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Farheen Ackrim against UK Insurance LTD (All-Scotland Sheriff Personal Injury Court) [2024] SCEDIN 53 (05 December 2024)
URL: http://www.bailii.org/scot/cases/ScotSC/2024/2024scedin53.html
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[2024] SCEDIN 53
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SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
IN THE ALL-SCOTLAND SHERIFF PERSONAL INJURY COURT
[2024] SC EDIN 53
PIC-PN2784/23
JUDGMENT OF SHERIFF K J CAMPBELL KC
in the cause
FARHEEN ACKRIM
Pursuer
against
UK INSURANCE LIMITED
Defender
Pursuer: A. Black advocate (Jones Whyte, solicitors, Glasgow)
Defender: J Thomspon advocate (Clyde & Co, solicitors, Glasgow)
Edinburgh 5 December 2024
1.
On 16 August 2020 the pursuer was driving motor vehicle registration ST12 AUR from
Glasgow city centre to her home on the south side of the city.
2.
As at 16 August 2020, the defender was the motor insurer of the driver of vehicle
registration SC12 ZHB.
3.
Whilst the pursuer was stationary at a junction controlled by a Give Way sign, the
defenders insured's vehicle collided with the rear of the pursuer's vehicle.
4.
As a consequence of the collision the pursuer's body was jerked forward and was
restrained by her seatbelt. The pursuer thereby sustained soft tissue injury to her neck.
5.
Over the following 12 days, the pursuer developed worsening pain to her neck
resulting from soft tissue injury in consequence of the collision. During this time, the
pursuer self-administered analgesia.
2
6.
On 28 August 2020 the pursuer contacted her GP and spoke with a receptionist there.
The pursuer reported to the receptionist that she had sustained injury to her neck. Her
report was triaged to Dr Naushad Ali who issued a prescription for Naproxen and Co-
Codamol.
7.
The pursuer continued to use analgesia thereafter including Naproxen, Paracetamol
and Ibuprofen.
8.
The pursuer's injuries to her neck continued to affect her by causing pain, discomfort,
and restrictions to mobility until substantially resolving in November 2020.
9.
Between 16 August 2020 and November 2020, the pursuer required assistance from
her husband, son, and daughter with heavier domestic tasks. Those tasks included ironing,
vacuuming, cleaning, carrying shopping, and cooking.
Findings in fact in and law
1.
That the defender are liable to make reparation to the pursuer in consequence of their
insured's breach of duty at common law.
2.
The injuries suffered by the pursuer were caused by the defenders insured's breach of
duty at common law.
Findings in law
1.
That damages in the sum of £3144.00 is reasonable reparation for the loss injury and
damage suffered by the pursuer.
3
NOTE
Introductory
[1]
This action arises out of a road traffic accident on 16 August 2020 in which the car the
pursuer was driving was struck by a car driven by the defender's insured driver. Liability is
admitted, and the question to be decided by the court is the extent and quantification of the
pursuer's losses. The pursuer gave evidence, and led evidence from Dr Martina
MacFarlane, and Dr Sumeet Vhora. Both medical witnesses gave evidence by webex video-
conferencing. The defender did not lead any witness evidence.
[2]
I heard proof on 7 October 2024. The pursuer's case concluded at 15.54 on that day.
Counsel for the defender indicated the defender did not intend to lead any witnesses.
Counsel for both parties indicated that submissions were likely to take more time than the
court could reasonably sit on for. As the proof had been assigned a one-day diet, it was not
possible to adjourn until the following day for submissions, and having consulted the court
timetable and counsel's diaries, it appeared that a suitable adjourned diet would not be
available for a significant number of weeks. Having canvassed the matter with counsel, I
therefore appointed parties to exchange written submissions in draft by 14 October 2024,
and allowed a further seven days for submissions to be finalised and lodged with the court.
The court's interlocutor reserved the possibility of a further hearing on submissions, and, in
the event, that has not proved necessary as the written submissions are commendably
comprehensive.
4
Witness evidence
The pursuer
[3]
The pursuer, Farheen Ackrim, 59, was driving from Glasgow city centre to her home
on the south side of the city on 16 August 2020 when another car collided with her car at a
junction. She could not recall the name of the street. It was quite a strong hit and she was
jerked forward. She was wearing a seatbelt. There were two children in the back seats and
they screamed. The pursuer felt quite shocked and shaky immediately after the accident.
