Case Reference No: A5041/07

Act: Robertson

Alt: McAlpine

EDINBURGH, March 2008.

The Sheriff, having resumed consideration of the cause, FINDS IN FACT:-

1. The Pursuer is 25 years of age, is employed in as a mechanical engineer, and resides along with his mother at 57 Maclean Place, Gorebridge, Midlothian.

2. At about 1700 hrs on 20 June 2006 when the Pursuer was stationary in his motor car at a junction at which he was required to give way, a motor vehicle which had been struck by a third vehicle spun into his motor car colliding with the driver's side door of the Pursuer's motor car. The Pursuer, who had been wearing his seatbelt, was unable to leave his vehicle by the damaged driver's door and required to leave by the nearside passenger door. For the purposes of this action, the Defenders accepted responsibility for the accident.

3. As a result of the collision, the Pursuer experienced immediate pain in his neck. He was placed in a soft collar for the journey by ambulance to the Accident and Emergency Department of Edinburgh Royal Infirmary, where he was diagnosed with muscle strain and was given painkillers in the form of non-steroidal anti-inflammatory medication.

4. The Pursuer continued to experience pain and he consulted his General Practitioner on the following day (21 June 2006) , who prescribed additional analgesia in the form of co-codamol. The Pursuer contacted NHS 24 some 3 or 4 weeks after the accident on at least two occasions seeking advice on what to do about his sore neck. The Pursuer consulted his General Practitioner again once in September and once in November, both 2006, when he was advised to purchase pain relieving medication at his chemists. The Pursuer never received any physiotherapy following the accident.

5. The Pursuer works as a mechanical engineer and is involved in plant maintenance at the Haddington premises of PureMalt Products Ltd, which the Pursuer described as a brewery. His work there involves changing motors and gearboxes together with general plant maintenance and it involves lifting and carrying. The Pursuer was unable to attend his work for four or five days after the accident and, on his return to work, he was given light duties (which involved bench work and work at waist height, with no bending or lifting) for some four or five weeks before gradually resuming his full, normal duties.

6. The Pursuer was affected by the accident for a period of approximately six months, during which time he had symptoms of backache. At the end of this period, the Pursuer had made a full physical recovery.

7. At the time of the accident, the Pursuer had a full calendar year's subscription for a Living Well gymnasium. With the support of a letter from his General Practitioner, the Pursuer was able, after the accident, to cancel and obtain a rebate for the remainder of the year's subscription. Although, since his recovery, the Pursuer has returned to the gymnasium on only one or two occasions since the accident, the reasons for this are not connected with the accident.

8. At the time of the accident, Pursuer was in the habit of playing football usually once per week. He was able to resume playing football approximately six months after the accident.

9. The Pursuer lives with his mother who is in the habit of cooking meals for the Pursuer. Sometimes the Pursuer does his own washing (using an automatic washing machine and tumble drier) ; and sometimes his mother does this for him. Immediately after the accident, this situation did not really change. However, for a few weeks after the accident, the Pursuer did require assistance from his mother in dressing and undressing.

10. The Pursuer drives past the scene of the accident each day on his way to work. He experiences feelings of apprehension at this but appreciates that he will have to come to terms with it and that it will simply take time.

11. After the accident, Pursuer was taken by ambulance to the said Infirmary; he required to take a taxi from the hospital to his home at a cost of £16.05. The cost of dispensing the prescription which the Pursuer received from his General Practitioner on 21 June 2006 was £6.65.

12. In his employment, the Pursuer works on a callout system in respect of which, when he is on call for a period of seven days, he is entitled to an allowance for being on call, payment and a travel allowance in respect of any actual callout, and a payment in respect of four hours overtime for the Saturday and Sunday involved. During the four or five-day period when the Pursuer was unfit for work, it was his turn to be on call. Since he was unable to fulfil that duty, the sum to which he would otherwise have been entitled amounted to £185 20.

FINDS IN FACT AND LAW

1. That the accident in which the Pursuer was involved was caused by the fault and negligence of the Defenders.

2. That the Pursuer, having sustained injury thereby, is entitled to reparation from the Defenders.

3. Therefore, sustains the First and, pro tanto, the Second Pleas-in-law for the Pursuer and Sustains, pro tanto, the remaining Plea-in-law for the Defenders; Finds the Pursuer entitled to decree against the Defenders for payment of the sum of TWO THOUSAND AND FIFTY ONE POUNDS AND TWENTY FIVE PENCE Sterling (£2,051.25) together with interest at the rate of 8 per centum per annum from 20 June 2006 until payment; Appoints parties to be heard on the question of expenses within the Sheriff Court House, Chambers Street, Edinburgh, on.............................

