the bumpers is more elastic than the bumper covers.

The force has been insufficient to cause the collapse of the bumper or to disturb it on its

mountings.

[68]

If the Polo had struck the bumper of the Audi when the Audi was stationary (as

opposed to merely striking the tow ball), the damage to the Polo would not just be to the

outer cover or the inner support beam, it would extend through that into the structure of the

vehicle. The radiator behind the inner support beam would be punctured. Headlights

would be broken and the bonnet would most likely be pushed back with structural damage

to the front of the chassis legs and headlamp mounting panels.

[69]

Mr Bathgate accepted that the diagram in Mr Vaquerizo's report of the position of

the 2 vehicles at the time of impact (Figure 14, page 23) is probably correct but considered

that on the balance of probabilities any other scuff marks or damage to the Polo were not

consistent with having been sustained in the collision.

[70]

Some damage may have been suffered when the Polo struck a kerb on a separate

occasion. As shown in photos lodged as pages 46 and 47 of the joint bundle, a mark on the

upper edge of the lower bumper of the Polo is evident. Despite photographing the upper

external damage, he did not photograph the damage to the underside of the lower part of

the bumper because he was of the opinion it was not caused by the collision. He disagreed

with Mr Vaquerizo's report which only refers to the damage being to the upper edge of the

lower spoiler. Mr Vaquerizo had not inspected the Polo and was working off the photos

which Mr Bathgate had included in his report. These did not include a photograph of the

lower edge. Images (c) and (d) on pages 5 and 6 of his report supports his theory given the

nature and extent of the damage shown. In response to why there is no damage to the front

area of the spoiler i.e. the area between the upper and lower areas, he stated there is

paintwork damage in the centre of the roughened area.

[71]

Figure 10 on page 19 of Mr Vaquerizo's report shows a horizontal mark along from

the number plate. Figure 11 shows the misalignment of the front offside bumper. Neither of

these areas of damage were mentioned by Mr Bathgate as they were not evident at the time

he inspected the Polo. The misalignment may have been as a result of the impact with the

Audi but he believes it is more likely to be as a result of the scuffing of a kerb as it is more

likely to be connected to the damage closest to it namely the area of scraping damage on the

paintwork to the lower bumper below the headlight.

[72]

There was a further area of potential damage not mentioned in Mr Bathgate's report

but shown in Figure 12, page 20 of Mr Vaquerizo's report, i.e. situated on the corner of the

front offside bumper of the Polo. The image is of poor quality. It was not present when Mr

Bathgate inspected the Polo. It may be surface dirt on the bumper cover. He had not seen

any evidence of damage or repair to that area and doubted it is connected to the accident.

The Polo would have to have been at a 45 degree angle relative to the position of the Audi to

expose that area of the Polo. The position of damage is one thing, the nature of damage is

another. The damage caused by the contact between the two vehicles is to the Polo only and

comprises the marks and small split below the towing-eye aperture on the Polo's front

bumper cover. There is no damage to the Audi which he would attribute to the impact. He

disputed any suggestion that he failed to take into account any relevant damage in reaching

his conclusions.

[73]

In his report Mr Bathgate, at paragraph 8.7, states the speed difference between the

vehicles was less than 5mph and probably 2 to 3 miles per hour. No literature had been

produced to justify his conclusions. He had not offered evidence as to the weight of the

vehicles. His conclusions are based entirely on analysing the damage sustained in the

accident. He bases his opinion on his experience of bumper components and how they react

in accidents, and assessing the damage sustained is what he relied on in determining the

approximate speed difference between the vehicles at the point of contact. An Audi is a

larger and heavier car. It would not be possible for the Polo to dislodge it and sustain only

light damage.

[74]

The distance between the 2 vehicles as evident from the photos is around 15 to 18

inches. He could not explain why that was but was of the view the gap was not as a result

of the impact between the 2 vehicles.

Mr Carlo Vaquerizo

[75]

Mr Vaquerizo has been a forensic collision investigator for 11 years. He produced a

report in relation to the accident dated 4 March 2024 which he adopted as part of his

evidence. Appendix 1 of the report sets out his qualifications and experience. This includes

a BEng (Hons) degree in motorsport engineering and design gained in 2001 which mainly

related to how vehicles were designed and constructed. He undertook various training

courses during his time working for the police as a motor vehicle inspector. Some of these

related to collision investigation. He has been trained to assess the direction a vehicle was

travelling in prior to impact. He has undertaken courses in his foundation degree on

advanced damage analysis and the direction of forces applied between vehicles on impact.

He has experience of low speed collisions and has used peer reviewed research to assist in

determining how damage has occurred and the likely speed involved. He is instructed by

both claimants and defenders. He is a member of the Institute of the Motor Industry, an

Advanced Motor Engineer, a member of the Chartered Society of Forensic Scientists and the

Society of Automotive Engineers.

[76]

He had not inspected either vehicle. He considered documentation, as listed in

Appendix 2 of the report including the video footage taken by the first pursuer at the scene.

The 2 vehicles were slightly offset, the Polo being situated slightly to the left of the Audi.

The video showed a gap between the 2 vehicles of a foot or so. The front car in his opinion

had been moved forward on impact by the Polo due to the transfer of energy on impact.

