Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 139
PD1712/09	OPINION OF LORD KINCLAVEN in the cause ERIC MILLER Pursuer; against SABRE INSURANCE COMPANY LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: McConnell, Advocate; Thompsons

Defenders: Lloyd, Advocate; HBM Sayers

19 October 2010

[1] This is a reparation action in which the pursuer seeks damages for personal injuries.

[2] On 29 November 2008 the pursuer was injured in a road traffic accident on the A7 between Selkirk and Galashiels. The pursuer was driving a Nissan Almera.

[3] The accident was as a result of the fault and negligence of the driver of a Subaru Impreza. At the material time, the defenders were the insurers of the Subaru. The defenders are sued in terms of Regulation 3 of the European Communities (Rights against Insurers) Regulations 2002.

[4] Liability is admitted. The sum sued for is £15,000.

[5] The matter came before me by way of proof restricted to quantum of damages. I heard evidence on 28 and 29 September and 1 October 2010.

[6] The pursuer was represented by Mr James McConnell, Advocate.

[7] The defenders were represented by Mr Preston Lloyd, Advocate.

[8] Having heard the evidence, which included a Joint Minute, I also had the benefit of helpful submissions from both counsel.

[9] In the whole circumstances, and for the reasons outlined below, I propose to grant decree for payment by the defenders to the pursuer of the sum of £3,490.76 Sterling with interest thereon at the rate of 8 per cent per year from today's date, 19 October 2010, until payment.

The Background
[10] The pursuer was born on 8 December 1969. She lives with his wife and family in Selkirk. He is an architectural technician.

[11] The pleadings are contained in the Record which is No. 13 of Process.

[12] Article 4 of Condescendence, which was admitted by the defenders, is in the following terms:

"On or around 29 November 2008 at or about 3pm or thereabouts the pursuer was driving his Nissan Almera motor vehicle, registration number S485 CKS, on the A7 between Selkirk and Galashiels. Approximately 0.96 kilometres north of the A7's junction with Dunsdale Haugh, Galashiels the pursuer was faced with an oncoming Subaru Impreza motor vehicle, registration number EJZ 856, then being driven by Saulrus Freitaka. The Subaru Impreza motor vehicle was approaching on the side of the road where the pursuer was proceeding and at speed. The pursuer was unable to take evasive action on account of the speed at which the Subaru Impreza approached. A collision occurred."

[13] The pursuer's averments of loss, in Article 5 of Condescendence, are as follows:

"The pursuer was injured as a result of the impact. He suffered facial bruising, pain in his neck and back, pain and swelling over his right clavicle, chest and waist, heavy bruising over his thighs, knee laceration, bruising to both shins, bruising to both feet, bruising and swelling of his right wrist as well as bruising and swelling of his right elbow with associated lacerations. The injuries led to ongoing right Achilles tendonitis, continuing mechanical right wrist discomfort and ongoing coccydinia. The pursuer was treated at Borders General Hospital, Melrose TD7 4LJ. The pursuer was off work for one week as a result of his injuries. After that he returned part-time but on restricted duties. He required to be assisted by family members principally in regard to the likes of dressing, housework and getting in and out of bed. He was mainly assisted in those respects by his wife. The pursuer's own Nissan Almera motor vehicle was written off as a result of the collision. His insurers incurred an outlay in respect of the vehicle's pre-accident value in the sum of approximately £570. The pursuer seeks to claim that herein on his insurer's behalf. The pursuer suffered a loss of £100 in terms of the excess provision of his contract of insurance. He was without the use of a motor vehicle for a period after the accident. He was inconvenienced by having to commune with the likes of insurers, assessors and repairers. He suffered miscellaneous expenses principally comprising loss of a satellite navigation system, car seat, spirit level, jacket and also arising from purchase of painkillers as well as travel to and from medical appointments. Accordingly, the pursuer makes claims in respect of solatium (past and future), services in terms of Section 8 of the Administration of Justice Act 1982, subrogated insurer outlay, excess payment, loss of use, inconvenience and miscellaneous expenses."

[14] The defenders aver, in Answer 5, inter alia:

"The nature, extent and consequence of any loss, injury and damage sustained by the pursuer is not known and not admitted. Quoad ultra denied. Explained and averred that the sum sued for is excessive. On admission to Borders General Hospital Accident & Emergency Department the pursuer complained only of chest pain and shortness of breath on deep breathing. He denied any cervical spine tenderness or any other injury apart from tenderness on the left side of his chest. The pursuer first attended his GP two weeks after the accident complaining only of chest bruising and rib tenderness. The pursuer was involved in a further road traffic accident on 18 April 2009. He attended Borders General Hospital complaining of neck and back pain as a result of that accident. ... The defenders have settled in full the claim for vehicle damage and excess."

