Scottish Sheriff Court Decisions

PD3/13

 

2014SCCAMP55

 

SHERIFFDOM OF NORTH STRATHCLYDE AT CAMPBELTOWN

 

INTERLOCUTOR AND NOTE BY SHERIFF C TURNBULL

 

in causa

 

JAMES GORDON

PURSUER

 

against

 

S & B REMOVALS LTD t/a AZTEC REMOVALS

 

DEFENDERS

 

Campbeltown,   18 September 2014

 

The Sheriff, having resumed consideration of the cause

 

FINDS IN FACT:

[1]        The parties are as designed in the instance. The pursuer's date of birth is [     ]. He retired through ill health around 11 years ago. He was aged 63 at the time of the accident and 66 at the date of proof.

[2]        Shortly before 12 noon on 19 November 2011 the pursuer was involved in a road traffic accident on the A83, approximately 11 miles north of Campbeltown. The pursuer was travelling south in a Mercedes 24 seater coach, operated by Fairline coaches, Glasgow. The coach was being driven by John McGuire. The defenders vehicle was a DAF 7.5 tonne lorry.  It was travelling north and was being driven by John Reilly.

 

[3]        The locus of the accident was a broadly straight road, running generally north to south with one lane in each direction. At the point of impact, the road was wide enough for the vehicles concerned to pass safely. 

[4]        The accident was the fault of the driver of the defender’s vehicle, who left the north bound carriageway and struck the middle offside window of the vehicle in which the pursuer was a passenger with its lower offside wing mirror whilst in the southbound carriageway.

[5]        The offside wing mirror of the vehicle in which the pursuer was travelling was not damaged in the accident.

[6]        The vehicle in which the pursuer was travelling did not brake suddenly.

[7]        The pursuer did not sustain injury to his lower back in the accident.

[8]        The pursuer did not suffer the symptoms of travel anxiety (DSM-IV Anxiety Disorder not otherwise specified) as a consequence of the accident.

[9]        Following the accident, the pursuer consulted his G.P. on 8 December 2011. He told his G.P. of the accident on 19 November 2011. He did not mention back pain to his G.P. at that time. He complained of feeling light headed and anxious and having difficulty travelling, but was otherwise OK.

[10]      The pursuer again consulted his G.P. on 16 December 2011. He did not mention back pain to his G.P. at that time.

[11]      On 1 January 2012 the pursuer consulted the NHS Greater Glasgow & Clyde Out Of Hours Service. He had suffered back pain whilst lifting a light box of Christmas decorations. He was given a pain relieving injection.

FINDS IN FACT AND LAW:

[1]        The pursuer's accident was caused by the fault and negligence of the defenders driver.

[2]        The pursuer not having suffered loss, injury and damage due to the negligence of the defenders driver, is not entitled to reparation.

THEREFORE assoilzies the defenders from the craves of the Initial Writ; finds the pursuer liable to the defenders in the expenses of the cause; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon; certifies Dr Richard Metcalfe and Bernard Denton as skilled witnesses for the defenders.

 

NOTE

 

Introduction

[1]        I heard a proof in this matter over three days (6 June and 18 and 19 August all 2014). The pursuer was represented by Mr Macdonald, solicitor, Glasgow and the defenders by Mr Murray, solicitor, Glasgow.

[2]        The action relates to a road traffic accident which occurred on the A83, approximately 11 miles north of Campbeltown, shortly before 12 noon on 19 November 2011, involving the vehicle in which the pursuer was then a passenger and the defenders vehicle.

Witnesses

[3]        On behalf of the pursuer, evidence was led from (1) John McGuire, the driver of the vehicle in which the pursuer was travelling; (2) the Pursuer; (3) Mark Blyth, consultant orthopaedic surgeon; and (4) Michael O’Neill, consultant clinical psychologist.

[4]        On behalf of the defender, evidence was led from (1) John Reilly, the driver of the Defenders vehicle; (2) Bernard Denton, automobile consultant engineer and claim assessor; (3) Dr Richard Metcalfe, consultant neurologist; and (4) Dr Alison McAlpine, the pursuer's G.P.

The Issues

[5]        There are three principal issues for resolution. Firstly, who was at fault for the accident? Secondly, did the pursuer suffer injury in the accident? Thirdly, what is the value of the pursuer’s claim?