[77]

The damage to the Audi was confined to the rear of the vehicle where the black

honeycomb spoiler, (referred to by the first pursuer as the diffuser) was split to the left of the

tow-ball and there is a mark to the white area of the rear bumper above and to the left of

that.

[78]

The repair invoice, and the items which had to be repaired, were consistent with the

damage he had observed and which he attributes to the damage caused by the accident.

[79]

Having regard to the damage to the Polo's bumper adjacent to the towing-eye

aperture, that is the area of the Polo which connected with the rear of the Audi. The Polo

has glanced past the Audi's tow-ball and contacted with the rear bumper of the Audi. The

front offside of the Polo has come into contact with the vertical tow-ball and continued into

the left area of the bumper. The defender had steered slightly to the left prior to the impact.

He bases that on the position of the vehicles and the position of the defender's steering

wheel as shown on the video footage.

[80]

The horizontal scuff mark below the Polo's headlight could be impact related due to

contact with the bottom section of the Audi's tow-ball. The mark was fresh as far as he was

aware.

[81]

The mark on the lower part of the bumper described at Figure 9 on page 18 of his

report as bumper scuffing could be caused by the bottom section of the Audi's tow-ball. If it

was due to striking a kerb or something similar he would have expected to see damage to

the front edge of the bumper, not just the top part. The damage which is shown in the photo

is consistent with having been sustained when contact was made with the lower part of the

tow-ball arm.

[82]

He had not seen anything to suggest the horizontal scuff mark to the front offside of

the Polo was pre-existing so assumed it is as a result of the collision. Figure 11 on page 19 of

his report shows misalignment between the front offside bumper and front offside wing of

the Polo. As the bumpers of the 2 cars impacted the Polo's bumper has popped from its

mountings.

[83]

The mark shown on the front offside corner of the Polo's bumper below the

headlight is unclear. It may be collision damage but the quality of the image is poor.

[84]

He described the height of the damage to the Polo being the same as the height of the

Audi's tow-ball.

[85]

Summarising the damage to the vehicles caused by the collision, it was probable that

the front offside of the Polo's bumper at the towing eye aperture collided with the Audi's

tow-bar causing the Polo to suffer a crack in the bumper, the scuffing to the lower spoiler

and displacement of the front offside bumper grille. As the Polo continued forward it is

probable that the front offside bumper made contact with the Audi's rear bumper causing

the damage to the Audi's plastic trim and bumper.

[86]

This, in turn, probably caused the horizontal scuffing found by Mr Bathgate on the

front offside bumper of the Polo and the displacement of the bumper from its offside mount.

[87]

An image of a VW Polo from the same registration year as the defender's Polo is

shown in Figure 20 of his report. The image shows a vehicle whose towing eye aperture

forms part of the structure of the inner support beam. The image was obtained from an

internet search.

[88]

Literature, issued by the Society of Motor Engineers, was referred to relating to low-

speed vehicle to vehicle rear ended impacts at speeds of 2.5, 4.9 and 8 miles per hour. No

damage to either vehicle was sustained at 2.5 mph, cosmetic bumper damage was sustained

to both vehicles at 4.9 mph and progressive central deformation of the rear reinforcement of

the target vehicle was experienced at 8 mph. The Society of Motor Engineers literature is

always peer reviewed by 3 people who must agree to publication.

[89]

The conclusion based on the damage sustained and the literature is that the Polo was

probably travelling at around 5 mph at the time of impact. The evidence of the first and

second pursuers that they had both been pushed forward at the time of impact was

consistent with this opinion as was their evidence that the Audi had been pushed forward.

[90]

If the Polo glanced off the tow-bar of the Audi, it could have caused the Polo to

change direction slightly. Alternatively, the defender may have steered to her left and that

was the reason for the change of direction. The position of the defender's steering wheel

suggested the defender had steered left. It was accepted "glancing" was not mentioned in

his report. There had been no direct impact between the Polo and the tow-bar. He was not

suggesting that the Polo had changed direction after impact.

[91]

In relation to the scuff mark to the top area of the lower spoiler of the Polo, Mr

Bathgate had given evidence that there were scuff marks to both upper and lower areas, not

just the upper area and that was more consistent with striking a kerb. It was minor damage

to that area but he did not accept Mr Bathgate's view that a kerb caused the damage as there

was no damage evident to the front edge of the lower spoiler. It was more likely to have

been caused by an object i.e. the Audi's tow arm attachment striking it from above.

[92]

In relation to the Polo's offside panel misalignment he agreed that if the clips are not

broken the panel can simply be pushed back into place.

[93]

In relation to research on the position of the Polo's towing-eye aperture and whether

that forms part of the inner support beam, he had researched this online. He did not

research different variants of the 2012 model of the Polo. He had seen nothing to support

Mr Bathgate's contention that the defender's Polo was a different variant to the one pictured

at Figure 20 of his report and it's towing-eye aperture was not part of the inner support

beam. He did not believe Mr Bathgate could come to that conclusion without removing the

bumper and he had seen nothing to suggest that had been done.

