PATRICIA MOIR v. ALEX WILSON
Mrs.. Patricia Moir v Alex Wilson Sheriff C G McKay A89/02
KILMARNOCK:1st July, 2002.
The Sheriff, having resumed consideration of the cause, Finds in Fact:-
- The Pursuer is Mrs.. Patricia Moir who resides at 8 First Avenue, Irvine, Ayrshire. She is 32 years of age. She is a self-employed driving instructor and has been so qualified for just over 6 years.
- The Defender is Thomas Alexander Wilson, usually known as Alex Wilson, who was born 20 March 1944 and who resides at 2 Heatherstane Way, Bourtreehill, Irvine. He is a bus driver by occupation and has held the appropriate public service vehicle licence for a period in excess of 35 years. He has been continuously employed in that capacity over that period and is presently a bus driver with Stagecoach Western Buses.
- On 12 March 2001, at or about 3.00 pm, the Pursuer was a passenger in the front passenger seat of a Vauxhall Corsa motor car, registration mark X87 KSJ (hereinafter, "the car"). The driver was Miss Anne Marie Ross presently aged 32. She was a learner driver under instruction by the Pursuer. The car displayed "L" plates and other indicators that it was a driving instructor's vehicle.
- The car was stationary at give way markings on the approach to the Stanecastle roundabout at Girdle Toll, by Irvine. Miss Ross was under instruction to take the second exit from the roundabout and was awaiting a gap in traffic to enter the roundabout. The car was stationary with the handbrake applied.
- The Defender, in the course of his employment with Stagecoach Western Buses, was driving a Stagecoach Western bus, registration mark T641 KCS (hereinafter, "the bus"). The bus was a Volvo motor vehicle and was of the articulated type with a trailing rear axle. It is of the type colloquially known as a "bendy bus". It is about 60 feet in length and weighs 18 tonnes unladen. It has 3 axles and has a fully automatic gear box.
- The bus driven by the defender had followed the car driven by Miss Ross for about 500 yards and stopped immediately behind the car when Miss Ross brought the car to a stop at Stanecastle Roundabout. The bus, when stationary, was within 18 inches of the rear of the car.
- Having seen an appropriate gap in traffic, Miss Ross, in order to enter the roundabout, having selected a gear, released the clutch but did not release her handbrake in time. The car stalled. Miss Ross and the Pursuer were both wearing seat belts. Upon stalling Miss Ross immediately applied her handbrake, selected neutral gear and restarted the engine of the car. As she did so the bus driven by the Defender struck the rear end of the car.
- As Miss Ross was preparing to move into the roundabout prior to the collision, the Pursuer was leaning slightly forward in her seat and looking to her right to confirm that the way was clear for Miss Ross, as the pupil under her instruction, to enter the roundabout. When Miss Ross stalled the motor car there was little or no motion beyond a mild jerk. The Pursuer did not sustain any injury in this action.
- As Miss Ross prepared to move off again, the Pursuer was once again leaning forward in her seat and looking to her right to ensure that the way was clear for the pupil to enter the roundabout. At this point, upon impact of the bus with the rear of the car, the Pursuer's body was thrown forward and then jerked back. In this process her neck and lumber spine underwent hyper flexion. She sustained an injury of the type commonly described as "whiplash".
- Neither vehicle sustained any damage in the accident.
- On the following morning the Pursuer had severe pain in her neck, shoulders and lower spine. .She consulted her general practitioner that morning and was diagnosed as suffering from "whiplash injury".
- As a result of the injury sustained in the collision the Pursuer suffered pain in her neck, back and shoulders. Her back was very stiff and the smallest neck movement caused pain. Whilst advised to exercise her neck muscles by moving her head up and down and to the left and to the right, she found this difficult and it caused pain. She required to take prescribed anti-inflammatory tablets for about three weeks. Thereafter she controlled the pain with analgesics. The problem persisted for at least 4 months before she was more easily able to turn her head to the left or right. Her sleep was interrupted. Prior to the accident she attended keep fit classes once a week but was unable to do so by reason of the injury for a period of 4 months. She recovered fully after 7 months. Notwithstanding the pain caused to her by head movement she returned to her work as a self-employed driving instructor after the loss only of one day because that was her living.
