Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

SC535/10

JUDGEMENT of SHERIFF WILLIAM HOLLIGAN in the cause Ms SARA BUXTON, residing at Flat 19, 15 Elgin Terrace, Edinburgh, EH7 7NW Pursuer against DIRECT LINE INSURANCE plc, a company incorporated under the Companies Acts and having a place of business at 14/18 Cadogan Street, Glasgow, G2 6QN Defenders

Edinburgh : 29^th December 2010

[1] This is claim for damages arising out of a road traffic accident between two vehicles. The pursuer was a driver of one vehicle. The defenders are the insurers of the driver of the other vehicle involved in the accident. The accident occurred on 29^th July 2009. Liability is admitted. The pursuer's claim for inconvenience is agreed in the sum of £50 pursuant to a joint minute lodged in process. The only issue between the parties is the amount of damages by way of solatium to which the pursuer is entitled.

[2] The evidence comprised some brief oral evidence from the pursuer (who was not cross-examined) and a joint minute. I have no reason not to accept her evidence. In short, on the morning of 29^th July 2009 the pursuer was driving to work along the A90. The vehicle driven by the defender's insured moved from one lane to another and struck the pursuer's vehicle. The pursuer was wearing a seat belt. The pursuer is a student. She also works part time in a supermarket. In terms of the joint minute the parties agreed that a medical report prepared by Dr Mark Burgin (number 5/1 of process) represents the evidence of the doctor and is to be held as equivalent to the author's oral evidence. Parties also agreed that the terms of the report represent an accurate description of the nature and extent of the injuries sustained by the pursuer and her treatment and prognosis. It is also agreed that the pursuer made a full recovery from the injuries sustained in the accident within 6 months of the date thereof.

[3] In terms of the report the pursuer was sitting in the driver's seat of her vehicle when the collision occurred. The force of the impact was mild to moderate. She was thrown from side to side. She sustained low back pain and also travel anxiety, feeling panicky, wary and stressed since the accident. She did not attend the accident and emergency department of any hospital after the accident. She attended her own general practitioner on one occasion. She has taken Tramadol, Paracetamol and Ibuprofen. She also underwent five to six sessions of physiotherapy. She was off work for 1 day. She found reaching and lifting painful. Under the heading of "sleep" it is said that the pursuer "suffered from discomfort due to back pain". She found her movement at work was restricted because of pain. She used to go snowboarding once a week but that was reduced to once a month because of back pain. The low back pain settled within 6 months of the accident. Her travel anxiety settled within 4 months of the accident.

[4] For the pursuer Mr Harper submitted that an appropriate award by way of solatium would be £2,500. For the defender, Miss Devlin submitted that an appropriate amount would be £1,500. Both agents referred me to a number of authorities. During their submissions they sought either to rely or to distinguish the various decisions. I summarise the authorities as follows:-

Pursuer's authorities

Frame v Churchill Insurance Company Limited 16^th November 2009. Dundee Sheriff Court. Road traffic accident neck, right shoulder and upper back pain - whiplash injury - analgesia - absence from work - full recovery within 6 months - £2,400.

Clark v Young 29^th April 2008. Aberdeen Sheriff Court. Road traffic accident - motorcycle- pain in neck and shoulder - absent from work 1 week - full recovery 7 months after the accident - solatium £2,000.

Adams v Wilson 16^th April 2008 Paisley Sheriff Court. Road traffic accident - soft tissue injuries to head, left shoulder and muscles of the leg. Full recovery within 6 months of the accident. Solatium £2,000

Moir v Wilson 1^st July 2002. Kilmarnock Sheriff Court. Road traffic accident - pain in neck, back and shoulders. Whiplash injury. Full recovery after 7 months. Inability to attend keep fit classes for 4 months. Solatium £3,000.

Pugh v Scott 20^th May 2002. Edinburgh Sheriff Court. Road traffic accident - whiplash injury to neck. Full recovery within 5 months. Solatium £2,600 (the report is not entirely clear as to the amount)

Spencer v Baron 4^th February 2008. Edinburgh Sheriff Court. Road traffic accident - whiplash injury to neck. Substantial recovery after 6 months. £3,500

Symington v Milne 4^th May 2007. Edinburgh Sheriff Court (Appeal). Accident. Injury to neck. Recovery within approximately 6 months. Solatium increased on appeal from £1,250 to £2,250.

