SHERIFFDOM
OF LOTHIAN AND BORDERS AT LINLITHGOW
A1498/2006
NOTE
by
SHERIFF DANIEL KELLY
in the cause
ALEXANDER LINDSAY
Pursuer
against
WILLIAM WALKER
Defender
___________
Act:
Hare, Gildeas, Glasgow;
Alt:
Keenan, DLA Piper Scotland LLP, Edinburgh.
____________________________
LINLITHGOW: 15 June 2007
The
Sheriff finds in fact:
1.
The
pursuer is aged 52. He is a self-employed mechanic.
2.
On
12 December 2005 the pursuer was driving his car, registered number J163 GAS,
when it was in collision with the car being driven by the defender, registered
number X281 CND, at a roundabout on West Main Street, Uphall, West Lothian. The
pursuer's car was struck from the rear nearside and was spun round 360 degrees.
There was substantial damage to the car. The pursuer was wearing a seat-belt.
He bumped his head off the door-post and his left knee struck the dashboard.
The defender admits liability for the accident.
3.
As
a result of the accident the pursuer sustained a soft tissue injury to his neck
from a whiplash type distortion. The symptoms associated with the neck injury
persisted until the end of February 2006, a period of about two and a half
months. The pursuer suffered a soft tissue injury to his lower back in the form
of a strain or sprain. The related symptoms continued until July 2006, some
seven and a half months after the accident. He also suffered a soft tissue
injury to his left knee in the form of bruising. The bruising over the left
knee resolved over four weeks.
4.
On
13 December 2005 the pursuer had problems with his vision, which was described
as "fuzzy", had pain in his left leg, a stiff neck and lower back pain. On 14
December 2005 he attended at Howden Health Centre, where he was sent to St
John's Hospital at Howden. He was suffering from pain in his right shoulder,
dizziness and feeling "fuzzy". On 22 December 2005 his symptoms were noted on a
G.P Physiotherapy Referral Form as parasthesiae in the right hand, neck pain,
stiff neck, neck strain with cervical root irritation and disturbed sleep. Between
5 January and 3 April 2006 the pursuer attended 10 physiotherapy sessions and
one back education session.
5.
The
pursuer was off work until the beginning of March 2006, some two and a half
months. He then worked from about 10 am until 4 pm. In July 2006 he resumed his
normal hours of work, which were from 8 am until 6.30 or 7 pm for five or six
days per week. He was also restricted in his gardening, about the house,
shopping, cycling and flying.
6.
On
22 January 2006 the pursuer went for a 30-mile cycle run. On 18 February 2006
he went for an 80-mile cycle run. In the week beginning 13 March 2006 the
pursuer worked two 16-hour days doing very physical work.
Finds
in fact and law:
1.
The accident in which the pursuer was involved
was caused by the fault and negligence of the defender.
2.
The pursuer, having suffered an injury through
the fault and negligence of the defender, is entitled to reparation therefor.
The
Sheriff:
1.
sustains pleas-in-law 1 and 2 for the pursuers
to the extent of the sum awarded;
2.
repels the third plea-in-law for the defender
save in relation to the extent of the sum awarded;
3.
finds the pursuer entitled to £2,650 with
interest at eight per cent per year from the date hereof until payment;
4.
certifies David Steedman, Consultant in Accident
and Emergency Medicine and Surgery, Royal Infirmary of Edinburgh, and Michael
McMaster, Consultant Orthopaedic and Spine Surgeon, Murrayfield Hospital,
Edinburgh, as expert witnesses; and
5.
appoints 31 July 2007 at 10.00 am as a date for
a Hearing on expenses.
__________________
D. K.
NOTE
Introduction
[1] This
case involved a claim for reparation arising out of a road traffic accident. It
called for Proof at Linlithgow Sheriff Court on 5 June 2007. I heard the
evidence of the pursuer, of David Steedman, Consultant in Accident and
Emergency Medicine and Surgery, Royal Infirmary of Edinburgh, and of Michael
McMaster, Consultant Orthopaedic and Spine Surgeon, Murrayfield Hospital,
Edinburgh.
Agreed evidence
[2] Liability
was admitted on Record.
[3] The
pursuer is aged 52. He is a self-employed mechanic.
[4] It
was not in dispute that on 12 December 2005 the pursuer was driving his car,
registered number J163 GAS, when it was in collision with the car being driven
by the defender, registered number X281 CND, at a roundabout on West Main
Street, Uphall, West Lothian. The pursuer's car was struck from the rear
nearside and span around 360 degrees. There was substantial damage to the car.