 

 

The Accident

[6]        The pursuer and the drivers of the two vehicles involved in the collision spoke to the circumstances of the accident.  The vehicle in which the pursuer was travelling was a Mercedes 24 seater coach, operated by Fairline coaches, Glasgow. It was travelling on the southbound carriageway, driven by John McGuire. The Defenders vehicle was a DAF 7.5 tonne lorry.  It was travelling on the northbound carriageway, driven by John Reilly. The locus of the accident was a broadly straight road, running generally north to south with one lane in each direction. At the point of impact the road was wide enough for the vehicles concerned to pass safely.  The witnesses were agreed that the road conditions were good at the time of the accident. Nothing was made of the speed at which the two vehicles were travelling at the time of the accident.

[7]        John McGuire, the driver of the vehicle in which the pursuer was travelling, saw the defenders vehicle approaching. As he was almost past the defenders vehicle there was a loud bang and something hit the middle off side window of his vehicle. Mr McGuire’s opinion was that the defenders vehicle had clipped the verge, causing it to move out in to the southbound lane with its lower offside wing mirror then coming in to contact with the window. His position was that the driver of the defenders vehicle (Mr Reilly) was to blame for the accident.

[8]        The pursuer’s account was similar to that of Mr McGuire. The pursuer was sitting in the front passenger seat. He had an unimpaired view of the defenders vehicle as it approached. The pursuer’s evidence was that as the defenders vehicle approached, it seemed to avoid something or take a dip in the road and, as a consequence, the defenders vehicle moved towards the vehicle in which the pursuer was travelling. His position was that the driver of the defenders vehicle (Mr Reilly) was to blame for the accident.

 

[9]        John Reilly, the driver of the defenders vehicle, maintained that as the vehicle in which the pursuer was travelling approached, he moved over to the left as far as he could. He had seen the vehicle in which the pursuer was travelling approach. It was “travelling a bit”. Mr Reilly stated that vehicle in which the pursuer was travelling was “over the white line at bits”. He thought the offside wing mirrors of the two vehicles came in to contact. He did not accept crossing in to the southbound carriageway. His position was that he was not to blame for the accident.

[10]      The drivers, Mr McGuire and Mr Reilly, each gave evidence of comments made by the other when they spoke after the accident. Mr McGuire contended that when he asked Mr Reilly what had happened, Mr Reilly replied “No comment”. Mr Reilly contended that Mr McGuire said to him “Sorry, did I get your mirror?”

[11]      I prefer the evidence of the pursuer and Mr McGuire.

[12]      Mr Reilly contended that the window of Mr McGuire’s coach was broken by a piece of Mr Reilly’s mirror which was dislodged, rebounding from the box of Mr Reilly’s lorry and striking the window of Mr McGuire’s vehicle, causing it to smash. It is a matter of agreement between the parties (see Joint Minute of Admissions (no. 16 of process) at paragraph 6) that the offside wing mirror of Mr McGuire’s vehicle was not damaged in the collision.

[13]      I cannot accept the explanation offered by Mr Reilly. It is not credible, particularly where it is accepted that the offside wing mirror of Mr McGuire’s vehicle was not damaged in the collision. I conclude that Mr McGuire’s offside wing mirror did not come in to contact with Mr Reilly’s vehicle.  I do not accept that Mr McGuire made the comment attributed to him by Mr Reilly (see paragraph 10 above). I have held that the accident was caused by Mr Reilly’s vehicle crossing in to the southbound carriageway.

The Pursuer’s Injury

[14]      I turn firstly to the issue of how the vehicle in which the pursuer was travelling came to a halt following the accident.

[15]      The driver of the vehicle in which the pursuer was travelling, Mr McGuire stated that he did not stop immediately, he brought the vehicle to a stop in a safe place (within the mouth of a driveway to allow traffic to pass safely). The pursuer said the bus stopped with a jolt, quicker than normal. Bernard Denton, from an analysis of the Vehicle Speed Viewer (no. 6/4/1 of process), described the bus as exhibiting a normal rate of deceleration.

[16]      I prefer the evidence of Mr McGuire and Mr Denton to that of the pursuer. Mr McGuire's evidence is supported by Mr Denton's analysis of the data relative to the speed of the bus. I am satisfied that the vehicle in which the pursuer was travelling did not brake suddenly.

[17]      The pursuer complains of suffering lower back pain and travel anxiety as a result of the accident. It is not disputed that the pursuer had suffered a number of episodes of back pain prior to the accident on 19 November 2011. It is also not disputed that the pursuer had a pre-accident history of anxiety.

