Scott v The Attorney General and another

General damages for pain, suffering and loss of amenity must be compensatory and fair, but they cannot be fixed by a rigid or automatic tariff. Foreign guidelines, including the JSB guidelines, may provide comparative insight and promote consistency. They cannot replace the local court’s assessment of the conditions, expectations and standards of its own jurisdiction. An automatic uplift based on a presumed difference in the cost of living is impermissible. Any actual difference must be established by evidence, and cannot ordinarily be established by judicial notice. Appellate intervention in an assessment of damages is limited to cases involving a wrong legal principle or an award that is plainly inordinately low or high.

The appellant was assaulted by Bahamian police officers and suffered paraplegia and other injuries. Liability was established at first instance, with damages directed to be assessed. The assistant registrar awarded B$257,000 in general damages, treating bladder and bowel dysfunction as part of the paraplegia and making no separate award for certain symptoms. The Court of Appeal increased the award for paraplegia, added compensation for the head injury, and rejected separate awards for bladder and bowel dysfunction and alleged complete loss of sexual sensation. The appeal to the Privy Council concerned whether the JSB guidelines required an uplift for Bahamian living costs and whether the assessment of the continuing injuries was sustainable.

The Board allowed the appeal only to the extent of increasing the compensation by B$1,940. It otherwise dismissed the appeal and invited written submissions on costs within 21 days.

1. Assessment of general damages. General damages must be compensatory and fair to both parties, but they cannot provide perfect compensation. The assessment of non-pecuniary loss is necessarily artificial and there is no simple monetary formula. General guidance is therefore useful to promote consistency, but it must not become a rigid tariff. The Board relied on the approaches discussed in Armsworth v South Eastern Railway Co (1847) 11 Jur, Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, Andrews v Grand & Toy Alberta Ltd (1977) 83 DLR (3d) 452 and Heil v Rankin [2000] EWCA Civ 84.
2. Local conditions and JSB guidelines. The proper award must reflect Bahamian economic conditions, cultural values, societal standards and expectations. English guidelines may provide comparative insight, but they do not substitute for the Bahamian courts’ own estimation. The earlier Bahamian authorities did not establish a binding principle requiring an uplift. A mechanistic uplift based on assumed cost-of-living differences was incompatible with the proper assessment of damages. Cost-of-living indices were unreliable for this purpose, and the difference could not be judicially noticed.
3. Appellate review. Applying Nance v British Columbia Electric Railway Co Ltd [1951] AC 601, appellate intervention required either a wrong legal principle or an award so inordinately low or high that it was plainly an erroneous estimate. The Court of Appeal’s use of the JSB guidelines without an uplift did not meet that threshold.
4. Particular injuries. In the absence of medical evidence of a separate aetiology, bladder and bowel dysfunction was properly treated as an incident of paraplegia. The claim of complete genital loss of sensation was unsustainable, including because the appellant had fathered three children after the injury. However, unchallenged evidence established continuing vertigo and left-ear pain following the head injury. The award was increased by B$1,940 to reflect those symptoms.

1. Privy Council: In Scott v The Attorney General and another [2017] UKPC 15, the appeal was allowed only to increase compensation by B$1,940 and was otherwise dismissed.
2. Court of Appeal of the Commonwealth of the Bahamas: The court increased the award for paraplegia, added compensation for the head injury, and rejected separate awards for bladder and bowel dysfunction and complete loss of sexual sensation.
3. First instance: Madam Justice Estelle Gray found liability and directed that damages be assessed. The assistant registrar subsequently assessed general damages at B$257,000.