Scottish Sheriff Court Decisions

PD72/08

JUDGMENT OF SHERIFF JAMES KENNETH MITCHELL, Esquire, Advocate

in the cause

PETER D RUSSELL, Flat 3/2, 37 Kersland Street, Hillhead, Glasgow G12 8BP

PURSUER(S)

against

A JENKINS, 12851/2 Dumbarton Road, Glasgow G14 9UY

DEFENDER(S)

____________________

Act: Ms Coyle, Solicitor, Glasgow

Alt: Miss Keenan, Solicitor, Edinburgh

 

GLASGOW, 11 November 2008.

The sheriff, having considered the cause,

FINDS-IN-FACT:-

(1) The pursuer is Peter Russell, aged 24 years, who now resides at 1/2, 18 Baliol Street, Glasgow.

(2) The defender is A Jenkins, 12851/2 Dumbarton Road, Glasgow.

(3) On 21 June 2006, during the evening, the pursuer was travelling to train with the Glasgow University Rowing Club, of which he was a member. He was driving a Nissan Micra motor vehicle, registered number UBZ 8376, along Ballater Street, Glasgow. The defender was driving a Skoda Fabia motor vehicle, registered number SD54 XET, in a southerly direction along Commercial Road, Glasgow. As the pursuer approached the junction between Ballater Street and Commercial Road, the defender failed to give way and drove across the pursuer's path and collided with the front of the pursuer's motor vehicle.

(4) It is admitted for the purposes of this action only that the accident was caused through the fault and negligence of the defender.

(5) It is admitted for the purposes of this action only that as a result of this collision the pursuer has suffered loss, injury and damage.

(6) At the time of the collision the pursuer was wearing a seat belt and the motor vehicle in which he was travelling was provided with head rests.

(7) Immediately after the collision, the pursuer felt pain in the left medial aspect of his left knee and his low back. He suffered some seat belt pain over his right shoulder and several small facial cuts resulting from the airbag in his motor vehicle inflating and breaking the frame of his spectacles.

(8) An ambulance was summoned and the pursuer was taken to the Western Infirmary, Glasgow.

(9) At the Western Infirmary, the pursuer was advised that he had sustained soft tissue injuries and was provided with non steroidal anti-inflammatory drugs.

(10) The pursuer subsequently consulted with his General Medical Practitioner for more anti-inflammatory drugs and painkillers as he was suffering pain and having disrupted sleep.

(11) The pursuer accepted that his General Medical Practitioner's advice to see a physiotherapist. He engaged a physiotherapist and commenced treatment. He required about 10 sessions of treatment over the course of the next 12 months. The pursuer attended because he was suffering pain in his back and in his left knee. The physiotherapist found that two of the pursuer's vertebrae were out of line and these were re-adjusted by the physiotherapist.

(12) It is admitted that Nos. 5/1 and 5/3 of process are medical reports prepared by Mr Andrew Henry, Consultant Orthopaedic Surgeon, 15 Royal Crescent, Glasgow and contain a true and accurate account of the nature and extent of the injuries sustained by the pursuer as a result of the accident on 21 June 2006 and of symptoms from which the pursuer was suffering when examined by Mr Henry on 27 July 2007.

(13) As a result of the accident the pursuer sustained the following injuries:-

(i) a soft tissue injury to his knee. The swelling lasted for about two weeks after which the pain began to improve. The main symptoms of pain and discomfort in the pursuer's knee took not more than one month after the accident to fully settle. He walked with a limp for about one month.

(ii) considerable pain in his lumbar spine for about two weeks. Thereafter the pursuer had recovered sufficiently for him to be able to drive a motor vehicle with automatic controls. The main symptoms causing pain in the pursuer's back continued but took no more than six months to settle.

(iii) small facial cuts suffered by the pursuer, 3/4 in number, which healed within about a week.

(iv) pain in his right shoulder for 3/4 days as a result of being restrained by his seat belt at the time of the collision.

