SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

Case Reference No: A3301/07

JUDGMENT OF SHERIFF NIGEL MURRAY PATON MORRISON, QC

in the cause

CAROLINE SPENCER

Pursuer

against

MISS E BARON

Defender

For the pursuer: Mr Docherty, Solicitor, Messrs Corries, Solicitors, Glasgow.

For the defender: Mr Mathieson, Solicitor, Messrs Simpson & Marwick,

Solicitors, Edinburgh.

EDINBURGH, 4 February 2008

The sheriff, having resumed consideration of the cause:-

Finds the following facts admitted or proved:-

1. The pursuer was a passenger in a private hire MPV Mazda motor vehicle, registration no. S003 MLY, on 11 June 2006.

2. When that vehicle was stationary at the junction of Abbeyhill and Abbeymount, Edinburgh, waiting to turn left, it was struck on the rear bumper from behind by a Volvo car, registration no. 1U1 9798, driven by the defender.

3. The collision was the fault of the defender.

4. There was no damage to the Mazda. There was damage to the front of the number plate of the Volvo which was cracked around the nearside screw.

5. The contact by the defender's car with the vehicle in which the pursuer was a passenger was sufficient to cause the pursuer's body to move forward.

6. The pursuer sustained a whiplash injury to her neck in the accident.

7. The pursuer recovered substantially from the injuries after six months except for tingling in the left arm. She still gets tingling in the arm if she keeps her head down for a period of time.

8. The pursuer was back at work after a week. She did not go to a physiotherapist because the pain was manageable. She resumed her hobby of running after two weeks. She is not restricted in any activity.

Therefore, sustains the pursuer's first and (in part) second pleas-in-law, repels the defender's first plea-in-law; grants decree for payment by the defender to the pursuer of the sum of THREE THOUSAND FIVE HUNDRED POUNDS (£3,500) STERLING with interest at the rate of 4 per cent per annum from 11 June 2006; certifies Mr Stephen Montgomery, FRCS, consultant orthopaedic surgeon, as a skilled witness for the pursuer, and Mr Alan Bathgate, consultant automotive engineer, and Mr Michael McMaster, FRCS, consultant orthopaedic spinal surgeon, as skilled witnesses for the defender; finds the defender liable to the pursuer in the expenses of the cause; allows an account of expenses to be lodged and remits the account of expenses, when lodged, to the auditor of court for taxation.

NOTE

Introduction

[1] The pursuer seeks solatium for a whiplash injury sustained when the defender drove her Volvo car into the back of the private hire Mazda vehicle in which the pursuer was a passenger with her two children, her mother and her father-in-law. The defender has admitted that the collision was her fault.

[2] There was one causative issue in dispute at the proof. It was whether the nature of the collision, which was said to be minor by the defender, could have caused any injuries to the pursuer. There was no evidence led that the pursuer was suffering from neck injuries sustained in previous accidents many years before.

The evidence

[3] The pursuer, aged 44, is a full-time director of an engineering company in Liverpool. She is in charge of finance. She is a lay magistrate in England. She runs for charity. She is involved in the Prince's Trust, and is a counsellor at a women's refuge.

[4] On 11 June 2006 the pursuer was in a private hire, MPV Mazda vehicle with her mother, two children and her father-in-law. She was in the middle row of seats. Her husband was running in the Edinburgh marathon, and she and the other members of the family were making their way to the finishing line in Holyrood Park. The vehicle was waiting to turn left from Abbeyhill into Abbeyhill at its junction with Abbeymount. There was quite a loud bang. Her body lurched forward (the pursuer demonstrated the upper half of her body moving forward). She immediately asked the children if they were alright. She realised afterwards that the Volvo car behind had hit their vehicle. She did not know if the Mazda moved forward. She was wearing a seat belt. The seat belt may have been strained when she moved forward, but she did not really know. There were head rests in the vehicle. The private hire driver got out to speak to the driver of the car behind.

[5] Shortly after the accident the pursuer had what felt like a tight band round her head. She took some ibuprofen. As the family travelled back to Liverpool the next day her neck became stiff. Over the next few days she felt stiffness in her neck and a tingling sensation down her left arm. She thought it would settle down and did not go to her GP. It did not settle down. One son was complaining of pain in his left shoulder and she eventually made an appointment with the doctor for him. A muscle spasm was diagnosed and she thought that she should make an appointment for herself. She saw the GP one and a half weeks after the accident. The GP prescribed ibuprofen and referred her to a physiotherapist. She did not go to the physiotherapist because she thought the injuries were manageable. She resumed running after a couple of weeks. Stiffness in the neck was getting a lot better after six months. After a year she was back to normal apart from the tingling in the arm which was an irritant. She described the tingling coming on if, for example, she was reading a book with her head down, and she had to move her head to ease the tingling. The pursuer did not take time off work after the accident; she had had a week's holiday immediately after the accident which she used. She went back to work the following week. She explained that the neck injury in an accident about 10 years before had resolved before this accident.

