Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 37
	OPINION OF LADY STACEY in the cause ANGUS CAMPBELL Pursuer; against ROBERT DOWNIE Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Hastie; Tods Murray LLP

Defender: McGregor; Anderson Strathern LLP

17 March 2009

Introduction
[1] On 7 October 2007 Angus Campbell, the pursuer, was travelling on the M8 in Glasgow. He was driving his car, heading east from his home in Paisley and going to work. As he approached the Kingston Bridge, he saw that the overhead gantry signs showed a speed limit of 40mph. He knew the road well and was not surprised by the signs as he knew that traffic often started to build up at that time in the morning at that part of the motorway. Consequently he slowed down and was travelling at a slow speed, less than 25mph, and was close to stopping, when he was hit from behind by a van driven by Robert Downie, the defender. The pursuer came to a halt and then immediately afterwards was again struck by the defender's van, pushing him into the rear of the car in front of him. That car was being driven by a Mr Cassidy and was stationary. The second collision caused a scuff on the bumper of Mr Cassidy's car. The second contact between pursuer and defender was caused by the defender being struck by a vehicle from behind. There were thus four vehicles involved in the accident, the first being driven by Mr Cassidy, the second by the pursuer, the third by the defender and the fourth by a person who is untraced.

[2] The accident happened in the outside lane of the motorway. All four drivers got out of their cars onto the central reservation. The fourth driver was upset, shouting that "it was a disaster". The defender said that he would go to his van to get pen and paper to take a note of names and insurers and while he was doing so the fourth driver got back into his car and drove away without giving any details. He was later described to police officers but he has never been traced. The three remaining drivers, Mr Cassidy, the pursuer and the defender, did exchange details. Civilian workers, understood to be employed by AMEY, attended and assisted the drivers in getting out of the outside lane and onto the hard shoulder. The defender asked if he could go and was told by the AMEY employees that he could. The defender thought that no one had been injured. The police attended shortly afterwards and spoke to Mr Cassidy and the pursuer. They were given the defender's details.

The Dispute between the Parties
[3] The dispute between pursuer and defender concerned the sequence of events and the reason for the defender's car colliding with the pursuer's car. The pursuer claimed that it happened because the defender failed to stop in time when the pursuer slowed down due to traffic in front of him. He described there being two impacts. The first was much greater than the second and his position was that the second was caused by the fourth driver failing to stop in time and colliding with the defender immediately after the first impact had occurred. That in turn caused the pursuer's car to be pushed into the first car, driven by Mr Cassidy. The defender, in contrast, claimed that he had stopped his van and that the fourth driver collided with him, pushing him into the pursuer. The accident was therefore not his fault. The question before the court was to decide if the pursuer had proved his version of events, on all of the evidence.

[4 ] The pursuer who was 34 years of age and a demolition worker, was the first witness. He described his journey on the M8 and said that just before the Kingston Bridge, at the Tradeston turnoff for the M77, the traffic was at a steady pace. As he came towards the corner at that area, the overhead gantry was flashing 40mph. He noticed that the traffic in front of him was proceeding slowly at about 15-20mph.. He slowed down and as he came round the corner, the car driven by the defender came into the back of him. He estimated that the defender was doing about 40mph. He said that another car then went into the back of the defender and he was pushed forward slightly. It was dry, not dark and not raining. He travelled that road two or three times a day, six or seven days a week. He knew that every morning the traffic was busy and he knew that it often got worse at about 7am. That is the time that the accident happened. He estimated that he was doing 25mph or less. He said he was still travelling but crawling. When the defender hit him, he was wearing his seatbelt and moved forward in his seat until the seatbelt locked. He then moved back in the seat. He estimated that he had been pushed forward about 6 or 8 inches. He said that the second impact was more like a slight nudge. He described it as "a slight jerk forward, nothing major." It all happened within seconds. He got out of his car and stood at the central reservation and called the police on his mobile phone. He asked the defender for insurance details and was given them. Mr Cassidy came and asked him for his own details which he gave to him. While the pursuer, the defender and Mr Cassidy were exchanging details, he realised that the fourth man had driven off. The damage to his own car was severe to the rear. The boot was crumpled so that he could not open it and could not get is tools out. He did not know if he should drive the car and ask the police for advice. They told him that he should drive it home. He did that and telephoned to his employers and insurers.

