A294/05
SHERIFF OF TAYSIDE, CENTRAL AND FIFE AT CUPAR
JUDGEMENT OF
SHERIFF G J EVANS
in causa
PAUL SHERWOOD
residing at Newhill Cottage, Glassarts, by Auchtermuchty, Fife
(Assisted Person)
PURSUER
against
PETER HAMILTON-GRAY
residing at Wester Pitmenzie, Auchtermuchty, Fife
DEFENDER
Cupar, 9 July 2007. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-
1. The parties are as designed in the instance. They have been neighbours for the last 7 years and have never got on. Their properties are adjacent to each other and a running source of contention. In particular there has been disagreement about whether or not the defender is entitled to go in and out of his field by a metal gate opening on to the driveway into the pursuer's property.
2. The pursuer maintains that this driveway all the way down to the main road is his and his wife's exclusive property, although the actual gate to his property is positioned further up the driveway away from the main road.
3. The pursuer and his wife run dog kennels and at about 4pm on Sunday, 14 July 2002, as his wife was returning home from walking 2 of the dogs, she spotted the defender and his then companion Carol Melville in the vicinity of the defender's field gate.
4. Carol Melville was in front and she went forward and opened the gate, which opens outwards into the driveway, so that the defender, who was riding a "ride-on" 4 wheeled 12.5 stroke engine mower some 5 feet long and 2 to 3 feet wide and weighing approximately 150 to 160 kgs, along the road from his property towards his gate, could go into his field and cut the grass.
5. The pursuer's wife told them that they had no right to be there and the defender moved his mower nearer to her and stopped, with the engine still running and the clutch engaged. At this point the pursuer's wife caught sight of the pursuer as he came out from the kennels and shouted on him to come down, which he did.
6. The pursuer, who was wearing wellington boots on his feet at that point, stood in the driveway in front of the defender's mower and told the defender to get off of his property. The defender replied that he had every right to go through the gate. The defender did not switch off the mower's engine but continued to let it run, with the clutch still engaged.
7. At this point the pursuer had been standing about a foot away from the front of the mower, with his arms crossed and his left foot forward and his body at a slight angle to the mower, having placed himself between it and the field entrance. The defender then deliberately drove the mower forward a short distance and in doing so caused it to go over the pursuer's left foot with the driver's left front wheel of his ride on mower, thus trapping the pursuer's foot briefly.
8. When the pursuer tried to pull his foot free, he fell backwards onto the ground and stayed there once the defender eventually took his mower off his foot, in case anything was broken. He shouted on his wife to fetch an ambulance.
9. As a result of the defender's actions, the pursuer's left foot was severely bruised and he was taken by ambulance to Perth Royal Infirmary. There he was x-rayed (there was no fracture), given analgesics and advised and discharged. His foot was bandaged and for 3 weeks he was unable to walk normally. He now has permanent damage to the nerves and blood vessels in his left foot and continues to suffer from numbness in that area. The history of his injuries and the medical attention required is as accurately set out in the pursuer's production 5/2, being the medical report from Auchtermuchty Health Centre dated 12 July 2005.
FINDS-IN-FACT-AND-IN-LAW:-
1. The defender was at fault in deliberately driving his ride on mower towards the pursuer and in doing so failed to show reasonable care for the pursuer's safety.
2. The pursuer, by deliberately blocking the defender's way thus placing himself in an area of danger, courted risk to his person and thus contributed to the cause of his subsequent injuries to the extent of 10% thereof.
3. The defender is liable to the pursuer for 90% of his loss, injury and damage sustained by him as a result of the pursuer's said actions.
4. The damages therefor are reasonably estimated at £2000, less said 10%, ie £1800.
Sustains the pursuer's first and second pleas-in-law to the extent awarded; Repels the first part of the defender's first plea-in-law and Sustains the second part to the extent above stated; and Repels the defender's second plea-in-law to the extent awarded; Accordingly Grants Decree against the defender for payment to the pursuer of the sum of ONE THOUSAND EIGHT HUNDRED POUNDS (£1800) with interest thereon at the rate of 4 per centum per annum from 14 July 2002 to the date hereof and at 8 per centum per annum from the date hereof until payment; Reserves meantime the question of expenses and Fixes 8 August 2007 at 10.00am as a hearing thereon.