NOTE

General

1. In this action of damages, the Pursuer seeks reparation for the injury, loss and damage which he sustained following a road traffic accident on 20 June 2006.

2. Liability was not disputed and a Joint Minute (No 10 of Process) has been lodged agreeing that the injuries sustained by the Pursuer as a result of the said accident and the consequences thereof are accurately set out in the Medical Report (No 5/1/1 of Process) by Dr Allison Holloway.

3. Accordingly, the only issue in dispute at the proof was the quantification of the claim for solatium and the other heads of claim to be awarded to the Pursuer.

4. I heard evidence in this proof on 5 March 2008 and the only witnesses from whom I heard oral evidence were the Pursuer himself and, briefly, from his mother. I found the Pursuer's mother, Mrs Ann Gray, to be a wholly credible and reliable witness on whom I was confident to rely in making findings and reaching conclusions. Although I found the Pursuer to be a credible and reasonably reliable witness, I had some concerns arising from Dr Holloway having noted in the Medical Report that the notes of the Pursuer's General Practitioner recorded that he had frequently contacted the out of hours service and accident and emergency, although he appeared prior to the accident to have remained fit and well. I also had some concerns at the apparent reluctance of the Pursuer to accept that he had made a full physical recovery by the end of a period of six months after the accident. I had some concerns that the Pursuer appeared to be exaggerating somewhat the services which he said he required to receive from his mother after the accident; and that he appeared to be exaggerating somewhat the inevitable feelings of apprehension experienced when driving past the scene of the accident. I also had a concern that the Pursuer in his evidence had given the impression that his not returning to the gymnasium up to the present time was in some way connected with the accident; whereas he later required to concede that, after his recovery, his not returning was not really connected with the accident.. I was however satisfied that, as a result of the accident, the Pursuer sustained muscle strain which resulted in him experiencing neck pain resulting in him being off work for four or five days, followed by a return to light duties at work for four or five weeks, followed by a gradual return to normality which was complete by the end of a period of six months. I was also satisfied that the Pursuer experienced some backache for six months after the accident but thereafter had made a full physical recovery.

Submissions for Pursuer

5. Ms Robertson, the solicitor for the Pursuer, submitted that, in respect of the miscellaneous expenses and inconvenience which the Pursuer had suffered as a result of the accident, an appropriate figure by way of damages would be the sum of £100. In this connection, she made reference to a decision dated 26 January 2006 in the case of Hutchison v Boisseau at Edinburgh Sheriff Court by Sheriff Simpson QC, who, in that case, had assessed the inconvenience and miscellaneous expenses as justifying a figure of £75. Ms Robertson submitted that this present case was similar to that case and she therefore assessed the figure in the sum of £100.

6. As regards the claim for loss of earnings, Ms Robertson submitted that this was appropriately vouched in the figure of £185 20 and that this was therefore the sum which should be awarded.

7.1 As regards the claim for solatium, Ms Robertson made reference to the effect of the injury upon the Pursuer, his work, and his participation at the gymnasium and at football. She noted that the physical symptoms had lasted for some six months after the accident and, to assist in assessing the appropriate figure for damages, she then made reference to the following cases.

7.2 Ms Robertson first drew attention to the case of Pugh -v- Scott 2002 Rep LR 112 where the Pursuer had sustained a whiplash type soft tissue injury to his neck, had not required hospital treatment, had been treated with painkillers, had no time off work but who had been unable to drive himself to and from work for several weeks, had also suffered a curtailment of his social activities for a total of seven weeks and whose symptoms took some five months to resolve fully. The award in respect of solatium in that case had been £2,600 which, updated to take account of inflation, would now amount to £3,016.

7.3 The next case to which Ms Robertson drew attention was Brown -v- Forsyth & Motor Insurer's Bureau (scotcourts.gov.uk/opinions/A2279/99) which again involved the Pursuer suffering from whiplash injury with three to four weeks of severe pain followed by six weeks of moderate pain tapering to occasional pain, with no time off work but treatment with ultrasound, massage, specific exercises and advice on posture, and with full recovery within three months. The award in respect of solatium in that case had been £2,500 which, updated to take account of inflation, would now amount to £3,075.

7.4 The next case to which Ms Robertson drew attention was Burrows -v- The National Insurance and Guarantee Corporation Ltd (unreported - Hamilton A702/06) which again involved the Pursuer suffering from whiplash injury for which painkillers were prescribed at the hospital and the Pursuer was allowed home, with further painkillers being prescribed by the general practitioner and physiotherapy treatment being received, with the Pursuer being unable to work for some two weeks and only able to undertake light duties for two further weeks before returning to full duties, being unable to play golf for some months and with diminishing pain before a full recovery after some six months. The award in respect of solatium in that case had been £2,500 which, updated to take account of inflation, would now amount to £2,600.

