SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
SC1269/11
JUDGMENT OF SHERIFF S. REID
Sheriff of Glasgow and Strathkelvin
in the cause
MS DOMINIQUE MULLEN, residing at 35 Taymouth Street, Sandyhills, Glasgow G32 9SD
PURSUER
against
CHURCHILL INSURANCE COMPANY LIMITED, a Company incorporated under the Companies Act and having a place of business at 14-18 Cadogan Street, Glasgow G2 6QN
DEFENDER
______________________________
Act: Hay, Gildeas, Glasgow
Alt: Dickson, Harper Macleod LLP, Glasgow
GLASGOW, 14 February 2012. The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-
(1) On 27 September 2010, the pursuer was involved in a road traffic accident on the Clydeside Expressway, Glasgow.
(2) At the time of the accident, the pursuer was a passenger in a BMW 5 Series motor vehicle (registration number SW54 DYO). The pursuer was sitting in the rear passenger seat of the vehicle behind the driver.
(3) The BMW motor vehicle, in which the pursuer was travelling, was hit from behind, suddenly and without warning, by motor vehicle registration number KP03 XPK. Motor vehicle registration KP03 XPK was then being driven by the defender's insured (identified only as "Mr Knight").
(4) As a result of the collision, the pursuer was thrown backwards, impacting her back on the seat and her head on the head restraint, before being thrown forwards in a whiplash type movement, impacting her chest on the seat belt. The force of the impact was moderate to severe.
(5) The BMW vehicle in which the pursuer was travelling was a write-off.
(6) The pursuer was wearing a seat belt at the time of the accident. The seat in which she was sitting was fitted with a head restraint.
(6) The pursuer's date of birth is 25 October 1992. She was 18 years old at the date of the accident, and 19 years old at the date of the proof.
(7) Liability for the accident is admitted by the defender.
(8) As a result of the accident, the pursuer sustained injury and damage. Firstly, she suffered continuous neck pain, radiating into the right shoulder, for a period of eight weeks (2 months) after the accident. That neck pain (radiating into the right shoulder) was suffered intermittently thereafter, until fully resolved 9 months after the accident. Secondly, as a result of the accident, the pursuer suffered intermittent low back pain for a period of 14 weeks (31/2 months) after the accident. Thirdly, the pursuer suffered intermittent travel anxiety on motorways for a period of 14 weeks (31/2 months) after the accident. The pursuer had fully recovered from the injuries sustained in the accident within nine months of the accident
(9) The pursuer took no time off work, though she worked reduced hours (of an unspecified extent) for three months following the accident.
(10) The pursuer suffered broken sleep for 13 weeks after the accident. She would wake one to two times a night during this period. The injuries did not otherwise interfere with her ability to carry out domestic activities such as housework, or gardening, or otherwise care for herself.
(11) The pursuer's social outings were curtailed for a period of eight weeks following the accident. In addition, the pursuer did not pursue her recreational activity of dancing (modern, tap, ballet and disco) for a period of 41/2 months following the accident.
(12) On the day of the accident, the pursuer attended the Accident & Emergency Department of the Southern General Hospital, Glasgow. She was examined there and advised. The pursuer also attended at her own General Practitioner at Cairns Medical Practice, Shettleston Road, Glasgow on two subsequent occasions. She was advised to carry out no heavy lifting and to return to her GP if she felt no better.
(13) She took Ibuprofen in respect of her injuries during the period of 41/2 months after the accident.
(14) She has neither sought nor received physical therapy or counselling.
(15) On 9 February 2011, the pursuer was examined by Dr Mark Innes Burgin, for the purpose of preparing a Report. Following that examination, Dr Burgin prepared a Report dated 14 February 2011. The nature and extent of the injuries sustained by the pursuer in the accident, and of Dr Burgin's treatment and prognosis, are accurately described in that Report. A copy of that Report is produced as no. 5/1 of process.
FINDS IN FACT AND LAW:
(1) The pursuer's accident was caused by the negligence of the defender's insured.
(2) The pursuer having sustained injury and damage as a consequence of the fault and negligence of the defender's insured, the pursuer is entitled to reparation therefor.
