KIRSTY POLLOCK v. THOMAS WILLIAM WESTALL [2010] ScotSC 120 (16 July 2010)

PD8/09

SHERIFFDOM OF LOTHIAN AND BORDERS AT JEDBURGH

JUDGMENT

SHERIFF PETER G. L. HAMMOND

in the cause

KIRSTY POLLOCK, 43 Inchmyre, Kelso, Roxburghshire, TD5 7LH

PURSUER

against

THOMAS WILLIAM WESTALL, Arkle Cottage, High Street, Yetholm, Kelso, TD5 8RA

DEFENDER

JEDBURGH, 16 July 2010.

The Sheriff, having resumed consideration of the cause:

FINDS IN FACT:

(1) The parties are as designed in the instance. The pursuer's date of birth is 14 April 1985. She is a housewife. She was aged 23 at the time of the accident, and 25 at the date of proof.

(2) On 16 December 2008 the pursuer was involved in a road traffic accident on the A698 Kelso Road. She was driving her Citroen Saxo motor car registration number MA03 OUW on a roundabout, when a vehicle driven by the defender entered the roundabout into her path without warning. The pursuer was unable to take evasive action and a collision occurred, causing her to suffer injury as a result.

(3) The accident was the fault of the defender

(4) The pursuer sustained a soft tissue injury to her lower back as a result of the accident.

(5) Prior to the accident, the pursuer had suffered chronic pre-existing back pain for approximately 7 years. This caused her problems on a daily basis, for which she took anti-inflammatory medication. It did not involve any restrictions in the activities of her daily life. The soft tissue injury she suffered in the accident exacerbated her pre-existing chronic back pain. Before the accident, the pain was in her lower back and hips. After the accident, she experienced pain in a distinct area of her lower back which was different to the site of her pre-existing back pain.

(6) The day after the accident the pursuer noticed pain across the bottom of her back and up her spine. She attended her General Practitioner that day. She was prescribed analgesia medication.

(7) She again attended at her General Practitioner on 16 January 2009. At that time she was suffering from ongoing lower back pain. She was referred for physiotherapy in April 2009. She underwent three sessions of physiotherapy and carried out a programme of home exercises given to her by the physiotherapist. These helped in easing the pain. She discontinued physiotherapy and exercises on the advice of her General Practitioner when she became pregnant.

(8) On 2 June 2009 the pursuer was examined by Mr. David Steedman, Consultant in Accident and Emergency Medicine and Surgery, for the purpose of preparing a medical report. That report is produced as no.5/1 of process. It is the equivalent of the oral evidence of Mr. Steedman.

(9) By 2 June 2009, the pursuer was continuing to suffer intermittent lower back pain every day, which was exacerbated by bending or lifting; or sitting or walking for prolonged periods. She tried to avoid these activities as she was constantly aware of the effect they would have. She was experiencing constant numbness in her leg and toes. By that time, her symptoms had improved by 70 to 80 % from their level immediately post-accident.

(10) The pursuer made a recovery to her pre-accident level of symptoms by 9 months post-accident.

(11) Following the accident, the pursuer suffered mild anxiety and hypervigilance when driving, particularly on negotiating roundabouts and passing junctions. These symptoms are still in evidence some 18 months after the accident.

(12) For about 2 to 3 weeks after the accident, the pursuer was restricted in her activities. She was unable to pick up or play with her one year old daughter, attend to general household duties or do the household shopping. Her partner helped her with domestic chores for this period, after which the pursuer gradually resumed doing these things again.

FINDS IN FACT AND LAW.

1. The pursuer's accident was caused by the negligence of the defender.

2. The pursuer, having suffered loss, injury and damage due to the defender's negligence, is entitled to reparation from the defender therefor.

3. The pursuer's losses are reasonably estimated as £2,750 in respect of solatium and £200 in respect of necessary services within the meaning of section 8 of the Administration of Justice (Scotland) Act 1982.