[5] In cross-examination, the pursuer did not change his version of the accident. It was not put directly to him that the accident happened in the way in which the defender averred.

[6] When the defender came to give evidence on the third day of the proof, he said that he was 60 years of age and an unemployed bricklayer. When asked if he recalled the accident on 4 October 2007, he said that he thought he did. He thought that the time was shortly after 7am and he was driving an Astra van. He could not remember where he was going but he thought it might be to Uddingston. He was certainly going to work. He was coming from his home in Linwood. Like the pursuer, he had travelled the road many times. He thought that it was just starting to get light and that it had started to drizzle just before the accident. He commented that the accident was "a fair while back". He was asked what speed he was travelling at as he passed the Ibrox stadium, which is west of the locus of the accident, and he said that he thought he would be doing about 60mph. As he approached the locus of the accident, noting the Kinning Park tube station, he said that he slowed down because the traffic was bad but then he speeded up again. He said that that was what happened most days at that part of the motorway. He thought that he was travelling at approximately 30mph when a car hit him from behind. He said that the effect of the collision was to push him forward into the pursuer's car and that the pursuer's car was in turn pushed into Mr Cassidy's car. The defender noticed the fourth man coming out of the car, holding his hands up and shouting that "it was a disaster". He went to his van and got a notebook and pen and while he was speaking to Mr Cassidy and to the pursuer, he realised that the fourth man had disappeared. When the AMEY employees arrived, they told him that, as nobody was injured, he did not need to wait for the police and so he went away. He did not know that anyone was calling the police. He thought that his van was all right to drive but discovered when he got to the other side of the Kingston Bridge that coolant was leaking from a crack. Therefore he drove the van off the road and went to telephone his insurers. The damage to his vehicle was at both front and rear. At the rear, the doors had popped open and there was damage to the floor of the van. At the front, there was more extensive damage. The defender said that the bumpers on the front of the van were designed to shatter and they had done so. The defender had accepted that he had collided with the pursuer but he said that there was only one impact. He said that there was no second impact. He said that the whole thing happened quickly and he said that he was not shocked because he is aware that this type of collision often happens on that part of the road. He was slowing down because there was traffic in front of him. He said, "I was only a couple of feet behind; you don't sit five car lengths behind." He thought that the damage to the front of the van was worse than to the rear because the rear of the van was stronger than the front and could take a bigger impact. The defender said that he became aware from his solicitor that the police claimed to have spoken to him by phone but he did not remember that and still does not remember that happening. He was unaware of the police examining his vehicle at any time.

[7] In the pursuer's proof, evidence was led from two police officers, PC Gamble and PC King. They arrived at the locus shortly after the accident. Both were experienced traffic officers. Mr Gamble said that when he got there, there were two vehicles on the hard shoulder and he spoke to Mr Cassidy, the driver of the first vehicle. He was told that one other car had left after the driver gave his details, but that the car which had caused the collision in the first place had made off. Mr Gamble explained that the police road crash report, which was 6/1 of process, was completed by him and Mr King shortly after the accident. Four vehicles are entered in the form and the first is described as "unknown"; the second is the defender's vehicle, the third is the pursuer's and the fourth is Mr Cassidy's. Mr  Gamble said that the system is to enter the vehicle which is thought to have caused the accident as the first one and the "least guilty vehicle" as the last one. He formed the view, from speaking to Mr Cassidy, that the accident which he described as "a pile up" had been caused by the car which had made off. The pursuer's version of events was not explored with him in evidence. Mr King spoke to the pursuer at the locus. Mr King said that the pursuer told him that he had been struck from behind and forced into Mr Cassidy's vehicle. There was some mention of a vehicle having struck the defender and that the driver of that vehicle had made off. Mr King confirmed the system of number of the vehicles on the form. He said that in general in the case of a rear end shunt, the person right at the back is the one who is to blame. He accepted that it could have happened that the defender had driven into the pursuer first and the fourth car could then have collided with the defender. Mr King's position was that he recollected being told that there was fourth car involved and he thought that he was told by the pursuer (being the only person he spoke to) that the defender had said that the untraced car was responsible for the collision. According to Mr King, he did speak to the defender on the telephone, and while he had no note in his notebook, he remembered the defender saying that he was initially struck by the car which was untraced. Mr King saw the defender's car in the day or two after the accident, and described the damage to the rear as 'slight'.