(3) The pursuer is an "entitled party", Mr Knight is an "insured person", the defender is "the insurer", and the pursuer has a "cause of action" against Mr Knight which arises out of "an accident", all in terms of Regulations 2(1) & 3 of the European Communities (Rights against Insurers) Regulations 2002.
(4) A reasonable award of solatium in respect of the pain, suffering and inconvenience sustained by the pursuer is £2,350.
ACCORDINGLY, grants decree against the defender for payment to the pursuer of the sum of TWO THOUSAND THREE HUNDRED AND FIFTY POUNDS (£2,350) STERLING with interest thereon at the rate of four per cent (4%) a year from 27 September 2010 to 27 June 2011, and thereafter at eight per cent (8%) a year, until payment; certifies Dr Mark Innes Burgin, as a skilled witness for the pursuer; meantime, reserves all questions of expenses and appoints the parties to be heard thereon at a hearing to be assigned.
NOTE:
[1] In this Summary Cause, the pursuer seeks damages for personal injuries sustained by her in a road traffic accident. The accident occurred on 27 September 2010 on the Clydeside Expressway. The pursuer was then a passenger in a BMW motor vehicle. The vehicle in which the pursuer was travelling was struck from behind by another vehicle then being driven by the defender's insured (identified only as "Mr Knight"). The defender's direct liability to the pursuer arises by virtue of Regulations 2(1) & 3(2) of the European Communities (Rights against Insurers) Regulations 2002 .
[2] From the outset, the defender has admitted liability. The only issue in dispute is quantum of damages for solatium.
[3] The action called before me at a Summary Cause Proof on 19 January 2012. In terms of a Joint Minute of Admissions tendered at the Bar, the parties agreed that a medical report in relation to the pursuer prepared by Dr Mark Burgin (no. 5/1 of process) was to represent the evidence of that consultant and was to be held as equivalent to the author's oral evidence. It was also agreed in terms of the Joint Minute that Dr Burgin's Report represented an accurate description of the nature and extent of the injuries sustained by the pursuer and his treatment and prognosis; and that the pursuer had fully recovery from the injuries sustained by her in the accident within nine months of the accident.
[4] The parties' agents agreed at the Bar that there were no other factual issues in dispute. Specifically, while the original response (Form 10B) to the Statement of Claim alleged that the pursuer had failed to mitigate her loss, the defender's agent confirmed at the Bar that this line of defence was no longer insisted upon. I was also advised that no claim for loss of earnings was being made by the pursuer.
[5] Lastly, the parties' agents advised that it was a matter of agreement that interest (on any award of damages for solatium that was found due) was to be applied at the rate of 4% from 27 September 2010 to 27 June 2011, and thereafter at 8%.
[6] Against that background, I was invited to consider the Joint Minute and agreed evidence, to hear submissions for both parties, and to proceed to determine an appropriate award of damages for solatium only.
Evidence
[7] Liability for the accident having been admitted (and the parties having agreed that no other factual issue was in dispute), the only evidence at proof which I was invited to consider was the parties' Joint Minute of Admissions and the Medical Report prepared by Dr Mark Burgin (no. 5/1 of process).
[8] The principal relevant elements of the agreed Medical Report are as follows:-
1 Dr Burgin examined the pursuer on 9 February 2011 (approximately 41/2 months after the accident). The pursuer's medical records were not available to or examined by Dr Burgin.
2 Upon examination, the pursuer's cervical spine was mildly tender over the area of right C5. The thoracic spine was mildly tender over the area of right T4 and equivocally tender over the area of right T12. The lateral thoracic spine was mildly tender over the area of right T1. The lumbar spine was mildly tender over the area of right T3. The right sciatic nerve was mildly tender. The sacroiliac ligaments were non-tender. The pursuer's upper limbs (and shoulders) moved fully. The pursuer's lower limbs (and hips) moved fully.