[6] In cross-examination she said she did not know when she first thought of making a claim, but thought that she did so after her son saw the GP. It was put to her that she made the claim on or about 15 June 2006. She did say she made enquiries but could not say when. It was put to her that the medical record in no. 6/2/1 of process showed that she had told the GP on 22 June 2006 that the neck pain was largely resolved. She said that she tried to minimise her injuries and tried to get on with life. She denied that the collision was a mere nudge because it was such that she was moved forward in the vehicle. She confirmed that she was the guardian for her mother and the two children (two boys, one aged 15 and the other 10) each of whom had raised actions pending in this court for reparation for injuries in the accident.

[7] Mr Steven Montgomery, FRCS, examined the pursuer for the purposes of this action in November 2006. He is a consultant orthopaedic surgeon. He sees people with spinal injuries, but does not perform surgery on spines. He was referred to his report in no. 5/1 of process. He said the pursuer described the accident as being hit from behind, a loud bang and the impact being quite significant. He examined the pursuer and found mild tenderness to deep palpation in the upper left trapezius, the triangular muscle at the top of shoulder. In evidence he said that he thought that the pursuer was injured in the accident, the injuries were attributable to the accident and that the pursuer was still injured at the time he saw her. She told him about the similar accident some years before and that the injuries from it had resolved. Mr Montgomery said that the majority of these injuries resolved without problems. In cross-examination he was asked whether, if the vehicle that the pursuer was in was merely tapped with no damage to the vehicles, his opinion would be altered? He said that he did not know the force involved. If it was a tap that was not a force to cause physical injury. He did say that there was scientific evidence that if a vehicle was hit at 3 mph the risk of injury was very remote.

[8] The defender, Alana Baron (designed as E Baron in the instance), formerly a young solicitor in Edinburgh, and now living in Canada, described the collision as a nudge. She was stationary about 30 to 40 cm behind the pursuer's vehicle which was also stationary. When that vehicle moved forward out of the junction, she moved her car forward and looked round to the right over her shoulder to see if any traffic was coming from the right. She described how one had to look right over one's shoulder to the right to see if there was traffic because of the left angle of the junction. As she looked round to the right she continued to move her car forward. She did not notice that the vehicle in front had in fact stopped again. She would have been doing about 3 to 5 mph. She only moved the distance that had been between them (30 to 40 cms). The vehicles barely made contact. When she and the driver of the other vehicle checked for damage she saw only a few marks on the Mazda and a splinter mark around the nearside screw of the front number plate on her Volvo. In cross-examination she said she heard a bump; not a bang when she hit the vehicle in front. She did not remember that her body moved in the collision, or of there being any significant pull from the seat belt.

[9] The driver of the Mazda, Grahame Allan, aged 61, gave evidence for the defender. He owned the vehicle and the private hire business. He described edging out of the dangerous junction. He stopped again when a car came past from the right. He felt a slight nudge, which was the car behind coming into contact with his. He described it as similar to a mistake one makes when parking and touching the car behind. There was no damage to his vehicle, the marks on his rear bumper were old marks. He did not suffer any injury. He asked his passengers if they were okay and they said they were fine. He thought the speed was under 5 mph and may have been 2 mph. He was shown a message in no. 6/2/2 of process from him recorded by his insurance brokers on 15 June 2006 that a passenger had made a claim. In cross-examination he said that the noise of the collision was significant enough to hear, but was not a thump. The Mazda did not move forward.

[10] Mr Alan Bathgate, a consultant automotive engineer, said that it was almost impossible to associate damage with speed; one could be accurate to an extent, but it was not an exact science. He had statements from the drivers, photographs of the two vehicles and a technical report on the Mazda. He spoke to the last two paragraphs on page 1 of his report of 29 September 2007 in no. 6/1/1 of process. The bumpers on both vehicles were designed to absorb impact up to 5 mph. There was no deformation of either bumper. Because there was no deformation the impact must have been less than 5 mph and, therefore, there would be no passenger movement. He described the bump as having the same effect as going over a pothole. His report of 12 October 2007 (no. 6/1/2 of process) indicated that the Mazda had been examined and no damage found other than impact marks and scratches (no. 6/1/3 of process). In cross-examination he said that he had not examined or had a report on the Volvo. The bumper on the Mazda as seen on the photograph was correctly aligned and not deformed. It was put to him that just because there was no damage seen to the Volvo bumper (other than the damage to the number plate) did not mean that there was no underlying damage; it might be undetected behind the bumper. Mr Bathgate said that the only clue as to whether there was damage behind the bumper was that it was still correctly aligned. This led him to think that there was in fact no damage behind. On the basis of the information he had and the photographs, his opinion was that the speed of the Volvo was less than 5 mph.

