Scottish Sheriff Court Decisions

A147/06 Scott Lyon -v- Jamie Lee Dean

 

Forfar, 17th January 2007.

The sheriff, having resumed consideration of the whole cause, finds in fact: -

(1)   The pursuer is Scott Lyon. He is 38 years of age, having been born on 19th December 1968, and resides with his wife and family at 2 Turin Cottages, Pitkennedy, by Forfar

 

(2)   The defender is Jamie Lee Dean. He resides at 20 River Street, Brechin, Angus.

 

(3)   As a result of an accident which occurred on 16th February 2005 at the roundabout junction with South Street and Academy Street, in Forfar, when a Daewoo motor car registration number SP 04 WHO and driven by Bryan James Ross was in collision with a Ford Fiesta motor car registration number P 481 BSO driven by the defender, the pursuer, who was a front seat passenger in the Daewoo, sustained loss, injury and damage.

 

(4)   The pursuer was wearing a seat belt at the time of the accident.

 

(5)   The defender has, for the purposes of this action, admitted liability for the said accident.

 

(6)   The pursuer was involved in a motor cycle accident in 1985 and he has been registered as disabled since 1997. He had worked as a window cleaner for 14 years, but had to relinquish that employment at about the time he was registered as disabled.

 

(7)   To assist him in travelling, the pursuer has the use of a Motability vehicle, this being funded by the Mobility Allowance to which the pursuer is entitled.

 

(8)   The pursuer's home at Pitkennedy is not served by any bus route, and is in a remote rural location. The nearest village to Pitkennedy is Letham, Angus, which is located about 1 or 11/2 miles from the pursuer's home. The pursuer's general medical practitioner is Doctor Scanlan, at Friockheim Health Centre, Westgate, Friockheim, Angus. Friockheim is also some distance from the pursuer's home, and can only be reached by the use of motor transport. The pursuer's wife is the driver of the motor car above referred to.

 

(9)   Prior to the accident set out in Finding in fact number (3), the pursuer had extensive medical difficulties. He suffers from asthma, in respect of which he uses an inhaler. He also suffers from rheumatoid arthritis, osteoarthritis and osteoporosis. He is prescribed many drugs for his various medical conditions, including Diazepam 60 mgs daily, Morphine 60 mgs bd, Amitriptyline, Aciclover cold sore cream, and Loperamide hydrochloride. He also would have dyhydrocodeine in winter months, when the pain would be worse

 

(10)           The pursuer also suffers from chronic pain syndrome. Despite having a high pain tolerance, the pursuer had to be prescribed additional medication after this accident.

 

(11)           As a result of this accident, the pursuer suffered a painful whiplash injury. This affected his neck, and the muscles in the whole length of his back, as far as the coccyx. The initial pain, which was intense, lasted for some three to four weeks, but the condition took up to two months after the accident to settle before it became bearable. The pain also impacted upon the sleeping pattern of the pursuer, who did not sleep well after the accident.

 

(12)           The pursuer consulted his general practitioner on the day of the accident. He was prescribed morphine at an increased level, as well as dyhydrocodeine. He also wore a surgical collar for approximately five weeks.

 

(13)           Prior to the accident, the pursuer would use the facilities of Clova Services, (a caring organisation), on average 3 days a week and for 3 hours, to ensure that he got out. He was unable to use this facility for several weeks after the accident.

 

(14)           Following on the accident, the pursuer was confined to his home for some five weeks. He suffered from a form of travel anxiety. He did not feel safe in a motor car, a symptom that he did not have prior to the accident. When he initially left his home after the accident, it was in the company of his wife, (who was the driver of the car). These journeys included travelling to and from consultations with the pursuer's general practitioner in Friockheim.

 

(15)           In addition, because of the exacerbation in the pursuer's medical condition, the pursuer had to rely heavily on the services of his wife, Mrs. Frances Lyon. She required to assist the pursuer in dressing, getting in and out of bed, bringing food to and from the table, and certain toiletting and washing functions. These services were most pronounced in the first two weeks after the date of the accident. The pursuer's wife would spend about 11/2 hours each day on said services. The total hours of services provided by the pursuer's wife is properly quantified at 21 hours.

 

(16)           An appropriate rate per hour for such services would be the national minimum wage, applicable at the time, namely, £4.85 per hour. The claim for services is properly quantified at £101.85.

 

(17)           An appropriate level of solatium for the injuries sustained by the pursuer is £1,500.

 

Finds in Fact and in Law

·        That the pursuer has suffered loss injury and damage as a result of the defender's fault and negligence;

·        That the defender is liable to the pursuer in damages therefore; and

·        That a reasonable sum in respect of said loss, injury and damage is £1,601.85

 

Therefore

(First) Sustains the second plea in law for the pursuer but only to the extent of £1,601.85:

(Second) Sustains the second plea in law for the defender: and

(Third) Repels all other pleas in law for both parties.