[94]

He had not suggested that the Polo had moved through the Audi's tow bar before

causing the damage to the rear of the Audi and disagreed that would have to happen before

the damage evident at the rear of the Audi was sustained. His position was that the Polo's

towing eye aperture made contact with the tow bar of the Audi and slid off to the side

because of the angle of impact as a result of the defender steering slightly to the left.

[95]

His conclusions would be the same whether the Polo's towing eye aperture was or

was not part of the inner support beam.

Mr Matthew Moran

[96]

It was accepted by the defender at the outset that Mr Moran could be regarded as

qualified and fulfilled all the necessary requirements of a skilled person. He is a consultant

orthopaedic surgeon based at Edinburgh Royal Infirmary specialising in trauma surgery.

He had prepared separate reports in relation to each pursuer which he adopted as part of his

evidence.

[97]

He has knowledge and experience of low velocity whiplash injuries. By definition,

whiplash injuries are caused by low velocity impacts. His medico-legal practice is

approximately 75% related to road traffic accidents. The mechanism of a whiplash injury

relates to an initial acceleration of the vehicle occupant due to force being transmitted

through the vehicle in which they are seated. This causes the occupant to move forward.

Their head and upper cervical spine lags behind very slightly compared to their body and

lower spine. There is secondary deceleration due to the seat belt activating and pulling

them backwards. The head lags behind as it is not restrained by the seat belt. The time lag

is around 500 milliseconds i.e. half a second.

[98]

The relevant structures are the skeleton, intra-vertebral discs, ligaments and muscles.

If muscles are taken out of the equation the rest cannot support the head. Muscular tone is

critical to maintaining the head in the upright position.

[99]

The primary physical problem is due to sudden contraction of muscles. Secondary

injury is caused to the ligaments but the predominant injury is a muscle-type strain. In most

cases, around 85 to 90%, there is an onset of symptoms within 24 hours with a gradual

worsening of symptoms over a short period.

[100]

Where the occupant is restrained by a seat belt the upper part of the body is

relatively well protected with little movement but the neck and head are, in comparison, free

to move. These injuries occur predominantly in low velocity collisions and it is very rare for

an individual to complain of whiplash where severe injuries have been sustained. There are

some factors which have a bearing on the susceptibility of developing symptoms such as

pre-existing neck (including cervical spondylosis) and/or psychological conditions, gender

(susceptibility is greater in females), age (the risk is greater in middle age and reduces as we

get older) and other biosocial factors. Severity of injury is unrelated to the mechanism of the

accident. Both the driver and passenger can suffer whiplash.

[101]

Studies have exposed occupants in vehicles to rear impact as low as 2.5 mph and up

to 30% report transient symptoms without any vehicle damage having been sustained. He

was not aware of a lower limit below which injuries are not sustained but there is no point

asking what speed was needed to cause symptoms. The severity of the impact is unique to a

particular person in any given situation. The speed of impact itself is relatively unimportant

in determining the severity of symptoms which someone develops.

[102]

The first pursuer sustained injury as a result of a typical flexion/extension or

whiplash mechanism. Serious injury to the vital structures such as skeleton, intervertebral

discs, spinal cord or nerve roots was unlikely. Rather, the injury was a soft tissue strain, the

effects of which settled at 6 months. The nature of the injury was in accordance with the

treating doctor's assessment of his condition on 15 February 2022.

[103]

The second pursuer sustained soft tissue or whiplash type injury to her neck. The

mechanism that she describes is typical as are her symptoms. There was no evidence that

she sustained injury to the vital structures of the affected areas. The injury represents a soft

tissue strain, the effects of which rapidly settled within 2 weeks. This was consistent with

the treating doctor's assessment of her condition on 15 February 2022.

[104]

His impression of both pursuers was that there was no attempt to exaggerate

symptoms or hide previous medical problems, indeed the first pursuer had volunteered that

he had previously suffered a degree of neck pain which was not recorded in his medical

records and which Mr Moran would not have otherwise known about.

[105]

On being asked what is the point in seeing claimants who have fully recovered by

the time of the interview Mr Moran explained that a) he has come across claimants who are

stoical and underplay their complaints so when they are examined an abnormality may be

detected and b) consideration is given to whether there is an alternative pathology which

may be relevant to the issues being considered. The interview also has the benefit of

allowing him to obtain their version of events relating to the accident, their description of

symptoms and the time it took for them to resolve and to ask about pre and post-accident

medical history.

[106]

He accepted that whether the pursuers were moved as a result of the impact is a

question of fact for the court to decide.

Pursuer's submissions

[107]

The pursuers seek decree for payment by the defender for losses arising from the

road accident. The first pursuer seeks compensation for solarium valued at £3800, a sum for

inconvenience valued at £250, hire charges in the sum of £1189.75 and repair costs of

£1263.17, with interest on each head of claim. The second pursuer seeks an award of

solarium in the sum of £1250 plus interest. In the event of success expenses should be

awarded with certification of the skilled persons and sanction for junior counsel.

[108]

There was no dispute that there was contact between the first pursuer's Audi and the

defender's Polo. The principal area of dispute was causation. A finding in fact should be

made that the Polo was travelling in excess of 5 mph failing which a finding that the Polo

was travelling at sufficient speed to cause injury to the pursuers.