She went home. In the evening, she felt stiff and unable to move about easily. Sitting down
and getting up were difficult, as was bending. The pursuer felt pain from her neck, all
through her spine to her lower back. She took "normal" painkillers. She felt pain the
following morning and took "normal" painkillers. The pursuer has kidney problems and is
unable to take strong painkillers for long periods, which is why she described the
medication as "normal" painkillers, meaning paracetamol and ibuprofen. The pursuer
thought her symptoms would get better in a few days. They did not. She is not good about
contacting the doctor, but about a week or ten days after the accident the pharmacy advised
the GP and got the GP to contact her by phone. She was prescribed anti-inflammatories,
namely naproxen. She took that for a week to ten days. Her symptoms got better but came
back when she stopped taking the medication.
[4]
The pursuer recalled being examined by Dr Vohra. She was still experiencing
problems with her neck and spine. The pursuer was not able to do very much of her daily
routine in the period between the accident and seeing Dr Vohra. She could not work in the
kitchen, or do washing or cleaning or cooking. She could not stand up for lengthy periods.
The pursuer's symptoms continued till Christmas time. They started to improve in the
NewYear. She was pain-free after New Year. The pursuer received assistance from her son,
5
who was 17 at the time, and her daughter, who was 21, and her husband. They did
cleaning, vacuuming, making beds, tidying and washing; about an hour a day each.
[5]
In cross-examination, the pursuer said she had spoken to her GP on the phone and
described the over-the-counter painkillers she was using. She thought that was on
28 August and the GP prescribed naproxen. She was not able to say if she had taken
naproxen before. She had taken strong painkillers when she was giving birth; she did not
remember taking strong painkillers since. On reading the GP entry for 28 August 2020, the
pursuer could not say if she had had naproxen left over from a knee problem earlier. She
had been told to take that for a knee problem when she was travelling. That was around
Easter time. Dr Vohra's examination was not in person, because no-one was examined in
person due to the pandemic. Dr Vohra must have asked her what treatment she received.
Dr Vohra had noted the pursuer phoned the GP two days after the accident; the pursuer
considered he must have misheard her. She could not remember if she went to the
pharmacist or the GP. She could not remember what she had said. It could be she spoke to
a nurse. It could be that it was not in the records. The pursuer did not remember the
defender offering her physiotherapy after the accident, though she did remember being
phoned a lot by the defender's office. The pursuer was asked twice if she would have taken
physiotherapy if offered. Her first answer was that no-one was being seen in person at the
time. Her second answer was that she did not remember when she was contacted. A letter
from 3d Rehabilitation, dated 24 August 2020, reporting to the defender was put to the
pursuer. The letter reports that physiotherapy did not proceed because "the client [ie the
pursuer] does not believe that Physiotherapy will be of benefit". The pursuer said that was
how she was feeling, and that she could not remember.
6
Dr Martina MacFarlane
[6]
Dr MacFarlane has been qualified as a general practitioner for 20 years. She has been
a partner at Williamwood Medical Practice in Glasgow for 12 years. While patients have a
named GP, they can book an appointment with any GP, and urgent issues will be dealt with
by the first available doctor. The pursuer's medical records in 6/1 contain notes of GP
consultations and also record interaction with reception staff and other staff in the practice.
The entry for 28 August 2020 under "user Pu1" was by administrative staff, and was in the
following terms:
"has tried paracetamol, co-codamol 15/500 also some naproxen left and this seemed
to help"
Paracetemol, co-codamol and naproxen are all painkillers. "15/500" refers to the
strength of the medication. Dr MacFarlane assumed the pursuer had contacted the
practice seeking assistance with pain relief. The information must have been
provided by the pursuer in her initial contact with the practice, and it had been
recorded to assist the on-call GP decide what was appropriate. The next entry for
28 August 2020 was by Dr Ali, one of the GPs:
"n/s [not seen] involved in RTA neck pain requesting analgesia Rx
[prescription]"
The prescription was for (i) co-codamol 15/500, 50 tablets, to be taken 2 at a time,
4 times a day as required; (ii naproxen 500mg 28 tablets, to be taken twice a day.
[7]
The following entry was for 2 October 2020, and was a reception staff entry.
"pt [patient] had fever, weak fr 1wk. covid test neg. asking fr advice taking
paracetamol.ibuprofen. Asking for advice."
[8]
As a result, Dr MacFarlane spoke to the pursuer on the phone, and the next entry
was her note:
"Problem feverish, fatigue ??UTI [urinary tract infection]
History Telephone consultation during COVID-19 itchy eyes and runny nose,
sneezing last week, antihistamine has helped but persistent feels feverish. Feels
alternatively hot/cold (doesn't have thermometer), weak. Not achey, wants to lie
7
down. Appetite OK, eating normally. No urinary symptoms but feels similar to
prev UTIs she has had in past. No back pain/vomiting.
Result Agree MSSU and empirical Rx for ?UTI, worsening/review advice given."
