Lynn Symington V. Emma Milne
| Jurisdiction | Scotland |
| Judge | Sheriff Principal E.F. Bowen |
| Court | Sheriff Court |
| Date | 04 May 2007 |
| Docket Number | (A888/06) |
| Published date | 08 May 2007 |
(A888/06)
JUDGMENT OF
SHERIFF PRINCIPAL EDWARD F BOWEN QCin the appeal
in the cause
LYNN SYMINGTON
Pursuer and Appellant
against
EMMA MILNE
Defender and Respondent
Act: Lewis, Solicitor, HBJ Claim Solicitors LLP
Alt: Ms L A Traynor, Solicitor, DLA Piper Scotland LLP
EDINBURGH, 4 MAY 2007
The Sheriff Principal, having resumed consideration of the cause, sustains the appeal in part; varies the Sheriff's interlocutor dated 13 October 2006 by substituting the sum of £2,500.00 sterling in place of the figure of £1,500.00 sterling contained in said interlocutor; reserves all questions of expenses.
(signed) EFB
NOTE:
1. This appeal arises following proof in an action of damages for personal injuries. The action was not defended on the merits; the medical evidence was in substance agreed and the only witness to give evidence was the pursuer.
2. The pursuer's accident took place on 23 June 2004. The Sheriff made the following findings in fact consequent upon the proof: "(3) that as a result of said accident the pursuer sustained muscular damage to her neck. (4) that the pursuer was seen at the Royal Infirmary Edinburgh immediately following said accident where she was examined and discharged with painkillers. (5) Thereafter the pursuer spent four days in bed as a result of pain suffered by her. (6) Thereafter the pursuer sustained neck pain which was treated by a combination of analgesics and physiotherapy until about the end of the year. (7) That during said time the pursuer was not able to carry out her household duties to the full and was inhibited from playing in any sort of boisterous way her with twin sons aged four. (8) That for said four days the household duties in the pursuer's house was carried out by her partner. (9) That between the time of the accident and about October 2004 the pursuer's mother came regularly to the pursuer's home to do household work to help her. (10) By the end of 2004 the pursuer had to all intents and purposes recovered from the pain and injury caused by said accident".
3. On the basis of these findings, and in light of a number of decided cases cited to him by both parties the Sheriff concluded that the appropriate figure for solatium was £1,250.00. He further awarded the pursuer £250.00 in respect of services received by her from her mother and partner. The appeal proceeds on two grounds. The first of these is that in making finding in fact 10 the Sheriff placed an incomplete or erroneous interpretation on an agreed Medical Report prepared by Professor A H R Simpson on 3 May 2005. It was contended that a proper reading of that Report would lead to an interpretation that the pursuer continued to suffer symptoms beyond the end of 2004. In submissions the solicitor for the pursuer and appellant contended that finding in fact 10 should be altered to reflect the fact that the pursuer had minor neck tenderness and restricted neck movement in 2005 and required physiotherapy in October and November 2005 to relieve the residual symptoms caused by the injury sustained by the accident. In the light of that the sum awarded by way of solatium fell to be revised. The second, and alternative ground of appeal is that even if no such amendment to finding in fact 10 is to be made an award of £1,250.00 by way of solatium was nevertheless unreasonable.
4. The solicitor for the pursuer and appellant accepted the reluctance of an appellate court to interfere with factual findings made by a court of first instance. However he contended that there was sufficient reason to interfere with finding-in-fact 10 made by the Sheriff. The report by Professor Simpson, which had been agreed by parties as true and accurate with the exception of one sentence relating to prognosis, set out that the pursuer had severe neck pain for approximately one month and that thereafter the pain gradually subsided over the follow six months. At the time of his examination in May 2005 Profess Simpson noted that the pursuer had minimal symptoms which were not intrusive in her life in any way but she did have "a minimal restriction of movement of her neck". That in itself did not support a finding of complete recovery by the end of 2004; there was however further support for the view that the pursuer's symptoms persisted longer in the form of a Report from BUPA indicating that she had received physiotherapy between October and November 2005, and the pursuer herself had given evidence to the effect that this treatment was sought because of the "ongoing neck injury", on the advice of Professor Simpson (see Notes pages 16 to 17). This evidence, it was contented, had not been challenged in cross-examination.
5. I am not persuaded that the Sheriff's conclusions unfairly reflect the terms of Professor Simpson's Report. The overall impression conveyed both by the findings and by what is recorded by Professor Simpson as having been related to him by the pursuer, is that recovery was complete in about seven months following the accident. This follows from the pursuer's statement that pain was severe for approximately one month and that it gradually subsided over the following six. That timescale would take one slightly beyond the end of 2004. Finding in fact 10 might be more accurately have reflected Professor Simpson's Report if it had stated that by early 2005 the pursuer had to all intents and purposes recovered but I doubt whether that justifies interference. In any event Finding in fact 6...
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