- The medical report, Pursuer's production 5/1 of process, is an accurate record of the examination of the Pursuer by Dr. Brian Lennox on 24th July, 2001, and of his opinion and prognosis for her.
- Parties agreed, in the event the Defender was found liable to make reparation to the Pursuer, that as a result of the accident, she lost income of £72.60 and that £50 was a reasonable sum in respect of inconvenience.
- The Pursuer suffered pain and discomfort from the injury sustained in the accident as before found in fact. Solatium for the pain and suffering is reasonably assessed at £3000 all of which is in respect of past pain and suffering.
- Parties agreed, in the event that the Defender was found liable to make reparation to the Pursuer, (a) that interest at half the judicial rate be paid on the amount found due in respect of solatium from 12 March 2001 until the date hereof and thereafter at the judicial rate until payment and (b) that interest at the judicial rate be paid on the sums agreed in respect of loss of income and inconvenience from 12 March 2001 until payment.
Finds in Fact and in Law,
1It was the duty of the Defender so to drive his vehicle as to take reasonable care for the safety of other road users including the Pursuer. In particular, it was his duty so to drive his vehicle as to avoid colliding with the Pursuer's vehicle. He failed to do so. As a result of his failure the accident occurred in which the Pursuer was injured. The Defender's failure was negligent.
2The Pursuer sustained injury and loss through the negligence of the Defender and is entitled to reparation therefor.
3The sum of £3122.60 is a reasonable estimate of the Pursuer's said loss, injury and damage.
Accordingly, sustains the Pursuer's pleas-in-law and repels the Defender's; Grants decree against the Defender for payment to the Pursuer of the sum of £3122.60 with interest (a) on the sum of £3000 at one half of the judicial rate from 12th March 2001 until the date hereof and thereafter at the judicial rate until payment and (b) on the sum of £122.60 at the judicial rate from 12th March 2001 until payment; Finds the Defender liable to the Pursuer in the expenses of the action and Allows the Pursuer to lodge an account thereof with the Sheriff Clerk and Remits the same when lodged to the Auditor of Court to tax and to report; and Decerns.
Sheriff.
Note
In this action the Pursuer seeks damages from the Defender as a result of a motor accident which occurred on 12 March 2001. After sundry procedure Proof was assigned for 26 June 2002. On that date I heard the evidence of the Pursuer, of the pupil under her instruction and the driver of the car, Miss Anne M Ross and of Doctor Brian Lennox, a medical practitioner who had examined the Pursuer some months after the accident. I heard evidence from the Defender and from a Mr. Gary Hamilton, the depot engineering manager with Stagecoach Western Buses at Ardrossan. The evidence was recorded by a shorthand writer but neither party, nor I , required extension of the notes. At the Proof the Pursuer was represented by Mr. Stewart, solicitor, Glasgow and the Defender by Mr. Shaw, solicitor, Ayr.
As is obvious from the Record the important fact in issue was whether or not there had been an accident at all. The tenor of the evidence of the Pursuer, Mrs. Moir, and her learner driver, Miss Anne Marie Ross was, in general terms, the same. The car was stationary at the Stanecastle Roundabout awaiting a suitable gap in traffic to enter the roundabout. Miss Ross had applied the handbrake and the clutch was disengaged. Both observed, in their rear view mirrors, a Stagecoach bus stopped immediately behind them. Both said this bus was very close and Mrs. Moir insisted it was no more than 18 inches behind the rear of her car. At the appropriate moment when there was a gap in traffic Miss Ross, to move off, began to engage gear by allowing her clutch pedal to rise but, unfortunately, did not, in time, release the handbrake. As a result the car stalled. She immediately applied her handbrake and brought the gear into neutral. Whether she immediately restarted the engine or not was a matter on which Mrs. Moir and Miss Ross were at odds but I do not regard that as at all significant. I have accepted the evidence of Miss Ross that she did so since she described it as an automatic reaction on her part. Immediately after stalling and whilst she was preparing to move off again, the car was struck in the rear by the bus. At this point Mrs. Moir had been leaning forward and looking to her right, supervising her pupil in moving off. As a result of the impact from the bus her body was thrown forward and jerked back. This movement, she described as quite different from the very slight jolt that occurred when the car stalled only a moment before. Both Mrs. Moir and Miss Ross were adamant that there was a significant impact greater than the jolt than when the car had stalled. Miss Ross said she was well able to distinguish between the impact of the bus and the movement of the car when stalling as she said she regularly stalled the car.