THEREFORE; grants DECREE against the defender for payment to the pursuer of (1) the sum of TWO THOUSAND SEVEN HUNDRED AND FIFTY POUNDS (£2,750) STERLING, with interest thereon at the rate of four per cent (4%) per annum from 16 December 2008 until the date hereof; and (2) the sum of TWO HUNDRED POUNDS (£200) STERLING, inclusive of interest until the date hereof; with interest on said sums at the judicial rate of eight per cent (8%) per annum from the date hereof until payment; certifies David J. Steedman, Consultant in Accident and Emergency Medicine and Surgery as a skilled witness for the pursuer; reserves meantime all question of expenses and appoints the parties to be heard thereon on at within Jedburgh Sheriff Court.

NOTE

Introduction

[1.] This is an action of damages for reparation in respect of personal injuries sustained by the pursuer in a road traffic accident on 16 December 2008. The pursuer sustained a soft tissue injury to her lower back with exacerbation of pre-existing back pain. Liability was admitted. The pursuer claims for solatium, and Necessary Services in terms of section 8 of the Administration of Justice (Scotland) Act 1982.

[2.] The proof proceeded before me on 31 May 2010. The pursuer was represented by Mr. Angus, solicitor. The defender was represented by Mr. Swanney, solicitor. The only parole evidence led at the proof was from the pursuer herself. The parties were agreed that the medical report prepared by Mr. David Steedman, Consultant in Accident and Emergency Medicine and Surgery (production 5/1) and the pursuer's General Practitioner records, (production 5/2) were to be taken as the equivalent of the oral evidence of the authors. The parties were further agreed that an award should be made for past services in the sum of £200, inclusive of interest to the date of decree. The only issue in dispute at the proof was the quantum of solatium.

Evidence

[3.] Very little of the evidence was in dispute. The pursuer gave evidence in a straightforward way. I found her to be credible and generally reliable. The symptoms spoken to by her were largely consistent with the account she gave to Mr. Steedman, according to his medical report. There is no question, in my view, of the pursuer exaggerating her symptoms.

[4.] The findings in fact which I have made are taken from the pursuer's evidence and the medical report. She sustained a soft tissue injury to her lower back and an exacerbation of pre-existing chronic back pain which had subsisted for some 7 years prior to the accident. She experienced pain the following day and attended her General Practitioner. She was prescribed analgesia. About one month after the accident, she attended her General Practitioner again. At that time she was still experiencing pain. The General Practitioner referred her for a course of physiotherapy. She attended 3 sessions of physiotherapy in April 2009 and carried out exercise at home. Both physiotherapy and exercises were of benefit, but she stopped attending, on medical advice, once she became pregnant. Six months after the accident, she was still experiencing symptoms on a daily basis, although by that time they had improved by 70% to 80% from the level immediately following the accident. She recovered to her pre-accident level of symptoms by 9 months post-accident. Following the accident, the pursuer suffered some mild anxiety and tended to be hyper-vigilant when driving; particularly on roundabouts and passing junctions. These psychological sequelae persisted at the date of proof, although they were very mild.

Pursuer's submissions

[5.] The pursuer referred me to a number of authorities, including unreported decisions:

(a) Judicial Studies Board Guidelines, 9^th Edition, chapter 6 B (c) and 6 B (b)(ii)

(b) Pugh v Scott, Edinburgh Sheriff Court 30 May 2002; 2002 Rep. L.R. 112

(d) Morris v Sutherland, Dunfermline Sheriff Court, 3 August 2006

(e) Moir v Wilson, Kilmarnock Sheriff Court, 1 July 2002

(f) Finnon v NIG Corp. Ltd., Ayr Sheriff Court, 28 September 2007.

[6.] It was clear from the medical report and her own evidence that the pursuer had suffered a soft tissue injury to her back and an exacerbation of pre-existing back pain. She was prescribed analgesia and by 6 months post accident she was still experiencing symptoms on a daily basis additional to her pre-existing symptoms. The pursuer was able to distinguish the pre-accident pain from the post accident pain as they were in slightly different areas of her back. She had attended briefly for physiotherapy and had done recommended exercises. She still suffered anxiety at times when driving, and an allowance should be made for that in assessing solatium.

