SE52/08

IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

JUDGMENT OF

SHERIFF FRANK RICHARD CROWE

in causa

EMMA McCORD

166 Peffermill Road, Edinburgh

EH16 5LT

PURSUER

against

WILLIAM MARK THOMSON

73 Buckstone Loan East, Edinburgh

EH10 6UZ

DEFENDER

Act: Leslie, Digby Brown, Edinburgh

Alt: Robertson, Harper MacLeod LLP, Glasgow

Edinburgh 16 October 2008

The sheriff having resumed consideration of the cause, grants decree in favour of the pursuer for the sum of THREE THOUSAND FOUR HUNDRED POUNDS (£3,400) STERLING together with interest thereon at the rate of 4 per centum per annum from 16 March 2007 until 3 September 2008 and thereafter at the rate of 8 per centum per annum until payment, reserves the question of expenses meantime, assigns a diet of assessment and a diet of approval of expenses.

INTRODUCTION

This was a summary cause proof arising from a Road Traffic accident. Liability was admitted and a proof took place, solely on quantum, on 3 September 2008, when the only witness was the pursuer, expert medical reports having been agreed. The pursuer seeks reparation for loss, injury and damage amounting to £5,000.

FINDINGS IN FACT

I found the following facts admitted or proved:-

[1] The pursuer, who is aged 36, was injured on 16 March 2007 when the bus in which she was a passenger was in a collision with a motor car driven by the defender. The defender admitted liability for the accident.

[2] The defender's vehicle struck the nearside of the bus. At the point of impact, the pursuer was thrown from her seat on the nearside lower deck of the bus and fell on to the floor. She had been sitting in a seat with a luggage space in front of her. There was no pole for the pursuer to hold on to.

[3] The pursuer sustained soft tissue injuries to her lower back, left wrist, forearm and elbow, and her left ankle. She also developed mild tendonitis in her ankle.

[4] After the accident the pursuer caught another bus to work. She was shaken after the incident and took anti-inflammatory medication for the injuries as they became apparent that day.

[5] The following day the pursuer attended her General Practitioner where he advised rest and painkillers. The pursuer's left wrist, forearm and elbow injuries resulted in bruising and swelling but abated after 4 days of discomfort.

[6] The pursuer suffered persisting left-sided lower back pain for about 10 days. These symptoms settled although they did not resolve until about 8 months after the accident. She continued to experience discomfort about 3 or 4 days a week, particularly when sitting or standing. She has not suffered this discomfort since November 2007.

[7] The injury to the pursuer's left ankle has persisted. Initially it was swollen and bruised and the pursuer suffered discomfort and pain for about 2 weeks. Thereafter the pursuer made a slow recovery and experienced pain and discomfort most days until September 2007. Thereafter the symptoms improved although they were aggravated when operating the clutch pedal of her car and the foot pedal of her dictating machine at work.

[8] The consultant's report (which was agreed) concluded that these symptoms should clear up by October 2008. No long term sequelae are envisaged and the pursuer no longer requires to take medication.

[9] The pursuer did not take any time off due to the injuries she sustained. She was keen to continue at work but took as much rest as she could at other times.

She required assistance for about a week or so after the accident with household duties.

[10] The pursuer has adopted a positive attitude to her injuries and mitigated her claim by not having taken any time off work. She does not cycle and although she used to undertake hill-walking she had tailored her gym exercise routine so as not to aggravate her ankle. She altered her exercise routine by swimming more frequently than in the past to relax her ankle.

[11] The pursuer had separated from her partner around the time of the accident and had to sell their home. She has 3 children and also moved jobs. As a result she rarely consulted her doctor about her injuries although she was examined twice by the consultant in December 2007 and June 2008 and followed medical advice as directed.

[12] The terms of the consultant's reports were agreed as regards the nature and longevity of the injuries and the prognosis that the ankle injury would heal.

[13] I found the pursuer to be a wholly credible and reliable witness.

AUTHORITIES

[14] The following authorities were referred to by Miss Leslie for the pursuer:-

(i) Conway v Wood 26 October 2001 Kirkcaldy Sheriff Court Sheriff L Wood

http://www.scotcourts.gov.uk/opinions/A305_1.html

(ii) Stewart v North Lanarkshire Council 1998 SLT 419

(iii) Stewart v Donkin (unreported) 13 March 2007 Dunfermline Sheriff Court Sheriff I Dunbar

(iv) Moir v Wilson 1 July 2002 Kilmarnock Sheriff Court Sheriff C G MacKay

http://www.scotcourts.gov.uk/opinions/A89_02.html

(v) Lindsay v Walker 15 June 2007 Linlithgow Sheriff Court Sheriff D Kelly

http://www.scotcourts.gov.uk/opinions/A1498.html

(vi) McGuire v Nicholson 6 November 2002 Stonehaven Sheriff Court Sheriff A S Jessop http://www.scotcourts.gov.uk/opinions/A107_02.html