Sheriff
NOTE:-
INTRODUCTION
This was an action of reparation brought by one neighbour against the other arising out of an incident involving a "ride-on" mower being driven by the defender and injuring the pursuer's left foot. The pursuer avers that "suddenly and without warning the defender drove forward causing the tractor (sic) to collide with the pursuer and running over the pursuer's left foot." The defender avers that before anything else happened, the pursuer assaulted the defender by grabbing him by the shoulders as he sat on the mower and attempted to pull him off it. It was as a direct result of the pursuer's actions at that point that the defender simply lost control of the mower's clutch and the mower moved forward involuntarily. The defender thus maintains that it was the pursuer's own fault that he was injured or he had contributed to it. As is stated in Walker on Delict (2nd Edition) at page 42, "Fault is a generic term for both intention and negligence." The pursuer maintains that the defender's actions amounted to an intentional fault and the defender maintains that what happened was an accident solely caused or contributed to by the deliberate actions of the pursuer. The matter came before me for proof over 2 days and the pursuer was represented by Mr Clark, Solicitor, Kirkcaldy and the defender by Mr Williams, Solicitor, Cupar. I heard evidence for the pursuer from the pursuer himself, his GP, Doctor Ann Ince, his wife, Mrs Julie Sherwood, and his mother in law, Mrs Joan Feeney. I then heard evidence for the defender from the defender himself and from his then companion, Mrs Carole Melville.
SUBMISSIONS
Mr Clark invited me to find it established that the defender's act had been a deliberate one on the basis of the evidence led by the pursuer and his witnesses, who were all credible and reliable. The medical evidence confirmed that the pursuer's injury to his foot had been genuine. I should reject the evidence of the defender and his supporting witnesses. The more likely scenario was that the defender stopped and then deliberately ran over the pursuer's foot - or at least did so recklessly, courting the risk of injury to the pursuer. He and his witness had then subsequently concocted an explanatory scenario which just did not fit the facts and left the way the incident is supposed to have occurred mysterious and unlikely. As to quantum, the pursuer's injuries had meant that he was off work for some 3 weeks or so and he had been left with a diminished sense of touch and sensitivity in that foot. I was referred to paras (f) and (g) of the English Judicial Studies Board Guidelines dealing with moderate and mild foot injuries. I was also referred to the following 3 cases, viz Stephen Heath v Darby Glass Ltd 2004 SCLR1093; Goodwin v GKN Sheepbridge Stokes Ltd 2000 CLY1637; Huxter v Lock, June 26 1998 HH.HH. Judge McKean, Weymouth County Court. On the basis of these 3 cases, Mr Clark suggested that the £5000 sought in the pursuer's crave was a reasonable amount and sought decree in terms thereof.
In reply, Mr Williams dealt first with the question of quantum by suggesting that the English Judicial Studies Board Guidelines should have had a further category, namely paragraph (h) for 'slight', as neither category of (f) or (g) fitted the case here. He did not cite any relevant or analogous cases to me but stressed that none of the cases relied on by Mr. Clark were sufficiently near to the evidence in the instant case to be applicable or helpful in arriving at an appropriate figure. What had happened had been so trivial that any figure from no pounds up to £1500 would suffice. There was conflicting evidence about how long it was before the defender was up and about and walking his dogs again and I should prefer the account of the defender and his witness that this happened very shortly after the incident. As to liability, this should be determined by the unbiased evidence given by Mrs Melville, who, as she was no longer living with the defender, had no reason to lie in support of him and the conclusion was that she had given a truthful account. That account squared broadly with that put forward by the defender in his evidence and on Record. The pursuer was the only person who spoke to a deliberate act but everything had happened so quickly that this in itself was an unlikely scenario. It was much more likely to have been an accident - an accident caused as a result of a prior physical assault by the pursuer that both the defender and Mrs Melville had spoken to. For that reason the pursuer's case fell and the defender was not liable for the injuries to the pursuer, whatever they were. I was invited to assoilzie the defender.