Joint Minute of Admissions
[15] Helpfully, in terms of the Joint Minute of Admissions, No.18 of Process (which was lodged at the bar on 28 September 2010), the parties were agreed as follows:

Damages
1. That the pursuer is entitled to £250 in respect of his possessions that were destroyed in the accident;

2. That the pursuer is entitled to £100 for loss of use of his car following the accident;

3. That the pursuer is entitled to £50 for inconvenience following the accident;

Productions

4. That No 6/4 of Process are photographs of the cars involved in the accident, taken following the accident, and show the damage sustained by the cars in the accident;

5. That Nos 7/1 and 7/4 of Process are the records of Selkirk Medical Practice relating to the Pursuer;

6. That No 7/2 of Process are the records of Borders General Hospital relating to the pursuer; and

7. That copies are the equivalent of principals.

The Proof
[16] The Joint Minute of Admissions (No. 18 of Process) was lodged at the start of the proof.

[17] As part of the pursuer's proof, I heard oral evidence from:

1. Eric Millar, the pursuer (aged 40), who gave evidence of the accident on 29 November 2008 and the consequences which he, as a lay man, attributed to it. The pursuer was involved in a high-speed head-on motor vehicle collision. The closing speed between the two vehicles was over 100 mph. The damage to the vehicles is shown in the agreed photographs (Production No 6/4 of Process). The pursuer described consequences broadly, but not exactly, in line with his pleadings (in Article 4 of Condescendence). He said inter alia that his "whole body was buzzing in pain" after the accident. He felt that he was still suffering continuing symptoms.

2. Mrs Fiona Miller, the pursuer's wife (aged 48) who had been driving her own car (a Rover) ahead of the pursuer prior to the collision. Mrs Miller gave evidence broadly in support of the pursuer's account of the accident and the consequences. Inter alia, Mrs Miller gave unchallenged evidence that the pursuer sustained a cut to his knee - an injury which is not recorded in the hospital notes. Mrs Miller worked as a day centre officer in mental health and required to take a couple of days off work to look after the pursuer following the accident.

3. Mr Timothy O White, B Med Sci, MB CHB, MD, FRCS (Ed) (Tr and Orth), Consultant Orthopaedic Trauma Surgeon, at the Royal Infirmary of Edinburgh. Mr White (aged 39) spoke to inter alia:

Production No 6/1 of Process - the first Medical Report by Mr White dated 18 April 2009 following an examination of the pursuer on 24 March 2009;

Production No 6/2 of Process - the second Medical Report by Mr White dated 28 May 2010 following an examination of the pursuer on 20 April 2010; and

Production No 6/3 of Process - a letter from Mr White dated 7 June 2010 following a review of the updated GP records and a review of Professor Court-Brown's report dated 18 May 2010 (Production No 7/3 of Process).

[18] During the defender's proof, I heard oral evidence from

4. Dr Dinesh Kumar, who saw the pursuer in Border's General Hospital after the accident. Dr Kumar was a Senior House Officer at the time. He is now a GP in Yorkshire. Dr Kumar made it clear that when he recorded "No other injuries" in his notes he meant that there were no other injuries "that needed to be treated at that moment". The cut to the pursuer's knee was not recorded - as it should have been.

5. Professor C M Court-Brown, MD FRCS Ed (Orth), Professor of Orthopaedic Trauma, also at the Royal Infirmary of Edinburgh. Professor Court Brown (aged 62) spoke to inter alia Production No 7/3 of Process - his Medical Report dated 18 May 2010 following an examination of the pursuer on 17 May 2010.

[19] I do not propose to rehearse the contents of the pursuer's medical records or the various medical reports (itemised above) which are well known to the parties. Suffice it to say that I will outline my conclusions on the medical issues below.

