Scott v The Attorney General and another (Bahamas)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 16 May 2017 |
| Neutral Citation | [2017] UKPC 15 |
| Court | Privy Council |
| Docket Number | Appeal No 0042 of 2016 |
| Date | 16 May 2017 |
2017] UKPC 15
Lord Mance
Lord Kerr
Lord Sumption
Lord Reed
Lord Hughes
Appeal No 0042 of 2016
Privy Council
From the Court of Appeal of the Commonwealth of the Bahamas
Appellant
Roderick Dawson Malone
(Instructed by Sheridans)
Respondents
Peter Knox QC
David Higgins (Assistant Director of Legal Affairs)
Anastacia Hepburn (Bahamas Bar)
(Instructed by Charles Russell Speechlys LLP)
Heard on 20 February 2017
On 16 December 1998, the appellant, Shorn Scott, was assaulted by officers of the Royal Bahamian Police Force. He brought proceedings for compensation for the injuries that he suffered as a result of that assault. On 29 January 2010 Madam Justice Estelle Gray found that the assault was unprovoked and that the appellant had established liability. She made an order that damages be assessed. This appeal is concerned with the assessment made of the general damages of the appellant's claim.
The appellant suffered devastating injuries as a result of the assault. He has been rendered paraplegic because of a wedged compression fracture of his spine. He also sustained a number of minor injuries including a laceration of the forehead, abrasions to his elbows, an injury to his lower back and a generalised head injury with a number of consequences.
An assessment of damages was conducted by Mrs Eurika Charlton, assistant registrar. She gave her ruling on 24 September 2013. On the issue of general damages, she considered that there was a conflict between earlier decisions of the Court of Appeal on the approach to be taken to their assessment. In Acari v Lane Civil Appeal No 18 of 2000 (unreported) the Court of Appeal, referring to the earlier decisions of Lubin v Major Civil Appeal No 6 of 1990 (unreported) and Matuszowicz v Parker 1987 50 WIR 24, held that it was legitimate to refer to the Judicial Studies Board (JSB) guidelines for the assessment of general damages in personal injury cases in England and Wales but that the figures outlined there would have to be adjusted "to take account of the current purchasing power of the Bahamian dollar and to reflect the differential in the cost of living which currently is higher than in England …". In the later case of Grant v Smith Civil Appeal No 32 of 2002 (unreported) Osadebay, JA at p 14, made the following observation about Acari, Matuszowicz and Resorts International (Bahamas) Ltd v Trevor Rolle Civil Appeal No 44 of 1994 (unreported) (in all of which an uplift had been made to the general damages guideline figure in the JSB's recommendations to take account of the difference in the cost of living in the Bahamas):
"It is noteworthy that in these cases … the Court recognised that at the time of the award the cost of living in the Bahamas was higher than in Great Britain and so adjustments were made upwards using the English awards as a base. Wherever may have been the true position as to the relative cost of living as between the Bahamas and the United Kingdom and whatever views may have been previously expressed, it is now generally accepted that the cost of living in London, England, is now higher than in the Bahamas."
Assistant Registrar Charlton considered that there were now "two conflicting decisions" and that this created a "dilemma" for her in deciding whether an uplift on the JSB guidelines should be applied. Counsel for the appellant had argued that an increase of 45% on the guidelines' figures was appropriate. The assistant registrar said that this claimed uplift had "very little, if any, authority to support it". She decided that in light of the conflict in the Court of Appeal decisions which she had identified, she would not make any uplift on the award of general damages. She therefore made an award of $257,000 for general damages, comprising $255,000 for the appellant's paraplegia, $1,000 for the laceration to the face and a like sum for scarring.
A claim had been made that the appellant's loss of bowel and bladder function called for separate assessment, independent of that relating to his paraplegic condition generally. It was also claimed that the appellant's loss of sexual sensation should be a distinct head of damages. Both these claims were rejected by the assistant registrar.
