Attorney General of St Helena v AB and others (St Helena)

For PSLA damages in a jurisdiction adopting English common law, the English Law (Application) Ordinance 2005 requires adaptation only where local circumstances make it necessary. The JC Guidelines are the proper starting point. A discount cannot be justified by a wages rule treating average earnings as conclusive, because pain and suffering is not less for poorer claimants. Local courts must evaluate conditions and expectations using suitable evidence and indicators such as cost of living or relative prosperity, without a single mandatory formula. Fairness to defendants concerns defendants as a class and society, not the means of the particular defendant. The appeal was dismissed.

Two St Helena medical-negligence claims concerned serious injuries caused by a doctor employed by the Government. The Chief Justice awarded substantial PSLA damages using the JC Guidelines without a local discount, rejecting the wages rule previously used in St Helena. The Court of Appeal affirmed the result, although it rejected the Chief Justice’s reliance on citizenship and discrimination. The Attorney General appealed, arguing that the application of the Guidelines was unfair to defendants, that the evidence of local conditions was insufficient, and that the matter should be remitted. The central issue was whether section 3(2) of the English Law (Application) Ordinance 2005 required adaptation of the Guidelines.

The appeal was dismissed. Lord Briggs delivered the judgment of the Board.

1. Under section 3(2) of the English Law (Application) Ordinance 2005, English common law applies in St Helena unless it is inapplicable or unsuitable to local circumstances. Where the law is generally applicable and suitable, a party seeking adaptation must demonstrate by argument and any necessary evidence that local circumstances make it necessary. The local courts are best placed to conduct that evaluation.

2. The JC Guidelines are not binding, but their development as the principal contemporary source of the common law on PSLA damages makes them part of the Adopted English Law and the proper starting point for assessment. They remain subject to adaptations shown to be necessary under the Ordinance.

3. PSLA damages seek full compensation and reasonable solace for non-pecuniary injury, although the conversion into money is necessarily artificial and conventional. The claimant’s intended use of the award is irrelevant. The principles were illustrated by Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, Heil v Rankin [2001] QB 272 and Wells v Wells [1999] 1 AC 345.

4. Fairness to defendants concerns defendants as a class and society as a whole. It does not depend on the identity or means of the particular defendant. Awards for the same injury should not vary according to the defendant’s means, and fairness does not require equitable balancing against the Government’s resources or other public services. The Board applied the principles in Scott v Attorney General of The Bahamas [2017] UKPC 15 and explained the relevance of Armsworth v South Eastern Railway Co (2) (1847) 11 Jur 760.

5. A wages rule treating average earnings as a single or conclusive determinant of PSLA damages cannot be justified. Pain and suffering is experienced equally by rich and poor, and differential earnings alone provide no basis for discounting guideline awards. Cost-of-living indices may also be unreliable. Local courts may instead weigh such indicia as relative prosperity, GDP per capita, social and economic change, and local expectations. No single formula is prescribed. The approach in Henry v Phillips and Lawrence v Solomon & Co (St Helena) plc was therefore not accepted as a basis for a discount.

6. The Court of Appeal was entitled to take account of the higher cost of living, improving economic conditions, the likely effect of the airport, and the expectation of equal treatment associated with British citizenship. Citizenship was not itself a legal reason for applying the Guidelines without adjustment, but it was legitimate evidence of local expectations. The Attorney General had chosen to present a narrow evidential case below and had not shown that adaptation was necessary. Remittal for fresh evidence would have caused further and manifest injustice through delay.

The Board advised that the appeal be dismissed.

• Privy Council. The Board dismissed the appeal from the Court of Appeal of St Helena: [2020] UKPC 1.
• Court of Appeal of St Helena. In October 2017, the court affirmed the Chief Justice’s assessment of PSLA damages without a discount, while relying on different reasoning.
• Supreme Court of St Helena. At the combined trial, the Chief Justice applied the JC Guidelines without discount and rejected the wages rule.