SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

A1730/05

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	MS K M HUTTON RESIDING AT 42 DURISDEER DRIVE, HIGH EARNOCK, HAMILTON ML3 8EX
	Pursuer and Appellant
	against
	SIMON JACK RESIDING AT 121 MURRAY DRIVE, STONEHOUSE, LARKHALL ML9 3NH
	Defender and Respondent

 

Act: M Callaghan, of Messrs Golds

Alt: S Jack, personally present,

 

 

 

HAMILTON: 19 December 2006

 

The Sheriff Principal, having resumed consideration of the cause, sustains the appeal and recalls the Sheriff's interlocutor of 9 March 2006 complained of; deletes the first sentence in finding in fact 8 and substitutes in lieu "She suffered pain in her left shoulder as a result of this accident. In particular she found carrying bags on her left side sore." and adds at the end of finding in fact 8 "She did not engage in recreational swimming during that period."; of new sustains the second plea in law for the pursuer and appellant to the extent of finding the defender and respondent liable to the pursuer and appellant in the sum of £1,250 with interest at the rate of eight per centum per annum from 1 December 2003 until payment and grants decree accordingly; finds the defender and respondent liable to the pursuer and appellant in the expenses of the action and of the appeal on the summary cause scale as assessed; allows an account thereof to be given in and remits same when lodged to the Sheriff Clerk to assess and to report.

 

 

 

NOTE:

 

Background to the appeal

 

1.             The Sheriff heard proof in the action on 7 March 2006 and on 9 March 2006 pronounced an interlocutor finding the respondent liable to the appellant in the sum of £750 with expenses restricted to £75 on the small claims scale. He further found the appellant liable to the respondent in the expenses of the action as taxed. He attached a note to his interlocutor. Against that interlocutor the appellant now appeals.

 

2.             This action arose out of a road accident which occurred on 2 September 2003 when a vehicle driven by the respondent struck the rear of the appellant's stationary vehicle. As a result of the impact the Sheriff found that the appellant sustained certain injuries and assessed solatium at £750. The action was raised as an ordinary action for the sum of £1,675 being solatium of £1,500, services under section 8 of the Administration of Justice Act 1982 of £100 and inconvenience of £75.

 

3.             Two matters call for immediate comment. First the sum sued for, allowing for the maximum claimed for solatium, was only marginally over the summary cause limit. This exposed the appellant to the risk of recovering expenses at less than the ordinary scale if a sum less than £1,500 was awarded. If that happened, he would be personally liable to fund his solicitors in respect of expenses not recovered. I suggest it is unusual for a solicitor to advise a client to proceed on that basis. In my view it would have been prudent, if the solicitors view was that the maximum figure for solatium was £1,500, and in the knowledge that an award of solatium was a discretionary matter, to raise an action in the summary cause court rather than the ordinary court. Secondly, the respondent advised me that he was insured at the time of this accident and that he advised his solicitor of this. I find it unusual that the matter was not reported to the respondent's insurance company who would, in the usual course, take over the conduct of a claim of this nature and meet any damages and judicial expenses awarded against the respondent. By not involving his insurance company, the respondent has exposed himself personally to any award of damages and expenses made by this court. Again, a prudent course would have been to allow the respondent's insurance company to become involved.

 

4.             I propose to deal with the appeal under the following heads.

A.            Value of the appellant's case B.Claim for services under section 8 of the Administration of Justice Act 1982 and claim for inconvenience C.            Interest D.            The Sheriff's conduct E. Expenses I deal with these in turn:

 

A Value of the appellant's case

 

5.             There are a number of grounds of appeal in this case. The principal one concerns the value of the appellant's case. It is said that the Sheriff failed to place proper weight on the period during which the appellant suffered pain, a period of approximately twelve weeks, when arriving at a figure for damages. Assessing a figure for solatium involves the exercise of a Sheriff's discretion. I refer to Macphail para 18.110:

"It is not the function of the appellate court to interfere with a Sheriff's exercise of his discretion merely upon the ground that the appellate court would have exercised its discretion differently or to proceed to exercise independent discretion of its own. The appellate court's function is initially one of appeal only. It may set aside the judges exercise of his discretion only for certain reasons ..." In para 18.111 the learned author discusses these reasons and concludes: "The appellate court may intervene ... if his conclusion is such that, though no erroneous assumption of law or fact can be identified, he must have exercised his discretion wrongly. Expressions which have been judicially employed to describe such a conclusion include "completely" or "plainly" wrong; "wholly unwarranted"; "manifestly inequitable"; "unreasonable"; and "unjudicial".

