At first blush the decision by Sheriff J Douglas Allan is enough to cause mild concern to pursuers’ agents fighting Colossus Tenders in low value soft tissue neck injury cases. However, on close reading all is not as it seems.

The proof proceeded on the basis of an agreed medical report confirming the pursuer suffered a muscle sprain causing neck pain, resulting in being off work for four or five days followed by a return to light duties for five weeks followed by gradual return to normality within six months, as well as associated back ache for six months. Solatium was assessed at £1,650.

This case appears to buck an increasingly consistent trend in soft tissue neck injury cases where duration of symptoms in the region of six months could reasonably result in solatium of up to £2,500. Recent cases tend to follow the decision in Pugh -v- Scott (2002 REP LR112) where £2,500 was awarded for a five month duration soft tissue whiplash injury. In the case of Symington -v- Milne (Edinburgh 4th May 2007) Sheriff Principal Bowen endorses the approach in the case of Pugh and indicates that awards for whiplash injuries may be proportionately higher than they were some years ago thereby reflecting a greater awareness of the debilitating effects of this type of injury.

It does not appear that the pursuer made a particularly favourable impression. Sheriff Allan expressed his concern about the nature and frequency of the pursuer contacting the GP’s out-of-hours service and Accident & Emergency, and concern the pursuer exaggerated the duration, severity and effect of the symptoms.

The only medical evidence was an agreed medical report from a general practitioner. It is not clear from the Judgement whether this report was prepared by the pursuer’s treating general practitioner or another independent general practitioner. In any event the medical report seems to be somewhat vague in relation to diagnosis (a muscle strain associated with the neck area) and the mechanism of the accident (which is not mentioned at all). The medical report does not use the expression “whiplash injury”. Sheriff Allan correctly points out this is a term known to relate to injuries to cervical structures when the head is moved violently in one direction and bounced back in the reverse direction. As the medical report did not mention the mechanism of the injury, Sheriff Allan felt it appropriate to distinguish this particular case from the majority of other recent Court decisions, most of which mention the term “whiplash injury” and accordingly did not feel compelled to follow awards in those cases.

Whiplash injuries are soft tissue neck injuries caused by a particular mechanism. It is not clear from the judgement why Mr Gray’s soft tissue neck injury, apparently giving rise to symptoms of similar severity and duration, should be valued differently from recent “whiplash” cases simply because it was caused by a different mechanism.

It seems there is a lesson here that it is dangerous for a pursuer to proceed with a quantum proof based upon agreed evidence from a GP alone, and certainly where the agreed medical evidence does not fully or properly deal with issues of diagnosis and causation.

The Sheriff accepted the defender’s submissions that best guidance can be derived from the Judicial Studies Board Guidelines and from the case of Fairlie -v- Thomson (Edinburgh Sheriff Court 27th August 2004) which is described as “a very similar case to the present one” and where solatium was assessed at £1,700. However, careful reading of the Judgement in the Fairlie case appears to suggest that award was based principally upon initial symptomology which resolved within six weeks only.

Further, the Judicial Studies Board Guidelines do not themselves distinguish between “whiplash” and separate soft tissue neck injuries caused by a different mechanism. The JSBG chapter on which the Sheriff relies makes reference to “minor soft tissue and whiplash injuries.”

It is clear that recent Sheriff Court decisions for such injuries go beyond the JSB Guidelines. Indeed it is interesting to compare this Judgement with another recent Judgement in the case Lee -v- Direct Line Insurance (Dunfermline 3rd March 2008) where Sheriff McSherry, when considering the JSBG’s states, “With regards to the JSB England and Wales Guidelines, the injuries sustained by Mr Lee would fall under the heading of a minor soft tissue and whiplash injury where the symptoms are moderate. If so, where there is full recovery between a few weeks and a year the range suggested is between £750 and £2,250. While this Guideline may be useful it does not enable me to disregard the circumstances of each particular case with a view to having a consistent approach. Consistency in approach is not assisted by overlooking awards made by Scottish Courts in similar cases.”

Perhaps pursuer’s agents can rest a little easier after all.

Fraser Simpson
Partner
Digby Brown