 

In consequence thereof,

·        Grants decree against the defender for payment to the pursuer of the sum of One Thousand Six Hundred and One Pounds and eighty five pence sterling, (£1,601.85) with interest thereon at the rate of eight (8) per centum per annum from 16th February 2005 until settlement:

·        Reserves meantime all questions of expenses; and

·        Directs that parties' procurators be heard on the whole question of the expenses of the cause and any other outstanding matters, assigning as a Procedural Hearing Wednesday 25th January 2007 at 10.00 a.m. for that purpose.

 

 

 

Note

[1] In this action, the pursuer - who was a front seat passenger in a motor car - sues for damages after that vehicle was in a collision in Brechin on 16th February 2005. (The circumstances of that accident are set out in Finding in fact number (3)). For the purposes of this action, liability is admitted and the only dispute between the parties is as to the quantum of damages.

 

[2] The proof proceeded on 15th January 2007 and the only evidence led was from the pursuer and his wife, Mrs. Frances Lyon. At the outset, I must say that I found them to be credible and reliable witnesses who did not, to me, exaggerate the injuries sustained by the pursuer or the consequences of those injuries.

 

[3] It is not in dispute that the pursuer was far from being a well man prior to this accident. The cocktail of drugs which he is prescribed - in respect of what I may term "non-accident matters" - bears eloquent testimony to that fact. In addition, the medical report dated 9th January 2007 from Dr. Dorothy Taylor, Consultant Psychiatrist, sets out - under background information - much of the pursuer's medical curriculum vitae.

 

[4] The evidence, which was very properly narrowed down to the effects of the accident on the pursuer and how his wife had assisted him and provided services, was not the subject of cross examination. There is, however, one additional matter that I have not set out in the Findings in Fact and which I feel that I ought to record in this note. Having regard to the extent of the pursuer's medical problems, I enquired whether he had claimed or would be eligible for Attendance Allowance. I was advised that Mr. and Mrs. Lyon's youngest child, who is 3 years of age, is deaf and an Attendance Allowance is paid for that child. It appears that the Attendance Allowance Regulations permit of only one such allowance being paid to one household.

 

[5] On the question of solatium, the pursuer's solicitor suggested a figure of between £1,250 and £1,500. The defender's agent suggested an altogether lower figure in the order of £850.

 

[6] The pursuer's agent referred to the case of Dingwall -v- Todd, a precis of which is found at 2006 GWD 13-244. In that case, the figure awarded for solatium for neck and back pain was £1,600. The effects of that case had lasted for some three months. The agent also referred to the case of Hartley -v- Postlethwaite 1997 CLYB 707, case no 1880, where the sum of £1,250 was awarded for a whiplash injury which cleared up in totally in 2 months. Finally, he referred to the case of Kirk -v- Bickerdike , which is found at Kemp & Kemp K2 - 178 (61181). In this case, decided in 2001, the level of the award for a whiplash injury was also £1,250.

 

[7] The defender's solicitor pointed to the Scottish case of Armstrong -v- Brake Brothers 2003 SLT (Sh. Ct.) 58. This case related to an accident in June 2001. The pain and lasted for 6 days and no medical treatment was required. Although the period of pain and suffering to which Mr. Lyon alluded in his evidence was two months, the defender's agent submitted that the pursuer had quickly returned to the position in which he had been prior to the accident. In the defender's agent's submission, the instant case was a case at the lower end of the scale. The defender's agent contended that, even allowing for the fact that the injuries in this case were more severe than in the Armstrong -v- Brake Brothers case, the award should not go as high as that suggested by the pursuer's agent. He suggested a maximum figure of £850.

 

[8] The injuries in this case cannot, in my view, be equiparated with those set out in the Armstrong case referred to in paragraph [7] supra. The injuries in this case are altogether more severe and we have had evidence, which I accepted, as to those injuries and the ongoing treatment, as well as the services provided by Mrs. Lyon.

 

[9] I had little difficulty in accepting and preferring the submission made by the pursuer. Having seen and heard the pursuer and his witness, I do not consider this claim to be at the lower end of whiplash injuries. A doctor was consulted on the day of the accident. Additional painkillers were immediately prescribed. A cervical collar was worn for four weeks. The pursuer was for all purposes housebound, and had, initially at least, some sort of anxiety complex about going out in a car. Symptoms of his injury persisted for up to two months. The pursuer's wife had to render services to him.

 

[10] I n these circumstances, it seems to me, and having regard to the fact that this was a 2005 injury, that solatium is properly stated in the sum of £1,500.

 

[11] The other claim is in respect of services rendered by the pursuer's wife, Mrs. Frances Lyon. For what she and her husband said in evidence, I consider that that claim is really restricted to the first fortnight after the accident, when the pursuer was in most need of her support. That support, to me, is quantified - time wise - at 11/2 hours per day, and this means that there is a time claim of 21 hours in all. The pursuer's agent accepted that the minimun hourly wage at the time of the accident was £4.85 and I have applied that in my calculation, which brings out a figure of £101.85.

 

[12] The total award is therefore £1,601.85, and as it was agreed that the solatium claim would be allocated totally to the past, interest will run thereon at the judicial rate of 8%.

 

[13] I was advised that a tender had been lodged, and I have accordingly continued the consideration of the expenses of the cause to a Procedural Hearing on Wednesday 25th January 2007 at 10.00 a.m.