Five grounds of appeal were advanced on behalf of the appellant. So far as concerns the appeal before the Board, the material grounds are: that the assistant registrar should not have treated the appellant's loss of bladder and bowel function as "part and parcel" of the paraplegia; that the award was inordinately low; that the assistant registrar had failed to make an award for the appellant's head injury and the consequent headaches, dizziness and pain in the left ear; and that the assistant registrar had erred in equating loss of sexual sensation to injury of his reproductive system.
The Court of Appeal dealt with the first and final of these grounds together. Allen P, with whom John JA and Conteh JA agreed, referred to the medical evidence which established that loss of sensation (the result of the appellant's paraplegia) began at a point above the level of the bladder and the bowel. The issue on this aspect of the case was, therefore, she said, whether it could be inferred that the loss of bladder and bowel function was a symptom of the appellant's paraplegia or a distinct and separate injury. In the absence of medical evidence that the loss of function was due to a separate injury, the only possible conclusion, Allen J held, was that it was an incident of the appellant's paraplegia.
The appellant claimed that he had a complete loss of sexual sensation. Allen P rejected this, observing that it was "well-nigh impossible to penetrate the vagina and ejaculate sperm … with a penis which has no sensation and lacks turgidity". The appellant has been able to father three children since suffering his injuries. Allen P therefore referred approvingly to the statement of the assistant registrar that the penis could only become erect if there is sensation in the organ to enable a message to be sent from the brain causing blood to flow into the penis.
As regards the second ground of appeal, Allen P noted that the assistant registrar had used the 10th edition of the JSB guidelines which had been published in 2010. The 11th edition, published in July 2012, should have been used, the President said. The latter had suggested a range of £156,750 to £203,000 for paraplegia as opposed to the range in the 10th edition of £144,000 to £186,500 in the 10th edition, an increase of about 8.5%. While the appellant was not in the worst category of paraplegia — he was not bedridden, he was not in constant pain and he did not suffer bedsores or urinary infection — Allen P considered that an increase from £150,000 (awarded by the assistant registrar) to £185,000 was warranted. This was converted to $314,500.
In relation to the third ground of appeal (that the assistant registrar had failed to make any award for the appellant's head injury and its consequences) the President said that the overall award had made no provision for this. She considered that an award of £5,000 (converting to $8,500) should be made for the head injury. Notably, however, she stated (in para 40 of her judgment) that there was no evidence before the registrar in relation to the appellant's claimed dizziness. No allowance was made for this, therefore, in the readjustment of the amount to be awarded to the appellant.
The principal argument advanced on behalf of the appellant was that the Court of Appeal had failed to address the argument that an uplift should have been allowed on the figure suggested by the English JSB guidelines for general damages. In the written submissions for the Court of Appeal, reference had been made to the submission made to the assistant registrar that an adjustment was necessary to reflect the "relatively higher cost of living and the higher level of expectation in the Bahamas". In those submissions it was argued that an annual increase of 5% was appropriate so that, even applying the 2010 guidelines, the award for general damages should have been $470,819.25.
It was submitted that the failure of the Court of Appeal to apply an uplift went counter to an established line of authority. It was also claimed that the court ought to have addressed and resolved the conflict between the Acari and Grant cases. It was claimed that an uplift on the English guidelines should be applied as a matter of principle.
The respondents submitted that no principle could be derived from the Bahamian authorities to the effect that an uplift to suggested ranges of damages in the English JSB guidelines should be automatically applied. The Court of Appeal was perfectly entitled to refer to the English guidelines but to decline, in the absence of any evidence which would warrant it, to increase the award beyond the range of damages suggested by those guidelines.
The appellant also argued that the Court of Appeal's findings that there was no loss of sexual sensation and that the loss of bowel and bladder function were part and parcel of the paraplegia were unsustainable in light of the uncontroverted evidence given by the appellant and on his behalf.
Finally, it was submitted on behalf of the appellant that, in its assessment of the sum to be awarded in respect of the head injury which he sustained, the Court of Appeal fell into obvious error in suggesting that there had been no evidence that he suffered from dizziness or pain in his ear. Evidence had been given that both these complaints continued. That evidence had not been challenged or controverted.
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