3 In section 3 of his Report (entitled "Treatment": Past, Current and Future), Dr Burgin notes that the pursuer reported that she had attended the Accident & Emergency Department on the date of the accident, and was then examined and advised. She attended her own General Practitioner on two occasions. She reported that she was advised to do no heavy lifting and to come back if feeling no better. She reported that she had taken Ibuprofen. She had not obtained any physical therapy or counselling.
4 In section 4 of his Report (entitled "Past Medical History"), Dr Burgin notes that the pursuer reported that she had not been involved in any previous road accidents. She had no previous fractures. She had not been involved in any previous operations. She had not had any previous neck or back pain or psychological problems. She had suffered from no illnesses for which she was currently taking any medication.
5 In section 6 of his Report (entitled "Loss consequential to injury"), Dr Burgin records that the pursuer reported that she took no time off work, though she worked reduced hours for three months. As regards impact upon her domestic life, Dr Burgin records that the pursuer reported having suffered broken sleep for 13 weeks and would wake one to two times a night. Otherwise, there was no reported interference with her ability to carry out housework, gardening or otherwise care for herself. As regards the impact upon her social life and recreational pursuits, the Report records the pursuer as reporting that she had not gone on social outings for eight weeks after the accident, though her ability to visit friends, go on holiday or drive had not been affected. The Report records the pursuer as having reported that she had not been able to pursue her recreation of dancing (modern, tap, ballet and disco) since the accident.
6 The Report records the pursuer as having reported at examination (41/2 months after the accident) that she had suffered neck pain, radiating into the right shoulder, continuously for eight weeks, and intermittently since; that low back pain aches had been suffered intermittently since the accident; and that travelling anxiety on motorways had been suffered intermittently since the accident.
7 Dr Burgin concludes that the pursuer's neck pain, radiating into the right shoulder, "will settle over the next 18 weeks from the date of the examination" (i.e. within nine months of the date of the accident). Further, Dr Burgin concludes that the low back pain, and the pursuer's travelling anxiety, had settled 14 weeks following the accident.
8 Dr Burgin advised that four sessions of physical therapy be undertaken. (In the event, I was told that no such physical therapy was undertaken by the pursuer.)
[9] As for the Joint Minute of Admissions, it recorded the parties' agreement that the terms of Dr Burgin's Report represented an accurate description of the nature and extent of the injuries sustained by the pursuer and his treatment and prognosis. It was also agreed in terms of the Joint Minute that the pursuer had fully recovered from the injuries sustained in the accident within nine months of the accident.
Authorities referred to in Submissions
[10] The pursuer's agent referred to the following authorities:-
1 Judicial Studies Board Guidelines (Chapter 6: 9th Edition) (Orthopaedic Injuries: Neck Injuries) - minor soft tissue and whiplash injuries and the like where symptoms are moderate: (ii) and a full recovery takes place within about two years - £2,850 to £5,150; and (iii) with a full recovery between a few weeks and a year - £875 to £2,850.
2 Alexander Lindsay v William Walker (unreported), 15 June 2007, Linlithgow Sheriff Court - neck injury persisting for 21/2 months. Lower back injury persisting for 71/2 months. Minor knee injury. Award: £2,500 (adjusted by reference to RPI to £2,836.47). .
3 Caroline Spencer v Miss E Baron (unreported), 4 February 2008, Edinburgh Sheriff Court (Sheriff N Morrison QC) - neck injury. Substantial recovery after six months except for tingling in left arm. Fully resolved after 12 months. Award: £3,500 (adjusted to £3,894).
4 Kirsty Pollock v Thomas Westall (unreported), 16 July 2010, Jedburgh Sheriff Court (Sheriff Peter Hammond) - lower back soft tissue injury. Full recovery after nine months. Award: £2,750 (adjusted to £2,892).
5 Craig Montgomery v Direct Line Insurance Plc (unreported), January 2011, Edinburgh Sheriff Court (Sheriff Katherine Mackie) - soft tissue injury to right shoulder. Full recovery after six months. Award: £2,675 (adjusted to £2,747).