[8] Evidence was led from Mr George Callander, the body-shop manager at Glen Henderson of Ayr, the garage to which the pursuer's vehicle was taken. Mr Callander had been a body-shop manager for 20 years and was a time served coach builder. He explained that he examined the damage to cars and estimated the cost of repairing them. He said that there was heavy impact to the back of the pursuer's car. Evidence was also lead from Mr Frank McWilliams, an engineer employed by the pursuer's insurers. He said that his examination of the pursuer's car showed that damage was more severe on the rear than on the front and would be properly described as "severe" to the rear.

[9] The evidence about the accident therefore consisted of the pursuer's account, contrasted with the defender's account; the evidence from the police officers of what was said or not said to them at the time, and the evidence of the body-shop manager, engineer, police officers, and the parties of the damage. It was clear that there was more severe damage to the rear of the pursuer's car than to the front, whereas the defender's car was more severely damaged at the front than at the rear. It appeared from the police evidence that the description of the accident given by the pursuer in his pleadings and in evidence was not the description that he gave to them at the time. I was, however, not satisfied that the police evidence was very thoroughly explored; nor was I satisfied that the police had given particular thought to whether anyone other than the last car driver should be blamed for this type of accident.

[10] The pursuer was asked a number of questions about the personal consequences of the accident to him by the defender's counsel with a view to leading evidence to assist the court to decide on the pursuer's credibility. The pursuer was medically examined by Mr Iain Mackay on behalf of the defender on two occasions. The first occasion was on 18 June 2009. Mr Mackay gave evidence and spoke to his report which was dated 13 July 2009. It was clear from Mr Mackay's evidence and from the evidence of the pursuer that the medical examination had not been successfully carried out. The pursuer said in evidence that his appointment was at 2pm in the Nuffield Hospital in Glasgow. He said that he attended on time but was not seen until about 2.30pm. The pursuer volunteered in evidence that he thought that was not good enough and told the doctor of his views. He said that one might expect that in an NHS hospital but that it was unsatisfactory in a private hospital. He thought it was particularly unsatisfactory as his appointment would be the first one after lunchtime and therefore the doctor was not running late seeing other patients. The pursuer said that he told the doctor of his views and he formed the opinion that the doctor was offended by him. According to the pursuer, he co-operated with Mr Mackay in the examination. Mr Mackay in his evidence said that he might have been ten minutes or so late in seeing the pursuer. He was not asked if the pursuer had criticised him for lacking punctuality. He said that the pursuer was extremely unco-operative and behaved in an offensive and disdainful manner. When he was asked about his current complaints, he tried to telephone his lawyer. When he was asked about complaining of a sore head when seeing his own doctor, he said that he had no comment to make. He told Mr Mackay that it would be more useful if he read the records rather than asked him a lot of questions. Mr Mackay said that having explained to the pursuer that his attitude was limiting the usefulness of the examination, the pursuer sat down and put both feet up on the desk and refused to co-operate. Having carried out such examination as he could, Mr Mackay saw him off the premises and noted that on the way down the corridor, the pursuer continued his offensive behaviour by swearing and punching a photocopier machine. The pursuer admitted that he had telephoned his lawyer but denied a lack of co-operation. He denied putting his feet up on the desk. He denied swearing and he denied punching the photocopier machine.

[11] From the medical records, it could be seen that the pursuer had consistently described the accident to those attending him in the same way which he described it in evidence. He said that there were two impacts.

[12] Counsel for the pursuer submitted that the pursuer had given his evidence about the accident in a straightforward manner and that he had been consistent in evidence and in description to people in the past. He accepted that the examination at Mr Mackay's office had not been a successful occasion but nevertheless, invited me to accept the pursuer's version of events as regard the accident. He submitted that the physical damage described to the vehicles supported the pursuer's version of events. The damage to the rear end of the pursuer's car was severe as was the damage to the front end of the defender's car. Damage to the rear of the defender's car was slight. Counsel submitted that that indicated that the main impact was between the defender and the pursuer and that any further impact coming from the fourth car was of a less severe nature. That coincided with the pursuer's description of events. Counsel accepted that the police evidence was to the effect that the pursuer had not told the police this.