[109]

The credibility and reliability of each witness was commented upon along with an

analysis of the skilled person evidence on vehicle damage and the largely unchallenged

evidence of Mr Moran. Mr Bathgate went beyond his area of expertise to comment on

matters which he was not qualified to do.

Defender's submissions

[110]

Liability was accepted to the extent that there was no dispute that contact took place

between the front of the Polo where it's towing eye aperture is located and the towing arm

attachment of the Audi. The issue is what losses if any resulted from that.

[111]

The pursuers were not credible. They gave their evidence in a "superficially credible

manner" and sources of evidence which are independent provides the court with a better

indication of what actually occurred. Mr Moran was not given any clear narration of the

immediate aftermath of the impact by either pursuer. Mr Vaquerizo departed from his

original opinion which had suggested there was a square-on impact between the Polo and

the Audi's tow bar to introduce a "fiction" of the Polo gliding past the tow-bar to cause the

damage to the rear of the Audi. Mr Bathgate's evidence should be preferred when he says

that no damage was caused to the Audi the damage which was evident could only have

been sustained if the Polo had travelled through the tow-bar into the back of the Audi which

would have resulted in significant structural damage to both vehicles. No such damage

existed and therefore any damage to the rear of the Audi must have been sustained at some

time other than the accident in question.

[112]

When challenged, Mr Vaquerizo repeatedly asked questions and adopted a position

of fact finder. He had not researched the different variants of VW Polos and resisted any

suggestion that he may be wrong.

[113]

In relation to quantum, the proposed sum for the first pursuer was slightly on the

high side, by a few hundred pounds. In relation to the hire charges and repair costs there

was no evidence as to when the invoices were paid and there was a question mark over

whether the period of hire covered the time when the first pursuer was having his front end

damage repaired. In relation to the second pursuer, her case should never have been raised

as an ordinary action. An appropriate solatium award would be in the range of £500 to

£750. No issue was taken with certification of Mr Vaquerizo and Mr Moran nor sanction for

junior counsel.

Authorities Referred to:

[114]

Kennedy v Cordia (Services) LLP [2016] UKSC 6 (pages 2 36)

ii.

Edward Windsor v NWH Group Limited, unreported, Edinburgh Sheriff

Court, 29 February 2016 (pages 37 50)

iii.

David Brown v Aviva Insurance, unreported, Livingston Sheriff Court, 22

November 2016 (pages 51 to 58)

iv.

Julie Brines v Aviva Insurance UK Limited, unreported, Edinburgh Sheriff

Court, 10 January 2018 (pages 59 65)

Darren Smith v Aviva Insurance Ltd, unreported, Glasgow Sheriff Court, 1

November 2018 (pages 66 152)

vi.

Taylor Rooney v Aviva Insurance Ltd, unreported, Stirling Sheriff Court,

7 January 2019 (pages 118 151)

vii.

Suresh Balasubramanian v UK Insurance Limited, ex tempore decision, All-

Scotland Personal Injury Sheriff Court at Edinburgh Sheriff Court, 14 July

2023 (page 152 to 155)

viii.

Cooke v Gaylo Kemp & Kemp: Quantum of Damages Para F1-116

ix.

Judicial College Guidelines 17

Edition: Chapter 7 A - Neck Injuries and

Chapter 14 Minor Injuries

Discussion

[115]

These cases relate to what is commonly referred to as a low velocity rear end shunt.

The rear of the first pursuer's Audi was struck by the front of the defender's Polo. That

much is accepted. The area of dispute is whether the pursuers sustained any losses as a

result. Heads of claim included solatium, repair costs, hire charges and inconvenience.

Skilled person evidence was led from experts on motor vehicles regarding the nature and

cause of damage to the vehicles. The nature and cause of the damage is clearly relevant to

all heads of claim but, as always, the evidence given by the vehicle experts requires to be

viewed along with all other evidence in the case e.g. the evidence of the pursuers when

speaking about the circumstances of the accident including the movement of vehicles

immediately after impact and the injuries which they say they sustained together with the

orthopaedic evidence on the mechanism of a whiplash injury and the speeds required to

cause such injuries. There was no evidence to contradict Mr Moran's orthopaedic opinion

and I accept his evidence as credible and reliable. However, his opinions are predicated on a

particular version of events as outlined by the pursuers. So, the real question here is

whether the evidence of the pursuers, supported in the main by Mr Vaquerizo, should be

accepted or whether the evidence led from Mr Bathgate that should be accepted, thereby

discrediting the pursuers and in turn lead the court to hold that no injuries or financial

losses resulted from the collision.

[116]

Before considering these issues in detail, I will firstly deal with the evidence which

was heard under reservation, objections having been made by the defender to particular

lines of questioning.