[11] The defender's agent referred me to the following authorities:-
1 Judicial Studies Board Guidelines (Chapter 6) (Orthopaedic Injuries: Neck Injuries)
2 Bryan Peddie v Saga Insurance Company Limited (unreported), 14 December 2009, Hamilton Sheriff Court (Sheriff Donald Corke) -Acute neck sprain. No time off work. Restriction in neck movements for two or three days or a time throughout a period of three or four months. Fully recovery after four months. Award: £1,250 (adjusted to £1,372).
3 Douglas Ashton v Annette Skews (unreported), 19 January 2009, Edinburgh Sheriff Court (Sheriff Principal E F Bowen QC) - injury to neck and lower back. Off work for one week, with lighter duties for a further week. Full recovery after nine months. Award: £2,000 (adjusted to £2,278.91).
4 Jessie Hall v Mr N Cockburn (unreported), 16 February 2009, Ayr Sheriff Court (Sheriff Peter Hammond) - soft tissue injuries to arms, chest, legs and a whiplash injury to neck. Bed bound for one week. Assistance with normal daily activities required for two weeks. Occasional twinges of discomfort by four months after the accident. Full recovery by 12 months after the accident. Award: £2,250 (adjusted to £2,548).
5 Lynette Valentine v Mark McGinty (unreported), 20 May 2008, Linlithgow Sheriff Court (Sheriff Douglas Kinloch) - neck injury. Continuous pain for three weeks. Largely recovered after six to seven months. Fully recovered after 12 months. Award: £2,250 (adjusted by reference to RPI: £2,504).
6 Ann Sharp v Andrew Watt (unreported), 19 March 2008, Linlithgow Sheriff Court - neck and chest injury. Eight sessions of physiotherapy. Fully recovered by 12 months after accident. Described as "a fairly straightforward whiplash injury". Award : £2,250 (adjusted to £2,539)
[12] Although not included in either party's list of authorities, both parties made reference at the Bar to Symington v Milne 2007 Rep LR 63 (Sheriff Principal E F Bowen QC). This case involved a neck injury, with the pursuer being bed-bound for four days after the accident. Severe pain was suffered for approximately one month, gradually subsiding over the following six months. Full recovery after seven months. Award : £2,250 (adjusted to £2,595)
Submissions for the pursuer
[13] The pursuer's agent invited me to quantify damages for solatium in the sum of £3,500.
[14] He began by referring to the JSB Guidelines, indicating an award of between £875 to £2,850 for a minor soft tissue and whiplash injury where symptoms were moderate, with a full recovery between a few weeks and a year. The pursuer's agent reminded me that the Guidelines were not binding, that the indicative range dealt with neck injuries only, and that the pursuer in this case had suffered more than a whiplash injury. He stated that the pursuer had suffered continuous pain in her neck, radiating into her right shoulder, for eight weeks, with intermittent pain thereafter, only fully recovering after nine months. She had also suffered lower back pain for 14 weeks after the accident. He noted that she had also suffered low back pain, and travelling anxiety, for 14 weeks after the accident, and had suffered broken sleep for 13 weeks after the accident, waking one to times a night. In other words, he said, the pursuer had sustained injuries to various parts of the body. The JSB Guideline range was restricted to just one area of the body.
[15] Addressing his authorities in turn, the pursuer's agent noted that in Alexander Lindsay v William Walker, an award of £2,500 (inflation-adjusted to £2,836.47) was made for a neck injury that persisted for 21/2 months and a lower back injury persisting for 71/2 months. In Lindsay, the pursuer made a speedy recovery, and managed to complete a 30 mile cycle ride one month after the accident. The pursuer's agent argued that the pursuer's injury in the present case took longer to heal (namely nine months in total), and therefore should attract a higher award.
[16] Referring to Spencer v Baron, the pursuer's agent acknowledged that this represented the "high water mark" for an award for whiplash injury. He acknowledged that such an award might usually be in the region of £2,800, but that the sum of £3,500 (inflation-adjusted to £3,894) had been awarded by Sheriff Morrison in Spencer in circumstances not dissimilar to the present case.
