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OUTER HOUSE, COURT OF
SESSION
[2009] CSOH 21
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PD273/08
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OPINION
OF LORD PENTLAND
in
the cause
BENJAMIN
MONTEITH
Pursuer;
against
SCOT
TECH FURNITURE SERVICES LIMITED
Defenders:
ннннннннннннннннн________________
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Pursuer: Hofford, Q.C., Tait; Russell Jones & Walker
Defenders: Shand, Q.C., HBM Sayers
13 February 2009
Introduction
[1] In this case the defenders admitted liability for an accident
sustained by the pursuer in the course of his employment with them as a
delivery driver on 25 August
2005. The issue at the
proof was whether, as the pursuer argued, the injury had rendered him unfit for
heavy work throughout the period (or at least most of it) since the accident
and had continued to cause him substantial pain or whether, as the defenders
contended, he had fully recovered within 2 to 3 months at the latest.
The
accident
[2] The
facts underlying the dispute between the parties can be briefly summarised. On the date of the accident the pursuer was
carrying a sofa bed up a flight of stairs with a colleague, John Hanvidge. The bed was heavy, bulky and difficult to
manoeuvre. It was covered in slippery
plastic sheeting and because of this was difficult to hold onto. Mr Hanvidge was proceeding backwards up the
stairs and the pursuer was holding the sofa bed at the other end. When the pursuer was on about the fourth step,
Mr Hanvidge suddenly and without warning lost his grip on his end of the bed
causing it to fall down the stairs. The
bed struck the pursuer on the chest and he fell backwards. In evidence he described feeling his back
"arching" and he felt what he described as a "popping" sensation in his lower
back. He added that it was like a
"stabbing" pain. After resting for a
short time, the pursuer helped Mr Hanvidge to complete the task of carrying the
bed up the stairs. According to what the
pursuer told Mr McMaster, the consultant orthopaedic surgeon who examined him
on the defenders' instructions in May 2008, he made several other deliveries
that day and finished his shift at the normal time. In evidence-in-chief the
pursuer said that he thought that he had gone home straight after the accident,
but under cross-examination he appeared to me to be unsure on the point. In my
view, the account he gave to Mr McMaster is probably correct. In itself the
point is not of major importance, but it is one of a number of issues on which
the pursuer's evidence was unclear and contradictory.
The
aftermath
[3] When he went home on the evening of the
accident the pursuer told his wife that he had hurt his back at work. He said that he took off his shoes and lay on
the couch. He went to work the next day, but asked (and was allowed) to go home
around lunch-time. The pursuer was then
off work until 17 October 2005 - a period of
about seven and a half weeks. He
attended at his General Practitioner's surgery at Govan Health Centre (seeing
three different doctors in all) on 29 August, on 2 and 20 September and on 3 October 2005; he was given incapacity
certificates for short periods. The
pursuer worked from 17 October until 26
November 2005, at which point he took three weeks' paid leave; this
coincided with the birth of his first child (a boy) on 26 November. After that the pursuer returned to work on 17 December 2005 and it appears that he
worked throughout the remainder of that month. He was then at work on 5, 6, 9, 10 and 11
January 2006. Between 12 January and 5 February 2006 the pursuer was again off
work; during this period he received some Statutory Paternity Pay and also took
some unpaid leave. He, his wife and
infant son visited the United States at this time,
staying with his wife's family in Delaware. In what must have been a somewhat arduous
journey, they flew to Reykjavik and then on to
BWI airport in Baltimore, from where they
continued by car to Delaware. The pursuer returned to work after the US trip on 6 February 2006 and continued at work until
10 February 2006. He was again absent from work between 13 and 17 February 2006. The pursuer worked on 20 and 21 February 2006. He did not come to work on 22 February 2006 and has not worked for the
defenders or any other employer since then. His employment with the defenders was
eventually terminated in October 2008.
[4] On 22 February 2006 the pursuer
again went to his General Practitioner's surgery. He complained of back pain in the left lumbar
area. The doctor noted that the pursuer
had "hurt (his) back at work last week". In evidence the pursuer stated that he had
suffered a second accident at this stage, whilst lifting an armchair into a
van. He said that he experienced a
"popping" sensation similar to the one he had sensed at the time of his earlier
accident. According to the pursuer, he
realised then that by continuing to work he was running the risk of doing
further damage to his back and he, therefore, had no option but to give up
heavy work.