[7.] Mr. Angus took me through the authorities, pointing out the comparable features, the awards made and current values allowing for inflation. The case law could be summarised as demonstrating awards for solatium between £2,450 and £3,900 for physical injuries lasting for periods between 5 months and 12 months. In the present case, the pursuer's physical symptoms had persisted for 9 months and her anxiety and hyper-vigilance were still continuing at the date of proof. This was an exacerbation of a previous injury and justified an award towards the upper end of that range.

[8.] In the light of these authorities, Mr. Angus suggested that an appropriate award for solatium would be £3,500. I was invited to award interest thereon at 4 % per annum from the date of the accident. It was agreed that the court should also award £200 for Necessary Services, inclusive of interest to the date of proof.

Defender's submissions

[9.] The defender also referred me to a number of authorities:

(a) Judicial Studies Board Guidelines, 9^th Edition, Chapter 6 B (c)

(b) Wilson v Riaz, Sheriff Principal Dunlop, Tayside Central and Fife, 4 August 2009.

(d) Tenant v Direct Line Insurance, Kilmarnock Sheriff Court 25 September 2009.

(e) Valentine v McGinty, Linlithgow Sheriff Court, May 2008.

[10.] On behalf of the defender, Mr. Swanney indicated that he took no issue with the credibility and reliability of the pursuer. His account of the significant features of the pursuer's injuries, treatment and recovery timescale largely accorded with the pursuer's summary. He reminded me that the pursuer had suffered from her pre-existing lower back and hip pain for 7 years prior to the accident. It was not clear what painkillers the pursuer had had to take, and for how long she did so. Physiotherapy had apparently had some benefit, but, on the advice of her General Practitioner, she had discontinued that upon becoming pregnant. I was also reminded that the pursuer was able to resume carrying out household duties within 2 or 3 weeks after the accident. By the time she was seen by Mr. Steedman on 2 June 2009, her problems were intermittent lower back pain exacerbated by heavy lifting, sitting, bending or walking, and numbness in her leg and foot. So far as her lifestyle was concerned, the pursuer did not have any hobbies which were disrupted by the effects of the accident. Her symptoms had improved by 70 to 80% compared to the position in the immediate aftermath of the accident. There had been a full recovery to the pre-accident level of symptoms by 9 months post accident.

[11.] Mr. Swanney drew to my attention that the cases referred to by him were from 2008-9, whereas the authorities referred to by the pursuer dated from 2002-2007. He submitted that the defender's authorities were "more reflective of current judicial thinking".

[12.] The defender's authorities all showed awards at a lower level than those cited by the pursuer, despite the circumstances of some of the cases showing a similar or longer period of continuing symptoms.

[13.] He submitted that a fair award for solatium, taking into account the guidance from the cases, would be £2,000.

Discussion

[14.] Both parties made reference to the Judicial Studies Board Guidelines, 9^th edition. Section 6B (c) (ii) refers to minor back injuries and soft tissue injuries from which a full recovery is made without surgery within 2 years. Awards of up to £5,000 in appropriate cases within this category are indicated. Reference was also made to Section 6B (b) (ii) of the Guidelines, which concerns moderate back injury, including exacerbation of a pre-existing back injury, requiring surgery. The recommended awards in the latter category range from £8,000 to £17,750. I am satisfied from all the evidence that the injury in this case falls squarely within the "minor" category, and that the "moderate" category is not appropriate

[15.] The cases to which I was referred show a range of different awards being selected for circumstances which bear close similarities to each other. The pursuer was able to point to some higher awards for comparable symptoms of a shorter or similar duration, and the defender was able to point to some lower awards for comparable symptoms with a longer or similar duration.

[16.] I have considered all the cases, and the submissions made to me about their value for comparison purposes. However, in my view three of these are of particular relevance.