The pursuer was wearing a seat-belt. He bumped his head off the door-post and his
left knee struck the dashboard.
[5] As
a result of the accident the pursuer sustained a soft tissue injury to his neck
from a whiplash type distortion and a soft tissue injury to his left knee in
the form of bruising. The symptoms associated with the neck injury persisted
until the end of February 2006, about two and a half months. The bruising over
the left knee resolved over four weeks.
[6] On
13 December 2005 the pursuer had problems with his vision, which was described
as "fuzzy", had pain in his left leg, a stiff neck and lower back pain. On 14
December 2005 he attended at Howden Health Centre, where he was sent to St
John's Hospital at Howden. He was suffering from pain in his right shoulder,
dizziness and feeling "fuzzy". On 22 December 2005 his symptoms were noted on a
G.P Physiotherapy Referral Form as parasthesiae (pins and needles) in the right
hand, neck pain, stiff neck, neck strain with cervical root irritation and
disturbed sleep. Between 5 January and 3 April 2006 the pursuer attended 10
physiotherapy sessions and one back education session.
[7] The
pursuer was off work until the beginning of March 2006, some two and a half
months. £4,000 has already been paid by way of loss of earnings, the period
covered not being disclosed. He was also restricted in his gardening, about the
house, shopping, cycling and flying.
[8] On
22 January 2006 the pursuer went for a 30-mile cycle run. On 18 February 2006
he went for an 80-mile cycle run. In the week beginning 13 March 2006 the
pursuer worked two 16-hour days doing very physical work.
Disputed issues
The calf injury
[9] In
January 2006 the pursuer developed calf problems, which he said were originally
in both calves and later more in his right calf. Parties were in dispute as to
whether this injury was related to the back injury and thereby to the accident.
[10] Mr
Steedman considered that on a balance of probabilities it was likely that the
pursuer sustained an injury to his lower back in the lumbar region as a result
of the accident. He considered that the injury had caused inflammation around
the facet joints L3/4 vertebrae causing referred pain to the associated nerve
dermatonal distribution of his calf. He noted that deep vein thrombosis had
been excluded following investigation. He also took into account that the calf
pain did not respond to treatment for localised injury but did so when the
physiotherapist provided treatment assuming that the pain was referred from the
back injury.
[11] Mr
McMaster disputed the connection between the calf pain and the back pain. He
contended that there was no clinical evidence for Mr Steedman's hypothesis. He
pointed out that there was nothing in the records to suggest that the pursuer
had suffered pain in both legs nor any neurological evidence relating to the
calf pain. There was no swelling in the calf to suggest nerve pain.
[12] The
solicitor for the pursuer submitted that I should accept the evidence of Mr
Steedman, whereas the solicitor for the defender submitted that I should accept
the evidence of Mr McMaster.
[13] I
do not find it established that the injury to the right calf was related to the
back injury and thereby to the accident. While the basis advanced by Mr
Steedman is to an extent indicative of a connection between the calf injury and
the lower back injury, in the absence of any firm evidence to substantiate it I
conclude that the pursuer has failed to establish this connection. While the
findings of the physiotherapist indicate that there might be some link, the
noting of pain only in one leg, the lack of neurological evidence and the
absence of swelling in the leg preclude me from making any finding of there
being such a link.
The duration of the back injury
[14] The
date by which the pursuer had recovered from his back injury was also in dispute.
[15] Mr
Steedman examined the pursuer on 16 May 2006. His examination of the pursuer's
back did not disclose anything abnormal. He was of the opinion that the pursuer
had suffered a soft tissue injury to his lower back in the form of a strain or sprain.
The pursuer told him that he was still suffering intermittent lower back-ache
(and right calf pain). He narrated that his symptoms were worse in the mornings
and were exacerbated by sitting and driving for long periods. He said that the
symptoms were experienced for three to four days per week. The pursuer reported
a 60 per cent improvement in his back (and calf) symptoms since the immediate
aftermath of the accident. Mr Steedman accepted the position as represented to
him by the pursuer and was of the opinion that he continued to suffer
intermittent lower back-ache. With further improvement and with the pursuer
maintaining his exercise regime, when he saw him he opined that the symptoms
should settle in two to three months. This took the estimated recovery until
July/August 2006, some seven to eight months from the accident. In his evidence
he considered this prognosis to have been borne out.