[5] The
pursuer said that his back had continued to be painful since he stopped work,
although it had improved with the passage of time. His evidence was that his main continuing
difficulty was with interruptions to his sleep. He said that he has to sleep with a pillow
between his legs or propped up. He said
that he can now walk for about a mile, after which he starts to experience what
he described as a "burning sensation". He
gave evidence that he is able to drive and to lift his children, who are now
three and one years old. He said that he
has been unable to resume weight lifting or playing football, that he can no
longer play the drums and can only play the guitar whilst sitting down; one of
the pursuer's main interests, he explained, was music and indeed he described
himself at one point in his evidence as a musician. In this account of his injury and its effects
the pursuer was broadly supported by his wife, who gave evidence.
[6] The
pursuer and his wife said that he had looked for alternative work since around
2006, but more intensively since 2008 when he had started to receive
Jobseeker's Allowance. His wife had
prepared CVs for him and they had distributed these documents around various
music shops in Glasgow in an effort to
find work as a sales assistant. The
pursuer's Jobseeker's Agreement, which was lodged as a production, indicates
that since March 2008 he has been attempting to find work of various types, but
so far without any success. For example,
the pursuer said that he has tried to obtain employment as a carer. He is dyslexic and he explained that this
impairs his employment prospects.
Medical
evidence at the proof
[7] The pursuer led expert evidence from a
consultant orthopaedic and trauma surgeon, Mr John McKinley. He had examined the pursuer for the purposes
of these proceedings on 4 December 2006 and 8 September 2008. In Mr McKinley's opinion, the pursuer suffers
from mechanical low back pain which prevents him from returning to heavy manual
labour. There was no evidence of disc
prolapse. Whilst he would have expected
the pursuer's condition to have resolved within 2 to 3 months, it was possible
that he fell within the 10 per cent of patients who continue to have chronic
low back pain despite the original injury having healed. There were various possible explanations for
this, such as a tear in the annulus surrounding a disc or some form of
neurological complication. He could not,
however, say that the pursuer actually suffers from either of these conditions;
they were merely theoretical possibilities. In Mr McKinley's opinion, the persistence of
low back pain makes it impossible for the pursuer to return to any form of work
involving heavy lifting. The cause of
this continuing pain is, in Mr McKinley's opinion, the injury sustained in the
accident on 25 August 2005.
[8] The
pursuer also led evidence from Dr Alison Bowman, a General Medical Practitioner
at Govan Health Centre. She had seen the
pursuer when he attended the surgery (for the first time after the accident) on
29 August 2005, but due to the
passage of time she recalled nothing of the appointment. She had also seen him at his next appointment
on 2 September 2005. Dr Bowman explained that on 2 September 2005 she advised the pursuer to
have physiotherapy. The system at that
time required him to refer himself for this at the Elderpark Clinic, which was
adjacent to the Health Centre. Dr Bowman
was not asked to express any view on the continuing effects of the pursuer's
injury or on his fitness for work.
[9] The
only evidence led for the defenders was expert opinion evidence from Mr Michael
McMaster, a consultant orthopaedic and spine surgeon. He had carried out an examination of the
pursuer, on the instructions of the defenders' solicitors, on 7 May 2008 and had prepared a report. He had also prepared a short supplementary
report dated 18 June 2008, having watched
a surveillance film taken of the pursuer on various dates in May 2008.
[10] Mr
McMaster could find no clinical or radiological abnormality in the pursuer's
back. He considered the pursuer to have
relatively mild non-specific mechanical discomfort in his back. He recorded the pursuer as having told him
that he has "learned to live with it" and that it is "not the worst pain in the
world". In Mr McMaster's opinion,
the pursuer sustained a soft tissue injury to his chest and lower back, was
treated appropriately and he would normally have expected such a patient to
have made a complete recovery within 2 to 3 months at worst. Mr McMaster considered that the pursuer
was poorly motivated and had been physically fit to return to his employment
with the defenders as a delivery driver by around the early part of 2006 at the
latest. He did not anticipate any
deterioration in the pursuer's back or the development of complications in the
future.