 

6.             I consider two questions are relevant in arriving at a decision as to whether the decision of the Sheriff might be described as "plainly wrong" or "unreasonable". These are (a) having regard to the case law and other relevant material available, what is a proper and reasonable bracket for solatium in respect of the injuries suffered by the appellant in this accident and (b) did the sum awarded by the Sheriff fall within that bracket? If the figure awarded falls within that bracket, the appeal fails. If it does not, it is open to the appeal court to review the award and substitute its own figure for that awarded by the Sheriff. I refer to Macphail para 18.116:

"... The court has regard to the general run of awards and to the upper and lower limits within which, in the court's view, the award should have been made on the facts of the particular case. ..."

 

7.             The Sheriff found in fact as follows:

"On 2 September 2003 ... The attention of the defender was momentarily distracted and his vehicle came in contact with the vehicle driven by the pursuer which was in front of him. The pursuer was jolted forward. ... Later that morning the pursuer attended Hairmyres Hospital where she complained of pain in her neck. She complained of stiffness in her left shoulder. On examination the pursuer was found to have tenderness of the left trapezium muscle with a full range of movement of the left shoulder and no bony tenderness. On further examination of her neck she was found to have no bony tenderness to the cervical spine with a good range of movement of the neck. She was diagnosed as having soft tissue injury to the left trapezium muscle. She was advised to take painkillers. She was discharged with no follow up. She did not attend her GP in relation to this soft tissue injury. She was not off work for any time. Over the next few days she found carrying bags on her left side slightly sore. The pain subsided by mid-November 2003. By the end of November 2003 she was fully recovered."

 

8.             In his note the Sheriff stated:

"The case is at the lowest end of awards for soft tissue injury and subsequent pain ... The present case involved insignificant physical injury to the pursuer. There was little by way of ongoing pain. She did not have to stop working. Her life was not disrupted in any material way ..."

 

9.             I was referred by solicitor for the appellant to the notes of evidence regarding the injury suffered by the appellant as follows:

Page 4/13 "I got jolted forward." Page 4/18 to 19 "I just got out, and it was may be an hour or so later I felt my shoulder tender." Page 5/3 "It happened so quick. I was shook up a bit." Page 5/11 to 5/14 "My shoulder was feeling a bit sore, and I went to one of the first aiders at work, and he took me to the hospital to have it seen to." Page 6/4 to 6/6 (in hospital) "they said there was some soft tissue damage, but all I could take for that was painkillers." Page 6/12 to 6/15 "My shoulder was sore throughout the day, and throughout that week. I was taking painkillers on a regular basis. Page 6/16 to 7/14 "Q. Can you tell us how you were feeling over the next few days and weeks? A. I just found carrying bags on that side, my arm was sore, when I was shopping and whatever. I could feel the pain going up and up. Q. Over what time did you take painkillers? A. Up to about mid November or so. Q. That was for the pain in your shoulder. A. Yes. Q. Would that be approximately 10 weeks after the accident? A. Yes. Q. Until you stopped taking painkillers were you still suffering pain in your shoulder, up until mid November? A. Yes. Q. Was it buprofen you were taking? A. Ibuprofen, Yes. Q. After mid November did you stop feeling pain altogether? A. Yes. It gradually went away after that time. Q. When would you say you made a full recovery? A. I would say by the end of November I was fine." Page 7/15 to 20 "Q. Where there any hobbies or other activities you were able to enjoy prior to your accident that you were not able to enjoy so much after it? A. I would occasionally go swimming, and I didn't do any swimming throughout that time." Page 13/14 to 16 "Q. They did not explain their advice given to you to take Ibuprofen? A. No. Q. How long did you take this? A. Until the pain went away." Page 14/17 to 15/5 "Q. You said your shoulder was sore throughout the day: was it sore throughout that week really? A. It was there constantly that full week. Q. Were you suffering pain constantly that week? A. Yes. Q. Were you taking pain killers constantly that week? A. Yes Q. After that week did the pain begin to ease? Q. No I would say after two weeks it was may be every other day. Then towards the end it was when carrying bags I could feel a shooting pain, and I didn't have the same strength." Page 15/11 to 15/17 "Q. Was it the case that after the first week you only occasionally experience pain, and that was when you took Ibuprofen then? A. No. I was experiencing pain till mid November. Q. You took pain killers up to mid November? A. Yes." Page 16/2 to 16/6 "When did you decide you wished to pursue a claim for the injuries you sustained? When did you feel "I am going to put a claim in for the injury"? A. Because of the discomfort."