[117]

Objection 1: The evidence of Mr Vaquerizo in relation to the gap between the

vehicles. The basis of the objection was that Mr Bathgate had not been questioned by

pursuer's counsel on the gap between the vehicles and Mr Vaquerizo had not dealt with this

in his report. At the end of Mr Bathgate's evidence I indicated that having seen the video

footage taken at the locus I felt it prudent to ask Mr Bathgate if he could explain why there

was a gap between the vehicles having regard to his evidence that the Polo struck the Audi

at less than 5 mph. I wanted to ensure no erroneous inferences were drawn from my

viewing of the footage. Mr Bathgate responded by saying that any gap was not as a result of

the impact i.e. the Audi was not knocked forward as a result of the Polo striking it from the

rear. He could not explain why there was a gap it may be the first pursuer drove forward

following the collision, it may be the defender reversed but, whatever the explanation, it did

not arise because of the impact. Put simply, the Polo's speed was not high enough to have

caused the Audi to move forward. Mr Bathgate had previously seen the video footage and

would have been aware of the existence of the gap.

[118]

I repel this objection. The court is entitled to ask questions of a skilled person to

assist the court in its understanding of any technical issues which arise. Everyone could see

the gap between the vehicles on the video. The pursuers had stated the Audi had been

pushed forward on impact. Mr Bathgate estimated the gap at between 1 to 1 ½ feet. If

vehicles collide, depending on the speed of the rear vehicle and the relative weights of the

vehicles, the front vehicle may be pushed forward leaving a gap between the two when they

come to a halt. If no gap exists, one might infer that insufficient force transferred between

the vehicles to cause the front vehicle to move forward from its stationery position. If video

evidence does show a gap between the 2 vehicles one might reasonably infer that gap arose

as a result of the transferred force on impact, especially if the inference can be justified by

other evidence.

[119]

As Mr Bathgate was asked about the gap, it was entirely appropriate that

Mr Vaquerizo was also asked about it. He suggested the gap was approximately one foot

and was of the view that gap was created when the momentum of the Polo pushed the Audi

forward during the transfer of energy upon impact. This evidence is consistent with the

evidence of both pursuers that the Audi was knocked forward upon impact. Whilst the

precise distance mentioned by witnesses varied slightly, the differences were not material.

[120]

Objection 2: Mr Vaquerizo's evidence that the Polo glanced the Audi's tow bar

attachment. The basis for the objection was that this theory had not been canvassed in his

written report and had not been put to Mr Bathgate. In response, the pursuer contended

that a fair reading of Mr Vaquerizo's report gave fair notice that the Polo must have

travelled past the tow-bar attachment of the Audi and connected with its rear bumper and

honeycomb trim, causing the damage shown in the photographs. Again, I repel the

objection. The witness was being asked to explain the opinion in his report i.e. how could

there be damage to the area of the Audi to the left of the tow bar attachment. His report

made it clear that the rear damage to the Audi was, in his opinion, as a result of the impact.

If his evidence varied from the terms of his written opinion that is relevant to his credibility

and reliability. It was open to the defender, as indeed was done, to question the witness on

why he had not mentioned that the Polo had glanced past the Audi's tow-bar. The question

is what weight to place on that evidence, not whether it is inadmissible. The issue of rear

end damage to the Audi was not only canvassed in Mr Vaquerizo's opinion but was also on

Record and I am satisfied that Mr Vaquerizo was simply elaborating on the opinion which

he had expressed in his report rather than introducing something for which no notice had

been given. I note that there was no motion made to recall Mr Bathgate to allow him to be

questioned further on this point.

[121]

Objection 3: The evidence of Mr Vaquerizo when referring to literature. The

objection was to the effect that the literature had not been produced and therefore he should

not be allowed to make reference to it.

[122]

The literature is quoted with full citations in his report. It is true to say that it had

not been produced. Again, I repel the objection whilst observing that the weight to be given

to skilled person evidence runs the risk of being diminished if the literature is not available

to the court to assist with verification of the opinion being expressed. That, however, does

not render the parole evidence inadmissible. He was able to explain that his opinion was

based on the studies referred to in his report and had a scientific, peer-reviewed basis.

[123]

Given the fact that Mr Vaquerizo's report was available to the defender at the pre-

trial meeting, it was open to the defender to have downloaded the literature or, if they had

difficulty accessing it, to make a request to the pursuer for copies. Either way they ought to

have had the ability to consider it in advance of the proof. It was not suggested that had

been done. It was to be expected that Mr Vaquerizo would be asked about the issues to

which the literature related namely the level of damage caused to vehicles depending on the

speed at impact. Mr Bathgate had given evidence that Vehicle Construction Regulations

stipulated that only cosmetic damage to the bumper would be sustained at speeds of up to

5 mph and the inner support beam was designed to protect the vehicle at speeds of up to

12 mph. Those regulations had not been produced and, indeed, were not even referred to in

Mr Bathgate's report.

[124]

In any event Mr Vaquerizo's evidence on this, taken from the literature which he

quoted, as outlined in para [88] above, accords with what Mr Bathgate has said about the

bumper being designed to absorb impact at speeds of up to 5 mph and sustain only cosmetic

damage. I accept this evidence as being credible and reliable. For the avoidance of doubt,

that does not mean that there requires to be a speed of 4.9 or 5 mph before the occupants of

the front vehicle suffer injury.