(14) The pursuer's continuing symptoms attributable to this collision and suffered in his knee and lumbar spine settled within at most six to nine months after the collision. It is admitted that any symptoms experienced beyond that period are not attributable to the accident.

(15) Prior to this collision the pursuer was not suffering from any injury. He had no left knee pain prior to the collision.

(16) The pursuer is a full-time student. He is 6 feet 8 inches tall. He is a keen rower, who, prior to this collision was an active member of the Glasgow University Rowing Club. In July 2003 he suffered a wrist injury when competing in the Henley Royal Regatta as a result of which he was unfit to row for about eight months. He had fully recovered from this injury prior to this collision.

(17) As a result of the injuries which he sustained in this collision the pursuer was unable to compete in the British National Rowing championships in July 2006. He was also unable to accept the invitation to row for Belfast Rowing Club during the summer university vacation in 2006.

(18) Prior to the accident the pursuer did rowing training about 12 times each week. Each session lasted between one/two hours.

(19) The pursuer was only able to return to restricted training after about four months once his back pain had improved. Because of the residual effects of the injury to his left knee, initially the pursuer could not do any training involving side to side movement. He was not able to run and carry out some weight exercise work. He was able to cycle and row.

(20) The pursuer was not able to resume full rowing training for nearly 12 months after this collision.

(21) The cost of replacing the pursuer's spectacles was £62.50

(22) A reasonable award for solatium in respect of the injuries sustained by the pursuer as a result of the collision is £3,000. It is also admitted that the pursuer is entitled to the sum of £62.50 in respect of replacement spectacles.

 

FINDS-IN-LAW:-

The pursuer having suffered loss, injury and damage by reason of admitted fault on the part of the defender is entitled to reparation from the defender therefor in the sum of £3,062.50 plus interest.

 

Therefore, Sustains in part the pursuer's third plea-in-law and the defender's third plea-in-law; Repels the fourth plea-in-law for the pursuer; Grants decree for payment by the defender to the pursuer of the sum of THREE THOUSAND AND SIXTY TWO POUNDS. 50 (£3,062.50) with interest on the sum of £3,000.00 at the rate of 4 per centum per annum from 21 June 2006 until the date hereof and thereafter at the rate of 8 per centum per annum until payment; with interest on the sum of £62.50 at the rate of 4 per centum per annum from 4 September 2006 until the date hereof and thereafter at the rate of 8 per centum per annum until payment and Decerns; Reserves meantime all questions of expenses; Appoints parties to be heard thereon on 2008 at 9.30 am within Glasgow Sheriff Court; Suspends extract of this interlocutor until after the lapse of 14 days from the date upon which liability for expenses is determined.

 

 

 

 

 

 

NOTE:-

[1] In this action of damages for reparation the pursuer sues the defender in respect of a road traffic accident which occurred on 21 June 2006.

[2] The action was commenced by acceptance of service on 6 June 2008. The parties were agreeable to proceeding in terms of the PI Pilot Procedure which operates in this court in respect of actions where the sum sued for is £10,000 or more. A Case Management Conference was assigned for 11 August 2008. Having explained the Personal Injury Pilot Scheme procedure and the right of either party to require a public hearing in court, the solicitors for the parties confirmed to me that they were content to proceed with the Case Management Conference conducted by telephone. Having discussed the case and as liability was admitted for the purposes of this action, it was agreed to fix a further Case Management Conference for 13 October 2008 to enable parties to complete enquiries, adjust the pleadings and to try and agree quantum of damages.

[3] On 13 October 2008, the pursuer's solicitor was awaiting instruction. At a further Case Management Conference on 16 October 2008 the parties were agreed that the record should be closed with the preliminary pleas being repelled. A proof restricted to the issue of quantum of damages payable to the pursuer was fixed and took place on 3 November 2008. Parties' solicitors agreed to dispense with the services of a shorthand writer for this proof.