7.5 Ms Robertson next drew attention to the case of Moir -v- Wilson (unreported - Kilmarnock A89/02) which again involved the Pursuer suffering from whiplash injury for which anti-inflammatory painkilling tablets were taken for some three weeks, followed by painkillers for a period of some three or four months thereafter - the total period being some seven months before a full recovery. The award in respect of solatium in that case had been £3,000 which, updated to take account of inflation, would now amount to £3,480.

7.6 Ms Robertson next drew attention to the case of Watson -v- Farmer [2005] C.L.Y. 3113 which, in addition to the Pursuer suffering from whiplash injury, also involved significant psychological injuries resulting from the accident, with the symptoms not resolving until two years after the accident. The award in respect of solatium in that case had been £1,250 and the award for psychological injury had also been £1,250 which, updated to take account of inflation, would now amount to £1,337.50 in respect of each element. Although Ms Robertson conceded that the case of Watson was a much more severe example than applied in the present case, she stressed that both Dr Holloway and the Pursuer had mentioned the loss of confidence in driving and socially which, she accepted, was very difficult to know how to measure.

7.7 Ultimately, Ms Robertson invited me to assess the figure for solatium in this case at a figure of £3,075 with the addition, if the anxiety element was accepted, of a figure of £425.

7.8 In regard to the authorities referred to on behalf of the Defenders, she invited me to prefer those to which she had drawn attention.

8 In relation to the services provided to the Pursuer by his mother, in terms of section 8 of the Administration of Justice (Scotland) act 1982, Ms Robertson invited me to set a figure of £200. This was based upon such services being required for a period of four to five weeks, for some one to two hours per day at a rate of approximately £5 per hour - and taking a general view of the assistance which had been provided for the Pursuer.

9 Miss Robertson also invited me to find that the Pursuer was entitled to recover the cost of the taxi at £16.05 and the cost of the prescription at £6.65.

10 I was also invited to find the Pursuer entitled to interest on the sums awarded at the rate of 8% from at least December 2006.

Submissions for Defenders

11 Ms McAlpine, the solicitor for the Defenders, did not dispute that there was an adequate foundation for a claim for miscellaneous expenses which could be assessed at £100. Nor did she dispute that the Pursuer was entitled to recover the cost of the taxi fare, the prescription and the loss of earnings. As regards the services provided to the Pursuer by his mother, Ms McAlpine drew attention to the fact that his mother had said that nothing had really changed in this regard after the accident. His mother said that she had always undertaken the household tasks which had included sometimes doing his washing. Ms McAlpine therefore submitted that a figure of £100 would be appropriate for her assistance.

12 As regards the figure appropriate for solatium in this case, Ms McAlpine drew attention to the Guidelines for the Assessment of General Damages in Personal Injury Cases (8^th edition - August 2006) issued by the Judicial Studies Board for England & Wales and submitted that I should have reference to the section "6 Orthopaedic Injuries" (page 823), and in particular to "(A) Neck Injuries" and sub-section (c) dealing with "minor soft tissue and whiplash injuries and the like where the symptoms are moderate and with a full recovery between a few weeks and one year" (page 824). The range of figures for that lay between £750 and £2,550. Ms McAlpine submitted that the injuries to the Pursuer did not involve two separate elements; and that in cases such as this, it was very common for the neck to be affected followed by the back. In this case, she noted that, in terms of the agreed Medical Report, the Pursuer had essentially suffered from muscle strain. In the light of that, she submitted that it was not appropriate to value the neck and back elements separately but that they should be valued as a whole. In that regard, she submitted that the figure for solatium should be £1,400.

12.1 Turning to the cases to which Ms Robertson had drawn attention, Ms McAlpine noted that the case of Brown had involved a whiplash injury whereas, in the present case, only muscle strain had been diagnosed; that that case had also involved treatment with ultrasound, massage, specific exercise and advice on posture ; that in assessing damages, the Sheriff had noted that the Pursuer had suffered episodically excruciating pain which had gradually settled ; and that that case had been complicated insofar as it had related to two separate incidents. Ms McAlpine therefore submitted that that case could readily be distinguished from the present case.

12.2 Turning to her own case references, Ms McAlpine accepted that two of those were only in the form of abstracts and that they were English cases. She firstly referred to the abstract in the case of Lloyd -v- Arthurs (unreported - Coventry County Court, May 2007) in which the Pursuer had suffered pain and stiffness in the neck radiating towards the right side, with painkillers taken and with the General Practitioner recommending and the Pursuer undertaking six sessions of massage treatment, and with the Pursuer free of symptoms within seven months of the accident. The award in respect of solatium in that case had been £1,600.