Authorities
[20] Counsel also referred me to the following guidance on quantum:

1. Guidelines for the Assessment of General Damages in Personal Injuries Case, Judicial Studies Board, 10^th edition, pages 51 and 52;

2. Smith v Mallady 2002 Rep LR 119 (2 August 2002, Stirling Sheriff Court, A517/01);

3. Brown v City of Edinburgh Council 1999 SLT (Sh Ct) 43;

4. McEwan & Paton on Damages for Personal Injuries in Scotland, 2^nd edition, pages 426 and 426/0/1;

5. McCord v Thomson 2008 GWD 34-511 (16 October 2008, Edinburgh Sheriff Court, SE52/08);

6. Lyons v Wm Morrison Supermarkets plc [2010] CSOH 50 (1 April 2010 Lord Malcolm);

7. MacFarlane v Samuel (20 September 2007, Paisley Sheriff Court, A501/07); and

8. Kemp and Kemp on Damages at para 17-038, Kadri v Hussein (t/a Charisma).

The Submissions for the Pursuer
[21] Mr McConnell invited me to find that the pursuer and his wife were credible and reliable witnesses and to accept the evidence of Mr White in relation diagnosis and causation. He submitted that the pursuer should be awarded the sum of £11,371.51.

[22] In summary, Mr McConnell invited me to hold that the pursuer was still suffering from the effects of the accident and that I should make the following award:-

·       Solatium (past and future) inclusive of interest £10,551.51

·       Services, inclusive of interest £ 420.00

·       Loss of use, inconvenience and outlays (as agreed) £ 400.00

_________

Total £11,371.51

_________

[23] If I was against that principal submission, Mr McConnell provided a range of lower awards - depending on the view which I took of the evidence.

[24] I do not propose to rehearse Mr McConnell's submissions in detail. Suffice it to say that I took them all into account when reaching my conclusions - which are outlined below.

The Submissions for the Defenders
[25] Mr Lloyd pointed to inconsistencies in the pursuer's account and invited me to accept the evidence of Professor Court-Brown.

[26] In summary, Mr Lloyd invited me to restrict the award of solatium to one of £1,000 essentially for a period of about 4 to 6 weeks pain and suffering.

[27] If I was against that principal submission, Mr Lloyd also suggested a range of slightly higher awards - depending on the view which I took of the evidence.

[28] I do not propose to rehearse Mr Lloyd's submissions in detail. Suffice it to say that I took them all into account when reaching my conclusions - which are outlined below.

Discussion and Findings
[29] I am grateful to both counsel for their assistance. Having considered all the evidence, and the submissions of both parties, I have reached the following conclusions.

[30] I accept that the pursuer and his wife were both credible and reliable witnesses who were doing their best to assist the court. There were inconsistencies in the pursuer's evidence and in the history which was noted in the medical records - but I am satisfied that the purser was doing his honest best when giving evidence.

[31] The critical issues in this case relate to the medical evidence and in particular to questions relating to diagnosis and causation.

[32] It is of course for the pursuer to prove his case, if he can, on the balance of probabilities. That is where the pursuer encounters some difficulties - not because the pursuer or his wife were unreliable witnesses but because of the uncertainties and conflicting views in the medical evidence.

[33] I had the benefit of hearing expert evidence from two very impressive and highly qualified orthopaedic surgeons both specialising in orthopaedic trauma - Mr White gave evidence for the pursuer. Professor Court-Brown gave evidence for the defenders. I have itemised their respective reports above.

[34] In outline, in my view, the opinions of Professor Court-Brown are sufficient to introduce uncertainty in relation to Mr White's conclusions on questions of diagnosis and, importantly, causation.

[35] On the evidence, and having regard to the competing views of Professor Court-Brown, I was not satisfied that all of Mr White's conclusions had been proved to the required standard - on a balance of probabilities.

[36] There was no dispute that the pursuer suffered multiple soft tissue injuries and bruises and injury to his chest - as one might expect in a high-speed head-on collision. On any view, it was a frightening experience for the pursuer. He experienced chest pain, and shortness of breath on deep breathing. The pursuer also suffered a laceration to his right knee - which was spoken to by the pursuer and his wife (although not recorded in the hospital records). Fortunately there were no bony injuries. The pursuer suffered rib tenderness, generalised bruising, stiffness and soreness which lasted at least 4 to 6 weeks. I accept the pursuer's account that initially he felt a great deal of pain all over - as if his "whole body was buzzing in pain". The pursuer was off work during the most acute phase of his injuries for only one week but I accept the evidence to the effect that he probably returned to work too soon. He returned to full duties after a couple of months. The pursuer "just battled on". Mrs Miller said that "he is not one to complain".