 

10.         I have to say that, having considered these sections of the evidence, I cannot agree with the conclusions of the Sheriff that the present case involved insignificant physical injury to the appellant and that there was little by way of ongoing pain. It is clear that her shoulder was sore following the accident on 2 September 2003. The sections of the notes of evidence which I have set out indicate, in my view, that the appellant suffered pain as a result of the accident until the end of November 2003 and, in particular, towards the end of that period, when carrying bags, she felt a shooting pain. She stopped taking pain killers in mid November 2003 and had made a full recovery by the end of November 2003. The Sheriff does not conclude that he finds the appellant an untruthful or unreliable witness. While it may not have been his intention, the Sheriff's findings in fact

"... Over the next few days she found carrying bags on her left side slightly sore. The pain subsided by mid November 2003. By the end of November 2003 she was fully recovered." which are his only findings in fact in relation to the nature of the appellant's injuries, as opposed to her complaints at the hospital, are capable of the interpretation that it was only when carrying bags that the appellant suffered pain. That was clearly not the case. Her evidence was that she suffered pain as described by her during a three month period and was unable to take part in her recreation of swimming. I do not regard that suffering of pain as a result of a soft tissue injury over a three month period to be insignificant.

 

11.         In these circumstances I have deleted the first sentence in finding in fact 8 "Over the next few days she found carrying bags on her left side slightly sore". I have inserted in lieu "She suffered pain in her left shoulder as a result of the accident. In particular she found carrying bags on her left side sore.". Finding in fact 8 continues "The pain subsided by mid November 2003. By the end of November 2003 she was fully recovered." In my opinion the amendment which I have made properly narrates the evidence which was given by the appellant and which the Sheriff did not dismiss as incredible or unreliable. I have also added a sentence at the end of finding in fact 8 - "She did not engage in recreational swimming during that period". Again, this is in line with the evidence of the appellant which was not rejected by the Sheriff. I find authority for the course I have taken in para 18.106 of Macphail Sheriff Court Practice:

"... Thus the appellate court may reverse his judgment where the judge has ignored an important body of evidence without adversely commenting on the credibility of the witnesses. ..."

 

12.         I was referred, as was the Sheriff, to the guidelines issued by the English Judicial Studies Board incorporated in full in McEwan and Paton on Damages for Personal Injury in Scotland. In the chapter on "Orthopaedic Injuries" and in particular "Neck Injuries" the guidelines state:

"There is a very wide range of neck injuries. Many are found in conjunction with back and shoulder problems ... At the lowest level, claimants may suffer a minor strain, may not have time off work, and may suffer symptoms for a few weeks, justifying as little as £750." The guidelines then consider a range of figures for damages under (a) severe (b) moderate and (c) miner. Dealing in the section "minor" the guidelines provide "minor soft tissue and whip lash injuries and the like where symptoms are moderate ... with a full recovery between a few weeks and a year - £750 to £2,500." The Judicial Studies Board in England, having studied awards made by the courts took the view that the lowest end of the scale would involve a minor soft tissue injury, where symptoms were moderate and a full recovery took place within a few weeks. They expressed the view that such a case would attract an award of £750.

 

13.         I was referred to a number of cases which I set out at follows:

(1) Bagley v Phillips 2005 CLY 3135. In that case in Birkenhead County Court the injuries suffered by the plaintiff were described as follows: "A few days after the accident the pain had radiated to his left shoulder. B's neck was quite painful for the first week after the accident, during which time he took regular doses of Ibuprofen and paracetamol. His sleep was interrupted for the first few nights after the accident. Two weeks after the accident his neck pain had improved. He continued to feel occasional pain at the back of his neck, but was pain free five to six weeks after the accident ... Having considered the preface to the JSB Guidelines (seventh edition) the judge held that a period of five to six weeks was more than a few weeks and awarded damages of £1,000." Applying the basis of that case to the present case where it was twelve weeks, rather than five to six weeks before the appellant was symptom free, it would appear there is scope to award substantially more than £1,000 in this case.

(2) Choudhury v Rashid 2004 4CL 308 in Bradford County Court where the plaintiff's injuries were described as follows:

"After two days he developed pain in the right side of his neck radiating to the shoulder. He self medicated with analgesic and anti-inflammatory tablets and therefore did not feel it necessary to seek medical advice. The pain in his neck and right shoulder worsened over a number of days following the accident, but then slowly improved and full recovery was reached one month after the accident. C's social and domestic duties were not affected by the injuries sustained. However, C did feel a bit down for several weeks following the accident but there was no need for any medication and no other complications were recorded. General damages of £1,100 were awarded." Again, in that case £1,100 was awarded in circumstances where there was a full recovery one month after the accident. This case should attract a higher figure.