(vii) MacFarlane v Samuel 20 September 2007 Paisley Sheriff Court Sheriff S Sinclair

http://www.scotcourts.gov.uk/opinions/A501.html

(viii) Spencer v Baron 4 February 2008 Edinburgh Sheriff Court Sheriff N M P Morrison QC http://www.scotcourts.gov.uk/opinions/A330_07.html

(ix) Wilson v National Insurance and Guarantee Corporation Ltd. ( unreported) 16 June 2008 Ayr Sheriff Court Sheriff T S Millar

(x) Williamson v GB Papers Plc. 1994 SLT 173

(xi) Connell v BP Chemicals Ltd. 1993 SLT 787

(xii) Nimmo v British Railways Board 1990 SLT 680

(xiii) Judicial Studies Board P I Guidelines 8th Edition

[15] Miss Robertson for the defender also referred to the JSB Guidelines, Connell v BP Chemicals Ltd. and Nimmo v British Railways Board. In addition the defended founded upon:-

(i) Gregory v Redfearne (unreported) 4 July 2007 Salford County Court

(ii) Suliman v Balmer (unreported) 19 March 2003 Edinburgh Sheriff Court Sheriff R G Craik QC

(iii) Ahad v Byrne (unreported) 8 January 2007 Manchester Crown Court

(iv) Fairley v Thomson 2 September 2004 Edinburgh Sheriff Court Sheriff J D Allan

http://www.scotcourts.gov.uk/opinions/A633_04.html

(v) Dickson v Black (unreported) 29 July 2008 Dundee Sheriff Court Sheriff M M Neilson

(vi) Sharp v Watt (unreported) 19 March 2008 Linlithgow Sheriff Court

(vii) Traynor v Kidd (unreported) 1 August 2008 Dundee Sheriff Court Sheriff P Paterson

PURSUER'S SUBMISSIONS

[16] Miss Leslie invited me to make a solatium award of £4,500 comprising £1,500 in respect of the pursuer's back injury and £3,000 to cover the ankle injury. I was also invited to award interest at 4% up until the date of the proof and 8% thereafter. I was also invited to certify Mr. Steedman as an expert witness and continue the case for a hearing on expenses.

[17] I was referred to Conway v Wood where the pursuer suffered a "fair degree" of discomfort for 6 months after sustaining neck and back injuries. After 17 months he was "99% recovered" but no longer engaged in sports or physical exercise. He was awarded £3,000 which would now be worth £3,500.

[18] In Stewart v North Lanarkshire Council the pursuer sustained back pains for 3 months and was awarded £1,500 which would now be worth £1,929.

[19] In Stewart v Donkin the pursuer had sustained back, neck and head injuries and was awarded £4,500, which would now be worth £4,672. 20 months on from the incident she still suffered pain which prevented her from carrying out previous hobbies and activities to the full.

[20] I was next referred to Moir v Watson where the pursuer had sustained whiplash injuries and had made a full recovery after 7 months and was awarded £3,000 which would now be worth £3,500.

[21] In Lindsay v Walker where the pursuer had sustained whiplash, back and knee injuries which led to pain for 6 weeks and symptoms which persisted for 7 to 8

months, an award of £2,650 was made.

[22] In the case of McGuire v Nicholson which involved a whiplash injury, pain persisted for 10 months, discomfort persisted but a full recovery was anticipated. An award of £3,000 was made which would now be worth £3,455.

[23] I was next referred to McFarlane v Samuel which involved the pursuer sustaining a neck injury with moderate pain for 2 months and a back injury where pain persisted. The pursuer had not been absent from work but the back injury precluded him from playing golf. He was awarded £3,500.

[24] The case of Spencer v Baron involved a whiplash injury where stiffness in the neck reduced after 6 months but the pursuer was left with residual tingling; an award of £3,500 was made.

[25] Wilson v National Insurance and Guarantee Corporation Ltd. concerned neck, shoulder, thigh and foot injuries. Neck movement was reduced by 20% and pain was still present after 17 months. The pursuer was awarded £5,500.

[26] The case of Williamson v GB Papers Plc. involved ankle, neck and shoulder injuries where the pursuer had been off work for 12 weeks and previously asymptomatic arthritic changes were triggered by the accident. An award of £3,000 was made which would now be worth £4,429.

[27] In Connell v BP Chemicals Ltd. the pursuer sustained a strained ankle which required a plaster cast. An award of £2,200 was awarded which would be worth £3,248 today.