[17] Referring to Pollock v Westall the pursuer's agent acknowledged that this case involved a lower back injury. It was also noted that she was suffering from a pre-existing back condition, of which the injury complained of was an exacerbation. He invited me to conclude that the award in Pollok (of £2,750, inflation-adjusted to £2,892) should be higher in the present case to reflect the fact that Ms Mullen had no pre-existing condition (and, again, had suffered, not just a single back injury, but injuries to her neck and back, and psychological injury in the form of travel anxiety).
[18] Referring to Montgomery v Direct Line the pursuer submitted that Mr Montgomery had made a full recovery by six months after the accident and was not able to play football for four months. He contrasted this with the pursuer in the present case who had taken nine months to fully recover and, according to the Medical Report, had not pursued her recreational activity (of dancing) up to the date of examination (approximately 41/2 months after the accident). In Montgomery the sheriff awarded the pursuer £2,675 (inflation-adjusted to £2,747). The pursuer's agent submitted that the injuries in Montgomery were less severe than in the instant case.
Submissions for the defender
[19] The defender's agent invited me to assess damages for solatium in the sum of £2,100.
[20] She extracted the following key features from the agreed Medical Report: (1) the pursuer had suffered continuous neck pain for eight weeks, but only intermittent neck pain thereafter, (2) the pursuer had only ever suffered the low back pain intermittently, which low back pain had fully resolved after 14 weeks, and (3) the pursuer had again suffered travel anxiety on motorways only intermittently after the accident, which travel anxiety on motorways had also fully resolved after 14 weeks.
[21] In other words, she submitted, while the full recovery period had indeed been agreed at 9 months, the pursuer's lower back pain and travel anxiety had only been suffered intermittently for a period of 14 weeks; and the pursuer's neck pain, while continuous for eight weeks after the accident, had only been suffered intermittently thereafter until full recovery.
[22] In addition, the defender's agent noted that the pursuer had only sought treatment twice from her GP but had neither sought nor obtained treatment such as physiotherapy. [23] Further, the pursuer did not require to take any time off work (though it was acknowledged that she had worked reduced hours for three months).
[24] Overall, the defender's agent submitted that this was not the most serious type of injury.
[25] The defender's agent sought to distinguish the pursuer's authorities as involving more serious injuries, with more serious consequences.
[26] Referring to her own list of authorities, the defender's agent commended the JSB Guidelines to me for guidance, though she acknowledged that they should be used "with caution".
[27] The defender's agent referred to Peddie v Saga Insurance Co Ltd. This case involved a full recovery after four months, with an award of £1,250 (inflation-adjusted to £1,372). The defender's agent acknowledged that the pursuer's recovery in the present case was substantially longer.
[28] Referring to Ashton v Skews, the defender's agent described it as being more similar to that of the pursuer. In Ashton, Sheriff Principal Bowen had awarded £2,000 (inflation-adjusted to £2,278.91) for a whiplash injury to the neck, back and some bruised muscles. In Ashton, the claimant was unfit for work for a week, returned to lighter duties for one week thereafter and made a full recovery after nine months. The injuries were of an intermittent nature.
[29] The defender's agent also drew my attention to Symington v Milne (referred to in paragraph 12 of the Ashton judgment). The defender's agent noted that, in Symington, an award of £2,250 (inflation-adjusted to £2,595) was made where the recovery period was only six months (ie. three months less than in both Ashton and in the present case), though the symptoms in Symington were said to be rather more continuous in nature. The defender's agent submitted that in Ashton the Sheriff Principal had concluded that, overall, the effect on Mr Ashton's lifestyle was less than the effect upon Mrs Symington, with the result that in Symington the Sheriff Principal awarded £2,250 (inflation-adjusted to approximately £2,595). In other words, according to the defender's agent, Sheriff Principal Bowen had made a deduction in the Ashton case because of the intermittent nature of the symptoms.
[30] Referring to Hall v Cockburn, the defender's agent noted that, overall, this was similar to the present case but submitted that a lower award was appropriate because, in Hall, the continuous symptoms were suffered for four months (almost two months longer than Ms Mullen's continuous symptoms) and, overall, the full recovery period was longer and than Ms Mullen's by three months. In Hall, the sheriff had awarded £2,250 (inflation-adjusted to £2,548.01). The defender's agent also noted that the pursuer in Hall had been bed-bound for one week.