(3) Armstrong v Brake Brothers (Frozen Foods) Limited 2003 SLT Sh Ct) 58 where Sheriff Principal Bowen described the appellant's symptoms as: "In substance what he said was that he suffered anxiety for about twenty four hours, that pain and stiffness in his neck developed seven hours after the accident; that he did not attend for medical treatment but took paracetamol for pain relief, and that the symptoms settled after about six days. It was, in summary, a whip lash injury at the lowest end of the scale." He commented "On the other hand I consider that there is a danger in understating the value of a claim for whip lash injuries. A stiff neck can be a most painful and debilitating condition even if it lasts for only a few days. Some individuals are able to bear this stoically without resort to medical treatment in the hope that the symptoms will clear up as they often do. ... My own figure would be £350. ..." It was submitted by solicitor for the appellant that that case involved an injury which settled after six days. If £350 was thought to be reasonable for six days pain, a sum very much in excess of £750 ought to be awarded in the circumstances of this case where there were symptoms for three months.

(4) Yule v Ritchie Dunfermline Sheriff Court 15 June 2005 the pursuer experienced severe back pain the next day. There was a shooting pain emanating from the base of his spine. There was acute pain that day and on the following days but the pursuer became accustomed to it. Three weeks after the accident, the pursuer's symptoms had almost disappeared although, for months after the accident, he experienced pain on sitting or standing in one position for a period and he could not lift heavy weights. A year after the accident all his symptoms had disappeared. In awarding £1,000 Sheriff Simpson said: "In my view, this claim for solatium is worth £1,000. The really significant symptoms lasted for only two or three weeks. Thereafter matters improved until there was a virtually full recovery in six weeks. The symptoms that continued for some months thereafter can best be categorised as nuisance value only ..."

(5) McGrath v McGee 14 February 2006 Sheriff Normand Glasgow Sheriff Court the injury was described as causing the pursuer significant pain and immobility. The pursuer was partially disabled for two weeks and suffered pain and discomfort for about eight weeks, by which time he had made a full recovery. He undertook no domestic chores. He was unable to go swimming with his daughter. His wife required to undertake all shopping duties, grass cutting, gardening and increased child care. The Sheriff awarded £1,400 for solatium. I was referred to three cases mentioned by Sheriff Normand in his note in McGrath v McGee supra as follows: (6) Farley v Brown 2001 5QR 16 (County Court Lambeth). In that case damages of £2,000 were awarded where the pursuer suffered a minor whip lash injury from which she recovered within six to eight weeks." (7) Fairley v Thomson unreported Edinburgh Sheriff Court 2 September 2004. That case involved a whip lash injury where the pain cleared up and the pursuer resumed normal activities after approximately six weeks. The pursuer was awarded £1,750. (8) Clark v Stoddart unreported Glasgow Sheriff Court 9 September 2004 the pursuer in that case was also awarded £1,750 in respect of a whip lash injury the symptoms of which took up to three months to settle completely.

 

14.              I have come to the view that a proper and reasonable bracket for the injuries suffered by the pursuer and appellant on the basis of the information before me and to which I have referred, would be £1,000 to £1,750. I attach significance to the Judicial Studies Board in England's guideline to the effect that £750 is an appropriate figure for a minor soft tissue injury where the symptoms are moderate with full recovery in a few weeks. I consider that is a proper and reasonable guideline. I consider the judge in Bagley v Phillips supra was correct to consider five to six weeks to be more than "a few weeks". In my opinion this was a significant injury. The appellant suffered pain in her shoulder for some three months after the accident and during that three month period she had difficulty carrying bags and was not able to enjoy recreational swimming. When I consider all the information available to me, I think a bracket of £1,000 to £1,750 is reasonable.

 

15.              It follows from that conclusion that I consider the Sheriff was wrong to equiperate this case with the lowest end of the English Judicial Studies Board guidelines. Having considered all the materials which I have set out above I consider the Sheriff's award of £750 is unreasonable and should be reviewed. I am entitled in these circumstances to substitute my own figure for solatium for that awarded by the Sheriff. My own figure for solatium in this case is £1,250. I accordingly uphold the appeal and grant decree for £1,250.