Decision
[11] Having considered all the evidence, I
conclude that the pursuer suffered a minor soft tissue injury to his lower back
in the accident on 25 August 2005. As to the nature and effects of that injury, I
consider that the expert evidence given by Mr McMaster must be preferred
to that of Mr McKinley. I reach
this view because, as Mr McKinley frankly accepted, his experience in the
diagnosis and treatment of back conditions is greatly surpassed by that of Mr
McMaster. In addition, Mr McKinley
is not a back specialist; his expertise lies in foot and ankle conditions. At times in his evidence I had the impression
that Mr McKinley was inclined to stray into expressing views on matters that
were beyond his expertise; when asked to elaborate on such matters he gave the
impression (to me at least) of being somewhat out of his depth. For example, when explaining that there were a
number of theories for the persistence of mechanical back pain in the absence
of any physical explanation, Mr McKinley
tended to express himself in rather vague and, to my mind, unscientific terms. He said that one possibility was that "the
wiring system gets messed up and people continue to get pain, although there is
no physical basis for it". He added that
there was a "lot of work going on" into what he referred to as "inflammatory
mediators". I have no doubt that Mr
McKinley was doing his best to assist the court, but I was left with the
overall impression that his knowledge and understanding of back disorders was
not extensive. Mr McMaster, by contrast,
has specialised for some 34 years in the diagnosis and treatment of spinal
disorders and has examined and assessed a great number of patients with similar
complaints to those made by the pursuer. Senior Counsel for the pursuer strongly
attacked Mr McMaster's opinion and approach on the grounds that his evidence
lacked objectivity, evinced what he referred to as hubris and was based upon an
incomplete understanding of the pursuer's medical history since the accident. I did not find these criticisms convincing. On the contrary, it seemed to me that there
was much support for Mr McMaster's views in the rest of the evidence. It is true that at times in his evidence
(especially in cross-examination) Mr McMaster expressed his views trenchantly
and with vigour, but I see nothing wrong in that. He was seeking to refute challenges to his
reasoning and approach. I do not think
that it is fair to criticise him for responding forcefully. Such exchanges are, as it seems to me, only to
be expected in the heat of (perfectly proper) cross-examination. They help to focus and to test the issues that
are in dispute between the parties. In
the whole circumstances, I have come to the conclusion that where there is a
difference between the opinion evidence given by the two expert orthopaedic
surgeons, it is Mr McMaster's views that fall to be preferred to those expressed
by Mr McKinley.
[12] I shall
now examine the evidence relating to the pursuer's injury and his progress
since the accident with a view to explaining why I consider that Mr McMaster's
views are soundly based.
[13] It
seems to me that the evidence does not justify the conclusion that the pursuer
sustained any significant injury on 25
August 2005. I shall consider
first the evidence about the nature of the injury. The pursuer described feeling a "popping
sensation" in his lower back at the time of the accident. I note that he told Mr McMaster that he
felt a "pop" in his lower back. Mr
McMaster gave unchallenged evidence that such a sensation signified no more
than air being released in the tissues and was not indicative of any damage (or
at least any serious damage) having occurred. Moreover, the pursuer not only completed the
task he had in hand by carrying the sofa bed upstairs, I hold that he also
worked on until the end of his shift, despite this having involved several
further deliveries. Had he suffered a
serious injury he would not have been able to continue with his normal duties
that day, in Mr McMaster's opinion. That seems a matter of common sense. I note also that neither the pursuer nor his
wife described the pursuer as having been badly disabled in the immediate
aftermath of the accident. Indeed, the
pursuer went to work as normal the next morning, although he apparently left at
lunch time. In general, the picture they
painted was not one of the pursuer having suffered any serious degree of injury
to his back at the time of the accident. That view of the lack of gravity of
injury is supported by the medical notes from Govan Health Centre. When she saw
the pursuer on 29 August
2005, Dr Bowman, in the course of what was evidently a thorough
examination, recorded that there was no radiation of pain into the legs and no
flank pain. She noted some tenderness in
the lumbar sacral area, but not in the sternum. There was no rib pain. She prescribed Ibuprofen. On 2
September 2005 Dr Bowman saw the pursuer again and noted that
his back was still sore and stiff. She