At this point Mrs. Moir did not feel any pain or discomfort. She got out of her car and went to the rear. The bus driver, the Defender, was out of his bus and looking at the gap between the front of the bus and the rear of the car. Mrs. Moir told me that Mr. Wilson, the bus driver, amongst other things said "I haven't hit you that hard, there's no damage". Some issue was made by the Defender's solicitor about there being no notice of this on Record and the bus driver himself denied making such a remark. I have not made any finding in fact about this because I do not regard it as essential to my decision even though it can obviously be construed as an admission.
Much was made of the fact that there was no damage to either vehicle and there is no doubt that is true. Mrs. Moir took her car to a garage within a couple of hours of the accident and no damage was found. The bus driver said there was no damage to his bus and this was confirmed by the depot engineering manager, Mr. Hamilton. It was advanced by the Defender that, standing the fact there was no damage, there could have been no collision. Mr. Wilson was quite emphatic that his bus had not come into contact with the rear of the Pursuer's car.
Mr. Hamilton, a 28 year old man, told me he was the depot engineering manager for Stagecoach Western Buses at Ardrossan. He told me his experience which included a 4 year apprenticeship, a Level 2 City and Guilds qualification in motor mechanics and some 3 years as the depot engineering manager. A little surprisingly he did not appear to know the length or weight of the articulated bus in question but he seemed well acquainted with its construction. He explained that the front bodywork of the bus was of fibre glass and that there had been no damage even to the paint work. He told me that because of this form of construction, fibre glass, buses tended to come off worse in "shunting" incidents. He agreed in cross-examination that fibre glass as a material was both light and quite strong. He also explained that in an impact accompanied by sudden braking - as was the case here as described by Mr. Wilson, as least so far as the sudden breaking was concerned - the front of the bus dipped down and then levelled again. Mr. Wilson in his evidence gave exactly the same explanation about the reaction of the bus bodywork in sudden braking.
So far as Mr. Wilson was concerned he told me had been a bus driver for over 35 years and had been in continuous employment as such. He was familiar with the route he was then driving and familiar with driving buses of the type he was driving. He told me it was a 60 foot long vehicle, 18 tonnes unladen weight. He said the weather was dry, the road conditions dry and good visibility. He was in no hurry as he was on time. He told me he had seen the Pursuer's car stopped at the give-way markings at the roundabout and he maintained that he stopped 2 to 3 yards behind it. He applied his handbrake. He then said that the car started moving and that accordingly he let his handbrake off. In such circumstances the bus moves right away and it was clear to his right for him to enter the roundabout. He then said that the Corsa stopped suddenly and that he stood on the brakes of the bus and stopped. He said that he had seen the Corsa stop right in front of him. He said he'd had to stand on the foot brake to stop the bus and that he had stopped no more than 4 inches off the bumper of the Corsa. He denied striking the Corsa.
As to whether or not there was a collision it is plainly a matter of credibility and reliability of the three witnesses who were there. Mr. Wilson accepts that Mrs. Moir got out of her car. Mr. Wilson also got out of his bus. I have equal difficulty in understanding why either would have got out of their respective vehicles other than because of a collision. There is no doubt Mrs. Moir got out of the car and nobody suggested that this was to remonstrate with the bus driver for being too close, an allegation made by Mrs. Moir about the driving of the bus for some distance back from the roundabout. I have made no findings about that because I do not regard that as significant in the end of the day. Miss Ross did not get out of the car. She said she was very upset because of the accident. Mrs. Moir described her pupil as being in a bit of a state as the result of the accident. I find it very difficult to believe that these two ladies would have made up a story that the bus had struck the rear of the car if it had not done so. One might have expected Miss Ross to have made a like claim if there had been such a conspiracy. It is highly unlikely both were mistaken about the impact from the bus.
I attach no weight to the fact that there was no damage. Curiously, no-one asked Mr. Hamilton about whether or not it was possible for there to be a collision between two modern vehicles without there being damage. No one suggested that this was a severe impact. Both Mrs. Moir and Mr. Wilson agreed that there was no damage visible. I find it equally inconceivable that Mrs. Moir would then have proceeded to Ayr to have her car checked had she not believed there had been an impact. In all these circumstances I prefer and accept the evidence of Mrs. Moir and Miss Ross and reject the evidence of Mr. Wilson on the matter of whether or not there was a collision.