[11] Mr McMaster, consultant orthopaedic spine surgeon of 33 years' experience, also examined the pursuer. He said that she described being thrown forward and back and referred to the vehicle being hit from behind as a significant impact. She described to him the tingling in her arm when, for example, reading or at the office desk for 30 minutes or so. He was asked in evidence whether, if there was a nudge at 3 mph, it was possible for the pursuer to sustain injury as described by her. He said that if she was not thrown back and forward, little force would be transmitted to the occupants of the vehicle and it was unlikely for there to be significant injury. He indicated that if the speed was less than 5 mph then the effect would be just like driving around Edinburgh. If there was no damage to the vehicles at all then there would be no injury. On being asked about going over a pothole, he said that going over a pothole one could sustain a jarring injury to the neck. Mr McMaster was not cross-examined.

The arguments

[12] For the pursuer it was argued by Mr Docherty that since liability was admitted, the onus on the pursuer was less than normal; indeed it was transferred. The pursuer did not have to prove that there was damage to the vehicles or that the speed of the defender's vehicle was more than 5 mph; it was for the defender to prove that there was no damage and that the speed was less than 5 mph which would result in no injury. In any event, there was damage, though minimal, to the bumpers; Mr Bathgate did not inspect the Volvo and could not say that there was no underlying damage. The pursuer was a credible and reliable witness who said her body moved forward. From Mr Montgomery's evidence, her injuries were a natural probable consequence of the accident.

[13] For the defender it was argued by Mr Mathieson that the onus of proof - that the force of the impact caused the injuries - lay on the pursuer. The evidence of the defender, Mr Allan and Mr Bathgate was that the force of the collision was slight. The defender and Mr Allan described it as a nudge. The Mazda did not move forward; Mr Allan was not injured. Mr Bathgate's evidence was that the speed must have been less than 5 mph and that there would be no passenger movement. The pursuer led no evidence to contradict this. Mr Montgomery accepted that injury was very remote if the speed was 3 mph. The pursuer was not credible. She could not remember if she was restrained by the seat belt and was more concerned for her children. Her evidence about the force of the collision was contradicted by the defender, Mr Allan and Mr Bathgate. While claiming that she had not gone to her GP for 11 days because the pain was settling down, it was clear from what Mr Allan said about the message recorded on 15 June 2006 by his insurance broker that she must have made a claim before visiting her GP. There was a question as to how much weight I could place on her evidence when no other passenger eye witness had been led in evidence by the pursuer. The pursuer had failed to prove a causal link between the collision and her injury.

Onus

[14] No authorities were cited to me on the question of onus. In my opinion, the onus is on the pursuer to prove the link between the collision and the injury. It may be, where liability for the collision is proved or admitted, that it is easier for the pursuer to discharge that onus. There was a collision, the pursuer says she was thrown forward and sustained a whiplash injury. Mr Montgomery described the injury he found as consistent with the pursuer's account. The defender challenges the pursuer's account. The question for me is whether, on the evidence, I believe and accept that the collision caused the injuries.

Was the pursuer injured as a result of the accident?

[15] I found the pursuer a credible witness. It was suggested to her that she was motivated by money to make this (false) claim. The pursuer is an upstanding member of the community. She tried to minimise her injuries at the time by trying to get on with her life. I believe her when she says that her body moved forward. I did not consider that the fact that the pursuer called no other member of her family to give evidence affected the weight to be placed on her evidence. I noted with interest that Mr Bathgate described the collision as being something like going over a pothole. Mr McMaster, when asked about a pothole, said that going over a pothole could cause a jarring injury to the neck. Those pieces of evidence it seems to me give some support to the pursuer's case. Mr Montgomery said that the mild tenderness that he found in the pursuer's neck was, having regard to her account, caused by the accident. Mr McMaster's statement - no damage, no injury - seems to me to be rather a sweeping generalisation. It does not seem to be consistent with his statement that going over a pothole can cause a jarring injury to the neck. I appreciate that the Mazda did not go over a pothole, that Mr Bathgate described this nudge as "having the same effect" and that neither Mr Montgomery nor Mr McMaster was asked if a jarring injury would be the same as the injury Mr Montgomery found evidence of. A jarring could nonetheless cause injury. I note also that neither Mr Montgomery nor Mr McMaster said that there could be no injury if the speed was less than 5 mph. Mr Montgomery said that injury at 3 mph would be remote; Mr McMaster said that injury at 3 mph was unlikely to be significant. Mr Montgomery found evidence of injury. That evidence was not challenged and there was no evidence to suggest that it was either a pre-existing injury or a subsequent injury. It is not necessary for me, therefore, to determine what the speed of the defender's vehicle was or whether the collision was a mere nudge. On the balance of probabilities the contact between the vehicles was sufficient to cause the pursuer injury to her neck. I, therefore, find that the pursuer's injuries were caused by the collision.