again prescribed Ibuprofen and, as already mentioned, advised the pursuer to
refer himself for physiotherapy. The
pursuer was seen by a different doctor at Govan Health Centre on 20 September 2005 when it was noted that he
had not yet been for physiotherapy and that his back was still sore. It is of some interest to note that the record
refers at this stage to the pursuer's right lumbar area, although he
maintained in evidence that the problem had always been on the left side. The entry for the appointment on 3 October 2005 merely mentions back ache,
although it refers also to the pursuer being tired all the time. Overall, the medical notes taken at the
pursuer's four appointments at Govan Health Centre in the two months
immediately after the accident are supportive of Mr McMaster's views to the
effect that the pursuer suffered no more than a minor soft tissue contusion to
his chest and lower back, that he was treated in an appropriate manner, that
one would have expected his symptoms to have improved significantly (if not
resolved) over a period of two to three months and that he should have been
capable of making a phased return to work and of gradually increasing his
activities within that time frame.
[14] The
remaining evidence from the GP notes supports the view that the pursuer
suffered no more than a minor injury from which complete recovery was
anticipated. As already mentioned, on 22 February 2006 he complained of having
hurt his back in a different accident at work the previous week. Nothing was recorded at that stage about the
accident in August the year before. On 8
March 2006 the pursuer was noted as having a full range of back
movement. On 15 March 2006 he was noted to be looking
for another job. There are references in
April, May and June 2006 to the fact that the pursuer was awaiting
physiotherapy and some mention is made of him being advised to take Ibuprofen,
but there is nothing to suggest that the pursuer was suffering from any serious
back problem. In June, July, August,
September and November 2006 the notes make reference to back pain, but the only
treatment suggested was physiotherapy and it would appear that the doctors
understood that by September the pursuer was attending physiotherapy. In that connection, the entry on 2 November 2006 states that the pursuer was
attending physiotherapy every two weeks. There is no record of any attendance for back
pain after November 2006.
[15] I
should record at this stage that on 25
October 2006 the pursuer underwent a medical examination known as a
Personal Capability Assessment arranged under the Jobcentre Plus scheme
operated by the Department of Work and Pensions. The decision reached was that the pursuer was
capable of work from 1 November 2006. This meant that
the pursuer's GP did not have to give him any more medical certificates for
Incapacity Benefit purposes. According
to the pursuer's evidence, this was a very thorough examination; he understood
that he was assessed as being 12 per cent disabled.
[16] Senior
Counsel for the pursuer argued that the flaw in Mr McMaster's opinion was that
it took insufficient account of the evidence that the pursuer had repeatedly
complained of continuing pain well beyond the two to three month period within
which complete recovery would usually be expected. There was no suggestion by Mr McMaster
that the pursuer was lying or malingering or that his pain was not genuine in
the sense that he perceived himself to be suffering from it and believed that
it prevented him from resuming heavy manual work. In my opinion, criticism of Mr McMaster
along these lines is misconceived. It is
clear from his report and his evidence that Mr McMaster took fully into account
the pursuer's complaints of continuing pain. On physical examination, however, Mr McMaster
found that the pursuer exhibited a full range of pain free movements. To the extent that the pursuer continued to
feel that he suffered low back pain, Mr McMaster considered the level of pain
to be no greater than felt by about 40 per cent of the population from time to
time; this would not be bad enough in his opinion to prevent the pursuer from
getting back to his pre-accident employment. In Mr McMaster's view, the pursuer's
complaints of pain, if accepted, amounted in essence to complaints of mild
discomfort. Mr McMaster was also influenced, to some extent, by the
surveillance film; understandably so in my view. In his opinion, this showed the pursuer
behaving in an entirely normal manner, carrying a baby in a baby seat and
placing it into a car as well as lifting another child into the car. The film showed that the pursuer was capable
of driving the car for prolonged periods and of going shopping. Overall, the film served to confirm Mr
McMaster in his opinion that the pursuer had made a good recovery from any
injury that he may have sustained and that there was no reason why he should
not be capable of working. In the
circumstances, I am not persuaded that Mr McMaster's opinion was flawed as
suggested by Senior Counsel for the pursuer.
