Grant Grubb Against John Finlay
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2017] CSOH 81 |
| Court | Court of Session |
| Docket Number | PD452/14 |
| Published date | 24 May 2017 |
| Date | 24 May 2017 |
| Year | 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 81
PD452/14
OPINION OF LORD KINCLAVEN
in the cause
GRANT GRUBB
Pursuer:
against
JOHN FINLAY
Defender:
Pursuer: Bain QC, Hastie; Digby Brown
Defender: Smith QC, Springham QC; Clyde & Co
24 May 2017
Overview
[1] This is a personal injury action arising out of a collision between two motor cars in the forecourt of a Tesco petrol filling station on Kingsway in Dundee at about 7.15 am on Sunday 22 May 2011. Liability is admitted. Some matters were agreed by joint minute. Everything else was fiercely disputed.
[2] The case eventually came before me for proof. It lasted many days split over various diets to accommodate the availability of essential participants.
[3] Ms Bain QC and Mr Hastie appeared for the pursuer. They invited me to find in favour of the pursuer and to award damages of £182,880.80.
[4] Mr Smith QC and Ms Springham QC appeared for the defender. They invited me to find in favour of the defender. Indeed, they had invited me to dismiss the action in limine before hearing all the evidence, but I declined to do so for reasons stated at the time. If the action was not to be dismissed, the defender sought decree of absolvitor.
[5] Having heard all the evidence, and the submissions of counsel, I shall find in favour of the pursuer to the extent of pronouncing decree for payment by the defender to the pursuer of the sum of £7,321.32. That sum is in respect of solatium only and is inclusive of interest to date. I shall reserve all question of expenses. Parties can enrol for further procedure.
[6] I would outline the reasons for my decision as follows.
The background
[7] The pursuer sets out his averments in relation to the merits and quantum in Articles 4 and 5 of the Record which can be referred to for its full terms. Inter alia the pursuer admitted (at page 8 of the Record) that he lost his driving licence in September 2011 but under explanation that it related to a one-off incident when he drove his brother-in-law’s van which was not insured.
[8] The defender admits liability but averred that the collision occurred at a very low speed. “Any vehicle damage caused by the accident would have been minimal”. The defender’s averments on quantum are in Answer 5. They include, inter alia, that the sum sued for is excessive. Any C7 and C8 radiculopathy (i.e. nerve root damage) was not caused by the accident. The extent to which the pursuer can use his arm is at variance with the level of disability reported to experts. The pursuer is exaggerating his symptoms for financial gain. He gave no psychiatric history to Mr Roger. He stated he had not driven since the accident, with the exception of a courtesy car, but he was charged and convicted for driving without insurance in 2011. He was fit to increase his hours post-accident. He had been working on a stall in June 2011 when off work sick. He lied to his line manager and was dismissed for misconduct. So averred the defender.
[9] At the conclusion of the proof, both parties lodged detailed written submissions on the evidence (extending to 37 pages and 38 pages respectively). The defender also lodged a chronology of events (cross-referenced to productions). All of those documents can be taken as read.
Preliminary matters
[10] There are several preliminary matters to be dealt with.
[11] Firstly, I shall refuse the defender’s renewed motion to dismiss the action in limine. That motion is refused because, on the evidence, the defender’s submissions (based on alleged fundamental dishonesty on the part of the pursuer) are not well founded in fact (see further below). To dismiss the whole action would create injustice. The pursuer would be deprived of his (now proven) entitlement to damages. The defender would avoid his (now proven) responsibilities. The pursuer’s conduct does not merit such a course.
[12] Secondly, I will repel the pursuer’s objections to evidence in so far as based on lack of Record. There is no need to plead evidence particularly in a personal injury action where, as here, the evidence related to challenging the pursuer’s credibility. The averments in Answer 5 give fair notice of the defender’s allegation that the pursuer is exaggerating his symptoms for financial gain. Both parties make averments in relation to the pursuer being charged and convicted for driving without insurance.
[13] Lastly, I will sustain the pursuer’s objection to those lines of defence evidence which were not fairly put to the pursuer for his comment. It would be unfair to hold such evidence against the pursuer.
The evidence for the pursuer
[14] In outline, and by way of a brief overview, the witnesses for the pursuer were:
- Grant Grubb (the pursuer) - who was born on 16 December 1982.The pursuer gave evidence over several days and he was also recalled and gave further evidence.
- Susanne Grubb – the pursuer’s sister who spoke about the family background and some of the pursuer’s complaints after the accident.
- Kevin Smith – a chef who worked with the pursuer at David Lloyd’s at the time of the accident.