[28] The final case I was referred to was Nimmo v British Railways Board. The pursuer sustained a sprained ankle and was off work for 4 months. He was awarded £1,500 which would be worth £3,054 today.

[29] Miss Leslie highlighted the Wilson and Williamson cases as being particularly in point as they involved multiple soft tissue injuries which required lengthy periods of recovery.

[30] I was referred to the Judicial Studies Board Guidelines; section 6 concerning orthopaedic injuries and in particular minor back injuries (scale up to £4,575) and modest ankle injuries (scale up to £8,150). Miss Leslie accepted that the pursuer's injuries were at the lower end of both scales but the aggravating feature was the length of time the pursuer took to make a full recovery.

DEFENDER'S SUBMISSIONS

[31] Miss Robertson referred me to the English case of Gregory v Redfearne where the plaintiff sustained whiplash injuries which were expected to resolve within 6 months of the accident. He was awarded £1,567.

[32] In Suliman v Balmer neck injuries and a cracked tooth were sustained by the pursuer. These were assessed at £1,650 (now worth £1,782). The pursuer was not considered a particularly satisfactory witness.

[33] The English case of Ahad v Byrne involved whiplash injuries where total recovery was expected within 12 months of the incident. Damages of £1,940 were awarded.

[34] I was then referred to Fairley v Thomson where whiplash injuries were again involved. The pursuer experienced about 6 weeks of acute symptoms and continued to suffer discomfort thought likely to last up to 2 years. An award of £1,700 was made (worth £1,870 today). Miss Robertson accepted that the injuries suffered by the pursuer in that case were less serious than in the present case.

[35] In the case of Dickson v Black, the pursuer suffered whiplash injuries which left only minor residual symptoms after 6 months; a full recovery was made after 10 months. An award of £1,850 was made although the presiding sheriff did not find the pursuer an entirely reliable witness and was critical that the pursuer had not fully undertaken a course of treatment to alleviate her injuries.

[36] I was then referred to Sharp v Watt where the pursuer sustained whiplash and chest injuries. The latter settled after 6 weeks but the whiplash injury did not resolve for 11 months. An award of £2,250 was made.

[37] Miss Robertson referred me to Traynor v Kidd which involved whiplash injuries and slight concussion. Neck pain persisted for 11 months and the pursuer was unable to return to his regular swimming sessions for 4 1/2 months. The pursuer was awarded £2,250. It was accepted that in the present case Ms McCord had suffered multiple injuries the symptoms of which persisted for a longer time.

[38] Miss Robertson suggested that taking the various circumstances into account and with reference to the cases she had referred to an appropriate award would be £2,400.

She submitted that the cases on the pursuer's list of authorities involved relatively serious injuries which required medical treatment.

[39] The pursuer's injuries had, by contrast, had little effect on her lifestyle beyond limiting her for a week in carrying out domestic chores. She had never had to take time of work because of her injuries and although she had ongoing pain and discomfort this had not necessitated a visit to her General Practitioner for treatment. No further treatment was envisaged and the pursuer had not even been prescribed a support for her ankle injury.

[40] Miss Robertson accepted that the pursuer had sustained a relatively serious injury which caused suffering for several days but thereafter she had only suffered intermittent minor pain. She invited me to make an award for solatium of £2,400.

DISCUSSION

[41] I do not accept the defender's submission that the pursuer's injuries had little effect on her lifestyle beyond the period of a week after the accident. While I accept that the pursuer's injuries are at the lower end of the range of awards, I accept her description of the continuing pain and discomfort her back and ankle injuries have caused.

[42] The fact that the pursuer has not returned to her general practitioner for treatment does not alter the fact that she continued to suffer pain and discomfort. There is no suggestion in the evidence that the pursuer's condition would have materially improved had she sought more active treatment for her injuries. Similarly there is no evidence to suggest that the pursuer was trying to exaggerate or "talk up" her injuries in any way.

[43] The pursuer deserves credit for following her doctor's original advice, to rest and take analgesics, and for persisting at work in the face of continuing pain and discomfort. These actions have among other things helped to reduce the defender's liability. Thankfully, the pursuer is now well on the road to recovery.

[44] In so far as the authorities cited to me are concerned, many of them involved cases of whiplash injury. I did not find any of these of great help, particularly since they involved pursuers who were in a great deal of initial pain, which affected their movement, (and consequent ability to attend work) but which resolved , to a greater or lesser extent , in a much shorter period of time. (See Moir v Wilson and McGuire v Nicholson).

[45] Similarly, the awards in Stewart v Donkin, Conway v Wood and Wilson v National Insurance and Guarantee Corporation Ltd. all relate to more serious injuries with a greater degree of initial pain and requiring treatment, or the wearing of a brace or the use of a stick.

