Are the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (“the JC Guidelines”) the starting point (or the end point) for the quantification of pain, suffering and loss of amenity (“PSLA”) damages in overseas jurisdictions?
There were two claims.
In the first, a doctor – employed by the Government of St Helena and acting in the course of his employment – negligently performed a caesarean section, and, without the mother’s knowledge or consent, sterilised her by tubal ligation. The baby died.
In the second, the same doctor performed a caesarean section, and, without the mother’s knowledge or consent, sterilised her by tubal ligation.
The issue was whether any 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. An overseas jurisdiction with a very small, isolated community of less than 5,000 people, who live on a tiny island in the middle of the South Atlantic.
At first instance, the Chief Justice applied the JC Guidelines without any discount.
The Court of Appeal concluded that there was no justification for a departure from the JC Guidelines by way adjustment to take into account local conditions and expectations.
Adapting English common law for overseas jurisdictions
To use the language of Lord Briggs, who gave the judgment of the Board:
“In St Helena … the relevant common law is English common law save where it is wholly inapplicable or unsuitable to local circumstances or where it is only applicable with modifications, adaptations, qualifications and exceptions rendered necessary by local circumstances.”
Where it is asserted that English common law requires adaptation for use in an overseas jurisdiction, argument and evidence must be provided to discharge the burden of proof. Local courts (as opposed to the Board) are best placed to hear this submission, evaluate, and give a ruling upon it:
“In a tiny community … an experienced local judge may properly conclude that he or she knows enough about local circumstances for some particular aspect of them not to need to be proved by the potentially disproportionate and expensive processes of the preparation and forensic testing of the evidence of expert witnesses.”
Judicial College Guidelines: “a main source of the common law”
Lord Briggs gave the following general guidance on the JC Guidelines:
“[The] guidelines have come to be a substitute for contemporary judicial law-making, and the main changes to be found in them reflect changes in the value of money (ie inflation) and the impact of specific statutory reforms upon the general level of damages, such as the Jackson Costs Reforms. They are not of course binding on a judge, but their success in originally distilling and latterly replacing a stream of decided cases means that, in practice, judges have little else upon which to base a current quantification of PSLA damages, in the rare cases where it has not already been agreed between the parties. They have become, in other words, not merely a distillation but a main source of the common law in relation to the quantification of PSLA damages.”
Fairness to defendants: “pure common law, in which equity plays no part”
Lord Briggs continued by noting that the quantification of PSLA damages must be fair, or at least not unjust, to defendants:
“Fairness or justice to defendants is not about an individual defendant, but about defendants as a whole. They may be governmental, they may be multinational corporations or private individuals, insured or uninsured, rich or poor, solvent or insolvent. The cost to society of a fault-based system of defendant liability for causing pain and suffering may well have a bearing upon the level of compensation for PSLA which society may regard as fair, just and reasonable, but the concept of fairness to defendants does not require a form of equitable balancing …This is an aspect of pure common law, in which equity plays no part.”
Lord Briggs expressed the view of the Board on the importance of average earnings:
“Pain and suffering is experienced equally by the wealthy and the poor, and the application of the same guidelines across the whole of England and Wales leaves no room for the notion that differential average earnings in a particular locality can be a determinant of a just level of compensation.
… [In] reality a particular sum of money, such as £100,000, may have a radically greater potential effect in improving the life of a poor person than it would in improving the life of a multi-millionaire. But the common law treats each of them equally when quantifying damages for PSLA.”
Lord Briggs considered the relative importance and reliability of average earnings, the cost of living and GDP per capita as part of a judicial approach towards the identification of levels of PSLA damages suitable for local conditions and expectations. He concluded that “there is no single solution to the problem of choosing among or between these different indicia and weighing their relative importance, as a matter of law.”
The Board “cannot fault” the conclusion of the Court of Appeal – which upheld the same conclusion as the Chief Justice – albeit for different reasons:
“[A] current disparity in average earnings was in effect cancelled out by the higher cost of living in St Helena … and that, coupled with the likely expectation of equal treatment, there was therefore no case for concluding that a downward adjustment of the JC Guidelines for use in St Helena was rendered necessary by local circumstances.”
The Board advised the Queen to dismiss the appeal.