[17.] In Symington v Milne, Sheriff Principal Bowen reviewed the case law on whiplash injuries. The pursuer in that case suffered muscular damage to her neck. She was seen in hospital immediately following the accident, when she was discharged with painkillers. She was confined to bed for 4 days, during which time the household duties were carried out by her partner. The pursuer continued to suffer neck pain for approximately 6 months, which was treated with analgesics and physiotherapy. Her ability to play with her young child was restricted. She needed help with housework for about 4 months after the accident. She recovered fully 6 months after the accident. The Sheriff Principal awarded £2,250. With inflation, that award would be the equivalent of £2,452 today. I note that this award does not include any element of psychological injury, and the duration of the pain was shorter than in the present case (6 months as opposed to 9 months). However, the pursuer in that case appears to have been more restricted in her daily activities throughout that period in contrast to the present pursuer's presentation of intermittent symptoms exacerbated by exertion.

[18.] Ashton v Skews is another decision of Sheriff Principal Bowen. In this recent case, the pursuer claimed for neck and lower back pain. Whiplash injury and bruised muscles were diagnosed. He was signed off unfit for work for one week and advised to take non-prescription painkillers. He returned to work and was given light duties for a week. He continued to have some pain in his lower back and experienced that intermittently two or three times a week if carrying out strenuous work. The symptoms resolved completely within 9 months, although latterly they appear to have been slight in intensity. That case therefore has a number of similarities with the present one, although less serious and not having any psychological element. The Sheriff Principal awarded the pursuer £2,000 for solatium.

[19.] In Valentine v McGinty, the pursuer suffered a whiplash injury and experienced pain in her neck. She was prescribed painkillers. For three weeks after the accident, the pursuer had to take painkillers every 4 hours. For the next 5 weeks, she continued to suffer pain in the bottom of her neck necessitating her taking painkillers first thing in the morning and when required during the day. The pain gradually subsided over the next 5 months. She was entirely pain free within a year of the accident. She required help with domestic chores for 3 to 4 weeks after the accident and she was unable to participate in her hobby of aerobics for 2 to 3 months post accident. Sheriff Kinloch awarded £2,250. Allowing for inflation, that award would be the equivalent of £2,452 today. In my view this is another similar case.

Decision

[20.] The difficulties of reconciling decisions on quantum in a consistent way have long been judicially recognised. Each case turns on its own facts. However, while no two cases are the same, it has been said that justice requires that there be consistency between awards. Taking such guidance as I can from the cases I was referred to, the three cases noted above appear to me to represent good starting off comparison points. I am satisfied that, as at the date of proof the pursuer has been left with a degree of hyper-vigilance and anxiety when driving. This is not an element which features in the cases I was referred to. Although the psychological effects are at a very minor level, in my opinion it is appropriate to take that into account in a modest way in arriving at a figure for solatium.

[21.] Taking into account differences in the effect of very similar injuries on different people, including a modest element for psychological injury and allowing for inflation, these cases are of some use in deciding where the present case sits in the matrix of awards. In my opinion, a fair award for solatium in the present case would be £2,750, and I shall grant decree in that sum. I will award interest thereon at 4% per annum from 16 December 2008 until the date of decree, and thereafter at the judicial rate (8%) until payment.

[22.] The parties were agreed that I should award £200 in respect of Necessary Services. That sum will be inclusive of interest to date. Thereafter, interest will apply from the date of decree at the judicial rate (8%).

[23.] I will certify Mr. David J. Steedman as a skilled witness for the pursuer.

[24.] I was asked to reserve the question of expenses until after my decision on quantum. The case will accordingly be put out for a Hearing on Expenses in due course.

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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> KIRSTY POLLOCK v. THOMAS WILLIAM WESTALL [2010] ScotSC 120 (16 July 2010) URL: http://www.bailii.org/scot/cases/ScotSC/2010/120.html Cite as: [2010] ScotSC 120

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