[9]
Dr MacFarlane could not recall the detail of the consultation, but she would have
asked a series of questions for the pursuer to describe how she was feeling. The pursuer had
not described a classic UTI to reception staff and she wanted to find out more to exclude
spread to the pursuer's kidney, which is why she specifically noted the absence of back pain
or vomiting. Dr MacFarlane had not asked about a road traffic accident; that had not been
the subject of the pursuer's call to reception.
[10]
In cross-examination, Dr MacFarlane confirmed that the co-codamol and naproxen
prescribed by Dr Ali on 29 August would have been exhausted by 2 October 2020 had the
pursuer been taking those medications at the rate prescribed. The note by reception staff
that the pursuer was taking paracetamol and ibuprofen would have been information
provided by the pursuer.
Dr Sumeet Vohra
[11]
Dr Vohra is a GP and occupational health physician. He qualified in 1990, and has
been undertaking medico-legal work since about 1998. He adopted his report 5/1 dated
12 November 2020. He had seen the pursuer remotely due to the covid-19 pandemic. While
he preferred face to face consultations, the pursuer's case was not overly complicated and
the remote consultation was satisfactory. The only source of information was the history
from the pursuer. Medical records were not available, and he had been asked to proceed
without them. This was not uncommon at the time as solicitors were struggling to obtain
records because of the pandemic pressures on GPs. Dr Vohra took a history, and his visual
8
examination of the pursuer concentrated on range of movement. The description of pain
and stiffness in the pursuer's neck was his summary of what the pursuer told him. The
reference at B.4.1 to symptoms being particularly significant for two weeks indicated this
was the period when the symptoms were at their worst, not that they had resolved. At the
time of examination, symptoms were mild and variable meaning the pursuer was not in a
great deal of pain, and that her symptoms were not constant. The pursuer also described
stiffness in her lower back (B.4.2). These were listed separately because sometimes both
were seen in road traffic accidents, and sometimes one or the other. The pursuer had
described receiving help from family members: ironing, vacuuming, cleaning, carrying
heavy shopping for a period of 8 week; that was reasonable.
[12]
In cross-examination, Dr Vohra indicated he had been asked to produce a
supplementary report around two months prior to the proof. He had not examined the
pursuer for the supplementary report. He had been sent copies of medical records, and was
asked to comment on the records and advise if they changed his opinion. Asked if he had
said they did not alter his opinion, Dr Vohra said he expressed himself slightly differently.
At that point I was addressed outwith the presence of the witness. When cross-examination
resumed, Dr Vohra indicated his supplementary report did not deal with the question of a
prescription for painkillers. Dr Vohra understood that the pursuer had been taking
paracetamol and naproxen as required during the two weeks after the accident.
Submissions
[13]
As I have indicated above, counsel provided written submissions. I mean no
disrespect by not repeating them at length; that is not necessary because these are 21 and 22
of process. I have taken account of the written submissions in the discussion which follows.
9
Analysis and decision
Assessment of witnesses
[14]
Even allowing for the fact that the accident was just over four years ago and thus
recollection may have dulled with time, I did not find the pursuer to be a reliable witness,
and, on some matters, her evidence was incredible. Her response to many questions in
cross-examination was that she could not recall. Her explanation for Dr Vohra having noted
that she phoned the GP two days after the accident because he misheard her was
unsatisfactory, given her earlier evidence that she had contacted the GP 12 days after. As
the pursuer was examined by Dr Vohra in November 2020, it seems unlikely that any
confusion at that time could be down to the effect of the passage of time on her memory.
The pursuer's further answer about the involvement of a nurse was unsupported in the
record. Further I found her answers to questions about the offer of physiotherapy by the
defender's outsourced rehabilitation service to be evasive. In the face of the GP records for
28 August 2020 and 2 October 2020, I am unable to accept the pursuer's evidence that she
suffered back pain. I therefore accept the pursuer's evidence only to the extent it is
consistent with contemporaneous independent evidence.
[15]
I consider Dr MacFarlane was credible and reliable in her evidence. She was clear
about what she could and could not recall directly, and was clear in her explanation of the
form and content of the records from the GP practice of which she is a member, as well as
the procedures within the practice for making appointments and creating records.
[16]
I consider that while Dr Vohra was doing his best to assist the court, there are
limitations on how much of his evidence I can accept. There are a number of reasons for
that. First, I suspect he was taken aback by a line of questioning which developed during
10
cross examination about a supplementary report which he had apparently provided to the
pursuer's agents but which was not before the court. That report was provided after
Dr Vohra had been provided with GP records not previously available to him, and
apparently contained comments by him informed by those records. When the existence of
that report emerged in cross-examination, I heard submissions outwith the presence of the
witness. It became apparent that counsel for the pursuer was not previously aware of the
second report. Having heard counsel, I granted a short adjournment for the report to be
exhibited to both counsel. The report was not put before the court as a late production.