[37] The pursuer also said that both his wrists were sore as a result of the impact. The weight of the evidence was to the effect that the right wrist symptoms lasted for about 5 months or so but they were not hugely troubling. There was some mechanical discomfort. Flexion was limited to 70 degrees (as opposed to normal 80-85 degrees). I was satisfied that there was a causal link between those right relatively mild wrist symptoms and the accident.

[38] The pursuer also gave evidence about pain in his back. On the pursuer's behalf, Mr McConnell made no complaint in relation to coccydinia (in layman's terms pain in the tailbone). However he submitted that on the evidence there was some material aggravation of the pursuer's pre-existing back trouble which lasted for a period of several months (more than 4 months and less than 18 months). It was difficult to be more precise. There is no reference to back pain in the GP records but I believe the pursuer when he said he felt some back pain. The absence of recorded complaint is not necessarily fatal to a claim of this sort particularly when the pursuer is a credible witness. On the evidence, bearing in mind the defenders' submissions, I was satisfied that the pursuer suffered some aggravation of mechanical lower-back pain as a result of the accident but it was relatively mild. I was not satisfied that the relevant aggravation lasted beyond 18 April 2009 - the date of the pursuer's subsequent accident.

[39] The pursuer also gave evidence about continuing pain near both ankles. This was described by Mr Lloyd as "the real issue in this case". On the evidence, I am not satisfied that those ankle complaints were caused by the accident. I do not criticise the pursuer. I am simply not satisfied on the medical evidence on the critical question of causation. Although Mr White was of the opinion that the pursuer's ankle problems were attributable to the accident, I am not satisfied that the necessary causal link has been established, on a balance of probabilities, in light of the evidence given my Professor Court-Brown. Mr White was an impressive witness but he agreed that it was a somewhat unusual presentation for achilles tendonitis. Professor Court-Brown was also an impressive witness. He was clear and robust (almost too robust) in stating that "tendo-achilles problems do not occur as a result of road traffic accidents". He had never come across one in his many years of experience. The pursuer's problems were "repetitive use" problems and they were a feature of advancing years rather than a consequence of the accident - according to Professor Court-Brown. Accordingly, although I accept the pursuer's evidence about experiencing ankle problems, those ankle symptoms do not sound in damages in this case. The pursuer has failed to prove the necessary causal connection.

Assessment of Damages

Solatium
[40] On the evidence, and in light of the factors which I have outlined above, I consider that solatium for the pursuer's pain and suffering can be assessed fairly and reasonably at £2,500 exclusive of interest.

[41] Mirroring an example given by Mr Lloyd during his submissions, I shall allow interest on that sum of £2,500 at 4% for the initial period (140 days from the date of the accident on 29 November 2008 until the further accident on 18 April 2009) and thereafter at 8 % for the period to date (549 days from 18 April 2009 until today 19 October 2010). By my reckoning, interest totals £339.18 (13.57%).

[42] By my calculation, that produces a figure for solatium inclusive of interest to date of £2,839.18.

Section 8 Services
[43] In relation to services, Mr McConnell suggested £375 (50 hours at £7.50 per hour) plus interest of £45 making a total of £420.

[44] I consider that it would be fair and reasonable to adopt a broad approach to services in this particular case. Having regard to the factors outlined above I shall award a sum of £250 inclusive of interest to date under this head.

Loss of use, inconvenience and outlays
[45] Very helpfully, the remaining heads of claim have been agreed by way of Joint Minute. Loss of use, inconvenience and outlays total £400. As requested at the proof, I shall allow interest thereon at 8% from 1 October 2010 for what that may be worth.

[46] By my calculation that produces a very slightly increased figure for those heads of £401.58 inclusive of interest to date.

Total Damages
[47] In the whole circumstances, in my opinion, damages in respect of the pursuer's outstanding claims can be assessed fairly and reasonably as follows:-

Solatium, inclusive of interest to date (19 October 2010) £2,839.18

Section 8 Services, inclusive of interest to date £ 250.00

Loss of use, inconvenience and outlays, inclusive of interest to date £ 401.58

_________

Total damages £3,490.76

_________

[48] Interest will run at 8 % from today - 19 October 2010.

Decision
[49] For the reasons outlined above, I propose to grant decree for payment by the defenders to the pursuer of the sum of £3,490.76 Sterling with interest thereon at the rate of 8% per annum from 19 October 2010 until payment.

[50] I shall reserve the question of expenses.