I am satisfied there was a collision. I am satisfied that the reason there was a collision was that Mr. Wilson's bus was too close to the Corsa whilst it was waiting to enter the roundabout at a suitable gap. The Corsa was showing appropriate L plates and there was plainly a risk that an L driver might not move off perfectly. I am satisfied that Mr. Wilson, anticipating that the Corsa would move into the roundabout, allowed his bus to move forward, even if ever so slightly, and that there was a resultant collision with the Corsa when it stalled.
I accept Mrs. Moir's evidence that in that collision there was an impact far greater than that experienced in the slight jolt from stalling- a common place experience for her she told me and, indeed, also for Miss Ross. I have no doubt that, as a driving instructor, Mrs. Moir must experience pupils stalling cars almost on a daily basis. That particular motion has not caused her any problems. She said that she was thrown forward and backwards in the accident and that the impact and jolt from it was much more severe than in the stall..
I accept the evidence of Doctor Brian Lennox, a general practitioner of some 25 years experience, that the nature of the movements of her body as described by Mrs. Moir to him - and to me in evidence - amounted to what is commonly called "whiplash" injury. I also accept the evidence of Mrs. Moir that when she attended her own general practitioner the following morning that is what he diagnosed as the consequence of the accident.
Mrs. Moir then went on to tell me of the all too common consequences of this type of injury. She suffered considerable pain for a number of weeks; she had difficulty with her neck movements; she was unable to attend her usual keep fit class; she had to take prescribed anti-inflammatory tablets for a period of 3 weeks to reduce the pain and discomfort caused by neck movement; she had to take analgesics over a period of some 3 or 4 months thereafter to mitigate the pain; and all in all it was some 7 months before she was fully recovered. Her description of the consequences of the whiplash injury were well supported by Dr. Lennox who had examined the lady on 24 July 2001, 4 months after the accident. He did not detect any exaggeration in her description of her condition.
In course of submissions I was referred to a number of cases by both solicitors. For the Pursuer I was referred to a number of unreported Sheriff Court cases (of which copies were provided),
Toumi v Crossan dated at Hamilton, 22 February 2002. (Sheriff J H Stewart)
Urquhart v Coakley Bus Company Limited dated at Hamilton, 2 June 2000.
Brown v Forsyth & Another dated at Aberdeen, 17 August 2001.
Donegan v Dunnigan, an English case summarised in (2000) CLY at para 1720.
For the defender Mr. Shaw, in addition to those above, drew my attention to Brennan v Clark, a decision of Sheriff Croan at this court dated 11 April 2000 and summarised in 2000 GWD, 17-685. I obtained a full copy of that judgement. Reference was made to it in Urquhart.
Murphy v MRS (Distribution) Limited 1993 SLT 786,
Quinn v Bowie (No 1) 1987 SLT 575,
Watson v BOC 1979 SLT (Notes) (9) and
Mitchell v Matheson 1983 SLT 392.
Mr. Shaw also provided updated figures for the older cases by using the inflation multiplier from McEwan and Paton. The range in the various cases is quite substantial, from £1000 to £4000. For his client, Mr. Stewart sought £3,750 whereas Mr. Shaw suggested a figure between £2,000 and £2,500 was more appropriate. I should just like to observe in relation to the use of such cases that, whilst it may be helpful in giving a general range for such injuries, unless full reports are produced, which enable the Sheriff faced with the decision to see the circumstances found by the judge whose decision is being advanced, they are not particularly helpful. At any rate, having reviewed a variety of cases and awards in a variety of circumstances I am satisfied that a reasonable figure for solatium in this particular case is £3000.
In addition parties agreed by Joint Minute on the figure of £50 for inconvenience and £72.60 for loss of income. Parties also agreed that interest at one half the judicial rate should be payable on the amount of solatium from the date of the accident until decree and thereafter at the judicial rate and on £72.60 and £50 at the judicial rate from the date of the accident until payment. I have so found.
Parties were also agreed that expenses should follow success and accordingly, since the Pursuer has been wholly successfully, I have found her entitled to expenses as taxed.