[46] The awards in Williamson v GB Papers Plc, Connell v BP Chemicals Ltd. and Nimmo v British Railways Board were heard and decided between 1990 and 1994. Cases of such vintage are to my mind of limited value -even where the inflation tallies are used to update the awards. This is particularly true when there is more recent authority, more directly in point.

[47] In any event, in Williamson previously asymptomatic arthritic changes were triggered by the accident and the pursuer was off work for 3 months. In Connell the pursuer's injured ankle was encased in plaster. In Stewart v North Lanarkshire Council the pursuer, who was younger, was off work for six weeks and had experienced previous back pain.

[48] Similarly one has to be careful when considering awards made in English cases due to the different way in which expenses are dealt with and the consequent additional pressures to settle cases-see the Introduction to the Judicial Studies Board Guidelines.

[49] My attention was directed to the Judicial Studies Board Guidelines where a range of awards under the category of neck injuries is further sub-divided into "minor soft tissue and whiplash injuries and the like where symptoms are moderate; and (i) and a full recovery takes place within about two years". The range is stated as £2,750 to £5,000.

[50] This range appears to be reflected in the case of Spencer v Baron, where the forty four year old pursuer's whiplash injury resolved, without physiotherapy, in a period of about six months. The pursuer was, however back to running within a few weeks of the accident. She was left with a residual tingling in her arms. My colleague Sheriff Morrison QC made an award of £3,500.

[51] I consider the awards in McFarlane v Samuel and Lindsay v Walker to be of assistance although I agree with the defender's agent that in Lindsay, an important difference to the case presently before me, is that the pursuer was initially off work for two and a half months and thereafter returned to work part-time. The 52 year old pursuer in that case was awarded £2,650 in 2007 for a whiplash injury, persisting for some two and a half months after the accident, a soft tissue injury persisting for some seven and a half months, together with a minor left knee injury.

[52] In McFarlane an award of £3,500 was made to a similarly aged pursuer whose moderate neck pain resolved within two months and whose backpain, which required an MRI scan and painkillers, continued to the date of proof about 18 months after the accident. It was anticipated that this backpain would resolve in early course. Like the present pursuer, the pursuer in that case was not absent from work although he was restricted from enjoying his hobby of golf.

[53] In so far as the defenders authorities are concerned, I consider that the awards in Fairley v Thomson, Dickson v Black, Sharp v Watt and Traynor v Kidd relate to significantly less serious injuries. All of these cases involve whiplash injuries, which, as I have noted above I find less helpful as a guide when considering the pursuer's case.

[54] Furthermore, I note that in all of those cases bar Traynor, the period of recovery was much shorter than the present pursuer's. There is a real difference to my mind in injuries described which were initially more painful, debilitating and restrictive than the type of injuries which the pursuer suffered in this case where the symptoms persisted for a considerable time.

[55] Although the defender also relied on Nimmo and Connell I agree with his agent's submission that the former award, now worth £2,500, is very much an "old decision". The same comment can equally be made of the decision in Connell which also dates from the early 1990s.

DECISION

[56] Although I have considered all of the authorities cited, and have found them of assistance, at the end of the day I have to assess what would generally be regarded as a reasonable compensation for the loss, injury and damage which the pursuer has suffered as a result of the accident.

[57] I am not persuaded by the defender's submission to consider the pursuer's two major injuries separately and then make some allowance for "apportionment". In my view a more straightforward approach should be considered in this case and I have considered the injuries "as a whole", since they all manifested themselves at the same time and are linked to the single act of the pursuer being suddenly thrown to the floor of the bus in which she was travelling.

[58] I am mindful of the note in the Judicial Studies Board Guidelines for modest ankle injuries which states "Where recovery is within a year, the award is unlikely to exceed £3,300." In the present case symptoms persisted beyond that period and there were back injuries which lasted a significant period also. I consider however that the injuries were not as serious as those in other cases to which I was referred where greater awards were made. I also note that in the Spencer v Baron case the pursuer was left with a tingling sensation whereas in this case it was accepted the pursuer would make a complete recovery.

.

[59] In this case, applying the test specified in paragraph [56] above to the evidence before me, the appropriate solatium is £3,400. In reaching this amount I have taken into account all of the injuries sustained, the pain and loss suffered and the lengthy period involved before a complete recovery was achieved.

[60] I will accede to the parties' submissions to apply interest to the sum awarded at the rate of 4 per cent per annum from 16^th March 2007 until the date of the proof and thereafter at the full judicial rate until payment.

EXPENSES

[61] These should follow success. I also certify, as I have been invited to do, Mr. Steedman as an expert witness in these proceedings. I will however direct that a diet of assessment and a diet of approval be fixed.