 

B Claim for services under section 8 of the Administration of Justice Act 1982 and claim for inconvenience

 

16.              Solicitor for the appellant indicated he did not insist at the proof on his claim for services under section 8 of the Administration of Justice Act 1982. As far as inconvenience was concerned there was evidence that the appellant had to make telephone calls to her insurance company to report the accident. Although she did not intend to make a claim on her policy, she was required by the terms of her policy to report the accident to them. I was informed the insurance company were not supporting her in this case. Although there was no damage to either vehicle and the only issue was the appellant's injuries, it was suggested that there should be a claim for the inconvenience suffered by her in having to deal with her insurance company. In my opinion that issue is in the circumstances de minimis and I am not prepared to make any award under that head. The Sheriff had not recorded any submissions being made to him on this matter.

 

C Interest

 

17.              The Sheriff did not grant interest on his award. There is no mention of this issue in the Sheriff's note and I can only surmise that he was not moved to grant interest although it is craved. This appeal has opened up the whole case. It is accordingly open to me to consider an application for interest as craved and I am prepared to do so. I think it is reasonable that I should accede to the motion made to me by solicitor for the appellant that I grant interest at 8% from 30 November 2003, when the claim for solatium crystallised, until payment.

 

D. The Sheriff formed an inappropriately and unreasonably antagonistic attitude towards the agent for the pursuer and he had formed a view of the case prior to the hearing of evidence

 

18.              It is clear from the Sheriff's supplementary note that at the outset of this case he expressed concern that the case took the form of an ordinary action. He indicated that this was a matter which he would look at when it came to the issue of expenses. It appears to me that the Sheriff was expressing the very concerns about the form of action which struck me when I first read the papers. When I made similar comments to solicitor for the appellant at the appeal hearing, he explained to me that he had not drafted the pleadings in this case and had only come into the case to conduct the proof. Be that as it may, I consider the comments made by the Sheriff, which were on the lines of my own comments, were quite proper. The Sheriff records that these comments were made by him without his having formed any view of the merits of the case. I repeat my view that to raise an action for £1,675, with a maximum figure sought for solatium of £1,500 in a situation where a decision on damages is a discretionary matter, places an unacceptable risk on an appellant of being personally liable in substantial irrecoverable expenses to his solicitor if an award on the ordinary scale is not made.

 

19.              Secondly, there appears to me to have been a misunderstanding as to the background surrounding the motion made by solicitor for the appellant for a short adjournment to allow him to cancel the appellant's medical witness. The appellant's agent explained to me that the respondent's agent only advised him at the moment the proof was about to start that his client was prepared to agree the medical evidence. He had sought to have the medical evidence agreed prior to the proof but had been told that it was not capable of agreement. Whatever was said in court, it is clear from the terms of the Sheriff's supplementary note that he was not aware that this was the position. The Sheriff decided that, standing the fact that both solicitors had been in his court for some time before the case started, there had been ample opportunity for the witness to be cancelled. He took the view that the business of the court required to proceed. This was a decision which the Sheriff was entitled to make in light of his understanding of the position.

 

20.              Although, for the reasons I have given, I have chosen to uphold the appeal in so far as it relates to the award for solatium, the Sheriff has set out in his original note the reasons for his reaching the decision which he did. In all the circumstances, I am quite satisfied that there are no grounds for my holding that the Sheriff's conduct indicated that he had acted in an inappropriate or unreasonably antagonistic manner towards the agent for the appellant or that he had formed a view of the case prior to the hearing of evidence.

 

Expenses

 

21.              The Sheriff awarded the sum of £750 with expenses of £75, being the small claims limit, in favour of the appellant. He also awarded the respondent expenses on the ordinary scale against the appellant. If £750 was an appropriate sum to be awarded, this is a decision the Sheriff was entitled to make.

 

22.              In view of the sum which I have awarded in respect of the injuries suffered by the appellant, I propose awarding the appellant expenses in respect of the action and the appeal on the summary cause scale as assessed. The respondent averred in Answer 5 that upon receipt of the initial writ he made an economic offer of settlement, without admission of liability, of £750. He founded on that offer. That offer did not include interest or expenses, and, in light of my award, it has been exceeded. It was open to the respondent and his advisers to lodge a tender to protect their position regarding expenses at any figure above £750. They chose not to do so and thereby incurred the risk of a higher award being made against the respondent involving expenses on either the summary cause or the ordinary scale. It is not for me to consider whether or not the respondent's insurers would have instructed the lodging of a tender if the matter had been reported to them. They would have been responsible for the whole conduct of the case and would have been obliged to pay any award in respect of the principal sum and expenses. The fact that the respondent saw fit not to involve his insurers in this matter is not a relevant issue in considering the question of expenses. In these circumstances I take the view that there are no grounds for making any award of expenses to the respondent on the basis of the award which I have now made.