[17] In
addition to accepting Mr McMaster's evidence, I have to say that I was
generally unimpressed by the pursuer's own evidence. Like Mr McMaster I found his explanation and
description of important events in the history and progress of his injury to be
rather indefinite or unconvincing. For
example, the pursuer said that he had attended only two sessions of
physiotherapy because he found it too painful. He also found the exercises caused him intolerable
pain. It is clear from the GP notes that
physiotherapy was the treatment which was being recommended for the pursuer's
condition. The entry made by Dr Thomson
on 2 November 2006 indicates that
the pursuer told him that he was attending physiotherapy every two weeks; and
on 29 September 2006 the pursuer is
recorded as having told Dr Mullin that he was still attending physiotherapy. When Mr McKinley examined the pursuer on 4
December 2006 he recorded in his manuscript notes (which he produced in the
course of his evidence) that the pursuer had attended physiotherapy for 6 weeks
about 2 months previously and that this was "helping". I found the pursuer's evidence about the
physiotherapy he had received to be unconvincing. It is surprising that he did not persevere
with it, if it is indeed correct that he only attended two sessions, which was
the account he gave in evidence. One
would have thought that if the pursuer was suffering persistent pain he would
have made more of an effort with the principal form of treatment recommended by
his GPs. I also found it difficult to
accept that any physiotherapist would prescribe exercises which were
intolerably painful, especially in the early stages of treatment; yet this was
the pursuer's account. It seems to me
that the evidence revolving around the pursuer's physiotherapy stands as a good
illustration of what struck Mr McMaster as the pursuer's tendency towards
unconvincing vagueness in relating the history and progress of his alleged
medical condition.
[18] There
were other features of the pursuer's evidence which were, to my mind,
unsatisfactory and cast doubt over his reliability and indeed credibility as a
witness. When Mr McMaster questioned him
about the entry of 22 February 2006 in the GP notes the pursuer said that he
could not remember the incident which is referred to in that entry as having
occurred "last week". Yet in evidence
the pursuer was able to provide a quite detailed account of the incident which
had led to the consultation on 22 February; he said that he had been
lifting an armchair into a van which had been reversed into a position outside
the defenders' showroom and that he remembered experiencing another "popping
sensation" in his back. When pressed in
cross-examination as to why he was able to recall in court so much about what
he had been unable to remember at all when he had been examined by Mr McMaster
in May 2008, the pursuer at first said that he must have been mistaken when he
spoke to Mr McMaster. A little
later he went on to say that the explanation related to his dyslexia, which, he
claimed, adversely affected his memory. When
asked about the alleged impact of his dyslexia on his memory, the pursuer then appeared
to shift his ground and indicated that he had difficulty in expressing orally
the thoughts and ideas which were in his mind. That seemed to me to be something different
from a memory problem. It was then
pointed out to the pursuer that, contrary to what is stated in the note made by
a GP on 22 February 2006, he had not in
fact been at work the previous week. His
response was that this was not something that he could explain and that it did
not make sense. I have to say that I
found this whole section of the pursuer's evidence to be unimpressive and
unconvincing. It casts considerable
doubt, in my view, on his credibility and reliability.