Quantum

[16] Mr Docherty, for the pursuer, submitted that solatium was in the region of £3,000 to £3,500. He referred me to four unreported sheriff court cases, producing the judgments for each of them. They were Bowman -v- UK Insurance, Glasgow Sheriff Court, 23 March 2006; Conway -v- Wood, Kirkcaldy Sheriff Court, 31 October 2001; Moir -v- Wilson, Kilmarnock Sheriff Court, 1 July 2002 and Maguire -v- Nicolson, Stonehaven Sheriff Court, 6 November 2002. In each of these cases the pursuer had sustained a whiplash type injury with varying degrees of severity, time off work and time of recovery. Mr Docherty submitted that the case of Moir was perhaps the most similar to the present case. (It is interesting to note in that case, that, while there was a finding in fact that neither vehicle sustained any damage in the accident, the pursuer was nonetheless thrown forward and then jerked back by the collision.) The pursuer in that case (aged 32) recovered fully after seven months and was off work for only a day because she was self-employed. The award in that case was £3,000 which Mr Docherty calculated would be worth £3,400 today. In Maguire the pursuer was off work for nine days after the accident in January 2002 and in November 2002 she was still experiencing pain if she stood for any length of time. The award of solatium was £3,000. In Conway, the pursuer (aged 23) was off for five days, then a further two weeks, he suffered a fair degree of discomfort for six months and his sporting activities were restricted and he does not now go to the gym or play squash, football or golf. He still had pain when he drove for any length of time. The award was £3,000. In Bowman, the pursuer (aged 45) was off for two weeks, suffered moderate to severe symptoms for three months after the accident and, at the proof some 11 months after the accident the injuries had settled to a level of being minor background concerns although he had pain when he played the guitar, swam or played golf, and had had to give up swimming breaststroke and gold. The award was £3,750. Mr Docherty submitted that Bowman was more serious than the present case. He submitted that the award in this case should be £3,500 with interest at four per cent from the date of the accident as the pursuer has more or less recovered.

[17] Mr Mathieson, for the defender, submitted that this was a minor injury and was largely resolved. In the event that solatium was recoverable he submitted that the appropriate award should be £2,000. He relied on the case of Lyon -v- Dean, Forfar Sheriff Court, 17 January 2007, unreported. Mr Mathieson did not produce the judgment but relied on the note in 2007 GWD 10-183 (he should have produced the judgment rather than rely on the brief note). There it is stated that it was held that the pursuer's claim was not at the lower end of whiplash injuries, a cervical collar was worn for four weeks, the pursuer was housebound and the symptoms persisted for up to two months. Solatium was £1,500.

[18] The case of Lyon, it seems to me, is less serious than the present case, particularly having regard to the length of time for which the symptoms persisted, namely, two months. In this case it was some six months before the pursuer was getting a lot better and she is still suffering some tingling in her left arm. She was back at work after a week; did not go to a physiotherapist because the injury was manageable and was back at her hobby of running after a couple of weeks. While there is some tingling in her arm from time to time, the pursuer's life has not been affected in any way. Mr Mathieson accepted that the pursuer's evidence was that the effect of the injuries lasted at least six months and that he had not led evidence to challenge that. I should say that he did challenge the pursuer that she had told the GP on 22 June 2006 that the neck pain was largely resolved. In November 2006, about five months after the accident, Mr Montgomery found signs of injury still present. He did not take great exception to the case of Moir. He did agree that interest would be at four per cent from the date of the accident.

[19] If the appropriate award in Moir was £3,000 for a full recovery after seven months - now about £3,400 with inflation - then I think it must be at least that here. I agree with Mr Docherty's submission. In my opinion the appropriate award for solatium in this case is £3,500.

Expenses

[20] It was agreed that expenses would follow success. Accordingly, I find the defender liable to the pursuer in the expenses of the cause. Both solicitors sought certification of witnesses as skilled witnesses. I certify Mr Montgomery for the pursuer, and Mr Bathgate and Mr McMaster for the defender, as skilled witnesses.