Analysis of evidence relating to whether the collision, on the balance of probabilities,

caused the pursuers to suffer loss, injury and damage:

[125]

I found both pursuers to be credible. I cannot agree with the defender's criticisms

which were tantamount to suggesting their evidence was so good it must be untrue. Their

evidence is backed up by other, independent, evidence which I find to be credible and

reliable. I found the first pursuer to be mainly reliable and the second pursuer to be entirely

reliable. The first pursuer's evidence that there was a huge metallic bang on impact is

probably exaggerating the position slightly albeit nothing turns on that. He had no

recollection of attending the police station to give his statement although it seems clear that

he did so based on the evidence of PC Beaumont and the second pursuer. He told the police

officer that his vehicle had been pushed forward half a foot but told Mr Moran two feet. I

accept it is difficult to be precise about such measurements. The passage of time between

the accident and being interviewed by Mr Moran no doubt played a part in the discrepancy.

It is of note that Mr Bathgate estimated the distance at one to one and a half feet and

Mr Vaquerizo estimated the gap at around one foot, both of which are roughly in the middle

of the first pursuer's 2 estimates. My impression of the video is that it showed a gap of

around 1 to 1 ½ feet.

[126]

I accept entirely the evidence of both pursuers in relation to what happened to them

on impact. The independent cross checks which exist to satisfy me that their versions are

credible and reliable are:

The clear gap between the vehicles evident from the video footage, consistent

with the Audi having been pushed forward.

Mr Vaquerizo's evidence that a) peer-reviewed literature confirms that

vehicles involved in a collision at a speed of 4.9 mph will sustain cosmetic bumper

damage and that at 2.5 mph no damage will be evident b) that cosmetic damage was

in fact sustained to both vehicles and c) the gap between the 2 vehicles arose because

of the transfer of energy between the Polo and the Audi on impact which was

sufficient to knock the Audi forward.

Mr Bathgate's evidence that Vehicle Construction Regulations require

bumpers to be able to absorb impacts of up to 5mph to prevent damage to the inner

support beam, such speeds causing only cosmetic damage to the bumpers (which

includes the cracking to the area adjacent to the Polo's towing-eye aperture).

[127]

As explained by Mr Moran, the speed of impact has no direct correlation with the

extent of injuries sustained in a low velocity collision. Whiplash injuries, by definition, arise

from low velocity collisions. The studies which he is aware of reveal that speeds as low as

2.5 mph have been shown to result in injury. His extensive clinical experience backs that up.

He was an impressive witness. I accept his evidence as credible and reliable on this point. It

was unchallenged as was his opinion on the nature of the injuries sustained by each pursuer

subject to the court accepting that the pursuers' versions of events upon which he based his

opinions are credible and reliable. He has, of course, had to take at face value the pursuers'

contentions that they were thrown forwards on impact and restrained by the seat belt.

There were no lasting injuries which he could objectively assess at the time of interviewing

the pursuers but by the same token there was nothing which caused him any concern when

considering the medical records and interviewing the pursuers. It is common place for

skilled persons to consider the relevant documentation and interview accident victims after

they have made a full recovery with a view to preparing condition and prognosis reports.

[128]

He clearly described the mechanism of a whiplash injury and, from a medical

perspective, was satisfied that both pursuers had suffered whiplash injuries in the accident.

Skilled Person Evidence generally:

[129]

Whilst case law was lodged which, in part, was designed to show that Mr Bathgate

had been discredited in previous cases, I do not consider that to be particularly helpful to

the considerations in the present case. Each case will turn on its own facts and

circumstances. What is relevant is the evidence which the witness offers to the court in this

particular case, bearing in mind the need to satisfy the court that the witness does possess

the necessary qualifications and expertise on all matters which skilled person testimony is

given. As observed by the Supreme Court in Kennedy v Cordia (Services) Ltd [2016] UKSC 6 at

para 50:

"The skilled witness must demonstrate to the court that he or she has relevant

knowledge and experience to give either factual evidence which is not based

exclusively on personal observation or sensation, or opinion evidence."

[130]

At para 48 the court stated that "bare ipse dixit" i.e. mere assertion, is worthless.

Quoting from the decision in the Supreme Court of South Africa case of Coopers (South

Africa)(Pty) Ltd v Deutsche Gesellschaft fur Schadlingsbekampfung mbH:

"An expert's opinion represents his reasoned conclusion based on certain facts or

data which are either common cause or established by his own evidence or that of

some other competent witness. Except possibly where it is not controverted, an

expert's bald statement of his opinion is not of any real assistance. Proper evaluation

of the opinion can only be undertaken if the process of reasoning which led to the

conclusion, including the premises from which the reasoning proceeds, are disclosed

by the expert."

[131]

And quoting Lord Prosser in Dingley v Chief Constable, Strathclyde Police 1998 S.C.

548:

"As with judicial or other opinions, what carries weight is the reasoning, not the

conclusion."

As outlined below, I do have concerns in the present cases that parts of Mr Bathgate's

evidence are not supported or adequately reasoned and he strayed beyond his area of

expertise. I did not have the same concerns in relation to Mr Vaquerizo.

