Attorney General of St Helena v AB and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Briggs |
| Judgment Date | 20 January 2020 |
| Neutral Citation | [2020] UKPC 1 |
| Date | 20 January 2020 |
| Docket Number | Privy Council Appeal No 0034 of 2018 |
| Court | Privy Council |
[2020] UKPC 1
Privy Council
Hilary Term
From the Court of Appeal of St Helena
Lady Hale
Lord Wilson
Lord Briggs
Lady Arden
Lord Sales
Privy Council Appeal No 0034 of 2018
Appellant
Caroline Harrison QC
Benjamin Channer
(Instructed by Attorney General of St Helena)
Respondent
Marc Willems QC
Stefanie Cochrane
(Instructed by Public Solicitor's Office)
Intervener
Caoilfhionn Gallagher QC
Fiona Murphy
Susie Alegre
(Instructed by Equality and Human Rights Commission for St Helena)
Heard on 18 November 2019
This appeal arises out of two very serious personal injury cases about grave medical malpractice and negligence by a doctor employed on the island by the Government of St Helena. In both cases the plaintiffs were awarded substantial general damages for pain, suffering and loss of amenity (“PSLA”). The trial judge, the Chief Justice of St Helena, quantified those damages by the application of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (“the JC Guidelines”) published at the material time in England and Wales, in relation to injuries of the type suffered by the plaintiffs. He did so without any adjustment of the relevant amounts for PSLA by reference to any difference in local conditions as between St Helena and England and Wales, thereby departing from a practice which had grown up in earlier personal injuries cases in St Helena, whereby the amount of damages derived from the application of the JC Guidelines had been discounted by reference to the disparity between average earnings in St Helena and those in England and Wales.
On the Government's appeal, represented by the Attorney General, the Court of Appeal of St Helena affirmed the Chief Justice's quantification of PSLA damages but for different reasons. The Attorney General appealed to the Board, primarily on the ground that the application of the JC Guidelines without discount is unfair to defendants in St Helena. An unfortunate consequence of these appeals has been that two thirds of the plaintiffs' PSLA damages have been withheld since judgment was given in their favour in February 2017, in respect of the grave injuries which they sustained in late 2012 and early 2013. For reasons which will become obvious, the anonymity of the plaintiffs has been preserved throughout this litigation and the Board has ordered that this essential protection for them should continue.
In the first claim ( Case 551/2015), AB was admitted to the Jamestown Hospital on 5 November 2012 and misdiagnosed by Dr Du Toit as being in labour. He wrongly assessed her baby as being at 33 weeks gestation when in truth it was only 30 weeks and then negligently performed a caesarean section. At the same time and without her consent, he sterilised AB by tubal ligation. Alas, the baby died a few days later. At trial, AB was awarded PSLA damages of £130,000, together with other substantial damages for pecuniary loss which are not in issue on this appeal. Her partner AC received PSLA damages of £15,000.
In the second case ( Case 511/2016) NK, a young woman with a mild learning disability, was delivered of her fourth child by caesarean section on 29 March 2013, again by Dr Du Toit. At the same time and without her knowledge or consent, he sterilised her by tubal ligation. At the trial of her claim, she was awarded PSLA damages of £120,000. Due to her learning disability, NK has been represented by a litigation friend throughout the domestic proceedings and before the Judicial Committee.
Dr Du Toit was, on both occasions, employed by the Government of St Helena, and acting in the course of his employment. Accordingly, although the Government was not accused of any separate complicity in the grave wrongs done to the plaintiffs, it was liable in damages to them as Dr Du Toit's employer.
At the combined trial of both claims before the Chief Justice it was common ground, as it has been throughout the subsequent appeals, that the JC Guidelines and their predecessors the Judicial Studies Board Guidelines (“the JSB Guidelines”) had been, were and would necessarily continue to be the starting point for the quantification of PSLA damages in St Helena. It is a very small and isolated community of less than 5,000 people living on a tiny island in the middle of the South Atlantic. It is unreal to suppose that the courts in St Helena could, by reference to their own case law, develop guidelines of their own and, although St Helena has its own elected legislative council, there appears to be no prospect that the assessment of PSLA damages will be placed on a statutory footing, or any compelling reason why it should be.