Three points of significance emerged from this chapter: (i) Dr Vohra said his supplementary
report did not comment on the GP entries about the pursuer using painkillers; (ii) Dr Vohra
said he had expressed his opinion slightly differently in the second report; (iii) Dr Vohra was
not re-examined, and the `slightly different' opinion was not followed up.
[17]
The second point relates to Dr Vohra's approach to prognosis. The defender made
two criticisms: that Dr Vohra failed to establish or comment on the pursuer's baseline fitness
and flexibility pre-accident (and thus anchoring how much functionality she might regain);
and further that while he gave a 6 month period for full resolution, he failed to indicate a
rate at which symptoms might abate. While there is some force in both points, I consider
that the first is more important than the second; however, neither is determinative of the
weight to be given to his evidence. Thirdly, at the time of preparing his first report, because
he did not have access to the GP records, Dr Vohra was dependent on the pursuer's history
of events, including her history of engagement with medical professionals. That account is
not entirely borne out by the contemporaneous records, and is at variance with her oral
evidence. While this was touched on in oral evidence, it was not explored at length.
11
[18]
In consequence of these several matters, I cannot be certain about the extent to which
the opinion articulated in his report before the court has been modified by having sight of
the GP records. I know that it has been modified, and it was not clear to me the extent to
which his oral evidence reflected that, tied as it was to his report 5/1.
Assessment of damages
[19]
I accept the evidence that the pursuer suffered a soft-tissue injury in the area of her
neck as a result of the accident.
[20]
As I have indicated, I found the pursuer's evidence that there was also back pain
unconvincing, given the contemporaneous GP records. Dr Vohra's evidence anent back
pain was, of course, reliant on the pursuer's oral history at the time of his examination. It is
also noteworthy that the pursuer's long-standing renal problems may also give rise to back
pain. Further, the GP note for 2 October 2020 specifically states "no back pain", while the
record for 28 August 2020 only refers to neck pain. I conclude that the pursuer did not
suffer back pain as a result of the accident.
[21]
The pursuer reported continuing symptoms at the time of examination by Dr Vohra,
and that these continued until after Christmas. There was no clear indication of the level of
discomfort and limitation of function. Given my conclusions about the truthfulness of the
pursuer's evidence about back pain at the time of examination by Dr Vohra, and the
questionable reliability of her account of contact with the GP, I am cautious in accepting that
the pursuer's symptoms were as long lasting as she stated. I am prepared to accept there
may have been some neck discomfort at the point of examination by Dr Vohra on
12 November 2020; that I take from Dr Vohra's evidence that symptoms were mild and
variable. I consider on the balance of probabilities that it was no more than residual. In
12
other words, the pursuer was almost completely recovered by the time she was seen by
Dr Vohra almost three months after the accident.
[22]
I consider that the appropriate range is to be found in Chapter 7(A)(c)(iii) of the
Judicial College Guidelines the lowest bracket for neck injuries, with recovery in 3 months.
That bracket indicates awards up to £2990. Severity of injury, intensity of pain, impact on
daily life, and the nature of any treatment are listed as relevant considerations in assessing
the level of award. I will award £2000 under the heading of solatium. Interest is all to the
past and amounts to £693.32, say £694, to date.
[23]
I note that the claims for "inconvenience" and out of pocket expenses are not insisted
in. That is as well. I deprecate the practice of listing "inconvenience" as a separate head of
claim. In my opinion, solatium includes that. Separately, there was no evidence of out of
pocket expenses.
[24]
In relation to services, while I accept the pursuer received assistance from her
husband, son, and daughter, I do not accept that was at a linear level as her evidence tended
to suggest. That seems illogical in the context of progressive recovery. I propose simply to
take a broad view and award £450 inclusive of interest to date.
[25]
In summary, therefore, I will make the following award of damages:
Solatium
£2000
Interest to date (all to the past)
£694
Services (inclusive of interest to date)
£450
Total £3144
Conclusion
[26]
I will therefore grant decree in favour of the pursuer in the sum of £3144.
13
[27]
The pursuer invites me to deal with expenses now, while the defender invites me to
fix a hearing on expenses. While I am minded to grant the expenses of the action to the
pursuer, I can see that there are a number of matters relating to certification and the like on
which it will be necessary to hear parties, and hearing will therefore be arranged. If parties
are able to reach agreement on all expenses matters, it will not be necessary for the hearing
to proceed.
