BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
Scottish Sheriff Court Decisions |
||
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Xerri v. Direct Line Insurance [2007] ScotSC 10 (06 March 2007) URL: http://www.bailii.org/scot/cases/ScotSC/2007/10.html Cite as: [2007] ScotSC 10 |
[New search] [Help]
SHERIFFDOM OF
A1143/06
|
|
JUDGMENT OF SHERIFF J C MORRIS, QC |
|
|
in the
cause |
|
|
AILEEN
XERRI |
|
|
Pursuer |
|
|
DIRECT
LINE INSURANCE |
|
|
Defenders |
Act:
Docherty, of Corries
Alt:
Paton, of Harper MacLeod
Airdrie:
The Sheriff,
having resumed consideration of the cause finds as follows:
1.
That the parties are designed in the instance of
the closed Record.
2.
That on
3.
That the pursuer's vehicle was struck from behind
by motor vehicle registration number N516 OSU driven by John Hood. The
defenders are the insurers of the vehicle.
4.
That as a result of the collision the pursuer's
vehicle spun off the road and eventually collided head on with a lamppost on
the grass verge. The vehicle driven by John Hood also collided with a
lamppost. Both vehicles were damaged.
5.
That it is a matter of admission that John Hood was
responsible for said collision and that the defenders, as Mr Hood's insurers,
are liable to the pursuer for the damage occasioned to her vehicle and the
injuries caused to her.
6.
That as a result of the accident the pursuer
sustained damages in that she had to pay a £250 excess on her insurance policy,
her car seat and hands free phone kit were damaged and had to be replaced at a
cost of £99.98. She also incurred sundry services at a cost of £50 and
suffered inconvenience which was fairly assessed at £47.50.
7.
That as a result of the accident the pursuer was
injured. The pursuer's foot became jammed between the clutch and the
brake pedal and it took five or ten minutes to free it. Her ankle was
bruised and swollen as a result. The following day the pursuer
experienced neck and back pain. The pursuer attended her general
practitioner and was advised to take paracetamol.
The pursuer's ankle pain and bruising cleared up within one month. The
back and neck pain persisted for about two months with additional twinges
thereafter. The back pain disrupted the pursuer's sleep pattern and when
the pursuer did manage to fall asleep she experienced nightmares about the
crash. These nightmares featured the children screaming. The
nightmares persisted for about four to six months. After her initial
consultation with her general practitioner the pursuer did not attend at the
surgery again. The pursuer also experienced difficulty carrying anything
of any weight including shopping and her housework was made difficult.
The pursuer is a single mother and full time housewife.
8.
That it is a matter of admission that item
no 5/1 of process is a medical report by Dr A A
Burton dated
9.
That the pursuer has fully recovered from her
injuries.
Finds in Fact and in Law
1.
The pursuer, having suffered loss, injury and
damage as a result of the fault and negligence of the defenders' insured
driver, is entitled to reparation from the defenders therefor.
2.
Appropriate solatium for
the injury sustained by the pursuer as a result of the accident is £2,244
inclusive of interest.
3.
Appropriate compensation for special damages
suffered by the pursuer as a result of the accident is £465.50 inclusive of
interest.
Therefore sustains the pursuer's first and to an extent second pleas in
law; repels the remaining extant pleas in law; grants decree for payment by the
defenders to the pursuer (a) of the sum of TWO THOUSAND TWO HUNDRED AND FORTY
FOUR POUNDS (£2,244) STERLING (b) the sum of FOUR HUNDRED AND SIXTY FIVE POUNDS
FIFTY PENCE (£465.50) STERLING both sums with interest thereon at the rate of
eight per centum per annum from the date of decree to follow hereon until
payment; assigns 9.30 am on 26 March 2007 as a hearing on expenses.
Note:
1.
This action called before me for proof on
2.
The action concerned a road traffic accident which
occurred on the A80 trunk road about
3.
The collision caused the pursuer's vehicle to go
into a spin whereupon it entered the grass verge at the side of the road and
struck a lamppost head on. The accident was extremely frightening for the
pursuer and her young passengers.
4.
Parties had helpfully agreed a joint minute of
admissions which was lodged at the bar and which agreed the special damages as
set out in finding in fact 6 and the authenticity of Dr Burton's
medical report on the pursuer dated
5.
Having made appropriate findings in fact I do not
propose to rehearse the medical evidence in any detail. The pursuer
suffered injury to her ankle, her neck and her back. She also suffered
from nightmares relating to the accident. She visited her general
practitioner once on the day after the accident when she was advised to take paracetamol (she was allergic to stronger painkillers).
6.
For the first month after the accident she took two
paracetamol every three to four hours. She
reduced this dosage in the second month. The pursuer's most significant
injury was the one to her back which resulted in a constant throbbing pain
which became particularly acute at night when she tried to sleep. Her
sleep was therefore disrupted. When she did manage to sleep she was
plagued by nightmares about the incident. The nightmares concerned the
two children in the car screaming after the collision (I understood that both children
were very upset as a result of the accident).
7.
The pursuer's pain disappeared after about two
months although she did have the odd back twinge after that. The
nightmares lasted a bit longer perhaps four to six months.
8.
She had by the date of the proof fully
recovered. During the time when she was injured the pursuer had
difficulty with gardening, shopping and housework.
9.
The only issue in the present case was the amount
of solatium to be awarded. In relation to this
matter each party referred me to a number of cases. For the pursuer, in
suggesting an appropriate figure of £2,500 Mr Docherty referred me to the
cases of:
1.
Beck v United Closures & Plastics plc 2001 SLT 1299
2.
Threfall v British Railways Board 1988 SLT 535
3.
Nimmo v British Railways Board 1990 SLT 680
4.
5.
Fairley v Thomson 2004 Rep LR 142
10.
Mr Docherty also referred me to the Judicial
Studies Board Guidelines Seventh Edition.
11.
Mrs Paton for the
defender referred me to the English case of Smith v Brown
12.
Parties agreed that the appropriate way to deal
with interest would be to award interest at between 4% and 6% from the date of
the accident on whatever sum is awarded by way of solatium
and 8% for the special damages agreed.
13.
Both parties were agreed that the injuries
sustained by Mrs Xerri were at the minor end of
the range.
14.
As is usual with such cases the authorities cited
gave some guidance to the appropriate level of solatium
to be awarded but none were exactly in point.
15.
The English case of Smith v Brown quoted by
Mrs Paton was similar to the present one but the
accident sustained by the pursuer in the present case was, in my view, a more
serious one and her injuries persisted for longer. The Clements case
quoted by Mrs Paton, of all the cases cited, may
come closest in circumstances to the present one. Again in that case
however there was no element of sleep deprivation nor
any recurring nightmare factor.
16.
Taking into account therefore all the circumstances
of the case with the assistance of the cases to which I was referred it seems
to me that the appropriate figure for solatium would
be £2,200 and that is the figure I shall award.
17.
Interest on £2,200 for six months (ie from the date of the accident) at 4% amounts to £44
accordingly the final sum to be awarded for solatium
will be £2,244.
18.
Interest on the special damages (ie £447.48 was agreed at 8% from the date of the accident
that is £18. Accordingly the total amount to be awarded for special
damages will be £465.50.
19.
Interest will run on both these sums at 8% per
annum from the date of decree until payment.
20.
Both parties agreed that expenses should follow
success but I note that a tender has been lodged in process therefore I shall
reserve the question of expenses meantime.