The parties were nonetheless sharply divided about the question whether any, and if so what, adjustment should be made to the rates of PSLA damages to be derived from the JC Guidelines so as to render them appropriate in St Helena. For the Government the Attorney General resolutely maintained in his submissions to the Chief Justice that PSLA damages should be discounted from those otherwise to be derived from the JC Guidelines in accordance with what he called the “wages rule”, as applied by the St Helena Supreme Court in Henry v Phillips SC 503 of 1996 (unreported) 9 April 1996 and Lawrence v Solomon & Co (St Helena) plc SC 532 of 1999 (unreported) 28 March 2000. This simple rule compared the average wages earned in England with those earned in St Helena. In 1999 the average in St Helena was only one sixth that of England, so the PSLA damages in that case were one sixth of those which would otherwise have been derived by the application of the (then) JSB Guidelines. Relying on expert evidence about comparative average wages, the Attorney General invited the Chief Justice to award PSLA damages at one third the rate to be derived from the JC Guidelines.
The Chief Justice was having none of it. In his judgment delivered in February 2017 he concluded in summary as follows:
i) Differences in earnings were in principle irrelevant to compensation for PSLA. A poor person suffered from personal injuries no less, and no more, than a rich person.
ii) English law made no such distinction, awarding PSLA damages based on the JC Guidelines as much to claimants living in the North East of England as in Belgravia.
iii) Cost of living might be a better benchmark, and appeared to be 25% higher in St Helena than in the UK.
iv) The wages rule had no foundation in principle and ought not to be followed.
v) Now that residents of St Helena had full British citizenship, it would be discriminatory to quantify their PSLA damages on any different basis than was done in England and Wales.
Accordingly he applied the JC Guidelines without any discount.
In May 2017 the Board gave judgment in Scott v Attorney General of The Bahamas [2017] UKPC 15, a Bahamian appeal which raised the closely related issue whether PSLA damages derived from the JSB Guidelines should be uplifted by reference to the higher cost of living and higher level of public expectations in the Bahamas, compared with England and Wales. The Board will have more to say about the Scott case in due course, because it has occupied a central place in the relevant legal analysis.
Nonetheless, in his skeleton argument in support of his appeal to the St Helena Court of Appeal the Attorney General made no more than a mention of the Scott case, preferring to pursue single-mindedly the argument that the wages rule continued to be the best means of adjusting the JC Guidelines so as to make them suitable for the quantification of PSLA damages in St Helena. It was submitted that British citizenship was in principle irrelevant and that the judge had been wrong to conclude that any adjustment of the JC Guidelines for St Helena was discriminatory.
The Court of Appeal (Sir John Saunders P, Yelton and Drummond JJ) handed down a judgment of the court in October 2017. It treated the Scott case as fully applicable to St Helena. While it accepted that the Chief Justice had been wrong to base his conclusion on citizenship and discrimination, the Court of Appeal nonetheless concluded that on the evidence available, including both differences in average earnings and the cost of living, and taking into account the need for clarity, there was no justification for a departure in St Helena from the application of the JC Guidelines, by way of an adjustment to take into account local conditions and expectations. On the contrary, the court concluded that, at para 24:
“St Helenians are now British citizens and there can be little doubt that their justifiable expectation is to be treated in the same way as other citizens of England and Wales for whom the Guidelines are intended.”
On appeal to the Board, the Attorney General's case has undergone something of a sea change. Far from continuing to assert that the wages rule represented the appropriate basis for adapting the JC Guidelines for use in St Helena, it is now submitted that:
i) The principles set out in the Scott case are fully applicable.
ii) The Court of Appeal failed properly to apply them.
iii) In particular the Court of Appeal failed to consider whether the non-discounted application of the JC Guidelines was “fair to the defendant”.
iv) The Court of Appeal reached unsupportable conclusions about local conditions and expectations because the available evidence did not support them.
v) The Court of Appeal continued, like the Chief Justice, to rely on citizenship as an inappropriate basis for their assessment of local expectations.
The relief mainly sought by the Attorney General was that the case should be remitted to St Helena so that the Scott analysis could be properly conducted, upon the basis of a...
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