[31] Referring to Valentine v McGinty in which an award of £2,250 was made for a whiplash neck injury (inflation-adjusted to £2,504), the defender's agent again argued that the injuries in Valentine were more severe than those suffered by Ms Mullen. In Valentine, full recovery took three months longer than in the present case and that Mrs Valentine's severe pain was subsiding only seven months after the accident. Accordingly, the defender's agent submitted that a lower award was appropriate in the present case.
[32] Lastly, the defender's agent noted that in Sharp v Watt, an award of £2,250 (inflation-adjusted to £2,539) was made for a whiplash and neck injury and bruising to the chest. In Sharp, the full recovery was made after 12 months. The overall recovery period being longer, the defender's agent invited me to assess damages at a lower sum, though she conceded the case was "broadly similar" to that of Ms Mullen.
Further submissions for the pursuer
[33] In response to the defender's submissions, the pursuer's agent argued that the Ashton case involved less serious injuries than those of Ms Mullen.
[34] As for Valentine, he argued that Ms Valentine's injuries were also less severe than Ms Mullen's having regard to Ms Mullen's inability to return to her recreational activity of dancing some 41/2 months after the accident.
[35] Lastly, the pursuer's agent argued that the award in Sharp was low, being below the medium level for injuries of this nature.
Decision
[36] An award of damages for solatium is a payment of money for something cannot be precisely quantified. The difficulties associated with the precise assessment of an appropriate award of damages for solatium (including awards at the minor end of the scale) are well known. Each case turns upon its facts.
[37] However, "justice requires that there be consistency between awards"(per Sheriff Hammond in Kirsty Pollock v Thomas Westall). To achieve some degree of consistency, it is necessary to identify the appropriate range of awards for injuries of a similar nature and consequence and, within that range, to identify a sum that represents reasonable compensation to the pursuer for the loss, injury and damage actually suffered.
[38] In undertaking that exercise, it seems to me that the principal component elements to consider include the nature of the injury, the severity of the injury, the frequency with which symptoms of the injury are suffered (specifically, whether the symptoms are continuous or intermittent), the overall duration of the symptoms, and, critically, the consequences or impact of the injury and symptoms upon the victim, his lifestyle (including his work, family or domestic routine or responsibilities, and recreational pursuits) and his overall quality of life. Inevitably, that involves a consideration of elements that are both objective and subjective in nature. In Symington v Milne, Sheriff Principal Bowen noted that:
"Whilst there is no question that the approach to valuing solatium for soft tissue injuries should take into account primarily the severity of those injuries for the purposes at arriving at a position on the scale of appropriate awards, it is also necessary to take into account elements of subjectivity which arise in every case".
Thus the effect of an identical injury (with, let us say, the same recovery period) upon the overall quality of life of two separate victims may well vary dramatically depending, among many other things, upon the victim's age, family or work responsibilities, lifestyle pursuits or choices. Given the considerable potential variation within these elements, it is virtually inevitable that no two cases will be absolutely identical. For that reason, a broad brush approach is required to determine the overall impact of the injury upon the victim's life.
[39] Against that background, I considered that the principal elements of the admitted evidence in relation to the pursuer's injuries in the present case, and the effect upon her were as follows: she had suffered continuous neck pain, radiating into her right shoulder, for 8 weeks (2 months) after the accident, and intermittently thereafter until 9 months after the accident; she had suffered low back pain intermittently for 14 weeks (31/2 months) after the accident; she had suffered travel anxiety on motorways intermittently for 14 weeks (31/2 months) following the accident. She had taken no time off work (though I acknowledge that she worked reduced hours (of an unspecified extent) for three months). She suffered broken sleep for 13 weeks after the accident, and would wake one to two times a night. She attended the Accident & Emergency Department of the Southern General Hospital on the day of the accident, and had attended at her own General Practitioner on two further occasions. She has taken Ibuprofen but has otherwise had no other medication, treatments, physical therapy or counselling. Her social outings were curtailed for eight weeks and recreational activity (of dancing) restricted for approximately 41/2 months after the accident. Otherwise, she was not curtailed in domestic, self care or social activities. Her symptoms had fully resolved after nine months.