[19] There
were other parts of the pursuer's evidence that left me with doubts as to
whether it was safe to place any reliance on his recollection about the effects
of his injury and the progress of it since August 2005. His evidence about the nature and extent of
the steps he had taken in 2006 and 2007 to obtain alternative work struck me as
being unconvincingly vague; his wife's testimony on that aspect seemed to me to
suffer from the same weakness. I formed
the impression that, at least until recently, the pursuer has been poorly
motivated towards finding work. I
consider that there is force in Mr McMaster's view that the pursuer has become
habituated to being out of work. It may
be that this has been, at least partly, due to his family circumstances, to
which I will refer in the next paragraph. Similarly, the pursuer's evidence about the
extent to which he had been taking painkilling medication since the accident
was inconsistent and difficult to follow. It is clear that the pursuer had been advised
by his GPs to take Paracetamol and Ibuprofen. What was unclear from his evidence was whether
and to what extent he had followed that advice. At some points in his evidence the pursuer
appeared to me to be anxious to convey the impression that he had followed the
advice given to him; at other points he seemed to suggest that he objected to
taking painkillers as a matter of personal conviction. I noted also that initially in his evidence
the pursuer said that his father had driven him to Murrayfield Hospital for the
appointment with Mr McMaster; this would have been in line with the claim which
the pursuer had already made by that stage in his evidence to the effect that
he was only capable of driving for short distances. At a later stage in his evidence the pursuer
had to accept that it was in fact he who had driven to and from Murrayfield Hospital since this is
what is clearly shown on the surveillance film. There were other parts of the evidence where
the pursuer's recollection seemed to be unreliable on matters in regard to
which one might have expected him to have an accurate degree of recall. For example, he said at the beginning of his
evidence that he had gone home from work shortly after the accident; I hold
that this did not happen and that, as he told Mr McMaster, he in fact completed
his shift. He then said that he had gone
to see his GP the following morning. Again,
that is not what happened; he did not see Dr Bowman until four days after the
accident. Ultimately, I conclude that I cannot regard the pursuer as a credible
or reliable witness.
[20] As to
the evidence given by Mrs Monteith, I did not find this to be of particular
assistance. In broad terms she confirmed
the account given by the pursuer as to the effects of his injury, but added
little in the way of significant further details about that aspect. It is perhaps worth noting that Mrs Monteith
was herself seriously unwell for a prolonged period in 2007 and 2008 due to
Lyme Disease, an infection caused by a micro-organism transmitted by a bite
from a wood tick. She acknowledged that
it would have been difficult for the pursuer to have held down a job while she
was ill. The couple already have two
young children (aged 3 and 1 year) and Mrs Monteith was about 8 months pregnant
at the time of the proof. Although Mrs
Monteith said that the pursuer continued to suffer from pain in his back,
particularly at night, I did not form the impression from her evidence that he
had been disabled from playing a fairly full role in the family over the years
since the accident. The evidence contained in the surveillance film supports
the view that the pursuer is able to assist with normal family responsibilities
without apparent difficulty.
[21] In my
opinion, the proper conclusion to draw from the totality of the evidence is
that the pursuer sustained a minor soft tissue contusion to his chest and lower
back in the accident on 25 August 2005. That was the opinion of Mr McMaster and I am
satisfied, on the basis of the whole evidence, that his opinion was well
founded. I consider also that the
pursuer had made a sufficient recovery from the effects of that injury to allow
him to continue work as a delivery driver with the defenders as at 22 February
2006 at the latest; this was (as I have already explained) the date on which he
last worked. By that time I consider
that his soft tissue injury had healed sufficiently to permit the pursuer to
undertake his pre-accident duties. I
recognise that, on Mr McMaster's view, this may be unduly generous to the
pursuer, but I am prepared to accept that the disabling effects of the injury
may have taken some months to resolve fully. By 22
February 2006, there was, in my opinion, no continuing organic
reason for the pursuer not to resume his normal duties with the defenders, who
were willing to allow him to carry on working for them. The soft tissue injury had healed by February
2006. Any pain experienced by the
pursuer in his lower back subsequent to that date cannot, in my view, be
ascribed to the soft tissue injury suffered by the pursuer some 5 months
previously. This is not a case in which
it is suggested that the pursuer has developed any psychological or psychiatric
complications as a result of his physical injury. In conclusion, I accept the defenders'
contention that the pursuer has failed to prove that he has suffered any pain
or disability in the period since 22
February 2006 caused by the accident. I shall now proceed to assess damages on that
basis.