12.3 Next, Ms McAlpine referred to the abstract in the case of Raiyat -v- Andrews (unreported - Walsall County Court, January 2007) in which the Pursuer had sustained a whiplash injury with intense physical symptoms for some two weeks requiring regular painkillers, with intermittent symptoms still being suffered some four months after the accident and with a full recovery after ten months and after a course of physiotherapy had been undertaken. The award in respect of solatium in that case had been £2,000.

12.4 Ms McAlpine next referred to the case of Fairley -v- Thomson (unreported - Edinburgh Sheriff Court, 27 August 2004) which she submitted was a very similar case to the present one, involving a young man after a road accident suffering pain at the neck and shoulders which had been diagnosed as whiplash, rather than muscle strain. She noted in that case that the immediate symptoms had resolved within approximately 6 weeks but that the whole situation might not be resolved until about two years after the accident. She also noted that at paragraphs 16, 17 and 18 of the Note, the circumstances had been analysed fully and the resulting award for solatium had been £1,700. She submitted that the circumstances in that case were more severe and lasted longer than in the present case in which the Pursuer had been able to return to work some five days after the accident and had recovered entirely some six months after the accident.

My Decision

13 While I was grateful to parties' solicitors for the reference to the earlier cases, the brief digests do not provide the detail needed to be of real assistance and only general assistance can be derived from cases where a comparison of the facts and injuries is required. One of the difficulties in this case is that the agreed Medical Report records that the Pursuer was diagnosed with a muscle strain which appeared to be associated with the neck area. Thereafter, it is recorded that the Pursuer had symptoms of backache for six months after the accident but has now made a full physical recovery. The expression "whiplash injury" is not used in the Medical Report and it is a term which is known to relate to injuries to cervical structures when the head has moved violently in one direction and then bounced back in the reverse direction, as when occupants in a vehicle without head restraints are struck from behind (Kemp on Damages, para 35-138, [R.92 : September 2004]. Since the mechanism of the accident and consequent injury to the Pursuer is not known to me, I do not consider that it is appropriate from me to assume that this is a whiplash injury - and I must simply proceed on the basis of muscle strain associated with symptoms of backache. I would add that I was satisfied that Ms McAlpine submissions were correct that the Pursuer's injuries did not involve two separate elements; and that it was entirely appropriate to treat them as one element.

14 In the light of that I am satisfied that Ms McAlpine was correct in her submission that the appropriate reference to the section of the Guidelines for the Assessment of General Damages in Personal Injury Cases related to minor soft tissue and whiplash injuries and the like where symptoms are moderate with a full recovery between a few weeks and a year; with a range of award between £750 and £2550. Considering the matter generally, it does seem to be that this case falls around the midpoint of cases encompassed by that range. I consider that this case can readily be distinguished from the cases to which Ms Robertson drew attention not only in general but also as to the factual details, the nature and degree of the injury and the post-accident symptoms. I accordingly found that the awards for solatium in these cases were not of great assistance to me in this present case. I found more assistance in the Fairley case referred to by Ms McAlpine and some limited assistance from the abstracts of the other two cases.

15 I was not satisfied that the agreed Medical Report and the evidence from the Pursuer established psychological injuries resulting from the accident which ought to sound in damages. The case of Watson to which Ms Robertson referred was so different from the present situation that I did not find it of assistance. Although the Pursuer feels that the accident has affected his confidence in driving, when this was explored in his evidence, it appeared to relate only to his feeling apprehensive when he drove each day passed the scene of the accident. He accepted that he would simply have to come to terms with this and it seemed to me that this was no more than a normal reaction to a driver passing the scene of a previous accident. In these circumstances, I did not consider it appropriate that any award should be made for the anxiety felt by the Pursuer.

16 Taking account of all of the foregoing and the balancing factors which are important in one case with factors which are important in others, I am of the opinion that the appropriate award of solatium in this case is £1,650. In relation to the claim in respect of services provided to the Pursuer by his mother, I did not find in the evidence any appropriate basis for what was submitted by Ms Robertson and I was satisfied that Ms McAlpine's submission on this were to be preferred. I am therefore of the opinion that the appropriate figure for that this case is £100. I was satisfied that the defender was entitled to be recompensed for the taxi fare of £16.05, to the prescription cost of £6.65, for a loss of earnings at £185.20, and for miscellaneous expenses and inconvenience in the sum of £100. I calculate the total of the above figures to be £2,051.25. It was accepted by Ms McAlpine that it was appropriate for interest on this figure to run at 8% from the date of the accident, namely 20 June 2006.

Expenses

17 Both parties were agreed that there would require to be a hearing on expenses. I have accordingly appointed the cause for such a hearing as set out in the interlocutor.