[40] Having regard to those key findings, I conclude that the case comprises a fairly straightforward injury at a relatively minor level.
[41] That does not mean that the award should be at a token level. The greater awareness of the debilitating effect and most painful nature of whiplash injuries to the neck has been judicially acknowledged (per Sheriff Principal Bowen QC in Armstrong v Brake Brothers (Frozen Foods) Ltd 2003 SLT (Sh. Ct.) 58 and Symington v Milne (supra).
[42] Having carefully considered all of the authorities referred to me, and having weighed up the multiple points of distinction which can (inevitably) be identified within each, it seems to me that the proper range of awards for injuries of this nature and impact is between approximately £2,250 and £2,500, as illustrated by the cases of Ashton (£2,000, inflation-adjusted to £2,278.91), Symington (£2,250, inflation-adjusted to £2,595), Valentine (£2,250, inflation-adjusted to £2,504), Hall (£2,250, inflation-adjusted to £2,548) and Sharp (£2,250, inflation-adjusted to £2,539). Of course, each of these cases has points of factual distinction but, taken together, they represent, in my view, a tract of cases of sufficient number, consistency and factual comparability (in terms of overall life-impact) to provide a reliable range. In contrast, the cases cited for the pursuer (namely, Lindsay, Spencer, Pollock and Montgomery) involved more serious injuries (and more serious consequential impact on the claimants' lifestyles) than in the instant case.
[43] Looking more closely at the defender's authorities, it seemed to me that Ashton involved a broadly comparable injury and impact. Although the claimant in Ashton was off work for a week (whereas Ms Mullen required no time off work), and Ashton appears to involve symptoms of a more intermittent nature (in contrast, Ms Mullen suffered continuous neck pain (radiating into her shoulder) for 8 weeks after the accident, and intermittently thereafter), the full recovery period (9 months) is the same as Ms Mullen and, in my view, the overall life-impact is broadly equivalent.
[44] In Symington, the claimant had fully recovered after just 6 months (3 months sooner than the full recovery period for Ms Mullen). However, the award of £2,250 (being slightly higher than the award in Ashton) is explicable on the basis that, Mrs Symington's injuries and the associated adverse impact upon her life) were initially much more intensive (she was bed-bound for 4 days, with severe pain for approximately one month, and with pain only gradually subsiding thereafter). Mrs Symington had been treated with a combination of analgesics and physiotherapy during that period. In my view, the life-impact of the injuries on Mrs Symington was, overall, greater than the impact on Ms Mullen's life. This suggests that a slightly lower award is appropriate than in Symington.
[45] Likewise in Hall the claimant suffered pain continuously at first for four months (2 months longer than Ms Mullen), having been bed-bound for one week at the outset and requiring a further week of assistance with normal day to day activities. In addition the full recovery period in Hall was 12 months (3 months longer than for Ms Mullen). Valentine is broadly similar to Hall, with continuous severe pain subsiding after only 7 months (5 months longer than Ms Mullen) and, again, full recovery taking 12 months (3 months longer than Ms Mullen). In Valentine, the pursuer's lifestyle was more substantially affected than in the present case, in that for a period of three to four weeks after the accident Ms Valentine had to rely on her husband to help with domestic tasks and in looking after her children. Lastly, Sharp is broadly similar to Hall and Valentine. These material points of distinction (bearing upon the overall adverse impact upon the victims' lives) suggest that, while we are generally in the correct range, slightly lower awards are appropriate in the present case than in Hall, Valentine and Sharp.
[46] I contrast this tract of broadly consistent and comparable cases, with the rather more disparate selection cited for the pursuer.