Damages
[22] On the basis I have just set out, I assess
solatium in the sum of г2,750. Senior Counsel for the pursuer referred to Pearson v Imray 2003 Rep. L.R. 87, but I consider that to have been a more
serious case involving an acute phase of pain and restriction of movement for
some weeks after the accident, followed by gradual improvement over several
months and an increased susceptibility thereafter to intermittent discomfort of
a minor nature. In addition, the
accident accelerated, by around two years, the sort of mechanical pain and
discomfort that the pursuer would have experienced anyway due to her underlying
spondylolisthesis. The award of г4,000
made there would now be worth more than г5,500. The Judicial Studies Board Guidelines suggest
a figure up to г5,000 for minor soft tissue back injuries from which a full
recovery or recovery to "nuisance" level has been made without surgery within
about two years. In the present case I
consider that such a level of recovery was achieved within about five months; a
figure substantially lower than г5,000 is therefore appropriate in my view. This is supported by reference to Stewart v North Lanarkshire Council 1998 SLT 419 where solatium of г1,500 was awarded to a 26 year old man who suffered
from backache in the form of low back pain and right-sided sciatica. He had had previous episodes of back trouble. He was off work for about six weeks, suffering
from acute backache which got much better, despite a flare up when he tried gardening.
After no more than about three months
from the date of the accident he had returned to his pre-accident condition. That award would now be worth just over
г2,000. I am prepared to accept that the
present pursuer's pain may have lasted for a somewhat longer period. That and the absence of any previous back
problems justify, in my opinion, a somewhat higher award. I should record that
Senior Counsel for the defenders also cited Kinross
v Sterling Precast Limited (Lord
Clarke; 11 October 2001); Haddow v Glasgow City Council [2005] CSOH 157;
and Xerri v Direct Line Insurance (Sheriff Morris QC; 6 March 2007). These
cases seem to me to support the figure I have awarded for solatium.
[23] The
whole amount awarded as solatium falls
to be attributed to the past. I shall allow interest on the full amount of solatium at the rate of 4 per cent per
annum from 25 August 2005 until 22 February 2006 and thereafter at 8 per
cent per annum until the date of decree.
[24] The
pursuer also makes claims under sections 8 and 9 of the Administration of
Justice (Scotland) Act 1982. The evidence on this part of the case was far
from clear. The pursuer said that for several months he had been unable to
assist with the laundry or washing dishes because he could not bend down or
stand for prolonged periods. His wife
had had to do a lot more for him generally in the house. There was some vague support for these claims
from Mrs Monteith, although it was not entirely clear what period of time since
the accident she was referring to when the issue was taken up in her evidence. At one point in his evidence the pursuer
maintained that his wife had required to do as much as two to three hours
additional housework a day because of his disability during the first few
months after the accident. I do not
accept that as a reasonable estimate; it seems to me to be a considerable
exaggeration. I am prepared to accept
that in the first five months or so after the accident Mrs Monteith had to
shoulder the burden of certain domestic chores to a somewhat greater extent
than previously, but I doubt that this would have involved her in more than
about 30 minutes extra work per day and even that might be generous. Counsel agreed that, on the basis that the
services claims were restricted to the few months immediately after the
accident, only a broad view could be taken in assessing quantum and that a single lump sum should be awarded to cover the
section 8 and 9 claims. I shall proceed
to assess the services claims on the footing that they do not extend beyond 22 February 2006; that, of course, is the
date by which I have held that the pursuer was sufficiently well recovered to
return to his pre-accident employment. By
that time I consider that there was no good reason why he could not have
resumed his pre-accident share of the domestic chores and that he no longer
required any significant support from his wife. On that basis and taking a
broad approach, I shall allow г750 in all; this is roughly г150 per month,
which seems to me to represent a reasonable estimate in the whole
circumstances. Interest will run on that
sum at the rate of 4 per cent per annum from 25 August 2005 until 22 February 2006 and thereafter at 8 per
cent per annum until the date of decree.
[25] The
pursuer did not suffer any loss of earnings between the date of the accident
and 22 February 2006. I shall, therefore, make no award under this
head. For the reasons already set out, I
do not consider that the pursuer has established that he has sustained after
that date any loss of earnings caused by the accident.
[26] I shall
have the case put out by order with a view to parties agreeing on the amounts
of interest to be included in the total sum for which decree is to be granted
and to address any issues of expenses.