[18]      Following the accident, the pursuer consulted his GP, Dr Alison McAlpine,  on 8 December 2011. He told Dr McAlpine of the accident on 19 November 2011. He did not mention back pain to Dr McAlpine at that time. He complained of feeling light headed and anxious and having difficulty travelling, but was otherwise noted as being "OK". The pursuer again consulted Dr McAlpine on 16 December 2011. He did not mention back pain to Dr McAlpine at that time. On 1 January 2012 the pursuer consulted the NHS Greater Glasgow & Clyde Out Of Hours Service. He had suffered pains to his back whilst lifting a light box of Christmas decorations. He was given a pain relieving injection. The pursuer's position was that he was free of the symptoms of back pain by August 2013.

[19]      In relation to the alleged injury to his back, the evidence of the pursuer was not satisfactory. He insisted that he had told Dr McAlpine of it when he consulted with her on 8 December 2011. Dr McAlpine did not accept that. She explained in evidence that her note to the effect that the pursuer was "otherwise OK" was her way of saying that the pursuer was not offering other complaints at that time. She explained that it was her practice to ask and that she would have written down what she had been told. I prefer the evidence of Dr McAlpine. I am satisfied that the pursuer did not mention back pain to her at the consultation on 8 December 2011.

[20]      The pursuer insisted that his back had been "fine" before the accident. That is clearly not the case. As the pursuer accepted under cross-examination, in December 2008 he attended the Emergency Department of the Western Infirmary complaining of back pain (having slipped on a wet floor and hitting his back on a concrete step); in April 2010 he attended his GP complaining of lower back pain (which started whilst digging the garden). As a consequence of the latter event, the pursuer was referred to the Greater Glasgow Back Pain Referral Service. The physiotherapy discharge summary (no. 6/1 of process at page 90) is notable in that it records the presenting symptoms as "LBP (lower back pain) on/off 3-4 years". When that was put to him in cross-examination the pursuer's response was that he "probably had had back pain since 1977 when (he) had a bad accident." I observe that the pursuer was involved in a road traffic accident in October 1983 in which he sustained a fractured pelvis with central dislocation of his right hip (see no. 6/1 of process at page 215).

[21]      Mr Mark Blyth saw the pursuer for the purposes of preparing his report (no. 5/1 of process) on 8 August 2012, some 9 months after the accident and some 7 months after the pursuer injured his back whilst lifting Christmas decorations (see paragraph 18 above). Mr Blyth's opinion was that the pursuer had sustained a relatively minor soft tissue injury to his low back in the accident and that this injury was consistent with sudden braking of the vehicle in which the pursuer was travelling. I have found that the vehicle in which the pursuer was travelling did not brake suddenly.

[22]      Dr Richard Metcalfe saw the pursuer for the purposes of preparing his report (no. 6/2/2 of process) on 24 October 2013, almost two years after the accident. By this time, the pursuer had again sought the assistance of the Out of Hours Service for back pain. This was on 7 April 2013. Dr Metcalfe's conclusion, on balance of probability, was that the pursuer has a longstanding, relatively minor sacroiliac joint disturbance, possibly related to a previous pelvic injury or to the pursuer's ulcerative colitis.

[23]      Dealing with what is, at its highest, a "relatively minor soft tissue injury", and having regard to the fact that neither expert saw the pursuer until some time after the accident, there is little assistance to be found in either medical report. It is, however, telling that each proceeds on the basis of the bus braking "suddenly" or "sharply". I have found that it did not. That, taken with the pursuer's longstanding history of lower back problems and his failure to mention back pain to his G.P. following the accident causes me to conclude that the pursuer did not sustain an injury to his lower back in the accident.

[24]      In relation to travel anxiety, the position is better for the pursuer in that he reported that to Dr McAlpine at the consultation on 8 December 2011. The pursuer had a longstanding history of anxiety. As long ago as August 1978, Dr Booth, a consultant psychiatrist with the Northern District of the then Greater Glasgow Health Board, noted that the pursuer suffered from "quite a severe anxiety state" (see no. 6/1 of process at page 221). In his report dated 11 September 2012 (no. 5/2 of process), Mr Michael O'Neill, consultant clinical psychologist, records further events in 1980, 2004 and November 2010. I have no hesitation in concluding that the pursuer has a longstanding history of anxiety. Mr O'Neill concludes that the pursuer suffered the symptoms of travel anxiety (DSM-IV Anxiety Disorder not otherwise specified) as a consequence of the accident.

[25]      In relation to the travel anxiety, Dr Metcalfe's report (no. 6/2/3 of process) adds little, other than to note that the pursuer declared that his nerves are bad; that he finds the stress and strain of the legal process to be particularly unsettling; and that he spends a good deal of time ruminating. Dr Metcalfe's report does not contradict that of Mr O'Neill.