- Scott Grubb – the pursuer’s brother who was passenger in the Subaru on the day of the accident.
- Wayne Grubb – another brother, who lived with the pursuer, and spoke to some of the pursuer’s complaints and difficulties.
- Alexander Grubb – the pursuer’s father who presented as unreliable and untrustworthy.His personal failings were not sufficient to undermine the pursuer’s claim.
- Paula Dowie – a physiotherapist who worked for HEAL in 2011.She saw the pursuer in July 2012.
- Sally Kiddie – a physiotherapist and partner in HEAL.She saw the pursuer in August 2011.
- Ilene Duddy – a retired paralegal with Digby Brown who worked with the first response team in Glasgow.She dealt with the pursuer on the phone on 23 May 2011.
- Fraser Ewing – head of Business Intelligence at Digby Brown.He spoke to the firm’s case management system.In relation to the pursuer’s accident, the data referral form from ACM (one of their insurer referrers) was created on their system on 22 May 2011 at 9.28 am.
- Kayleigh Jamieson – a clinical associate in psychology working for Tayside Psychological Therapy Service.She started CBT (i.e. cognitive behavioural therapy) in July 2016 the pursuer having been referred following difficulties with symptoms of anxiety.
- Dr Michael Neil – the pursuer’s treating consultant at the Pain Clinic at Ninewells Hospital in Dundee (who gave evidence on Commission).The pre-clinic questionnaire was completed in October 2012.Treatment continues and the pursuer had been trialled on lidocaine.The pursuer was engaged and motivated to do CBT.
- Julian Summers – a manager with BGC group who explained the claims process and the role of ACM.ACM were a claims handling company for a number of insurance providers.
- Dr Alan Forster – consultant clinical neurophysiologist.He examined the pursuer on 4 December 2013.He carried out nerve conduction studies and electromyography tests (EMG).
- Dr Colin Rodger – consultant psychiatrist.He examined the pursuer on 25 January 2013 and referred to the pursuer suffering from a chronic adjustment disorder.
- Mr Edward Dunstan – consultant orthopaedic surgeon.He saw the pursuer in October 2012.In his final report he referred to the pursuer having been diagnosed as suffering chronic myofascial pain (i.e. muscle pain).
- Dr Craig Grice – consultant in anaesthesia and pain medicine.He examined the pursuer on 6 February 2013 and diagnosed (a) myofascial pain syndrome affecting his neck, left shoulder and upper back, (b) neuropathic pain syndrome affecting his left hand and arm, with possible nerve root impingement and (c) evidence of affected mood, sleep disturbance and increased anxiety levels.
- Dr John Searle – chartered engineer.He estimated the speed of the defender’s car at around 3.76 to 5 miles per hour.
- Mr Nicholson – ergonomics consultant.He thought primarily the pursuer’s cervical spine was laterally rotated.I found his evidence to be of limited assistance.
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Kathryn Thorndycraft Pope – a handwriting expert who gave evidence in relation to invoices.Her evidence was of no real assistance.
The evidence for the defender
[15] In brief outline, the witnesses called by the defender were as follows:
- John Finlay (the defender).He confirmed the collision while he was reversing but said that he did not suffer any pain and did not have a sore neck.
- Aaron Grubb – a brother of the pursuer.I did not find Aaron Grubb to be credible or reliable on any material issue.
- David Good – manager at Batley’s Cash and Carry.His evidence was largely neutral.He could not say that he had actually witnessed the pursuer loading or unloading a trolley.
- David Snelle – who had been a sports manager at David Lloyds between 2007 and 2015.He spoke of the pursuer being suspended and disciplined at work.He did not think that the pursuer had been treated too harshly but he was unaware of many aspects in the run up to the disciplinary meeting.
- Sean Duff – who worked as a chef at David Lloyds.He was supposed to have the day off on 19 June 2011 but he was asked to come in to work because the pursuer was off sick.Mr Duff went to Errol Market before his shift to record the pursuer “working” there.He resented the pursuer and tried to get the pursuer into trouble but he knew little of the actual background to the pursuer’s absence.
- Iain Kinney – who knew the pursuer and his cars.The pursuer used to borrow Iain Kinney’s van and the pursuer had other vehicles.The pursuer had also helped to move furniture.
- Dr Alan Wylie – who diagnosed the pursuer as having developed recurrent depressive disorder.However, in his second report (after he had been provided with additional information from the defender) he considered malingering under reference to alleged inconsistencies (7/11 at pages 8 and 9).The pursuer contended those “inconsistencies” were not significant.
- Dr Jon Stone – who initially took the view that although the accident was very minor it was...
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