Brown v Forsyth and the Motor Insurers Bureau (undated). Aberdeen Sheriff Court. Road traffic accident - pain in neck and shoulders. Whiplash injury. The medical situation in this case was somewhat complicated. Solatium £2,500.

Defender's authorities

Tennant v Direct Line Insurance 25^th September 2009. Kilmarnock Sheriff Court. Road traffic accident. Injury to neck, back, shoulders and upper arms. Travel anxiety for 6 months, recovery after 13 months. Solatium £2,000.

Muir v Direct Line Insurance 9^th July 2008. Linlithgow Sheriff Court. Road traffic accident. Neck injury resolved in 12 months. Absence from work. Travel anxiety for 20 weeks. Solatium £2,500.

Ashton v Skews 19^th January 2009 (Appeal). Edinburgh Sheriff Court. Road traffic accident. Whiplash injury. Symptoms resolved within 9 months. Solatium £2,000 (increased from £1,500).

Skillen v ING Limited November 2009. Livingston Sheriff Court. Road traffic accident. Whiplash injury and soft tissue injury to lower back exacerbating pre-existing degenerative changes. Full recovery within 10 months of the accident. Solatium £1,800.

Valentine v McGinty 20^th May 2008. Linlithgow Sheriff Court. Road traffic accident. Whiplash injury. Recovery 1 year. Inability to participate in hobby. Solatium £2,250.

Hall v Cockburn 16^th February 2009. Ayr Sheriff Court. Road traffic accident. Soft tissue injury to arms, chest, legs and a whiplash injury to the neck. Severe bruising. Assistance with normal activities of daily life. Resolution of symptoms within 12 months. Solatium £2,250.

[5] On the one hand, all claims for damages can be said to be fact specific and, as the authorities disclose, involve an element of subjectivity. It takes little ingenuity to identify points of distinction between the various authorities. On the other hand, as Sheriff Principal Bowen QC observed in Symington v Milne it is important that there should be a degree of consistency in awards of a similar nature. Inevitably, where, as here, the injuries are minor, the differences in amounts awarded do not involve significant sums of money.

[6] The core facts in this case are: low back pain; use of painkillers; 5 to 6 attendances at physiotherapy; one day off work; pain during reaching and lifting; some discomfort during sleep; reduction and frequency of snowboarding from once a week to once a month; travel anxiety which resolved in 4 months; medical symptoms resolved within 6 months. The pursuer is young. I do not consider that a lengthy discussion of all the authorities I was referred to is particularly helpful. It seems to me the best that could be said is that there is a range and that within that range it is matter of facts and circumstances. Of all the decisions, those of Sheriff Principal Bowen QC are of particular importance within this sheriffdom. In Symington v Milne, the sheriff awarded damages in the sum of £1,250. Sheriff Principal Bowen QC held that was too low and substituted a sum of £2,250. In passing, the Sheriff Principal commented that an award of £2,600 in the case of Pugh v Scott was on the high side. In Ashton v Skews the sheriff awarded £1,500 by way of damages which the Sheriff Principal held was too low and substituted a sum of £2,000. Of all the decisions referred to only one award , Skillen v NIG ,is for a sum lower than £2000. On a closer reading of the report it would appear the sheriff had difficulty accepting the pursuer's evidence, particularly in relation to what was actually proved by way of injury and how it affected her. Also the pre-existing condition was held to be a factor bringing the damages down. It appears to me that the cases of Moir and Spencer lie towards the higher end of the range and I do not consider this is a case which calls for such an award. In all of the circumstances I am of the view that an award of £2,000 by way of solatium is an appropriate sum to which there falls to be added the sum of £50 by way of damages for inconvenience. It was also agreed that interest should run at the rate of 4% from 29^th July 2009 for 6 months and thereafter at the rate of 8%. I assign a hearing in relation to expenses for 9.30am on 14^th January 2011.