[26]      On my reading of his report and on consideration of his evidence, Mr O'Neill's diagnosis that the pursuer suffers the symptoms of travel anxiety (DSM-IV Anxiety Disorder not otherwise specified) as a consequence of the accident proceeds entirely upon the basis of the pursuer's account.

 

[27]      In a number of respects, I found the pursuer to be an unreliable witness. I refer, for example, to paragraphs [16] and [19] above. His evidence as to his back condition pre-accident was contradictory (see paragraph [20] above). In his evidence, he took issue with the report of his own expert, Mr Blyth (no. 5/1 of process at page 2 where Mr Blyth recorded the pursuer as telling him that he was not wearing a seat belt at the time of the accident).

[28]      I do not accept the pursuer's evidence in relation to travel anxiety. That claim is not supported by anything other than the pursuer's own account. I do not accept the pursuer's account as credible or reliable. On that basis, I have found that the pursuer did not suffer the symptoms of travel anxiety (DSM-IV Anxiety Disorder not otherwise specified) as a consequence of the accident.

Solatium

[29]      In light of my decision that the pursuer did not sustain any form of injury in the accident the issue of solatium does not arise. Nevertheless, it is appropriate that I record my views, in light of the submissions made to me.

[30]      The pursuer's solicitor contended that I should proceed on the basis that the pursuer sustained an injury to his lower back which subsisted for 21 months (i.e. until August 2013). In relation to the psychiatric injury, I should proceed on the basis that the pursuer suffered the symptoms of travel anxiety (DSM-IV Anxiety Disorder not otherwise specified) as a consequence of the accident and that those symptoms still persist, albeit the pursuer has not sought treatment for them.

[31]      In relation to the psychiatric injury, I was referred to Chapter 4 of the Judicial College Guidelines (11^th Edition) (Psychiatric and Psychological Damage) and in particular part (A)(d) Less Severe, which would give an award in the range of £1,238 to £4,730.

[32]      In relation to the physical injury, I was referred to Chapter 7 of the Judicial College Guidelines (11^th Edition) and in particular part (B) Back Injuries (c) Minor paragraph (ii), which would give an award in the range of £1,705 to £6,380. In addition I was referred to Pollock v Westall (16 July 2010), in which Sheriff Hammond made an award of £2,750 (which would equate to an award of £3,150 today, allowing for inflation) and to Buxton v Direct Line Insurance plc (29 December 2010), in which Sheriff Holligan made an award of £2,000.

[33]      The pursuer's solicitor submitted that as the pursuer's injuries had subsisted for a longer period in this case, an award of £3,500 for both the psychiatric and the physical injury would be appropriate. He submitted that interest should run on that amount at the rate of 4% per annum from the date of the accident until August 2013 (when the pursuer recovered from his physical injuries) and at 8% per annum thereafter.

[34]      The defenders  solicitor contended that if I were to accept the pursuer's evidence, there was a basis for some pain having been suffered until the Christmas decoration incident (see paragraph [18] above), which was some 6 weeks post-accident. I was referred to the Chapter 7 of the Judicial College Guidelines (11^th Edition) and in particular part (B) Back Injuries (c) Minor paragraph (iii) as being the appropriate starting point, which would give an award in the range of a few hundred pounds to £1,705. The defenders solicitor submitted that an award under this head could be as low as £750.

[35]      The defenders solicitor made no specific submission on the quantification of the psychiatric injury, choosing to focus on that head of claim being entirely dependent upon the credibility and reliability of the pursuer. He submitted that if physical and psychiatric injury had been sustained by the pursuer that could be compensated for by an award of in the range of £1,000 to £2,000. The defenders solicitor adopted the pursuer's solicitor's submissions on the question of interest, save that it should run at the rate of 4% per annum until 1 January 2012 and at 8% per annum thereafter.

[36]      In light of the evidence and the submissions made on quantum, had I found in favour of the pursuer, I would have been satisfied that the defenders were correct in the valuation of the physical injury at £750. In relation to the psychiatric injury, had I found in favour of the pursuer, I would have awarded the sum of £1,250. I would have awarded interest at the rate of 4% per annum from 19 November 2011 until 1 January 2012, and at 8% thereafter.

Expenses

[37]      Parties were agreed that expenses should follow success. As I have assoilzied the defenders, I have found them entitled to the expenses of the cause and certified Dr Metcalfe and Mr Denton as skilled witnesses. I should add that had I found in favour of the pursuer, in light of the sum I arrive at in paragraph [36] above, I would have found the pursuer entitled to expenses on the summary cause scale and certified Mr Blyth and Mr O'Neill as skilled witnesses.   

Sheriff