[4] A Joint Minute of Admissions was tendered. This agreed that nos. 5/1 and 5/3 of process were medical reports prepared by Mr Andrew Henry, Consultant Orthopaedic Surgeon and contained a true and accurate account of the nature and extent of the injuries sustained by the pursuer as a result of the accident and of symptoms in which the pursuer was suffering when examined on 27 July 2007. It was also agreed that the pursuer's symptoms attributable to the accident settled within at most six to nine months post-accident. It was agreed that any symptoms experienced beyond that period were not attributable to the accident. Finally, it was agreed that the cost of replacing the pursuer's spectacles was £62.50 upon which interest should be applied at the rate of 4% per cent a year from the date of purchase.

[5] The pursuer gave evidence at the proof. No other evidence was led on his behalf. No evidence was led by or on behalf of the defender.

[6] The pursuer's solicitor submitted that the pursuer had given an entirely credible evidence and a clear history of events. There was no challenge of the pursuer's credibility or reliability in the course of the defender's closing submission.

[7] I regarded the pursuer as a pleasant young man, who listened carefully to the questions put to him and answered each of them in an open, straightforward and considered way. I accepted him as a credible and reliable witness. He did not appear to me to attempt to exaggerate the effects of the injuries which he suffered in the collision on 21 June 2006. I accepted his evidence as being credible and reliable. I accepted that he sustained soft tissue injuries, the effect of which prevented him from following and enjoying to the full his chosen sport of rowing for some months.

[8] In Macphail Sheriff Court Practice, 3rd edition, at paragraph 16.28 it is stated:

"A joint minute is a form of making judicial admissions, which are conclusive for the purposes of the action in which they are made, the joint minute constituting a contract whereby the parties accept as true the facts stated therein. It does not exclude consideration of admissions made in the Closed Record or of the terms of documents submitted therein to be genuine but, unless the contrary appears, it excludes all other or additional evidence upon matters contained in it and the construction of statements in it is subject to the decision of the court."

 

Reference may be made to the authorities cited therein and to Walker & Walker The Law of Evidence in Scotland at paras 11.21 & 2 and the authorities therein cited.

[9] Accordingly, whilst I would have proceeded upon the basis of the pursuer's unchallenged evidence, which I accepted as being credible and reliable, it is in part at variance with the terms of the Joint Minute and, in my judgment, as a matter of law, I have no alternative but to proceed on the basis of what the parties' solicitors have agreed in the Joint Minute of Admissions tendered before the court.

[10] In her closing submissions the pursuer's solicitor submitted that the pursuer had sustained a soft tissue injury to his back lasting nine months which required more than 10 physiotherapy sessions which had concluded by July 2007. He also sustained an injury to his left knee for which the main symptoms lasted between four and six weeks. In addition, he suffered a soft tissue injury to his right shoulder which lasted no more than one week. He also sustained facial cuts which healed within a week. The pursuer's solicitor invited a finding that the injuries prevented the pursuer training with his rowing club for a period of three months and his pre-accident training schedule for nine months.

[11] The defender's solicitor submitted that the nature and extent of the injuries suffered by the pursuer were contained within the Joint Minute. She submitted that having regard to the terms of agreed medical evidence the court should proceed upon the basis of the pursuer having sustained low back pain which improved after two weeks after which the pursuer was able to start driving. His condition further improved after three months when he returned to rowing and settled after six months. He continued to have aches at the rate of one incident per week. Any symptoms experienced beyond six to nine months were not attributable to the accident. The defender's solicitor submitted the pursuer had knee pain for not more than one month and right shoulder pain for three or four days. His facial cuts had healed within one week. All his symptoms had settled at most within six to nine months. There was no evidence any inconvenience having been suffered by the pursuer as a result of the accident.

[12] I proceeded to assess solatium on the basis of the facts found as set out above. As I have indicated, I am bound by the terms of the Joint Minute. However, where not regulated by the Joint Minute, I have felt able to proceed upon the pursuer's unchallenged evidence insofar as it is not inconsistent with the terms of the Joint Minute

[13] The pursuer's solicitor submitted that the pursuer should be found entitled to an award of £3,750, including the cost of replacing the pursuer's spectacles, with interest at the rate of 8 per cent a year from the date of the accident for a period of nine months. This she calculated at £225. She did not seek any further interest apart from interest at the judicial rate from the date of decree. However, I am bound by the terms of the Joint Minute regarding interest in respect of the cost of the spectacles.

