Motorist awarded damages for petrol station accident despite other driver’s claims of ‘dishonesty’

Grant Grubb raised a personal injury action seeking £182,880 after John Finlay admitted liability for backing into his car in the forecourt of a Tesco petrol filling station in Dundee in May 2011.

A judge in the Court of Session ruled that the pursuer was “not entirely credible or reliable”, but that he was entitled to reparation of £7,321 for “pain and suffering” after rejecting the defender’s allegation that the claim was a “complete fabrication” and that the pursuer had “exaggerated” his injuries for “financial gain”.

Whiplash

Lord Kinclaven heard that the pursuer was in the driver seat of his Subaru Impreza with his brother in the front passenger seat when the defender backed his Peugeot into the pursuer’s stationary vehicle, causing a “whiplash” type injury and £2,200 worth of damage to his sports car.

The defender admitted liability but averred that the collision occurred at a “very low speed”, adding that any vehicle damage caused by the accident would have been “minimal”.

He also alleged that the pursuer was “exaggerating his symptoms for financial gain”.

According to the defender, the pursuer 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.

The court also heard that following the accident the pursuer, who worked at David Lloyd, had been off sick, but he was seen working on a stall in Errol Market and was dismissed for misconduct after lying to his line manager.

Credibility and reliability

The defender lodged a motion to dismiss the action in limine, but the motion was refused because, on the evidence, the defender’s submissions based on alleged fundamental dishonesty on the part of the pursuer were “not well founded in fact”.

Lord Kinclaven said: “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.”

The judge added that there were “several areas” where he was unable to accept the pursuer’s evidence as credible and reliable.

He said: “Such failings and shortcomings can have serious consequences for any pursuer in relation to credibility, reliability, causation and quantum of damages – and properly so. However, there was also independent support for many of the pursuer’s complaints – some of them long after the accident. Contrary to the defender’s assertions of fabrication, several of the pursuer’s claims were supported by objective signs spoken to by skilled witnesses.”

Lord Kinclaven held that while the pursuer was “not entirely credible and reliable” on all matters, having seen CCTV footage of the incident and heard the evidence, he did not accept the defender’s contentions that the claim was fundamentally dishonest.

“On the contrary,” he said, “I accept the pursuer’s evidence relating to the accident and I accept (as outlined below) that the effects of the accident lasted for a period of about 12 months. I reject the defender’s submissions in relation to that period.

“I go further in the pursuer’s favour. I accept that the pursuer had symptoms after that 12-month period, and continues to do so.

“However…I am unable to hold that those later symptoms were caused by the accident. To that extent I give effect to the defender’s criticisms – but no further.

“In short, the pursuer succeeds on liability and in establishing loss, injury and damage in relation to that 12 month period post-accident – but he fails in relation to causation beyond that 12 month period.”

Negligence

The judge said he had “no difficulty” finding that the pursuer was entitled to reparation from the defender because of the defender’s “negligence”.

He accepted the evidence of a consultant, who said that the pursuer sustained a “hyperextension injury” to his neck and a “jarring injury” to his left arm as a result of the Peugeot reversing into the Subaru.

In a written opinion, Lord Kinclaven said: “Despite the defender’s determined efforts to persuade me that the pursuer’s case was a complete fabrication and fundamentally dishonest, there was no doubt that on the evidence the defender is liable and that the pursuer suffered some injury as a result of the defender’s negligence.

“The collision was recorded on CCTV. I did not accept the defender’s submission that the pursuer’s account was flatly contradicted by the CCTV evidence.

“On the contrary, I was satisfied that at the material time and place the pursuer was in the driver seat of the Subaru Impreza sports car registered number N752 AMS. His brother, Scott Grubb, was in the (front/only) passenger seat.

“The Subaru was stationary at a petrol pump at the locus when the defender negligently reversed his vehicle at about 4 miles per hour into collision with the front of the Subaru shunting it backwards. The defender was driving a Peugeot 409 registered number X928 MSN which was fitted with a tow bar to the rear.

“The impact from the Peugeot was sufficient to cause significant damage to the Subaru and to cause injury to the pursuer and his passenger.”