[13] Defender's counsel invited me to regard the pursuer as a person on whom one could not rely unless his evidence was supported from another source. He submitted that the pursuer was lying about the events which happened when he was examined by Mr Mackay as it was clear from Mr Mackay's evidence that the pursuer had indeed put his feet up on the desk and had been swearing and punching the photocopier in the corridor. His denials of that behaviour were not to be believed and that showed that he was not a credible witness. Furthermore, he had not told the police that the accident happened in the way in which he now claimed. Counsel noted that Mr Cassidy had not been called as a witness when he could have been. He submitted that the evidence from the body-shop manager and the engineer was not sufficient to enable the court to draw any conclusion about the damage. If the accident were to be reconstructed, then it would be necessary to have properly qualified engineers with details of the speed at which the cars were travelling and the distance travelled in order that they could give an expert opinion on what, if anything, the damage showed.

[14] Having considered all of the evidence carefully, I came to the view that the pursuer had proved that the accident happened in the way in which he claimed. I took the view that the pursuer was rude to Mr Mackay at the beginning of the examination and I accepted Mr Mackay's evidence about the pursuer putting his feet on the desk and swearing and punching the photocopier machine. Therefore I accepted that the pursuer was lying when he denied these things. Nevertheless, I took the view that the pursuer was truthful when he described the accident. He gave his evidence about it in a straightforward manner and, in my opinion, he was supported by the evidence of the damage to the vehicles. I did not agree that it was necessary to have expert evidence in order to reconstruct this accident. Mr Callander and Mr McWilliams were sufficiently expert to describe the damage to the pursuer's car. It seemed to me that the extensive damage to the rear of the pursuer's car and to the front of the defender's car, when compared to the slight damage to rear of the defender's car, indicated that the accident happened in the way in which the pursuer claimed. I was of the view that the police officers had decided that the accident was caused by the fourth driver, because it seemed to them to be a "pile up" on the motorway and that they would normally take the view that the last driver was the person to blame in that situation. I accepted the police evidence to the effect that the pursuer had told them that the defender blamed the fourth man. I also accepted that the pursuer had not explained his position to the police. I noted that on their scale of blame worthiness, they had the defender as the second vehicle. I took the view that the defender was not reliable in his description of the accident. He said in evidence that he was driving quite close behind the pursuer. I came to the opinion that he in fact collided with the pursuer because he was too close behind him and that the fourth man committed the same error.

[15] In all of the circumstances, I therefore found that the pursuer had proved that the accident happened and that loss, injury and damage was sustained by him, due to the fault of the defender.

Quantum
[16] The parties were able to agree by means of a joint minute certain matters. The damages which the pursuer sought were in respect of solatium, wage loss, physiotherapy costs, an excess paid on his insurance policy, and the cost of hiring another car while his was being repaired. No issue was taken with these matters as being recoverable damages.

[17] The pursuer attended the Accident and Emergency Department of the Royal Alexandra Hospital in Paisley about two hours after the accident. He was diagnosed with a whiplash injury and prescribed painkillers. He attended his own doctor the next day and was signed off by him for a total of 6 weeks. During that time he was not able to carry out his hobbies of golf and swimming.

[18] The pursuer worked as a demolition worker. He did heavy manual work using various tools. When he first went back to work, it was on the understanding that he would do light duties but there were no light duties for him to do. His evidence was rather opaque but I understood him to mean that he was at work, but not fully fit and earning less than usual for that reason. His GP suggested to him in December 2007 that physiotherapy might help, but as there was a long waiting list for NHS physiotherapy, he attended privately. He claimed for the cost of that which was not disputed. He attended his own doctor in February 2008 and was signed off briefly. He attended again in April 2008 and was signed off in total for a year, that is until April 2009. His GP sent him to Mr Ayana, Consultant Orthopaedic Surgeon, who treated him and who gave evidence. He diagnosed a sprain to the neck associated with a soft tissue shoulder injury. He arranged for ultrasound scans to check for any rotator cuff injury and was able to exclude that. Mr Ayana last saw the pursuer in December 2008 at which time there was a mild restriction of movement in the shoulder with discomfort at the extremes of movement. Mr Ayana thought that those findings were consistent with the original diagnosis. He explained that it would be difficult for someone to do heavy manual work while suffering pain.

