On 4 August 2009 Sheriff Principal Dunlop refused the appeal in
the case of Wilson v Riaz and in doing so provided clear
guidance on the level of general damages appropriate for cases
concerning typical whiplash injuries.
The pursuer appealed against the damages awarded to her for the
personal injuries she sustained in a road traffic accident. In
April 2007 she was a passenger in her husband's vehicle when it was
struck from behind, throwing her forward and causing her to suffer
a soft tissue injury to her neck. On medical examination no major
injury was found, but she was provided with a soft collar and
prescribed analgesics. By September 2007 her condition was mostly
asymptomatic, although she still suffered from slight neck
discomfort. A medical report stated that she would fully recover
from her injuries by April 2008, a year after the date of the
accident.
Referring to a number of similar decisions concerning the award
of solatium, the sheriff at first instance (a certain M P Anderson)
assessed damages at £2,000. While he accepted that this type of
injury was in no way insignificant, he drew attention to the fact
that the pursuer's injuries had largely disappeared after four and
a half months. The pursuer appealed, arguing that the sheriff had
failed in his assessment to take proper account of the total time
that she had suffered, thus leaving her uncompensated for a period.
She argued that the sheriff had erred by making an award based on
the opinion that she had fully recovered from her injuries by
September 2007. It was submitted that this had not been the case
and that her symptoms continued for a further seven and a half
months.
On appeal, Sheriff Principal Dunlop stated that the decision of
the sheriff should be considered as a whole and that the pursuer
was mistaken to place great emphasis on only one element of his
judgment. He held that it was clear the sheriff had considered the
ongoing injuries the pursuer was suffering from and had taken
account of these in making his award.
Sheriff Principal Dunlop went on to hold that as he saw it, the
sheriff had considered that the damages applicable for the
post-September 2007 period would have been insignificant and, on
this basis, it was fair to fix September 2007 as the date at which
judicial interest should begin to run at its full rate. He added
that this was consistent with the opinion that by this time the
main symptoms were resolved. The sheriff was in the best position
to conclude this. He refused the appeal and held that the sheriff's
award for damages was appropriate.
This decision is of some importance in that it provides clear
guidance for the appropriate level of damages for such whiplash
injuries. Although the amount awarded will obviously vary slightly
depending on the particular circumstances of each case, this
judgment confirms that damages of £2,000 is appropriate for a
whiplash injury where there has been almost complete recovery
within a few months. It is also in line with the decision of
Sheriff Principal Bowen in Ashton v Skews (2009 GWD 6-97)
where on appeal general damages of £2,000 were awarded for similar
injuries.
These two recent cases provide up-to-date and clear guidance on
expected awards for minor whiplash claims in Scotland. They will
assist in holding down both claims inflation and the expectations
of pursuers' solicitors.
Contributed by Jennifer Gammell and Jack Orr