Speed of the Vehicles on impact and the gap:

[132]

In his report Mr Bathgate states the speed difference between the vehicles was less

than 5 mph and probably 2 to 3 mph. However, this contradicts his parole evidence where

he said the speed was probably 1 to 2 miles per hour. No explanation was sought or given

as to why there was this difference nor was there any reasoning which the court could rely

on to entitle it to accept that evidence. The opinion offered was suggestive of a witness who

was trying to justify his position that no damage could have been caused to the Audi

without any scientific or authoritative basis. It is entirely speculative. It went beyond the

area of expertise of this witness or at least he had not been set up in such a way to satisfy the

court that a) he had the requisite qualifications and expertise to offer an opinion on these

matters or b) he had carried out any calculations or was relying on authoritative literature

which would allow this testimony to be accepted as credible and reliable. His evidence was

that the speed of the Polo was insufficient to knock the Audi forward but offered no

evidence as to what speed, or indeed level of force, would have been required to do that,

speculating that the Audi was heavier and the Polo was incapable of knocking it forward on

impact. No evidence was led in relation to the relative weights of the vehicles. The fact of

the matter is that a gap between the vehicles was present for all to see, the pursuers spoke to

the gap being created when the Audi was knocked forward by the Polo and Mr Vaquerizo

spoke to the gap arising from the transfer of energy between the vehicles on impact. For the

court to find that these 2 sources of evidence, taken together, should be rejected, realistically

something more compelling than Mr Bathgate's evidence that a) there is a gap b) "I can't

explain why it exists it may be down to one or other of the vehicles moving after impact -

but it's not as a result of the collision as the speed would not have been enough to move the

Audi" would be required. It is of course for the pursuers to prove their case and not for the

defender to disprove but in the absence of credible and reliable evidence to cast doubt on the

evidence of the pursuers and Mr Vaquerizo on this issue, I prefer their evidence to what in

essence was unreasoned speculation on the part of Mr Bathgate. His evidence may have

carried greater weight if he had backed up his opinion by reference to authoritative

literature relating to the speed which would be required to shunt the Audi forward a

distance of 12 to 18 inches or the level of damage which would result to the vehicles if that

force was exerted.

[133]

All he can say with any degree of reliability in relation to the speed is that it was

unlikely to have been more than 5 mph based on what he said about the Vehicle

Construction Regulations and the fact the bumper is designed to absorb impacts of up to

5 mph without structural damage. Mr Bathgate's evidence in relation to both the likely

speed of the Polo on impact and why there was a gap is weak and unconvincing.

[134]

In short, there are no reliable contradictors to i) the evidence that was given by both

pursuers and Mr Vaquerizo that the Audi was forced forward on impact, absent any

evidence that either vehicle was moved between the time of impact and the time the video

was taken by the first pursuer, or ii) Mr Vaquerizo's evidence, based on the literature quoted

in his report, that no damage would be evident when the speed on impact is 2.5 mph and

cosmetic damage would be evident at a speed of 4.9 mph.

Damage to Audi

[135]

I have a further difficulty with Mr Bathgate's evidence in relation to his theory that

the damage to the rear of the Audi was probably caused when the Audi was coupling with a

caravan or trailer. If the Audi's tow-ball was in place during a coupling manoeuvre, it is

reasonable to infer that it would afford the same level of protection to the rear of the Audi as

it would if the Audi's tow-ball was directly struck by another vehicle. The tow-ball would

prevent damage to the rear of the Audi during any coupling manoeuvre. The mechanism of

how the damage which he attributed to a coupling manoeuvre could actually arise with a

tow-ball in place was not explained and it seems to me that the only 2 realistic explanations

for the Audi damage are either: i) the damage was sustained when the tow-ball was not

attached to the Audi, or ii) the damage was sustained when the Polo glanced off the tow-

ball, striking the area behind and to the left of it. The tow-ball would almost certainly have

been in place if the Audi was being coupled to a caravan or trailer. There was no dispute it

was in place at the time of being struck by the Polo and therefore the likely explanation,

based on the available reliable evidence, is that the damage to the Audi was sustained when

the Polo glanced off the tow-ball and struck the rear of the Audi.

[136]

Given other evidence to the effect that the defender had steered slightly to the left

immediately before impact, the first pursuer's evidence that there was no damage to that

area of his vehicle before the impact and the evidence that the damage to the rear of the

Audi could not have been sustained if the Polo had hit the tow-bar head on, all of which I

accept as credible and reliable, it is probable that the Polo glanced the Audi's tow bar and

proceeded forward, striking the area of the Audi which sustained the damage shown in the

photographs.

Damage to the Polo's lower spoiler

[137]

Mr Bathgate also gave evidence that some damage may have been suffered to the

Polo when it struck a kerb on a separate occasion. He based that on having lifted the bonnet.

He looked inside where he said he could see damage to both lower and upper sections of the

spoiler although he did not photograph the lower section. I have a difficulty accepting that

it was possible to view the underside of the lower spoiler by lifting the bonnet and looking

directly down inside the vehicle. It begs the question how the bottom section of this

structure could be seen when looking down from the top? Its face would be pointing to the

floor and would not be visible from above. Some explanation from Mr Bathgate would have

been required. None was given. Mr Vaquerizo stated he did not believe it was possible to

detect underside damage by inspecting in this way.