[16] In
his Report dated 16 February 2007 Mr McMaster stated that the pursuer returned
to his normal work in April 2006 but on slightly reduced hours and gradually
increased this before resuming his normal hours in July 2006. Mr McMaster
stated: "In my opinion this was over an appropriate period." Mr McMaster also
recorded the pursuer as telling him that his symptoms had resolved over four to
six months. However, the pursuer maintained in evidence that he had told Mr
McMaster that his symptoms resolved four to six months after his return to
work. Mr McMaster did not labour this point and I accept the pursuer's explanation.
It, therefore, had appeared in terms of the reports as though there was general
agreement as to the period when the pursuer had recuperated in relation to his
back injury.
[17] However,
in his evidence Mr McMaster stated that his opinion had altered since having
had sight of the physiotherapy records. On seeing the entries as to the cycle
runs, Mr McMaster stated in his evidence that the pursuer had probably
recovered by the 80-mile cycle trip on 18 February 2006. At one point he stated
that he would say that by 22 January 2006, when the pursuer went for the
30-mile cycle run, he was capable of work. Mr McMaster also took into account
the evidence emerging from the physiotherapy records of the work period in the
week beginning 13 March 2006.
[18] Mr
Steedman was also referred to the cycle runs of the pursuer and to his work in
the week beginning 13 March 2006. However, he did not alter his opinion as a
result of them. He noted that there were on-going symptoms after these periods
and that the pursuer's symptoms were said to have fluctuated, with periods
without symptoms.
[19] In
determining this issue much rests upon what the pursuer himself reported and
whether that evidence is to be accepted. Mr Steedman largely relied upon the
pursuer's account; Mr McMaster largely discounted any account of him continuing
to have symptoms if he could cycle and undertake the work session in March.
[20] The
pursuer's evidence was that his back pain continued until July 2006. He said
that after March 2006 he worked shorter hours and generally undertook lighter
work. He said that by July 2006 he was back to full-time working and that by
August 2006 he was feeling "pretty good". He stressed that this was in line
with the physiotherapy programme and the advice of his General Practitioner,
who had told him that he could return to work in March 2006 if he felt up to
it. He was signed off work until March.
[21] The
solicitor for the pursuer submitted that I should accept the evidence of the
pursuer and Mr Steedman, whereas the solicitor for the defender submitted that
I should accept the evidence of Mr McMaster.
[22] I
regard it as sufficiently established that the back symptoms continued until
July 2006, some seven months after the accident. I found the pursuer to be a
credible and reliable witness. Indeed, he was a very impressive witness. He
stated that he was keen to return to work, being self-employed and requiring to
have regard to his customers. I fully accepted that he was keen to get better
and I was fully satisfied that he was in no way exaggerating his symptoms. When
the pursuer was working for restricted hours, he told Mr Steedman that he was
working from 10 am until 4 pm whereas his normal hours of work was from 8 am
until 6.30 to 7 pm for five or six days per week. Accordingly, when the pursuer
did return to work he was far from shirking and within four months he had
returned to working for long hours. In his evidence the pursuer explained that
from March to July he generally was working shorter hours. He said that the
period of long hours in the week beginning 13 March 2006 arose because his best
customer could not find anyone else to do one specific job and so he had agreed
to do it. Being self-employed, he wanted to preserve his customers for when he
fully returned to his business. That was why he had agreed to take on the extra
work. I accepted his explanation. The pursuer did not consider a 30-mile cycle
to be a long one. He said that while he initially managed the 80-mile run, he
later suffered from it and did not repeat it until he was recovered.
[23] While
an 80-mile cycle run could not be undertaken by someone who at the time
suffered from a sore back, I am satisfied having heard the pursuer that this
was undertaken during a pain-free period. The pursuer was a person who was keen
to make every effort to return to normal life. In so doing he tackled feats
which others would not have attempted. At work he made efforts to retain his
clientele and to resume his business as quickly as possible. The fact that he
made these efforts and was able to undertake these arduous activities did not
lead me to disbelieve him in his assertion that the back pain had not fully
resolved but continued until July or August 2006. Since he said little about
August, I do not find the symptoms to have extended beyond July.
[24] It
is significant that those treating the pursuer considered at the time that his
symptoms were continuing. The pursuer continued to see his general practitioner
and the physiotherapist after the cycle runs. After working the long hours in
March 2006 the pursuer was given advice by the physiotherapist about his return
to work and about pacing himself. The general practitioner was satisfied that
the pursuer's symptoms continued until at least March 2006 and the
physiotherapist considered that his symptoms continued while she was seeing
him. He was discharged from physiotherapy on 24 April 2006, when the assessment
recorded mild tenderness on palpatation of L3 and expressed the hope that the
symptoms should continue to settle.