[47] Thus, in Lindsay v Walker, the pursuer had been off work completely for 21/2 months. He did not go back to normal hours until seven months after the accident. Mr Lindsay also undertook 10 sessions of physiotherapy. (This was to be contrasted with Ms Mullen in the present case who had taken no time off work, worked reduced hours for only three months after the accident, and undertook no physiotherapy.) I concede that the overall recovery period in Lindsay was shorter (by 11/2 months) than in the present case, but the life-impact within that period was, in my view, materially greater. Mr Lindsay might reasonably be characterised as unusual and fairly stoic, given his ability to complete a 30 mile cycle run just over one month after the accident. However, that appears to me to reflect more on his exceptional base level of fitness, than to diminish from the injury suffered by him or its impact upon his life. In short, Lindsay involved a more serious injury and consequential impact than the instant case.
[48] The award in Spencer v Baron is at the high end of the spectrum for such injuries (as was conceded by the parties' agents) and is not easily reconciled with other apparently comparable authorities. That said, the decision is distinguishable on the basis that it involved a significantly longer overall period of recovery (with "tingling" being experienced by Ms Spencer some 21 months after the accident). In addition, as was noted in Valentine v McGinty, it does appear that the sheriff in Spencer was not referred to the Judicial Studies Board Guidelines by way of a cross-check. In any event, the parties in the present case conceded that the award in Spencer was the "high water mark" of awards in such cases. I am satisfied, having regard to the pursuer's injuries and the resulting effect on her life, that an award at that far end of the spectrum is not appropriate.
[49] The case of Pollock (£2,750, inflation-adjusted to £2,892) involved a more serious injury. The pursuer in Pollock required three sessions of physiotherapy and was still experiencing pain on a daily basis six months after the accident. This was to be contrasted with the pursuer in the instant case who was suffering only intermittent neck pain by that stage in the overall recovery period. I also note that, in Pollock, the claimant was suffering from travel anxiety for 18 months after the accident, whereas Ms Mullen's travel anxiety (on motorways) was fully resolved after just 14 weeks. I also approached Pollock with some caution as the primary injury is a lower back injury.
[50] Likewise, I derived less assistance from the case of Montgomery (£2,675, inflation-adjusted to £2,747) which involved (principally) a soft tissue injury to the right shoulder and muscular spasm of the lumbar region (rather than, as here, an injury to the neck with radiation to the shoulder, and an intermittent low back injury). Besides, Mr Montgomery had to be cut free from his vehicle having been trapped for some time (a point of distinction specifically noted by the Sheriff in her Judgment at paragraph 8), he was off work for a week, and attended 8 sessions of physiotherapy. Overall, the life-impact on Mr Montgomery was greater than in the present case.
[51] Overall, I conclude that an appropriate award of damages for solatium in respect of the pursuer's injuries is £2,350. In arriving at this figure I have taken account, in a modest way, of the associated intermittent travel anxiety on motorways, and the low back pain, suffered by the pursuer for 14 weeks after the accident.
[52] Both parties referred to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (10th Edition) (Chapter 6 : Orthopaedic Injuries: Neck Injuries). It was acknowledged that the Guidelines are, in no sense, binding. They do not purport to be so. Nevertheless, given the experience and eminence of the authors (and the acknowledgment in leading Scottish authorities that awards of general damages for pain, suffering and loss of amenities in factually-comparable English cases should be taken into account) the Guidelines provide, at the very least, an exceptionally useful cross-check (if not a starting point) in seeking to identify an appropriate range for broadly similar injuries, without absolving the court of the obligation to consider each case on its individual merits. Subject to those caveats, I note, by way of cross-check, that Ms Mullen's principal injury in the present case would appear to clearly fall within the "minor" category, involving a full recovery between a few weeks and a year. The Guidelines would suggest an award within a range of between £875 to £2,850. Her recovery took less than a year, for the vast bulk of which the pain was intermittent only. That would tend to support the conclusion that an award below the top level suggested in the Guidelines is appropriate (even taking account of Ms Mullen's associated intermittent low back injury and travel anxiety).
[53] For the above reasons, I assess solatium in the sum of £2,350 and award interest, as agreed, at the rate of 4% per annum from 27 September 2010 to 27 June 2011 and thereafter, at 8% per annum.
[54] The case will be put out for a hearing on the issue of expenses in due course.
[55] In conclusion, may I express my thanks to both parties' agents for their care and assistance in preparing and presenting such clear and succinct submissions to me.