[138]

Despite photographing the damage to the upper part of the lower spoiler, Mr

Bathgate did not photograph the damage to the underside because he was of the opinion it

was not caused by the collision. Yet, he was of the opinion that the upper damage was not

caused by the collision either (it was a result of a scuff mark when the Polo had struck a

kerb) but had produced a photograph of the upper aspect. In response to being asked why

there was no damage to the front aspect of the lower spoiler i.e. the area between the upper

and lower aspects, he suggested that there was damage to that area. On close inspection of

the relevant photographs, I could not see any such damage to the front aspect. Given the

location of the damage to the upper aspect, which is in close proximity to the displaced

black trim adjacent to the air grille which in turn is below and slightly to the side of the crack

extending from the towing-eye aperture, I am satisfied that all of that damage to the Polo

was sustained in the impact with the Audi as the Polo swerved slightly and glanced off the

Audi's tow ball.

Quantum

Solatium

[139]

The first pursuer sustained a soft tissue injury to his neck. The pain and discomfort

was most acute for a period of 2 months. Thereafter there was a gradual resolution and

complete recovery by 6 months post-accident. The first pursuer had a history of neck pain

which he had suffered intermittently for 8 years and which prompted visits to a chiropractor

when required. However, there was no evidence to suggest any previous condition was

causing him any problems immediately before the collision and Mr Moran does not suggest

that the accident has exacerbated any pre-existing condition.

[140]

The second pursuer developed neck pain and a headache which resolved within

2 weeks.

[141]

The authorities on solatium, as listed above, can be summarised as follows:

Windsor v NWH Group Ltd:

The pursuer suffered a soft tissue injury to his neck and lower back. He was absent

from work for 1 week. He took painkillers. His sleep was disturbed. He had made a

full recovery by 18 months post-accident. Solatium was agreed in the sum of £4000.

Taking inflation into account the award is now worth £5321.

ii.

Smith v Aviva Insurance Ltd:

The pursuer suffered a soft tissue injury to the lower back and neck. Painkillers were

required for 2 weeks and then as required for intermittent back pain. Physiotherapy

was undertaken and a full recovery was made just after 4 months post-accident. The

solatium award was £3500, now worth £4687.

iii.

Rooney v Aviva Insurance Ltd:

The pursuer suffered a minor whiplash injury to the neck and upper back. The worst

symptoms lasted 2 to 3 days, painkillers were required for 3 weeks, physiotherapy

was undertaken and there was a fully recovery by around 2 ½ months post-accident.

The solatium award was £750, now worth £931.

iv.

Balasubramanian v UK Insurance Ltd:

The pursuer sustained a soft tissue neck injury. She had fully recovered by the time

she was examined by the orthopaedic consultant instructed in her claim 8 months

post-accident. Her pain and discomfort had mostly settled by 2 months. The

solatium award was £1800 in July 2023 now worth £1823.

Cooke v Gaylo:

The pursuer suffered soft tissue injuries to his neck, trapezius muscles and shoulders.

He had pins and needles down his arms. Physiotherapy and pain killers were

required. There was some restriction in ability to undertake day to day tasks and he

required light duties at work for 3 months. He made a full recovery by 6 to 7 months

post-accident. The general damages award was £2000 in April 2007, now worth

£3274.

vi.

The Judicial College Guidelines 17

Edition:

Chapter 7(c) - minor neck injuries where full recovery takes place between

three months and a year has a range of between £2990 and £5310. Where a full

recovery is made within three months awards are up to £2990.

Chapter 14 minor injuries where there is a complete recovery within 28

days has a range of awards between £840 and £1680.

Decision

[142]

The pursuers have proved, on the balance of probabilities, that they have sustained

losses as a result of the road collision with the defender's vehicle. In relation to

quantification of those losses, each case turns on its own facts. I am of the opinion that an

appropriate award for solatium for the first pursuer is £3500 plus interest at the rate of 4%

per annum from 13 February 2022 until 13 August 2022 (£69.81) and thereafter at the rate of

8% per annum to date (£540.82). Interest therefore amounts to £610.63. No separate award

of inconvenience is made. The first pursuer's solatium award recognises that he had to deal

with car repairers, insurers and police in the aftermath of the accident.

[143]

The appropriate award for the second pursuer is £900 with interest at the rate of 4%

per annum from 13 February 2022 until 27 February 2022 (£1.38) and thereafter at the rate of

8% per annum to date (£172.01). Interest therefore amounts to £173.39.

Hire Charges and Repair Costs

[144]

I am of the view that the sums sought for hire charges (£1189.75) and repair costs

(£1263.17) are reasonable and have been incurred as a direct consequence of the accident.

[145]

I shall therefore grant decree in case number PN2280-23 against the defender for

payment to the pursuer, Callum Fraser, in the sum of £6563.55 inclusive of interest to 18 July

2024. I shall find the defender liable to the pursuer in the expenses of process, as taxed. Mr

Carlo Vaquerizo and Mr Matthew Moran are certified as skilled persons and I shall sanction

the cause as a suitable for the employment of junior counsel.

[146]

I shall grant decree in case number PN2279-23 against the defender for payment to

the pursuer, Brynhildur Hallgrimsdottir, in the sum of £1073.39 inclusive of interest to

18 July 2024. I shall reserve the question of expenses in Ms Hallgrimsdottir's case as there

may be issues to be discussed given the level of award and the fact two proofs ran together.

If parties are unable to agree a position then they should request a hearing on expenses.