[25] Mr
Steedman also examined the pursuer after the cycle runs and the busy period at
work, namely on 16 May 2006. He is an experienced Accident and Emergency
Consultant. He was satisfied that the pursuer's back symptoms were continuing
at that time and was of the opinion that they would do so for a further two to
three months. He relied upon the account provided by the pursuer but in my view
he was justified in doing so. I am also struck that in reporting on 16 May 2006
that there had been a 60 per cent improvement in his back symptoms since the
immediate aftermath of the accident the pursuer appeared to be making an honest
attempt to be frank as to his progress at that time.
[26] I
fully appreciate Mr McMaster's incredulity at the pursuer's ability to cycle if
he had back-ache, especially for a journey of 80 miles. However, his evidence
in this regard was often couched in terms of the pursuer being capable of work
if he was capable of such activity. This is to be distinguished from the
question of when the pursuer's symptoms of back-ache had actually ended.
Nonetheless, I do not underestimate the physical demands of the 80-mile cycle
run which was undertaken by the pursuer on 18 February 2006. Accordingly, the
extent of the pursuer's back symptoms must at least have moderated by then.
Submissions
[27] The
solicitor for the pursuer sought solatium of £3,000. She relied upon the
following authorities: the Judicial Studies Board Guidelines for minor back
injuries (up to £4,575), Symington v Milne, Sheriff Principal, Edinburgh
Sheriff Court, 4 May 2007 (£2,250), Urquhart v Coakley Bus Company Ltd,
Hamilton Sheriff Court, 2 June 2000 (£3,000 up-dated to £3,583), Pugh v
Scott 2002 Rep LR 112 (£2,500 up-dated to £2,900), Easton v Smith,
Perth Sheriff Court, 9 July 2002 (£2,200 up-dated to £2,556) and Brown v
Forsyth, Aberdeen Sheriff Court, 17 August 2001 (£2,500 up-dated to
£2,936).
[28] The
solicitor for the defender submitted that, on the basis that the symptoms had
resolved by 24 January 2006, solatium was properly assessed at £1,000. If the
symptoms were found to have persisted for seven to eight months, since most had
resolved in six weeks, she submitted that solatium should be assessed at
£1,500. She relied upon the following authorities: the Judicial Studies Board
Guidelines for minor neck injuries (£750 to £2,550), Armstrong v Brake
Brothers (Frozen Foods) Ltd 2003 SLT (Sh Ct) 58 (£350 up-dated to £378), Lyon
v Dean, Forfar Sheriff Court, 17 January 2007 (£1,500), Dingwall v Todd,
Inverness Sheriff Court, 24 March 2006 (£1,600), Quinn v Bowie (No 1)
1987 SLT 575 (£700, up-dated to £1,351),
Ferguson v City Refrigeration Holdings (UK) Ltd 2005 Rep LR 117 (£2,250
up-dated to £2,300), Buchan v TNT UK Ltd, Forfar Sheriff Court, 17
November 2005 (£2,500), and Fairley v Thomson, Edinburgh Sheriff Court,
2 September 2004 (£1,700 up-dated to £1,855).
Decision
[29] The
pursuer is entitled to compensation for the soft tissue injury sustained to his
neck from a whiplash type distortion which persisted until the end of February
2006, about two and a half months. Further, the pursuer suffered a soft tissue
injury to his lower back in the form of a strain or sprain the symptoms of
which lasted until July 2006, some seven and a half months. However, the extent
of the symptoms moderated over that period. He also sustained a soft tissue
injury to his left knee in the form of bruising, which resolved over four
weeks.
[30] I
assess solatium at £2,500. The neck symptoms which the pursuer suffered were
painful and lasted a reasonable period. While not falling at the utmost end of
the scale of awards in relation to whiplash type injury, in themselves they
fall to be placed at a reasonably substantial level on the scale. Also to be
taken into account is the back injury. While this injury was troublesome and
continued for some time, it falls to be discounted to some extent since the
associated symptoms had eased off and were intermittently not so severe as to
preclude the pursuer from undertaking arduous physical activity. To this has to
be added the minor injury to the knee. It was agreed that interest should be
applied at 4% from the date of the accident. Applying interest of £150, the
award of solatium is £2,650.
Expenses