REVIEW OF EVIDENCE AND DECISION
(i) Liability
This was a case in which it was difficult to determine liability as all the participants came over as plausible and sincere, but I have nonetheless concluded that the defender and his supporting witness were being untruthful in their account of the incident. The account given by the pursuer and his family struck me as not only credible and reliable but also coherent and probable, and of course it also fitted in with the medical evidence. According to the pursuer's wife, she had been the first on the scene as she was out exercising a couple of dogs from the family kennel business. It was her that had first noticed the defender heading for the field gate and had told both the defender and Mrs Melville not to use that gate to get into the field. She had then spotted her husband coming out of the kennels and had shouted on him to come down. It was at that point that he came down and interposed himself between the field entrance and the defender on his wife on mower. That was also the account given by the pursuer, who said that he went down his driveway at that point to see what was going on. His wife had then started to take the 2 dogs up the drive towards the kennels. She said in her evidence that that had been the case. She was concerned for the dogs so she had moved back up the drive. She explained that she had walked backwards with the dogs so that she could see what was happening between her husband and the defender at the foot of the drive. Her mother confirmed that she had been that she had been at the top of the drive as her daughter came up the drive with the two dogs and her daughter had asked her to keep an eye on things while she kenneled the two dogs. Her daughter had then gone back down the drive and she had followed her down. All 3 discounted the occurrence of an assault on the defender by the pursuer. The pursuer said that it was not true that he had grabbed the defender by the shoulders and attempted to pull him off. He doubted if he would have been able to reach him if he was at the front of the mower. He had no doubt that the defender had deliberately ran over him. "He deliberately drove at me and he had a smile on his face once he stopped on my foot." His wife denied that the pursuer had at any point gone to the side of the mower to speak to the defender. I do not think that it was ever put to her in cross-examination that her husband had attacked the defender. Her mother denied that there had been any such attack by the pursuer on the defender. She denied that at any time the pursuer had seized the defender by his shoulders and tried to pull him off the mower. She was quite clear that the defender had gone over the pursuer's foot deliberately and not accidentally. She disagreed that the defender's foot had slipped and that had caused the mower to lunge forward. It seemed to me that these accounts all slotted in to each other in a coherent and natural way that I found convincing. On the other hand, the account given by the defender and his supporting witness contained some discrepancy and did not explain convincingly how the pursuer came to have the injuries that he did. According to the defender, the pursuer's wife had not even been around at that point. He had had no conversation with her at the outset nor did he recollect that she had been there with a couple of dogs. The pursuer had simply stood in his way and then within 15 to 20 seconds he lent forward over the front of the machine and grabbed his shoulders with a view to throwing him off. The pursuer had grabbed both of his shoulders equally and tried to throw him off to the right, ie the defender's right. That had unbalanced him while the engine was still running and in gear. His left foot had come off the clutch and the machine had gone forward and hit the pursuer at that point. It had then taken him some seconds possibly 20, to put the machine into reverse and take it away from the pursuer. The only other person to witness the incident had in fact been Mrs Melville according to the defender. The pursuer's family had arrived after the event. His account was reasonably consistent in all respects with Mrs Melville's. She had not been aware of anyone else about when she was opening the gate into the field. She was aware of the pursuer coming down the driveway shouting at her to stop opening up the gate. The pursuer had lent over the mower to stop the defender moving the mower forward. The pursuer always remained in front of the mower as a barrier between it and the field. The pursuer had then grabbed the defender with both hands and had then lifted up one hand as though he was about to hit the defender. He then grabbed him again by the lapels. She said that she had been standing at the side of the mower on the defender's left. She presumed that the pursuer was shaking the defender very violently and that the pursuer's leg was injured as a result. She was certainly aware of the mower lurching forward and at that point the pursuer had dropped to the ground. She did not consider that it had been deliberate at all on the part of the defender. He was being manhandled and he was "off balance and very wobbly" at that point. In her view it was not a deliberate act. It was an accident caused by the pursuer's actions in assaulting the defender. She did remember the pursuer's wife and mother in law coming down and stopping her from closing the gate.
It will be apparent from this summary that while the defender insists that the pursuer grabbed him by the shoulders, Mrs Melville stated that the pursuer grabbed the defender by the lapels and in between time raised his hand or fist to him. This is a discrepancy that puts some doubt on the consistency of their account. Mrs Melville was unable to say which part of the pursuer's body the mower struck. According to the defender he did not even accept that he had run over the pursuer's foot at all. "I am quite sure it cracked him on the shin when it lurched forward." The pursuer's lying on the ground and yelling for some 20 to 30 minutes thereafter was "a pretty good act." As to the injuries spoken to by Doctor Ince, the pursuer might have been trodden on by a horse or have twisted his foot in some way. The evidence of Doctor Ince, however, along with the medical notes from the practice (vide 5/2 of Process), showed that the pursuer did attend Perth Royal Infirmary that very day with a crush injury to his left foot and attended surgery 2 days later walking with a limp and unable to put his left foot on the ground with his toes in the normal position. I have no doubt that this was the injury caused by the defender and not by a horse or any other thing. It does not seem to me to be very likely that the pursuer's left foot would have been injured by the mower if the defender is correct to say that before it happened the pursuer had stretched forward and grabbed his shoulders to try to pull him off the mower to what would have been the pursuer's left hand side. The more natural way of doing that would have been for the pursuer to have placed his left foot to the side of the mower to give him more leverage, thus leaving his right foot as the one exposed to danger from the mower's adjacent front wheel. I accept the scenario in this regard spoken to by the pursuer and his wife, that his left foot was injured by the front right (for the pursuer) wheel of the mower. That is perhaps an odd configuration for a person positioned directly in front of the mower. The pursuer's wife, however, spoke to this aspect of the case in some detail and I accept her evidence. She explained that her husband had been angled in front of the tractor. He had been standing with his arms crossed and his left foot forward and slightly to the left hand side for the driver, ie towards what would have been the front right wheel for the pursuer of the mower. That stance and position would explain why the mower moved forward and went over the pursuer's left foot with what would have been the front left wheel for the driver and the front right wheel for the pursuer. I accordingly reject the account given by the defender and his supporting witness and favoured the account given by the pursuer and his supporting witnesses and on that basis found liability established. The pursuer did admit that in taking up his stance he realised that he was putting himself in potential danger. The risk would be fairly minimal, however, for, as his wife explained, you do not expect anyone to drive deliberately at you and for that reason I assess the pursuer's contribution to the outcome of the incident as being 10% to blame.