[19] The pursuer was also seen by Mr Sharma, Consultant Orthopaedic Surgeon, for the purposes of a medical legal report. Mr Sharma's evidence was to the effect that recovery from whiplash injuries is very had to predict. He thought that being off work for more than a year, as the pursuer was, was reasonable in all the circumstances.

[20] Dr Lowe, the pursuer's GP, gave uncontradicted evidence that the pursuer had attended the surgery after the accident, complaining of pain. He had been signed off for a period of 2 weeks, then a further 4 weeks. He went back to work, but was unable to do his heavy duties. He was signed off from April 2008 to April 2009, as a result of pain from the soft tissue injury sustained in the accident. Dr Lowe had seen the pursuer during that period, as had his partners. All thought he was unfit for work.

[21] For the defender, Mr Mackay gave evidence. He formed the view that the accident was a "low velocity" impact. He was not entirely sure where he had got that information from, and thought it may have been in his letter of instruction. He thought that there was no heavy impact because the parties were able to drive their cars away. That did not coincide with the evidence given by Mr Callander and Mr McWilliams. Mr Mackay thought that the period off work was excessive. He had no reason to think that a soft tissue injury, which he believed the pursuer had sustained, would cause pain for more than a few weeks. The pursuer was young and had no relevant previous history. However, Mr Mackay would not he said have described it as a "low velocity impact" if one of the cars was travelling at 30mph. His position now was that if it was not a low velocity impact, then his opinion about the effect of the injury may not be sound.

[22] Pursuer's counsel suggested that a reasonable sum for solatium was £7,500. He referred to the Judicial Studies Board Guidelines and submitted that the injury was in the category listed in paragraph 6(A)(b)(ii). He referred to the cases of Wilcox v Crane Higher Kemp & Kemp F1-036 and Instone v Kaur Kemp & Kemp F1-05. He submitted that all of the solatium was to the past and therefore that interest at 4% for 2.39 years should be awarded which would be £717. Therefore he sought in name of solatium the sum of £8,217.

[23] For past wage loss, the pursuer's counsel submitted that there were two periods. The first was the initial 6 weeks absence and the second was the subsequent period from April 2008 to April 2009. While the amount of damages was not agreed in the joint minute, the wage records were and the calculation performed by counsel for the first period including interest, was £1,650.37. For the second period, counsel calculated that from 28 April 2008 to 2 April 2009, the pursuer's loss was £13,715. He sought interest at 4% on that from the date of the loss, which would be April 2008.

[24] It was agreed that the pursuer had paid £200 as an excess on his policy, £211 for car hire, and £270 for physiotherapy. Counsel submitted that the total was £681 and that with interest at 4%, the figure should be £746.

[25] Counsel noted that there were recoverable benefits of £1,089 which should be deducted from wage loss.

[26] The defender's counsel's position on solatium was that the claim was worth approximately £5,000. He submitted that interest should be allowed on two thirds of that on the basis that there was some continuing pain. He made no submission on wage loss and he was able to agree that the miscellaneous items were recoverable in the event that damages were to be awarded.

[27] I took the view that the appropriate figure for solatium was £5,000. The pursuer was not asked about his current condition when he gave evidence. The medical evidence was broadly to the effect that he suffered a soft tissue injury which caused him pain from just after the accident until around January 2010. He was not expected to suffer any consequences in future. Thus the appropriate figure seemed to me to be £5,000, there being no injury to the bone. Interest is due on all of it, as there is no evidence that he continues to suffer pain. I am therefore minded to award solatium in the sum of £5,000 with interest at 4% on that sum from 7 October 2007 to the date of decree.

[28] I am minded to award the sums sought in respect of past wage loss and miscellaneous items. Counsel were not agreed on the appropriate calculation of interest. I was not addressed on expenses. In all the circumstances I shall put the case out by order to be addressed on these matters.