[14] The pursuer's solicitor referred to a number of cases which gave an indication of the band of award for injuries which she submitted were of similar scope and nature. She referred to McQuarrie v McKinstray 2007 SLT (Sh Ct) 120; Lindsay v Walker, Linlithgow Sheriff Court, unreported, 15 June 2007; MacDonald v Bruce, Cupar Sheriff Court, unreported, 8 August 2008; Spencer v Baron, Edinburgh Sheriff Court, unreported, 4 February 2008; and Hunter v Gunn, Hamilton Sheriff Court, unreported, 8 May 2006. Reference was also made to Blackburn v Sinclair 1984, SLT 368.

[15] The defender's solicitor referred to Chapter 6(b) and (m) of the Judicial Studies Board Guidelines, 8th edition. She also referred to the decision in Gray v ASA Autohouse GMBH & Co, Edinburgh Sheriff Court, unreported, 13 March 2008; Quinn v Bowie 1987 SLT 575; and Ahad v Byrne, 2007, unreported 8/1/2007; Manchester County Court, all of which were relied upon as being 'broadly similar' or 'broadly comparable'. Reference was also made to Cowley v NCB, Lord Dunpark, 25 April 1975; Fairley v Thomson 2004 GWD 28-591; O'Connor v Haq [2007] CLY 3174, which was not available but where an award of £345 in respect of an knee injury was made.

[16] The defender's solicitor submitted that solatium was properly assessed at the sum of £1,800. She accepted that, in addition, the pursuer was entitled to recover the sum of £62.50 in respect of his spectacles. She stated that she was prepared to accept interest at the rate of 4 per cent a year should be awarded for a period of nine months from the accident.

[17] I have read all of the cases referred to and the submissions made in respect of them. The cases referred to by the pursuer were in the range of £2,500/£3,500 and those cited by the defender in the range of £1,470/£1850. Of the cases cited, I found the decision of Sheriff Vannet in McQuarrie v McKinstray (where the pursuer was slightly older and the injuries, although not identical, caused pain for a similar period); the decision of Sheriff D. Kelly in Lindsay v Walker (where the pursuer was older and the injuries and their effects less severe); the decision of the very experienced Sheriff Evans in MacDonald v Bruce (where the pursuer was considerably older and the effects of the injuries, although not all the injuries, were broadly comparable) and the decision of Sheriff Vincent Smith in Hunter v Gunn ( where the effect of the injuries appear more severe although age of female pursuer not clear) to be of the most assistance.

[18] I thought that the injuries found proved by Sheriff J.D. Allan in Gray v ASA Autohouse GMBH & Co for a pursuer of similar age were less severe: see his findings-in-fact 3-6. I considered that the whiplash injury to an older female pursuer found by Sheriff N.M.P. Morrison, QC in Spencer v Barron was not of assistance in the present case: see his findings-in-fact 6 and 7. I considered that the injury and the overall effects in Ahad v Bryne were less severe as the younger male plaintiff was able to resume playing football after seven weeks. I considered that the injuries found by Lord Cullen in Quinn v Bowie (No. 1) were less severe. Lord Cullen was not satisfied that the pursuer's continuing absence from work some ten weeks after the accident was caused by the continuing effects of the injuries sustained.

[19] However, although the decisions in broadly similar cases provide some useful guidance on the appropriate level of award, each case must turn on its own particular facts and circumstances. Taking full account of the circumstances which are admitted or proved here, I assess solatium at £3,000, all of which is attributable to the past. In addition the pursuer is entitled to the cost of his spectacles. As interest in damages is a discretionary matter, I have tried to make an appropriate award, although I am bound by what has been agreed in the Joint Minute in regard to the pursuer's spectacles.

[20] I am indebted to both the parties' solicitors for their careful submissions and reference to recent reported decisions. As requested, I have appointed a hearing on expenses.