(ii) Quantum
The defender and Mrs Melville both said that they had seen the pursuer out walking his dogs within a few days of the incident. That does not square with Doctor Ince's notes that on 16 July 2002, ie 2 days after the incident, the pursuer was found to be walking with a limp and unable to put his left foot on the ground with his toes in a normal position. I accepted and preferred the evidence of both the pursuer and his wife that it was some 3 weeks before he was able to walk about normally. I accept the history of his treatment and his injuries as spoken to by Doctor Ince and as entered in the practice notes which are to be found in production 5/2. The defender had no contrary medical evidence to challenge any of this. Thus the pursuer was left with a persistent numbness in his left foot and required to attend both Perth and Dundee hospitals for some time. According to the pursuer, electric impulse tests were done to his injured foot and confirmed objectively the fact that there was an area of numbness in the foot. Doctor Ince confirmed that that was the case and it was an objective test that did not depend on the patient's say so. It had borne out the pursuer's claim that he had this residual numbness and in her view, although she was not an expert, this was likely to be permanent. The type of injuries suffered by the pursuer were plainly "modest" in terms of the Judicial Studies Board Guidelines, that is justifying an award of £4000 or less. None of the cases cited to me by Mr Clark are sufficiently near in their facts to provide a direct guidance to my assessment. 'Heath' supra involved a fracture to the foot which was put in plaster and caused pain for 5 weeks with occasional pain thereafter, the wearing of loose shoes and difficulty initially in driving a lorry in the course of employment. In 'Goodwin' supra the injuries were serious enough to involve a bandage and crutches and later on a plaster back slab had to be applied. On removal 3 weeks later the foot remained swollen and stiff. The injured party had to undergo a course of physiotherapy. Two months afterwards he was still having problems weight bearing and had found the physiotherapy to be painful. He made a brief attempt to return to work but was signed off due to increased swelling of the foot and was off work in all for 7 months. An arch support had to be later fitted and when further x-rays were taken they showed that the fractures had united well. Eighteen months after the injury, the injured party was still complaining of an aching foot depending on his level of activity. The foot tended to be stiff in the morning but there was no pain at rest. Even 3 years and 6 months later he was still getting a niggling pain in the foot on activity, and this was worse in cold weather if he attempted to lift heavy objects or if he ran or walked over rough ground etc. I can well see in that case why the sum awarded was in excess of the modest scale. In 'Huxter' supra, there again there was a fracture which required plaster of paris back slab for 6 days followed by a full below the knee plaster for 21 days. The injured party had to use crutches for 6 weeks after the accident although he was able to return to work within 5 weeks. After 7 weeks the plaster was removed but the ankle and foot remained painfully stiff and he limped for several weeks, with his symptoms thereafter resolving gradually. He was left with permanent and very slight deformity to the right foot but without significant functional disability. He suffered aching in the foot for more than 20 months after the accident, particularly on exertion or in cold weather. After 3 years this was down to minimal symptoms described as "nuisance only". In the instant case the pursuer did not suffer any fractures and there was no requirement for either plaster supports or the use of crutches. He was able to get back to walking normally within 3 weeks and his admittedly permanent but nonetheless limited resultant loss of sensation is a condition that does not inhibit activity or create pain. I would assess solatium in the instant case to be at the middle of the modest range and accordingly fixed it at £2000. From this would fall to be deducted 10% as the pursuer's established contribution towards the incident, ie a net amount of £1800. I have granted decree accordingly and as all the pain is attributable to the past, interest will run on that amount at 4 per cent per annum from the date of the accident until the date hereof and at 8 per cent thereafter (cf McEwan and Paton on Damages (2nd Edition) at para 3-09). I was not addressed on expenses and have accordingly fixed a hearing on that matter.