Attorney General of St Helena v AB and others

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:

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.

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.

Cost of living might be a better benchmark, and appeared to be 25% higher in St Helena than in the UK.

The wages rule had no foundation in principle and ought not to be followed.

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.

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:

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:

The principles set out in the Scott case are fully applicable.

The Court of Appeal failed properly to apply them.

In particular the Court of Appeal failed to consider whether the non-discounted application of the JC Guidelines was “fair to the defendant”.

The Court of Appeal reached unsupportable conclusions about local conditions and expectations because the available evidence did not support them.

The Court of Appeal continued, like the Chief Justice, to rely on citizenship as an inappropriate basis for their assessment of local expectations.

For their part the respondent plaintiffs seek to uphold the decision and reasoning of the Court of Appeal. In that endeavour they were assisted by the written and oral intervention of the Equality and Human Rights Commission of St Helena, for which the Board is grateful.

Generally speaking, English law is applicable in St Helena, by reason of the English Law (Application) Ordinance 2005. Sections 2 and 3 provide as follows:

The remaining sections of the 2005 Ordinance make provision for specific provisions of the Adopted English Law to be disapplied but none of them is of any relevance to this appeal.

It is common ground that, in general, the quantification of PSLA damages in St Helena is a matter governed by the common law of England. It is not therefore suggested that English common law is simply inapplicable or unsuitable to local circumstances. Framing the issue in terms of section 3(2) of the 2005 Ordinance, the question is whether local circumstances render it necessary for English common law to be adapted for use in St Helena, by the application of a discount to the JC Guidelines.

This is not therefore a case where, as frequently happens, the Board is seeking to ascertain and determine what is the law (usually the common law) of an overseas jurisdiction for which it is the final appellate court, with an open mind as to whether that law is necessarily the same as English law. There are now many jurisdictions around the world where the common law has developed in different ways, even if it may once have originated in England. In St Helena by contrast, 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.

The use in section 3(2) of the 2005 Ordinance of a necessity test suggests that, in a situation where (as here) an aspect of the English common law is not generally inapplicable or unsuitable, the burden lies on a litigant seeking to persuade the court that English common law requires adaptation for use in St Helena to demonstrate by argument and any necessary evidence that this is so.

Furthermore, it follows from the fact that any proposed adaptation of English law depends entirely upon local circumstances that the local courts rather than the Board are best placed to conduct that evaluation. This much is common ground, and is the reason why the Attorney General seeks to have this case remitted for a rehearing in St Helena, upon the basis that the evidence thus far adduced before the local courts did not enable that evaluation to be satisfactorily carried out. But it also follows that the Board should treat with respect the view of the local courts about whether a particular aspect of local circumstances needs to be proved formally by evidence or whether it can be treated as something of which the court can take judicial notice. In a tiny community like St Helena 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.

There can be no doubt that the JC Guidelines (as they are now called) have become firmly embedded in the common law of England and Wales. In his foreword to the 1st edition of the (then) JSB Guidelines in March 1992 Lord Donaldson of Lymington said:

In the more than 25 years since the JSB Guidelines were first published, they have come to acquire a life of their own. Whereas Lord Donaldson had said in 1992 that deciding on PSLA damages was “one of the commonest tasks of a judge sitting in a civil court”, Irwin LJ said in his foreword to the 14th ed of the JC Guidelines in June 2017:

The core function of PSLA damages, like any other type of damages for the commission of a tort, is that identified by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39:

An important part of the purpose of PSLA damages is that they should reflect what society as a whole considers to be fair and reasonable compensation for the victim or, as the Supreme Court of Canada put it in Andrews v Grand & Toy Alberta Ltd [1978] 2 SCR 229: “reasonable solace for his misfortune.”

This is captured in Sir Thomas Bingham MR’s observation in John v MGN Ltd [1997] QB 586, 611, 614, that:

And at para 29:

The Court of Appeal in Heil v Rankin was alert to the fact that, in setting the quantification of PSLA damages within the context of society as a whole, the same common law principles may fall to be applied in widely differing societies, with different results. At para 38, Lord Woolf MR said:

In the Scott case, giving the judgment of the Board, Lord Kerr of Tonaghmore expanded on this theme at para 24, as follows:

In both Heil v Rankin and the Scott case it is recognised that the quantification of PSLA damages must be fair, or at least not unjust, to defendants. Lord Woolf MR said (in the passage already quoted from Heil v Rankin at para 27) that “the level must also not result in injustice to the defendant”. In the Scott case, at para 17, Lord Kerr said:

The passage in the summing up to the jury by Baron Parke in the Armsworth case to which Lord Kerr referred is as follows:

In Heil v Rankin it is plain that Lord Woolf MR’s observations about the need to avoid injustice to the defendant had nothing to do with the identity of the individual defendant in any particular case. At para 33 he said:

At para 36 he said:

There were veiled suggestions in the submissions of Miss Harrison for the Attorney General that the Board should have regard to the fact that a rise in the level of PSLA damages awarded against the Government of St Helena might lead to a corresponding scarcity in its resources for provision of its other services and activities on the island. In response Ms Gallagher pointed to the Foreign and Commonwealth Office’s statements in its report to Parliament “The Overseas Territories - Security, Success and Sustainability” in June 2012 (Cm 8374), highlighting the UK Government’s international obligations to ensure the security and good governance of its dependent territories and their peoples and the statement that:

In the Board’s view this particular contest misses the point. 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 of the type contended for by the Attorney General in his written submissions. This is an aspect of pure common law, in which equity plays no part.

The reported cases do not speak with one voice about the relative importance and reliability of these factors as part of a judicial approach towards the identification of levels of PSLA damages suitable for local conditions and expectations in any particular society. In some societies, such as in St Helena before this litigation, average earnings were treated as a single and conclusive determinant of the discount which ought to be applied to the JC Guidelines for the quantification of PSLA damages there. The Board shares the common view of the Chief Justice and of the Court of Appeal that a slavish adherence to a wages rule cannot be right. 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. For example, suppose that average earnings in the Isle of Wight were half those of the English mainland viewed as a whole, that would afford no basis for discounting the PSLA damages arising from an accident on the island between two of its residents below those applicable across England and Wales.

In other jurisdictions, such as the Bahamas, the cost of living has, at least until recently, tended to be a determining feature but, as Lord Kerr warns in the Scott case at para 26:

Alternative indicia for changes within a society over time or differences between geographically widely spaced societies (such as England and St Helena) may include appropriate measures of relative prosperity, which may in turn include reference to GDP per capita. But 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. In every case, as the Board advised in para 25 of the Scott case, the local courts will be best placed to make that adjudication, applying such criteria as, upon the evidence which the parties choose to put before the court, appear to be most suitable for the purpose.

At the end of the day, the court’s task is to attribute some appropriate value to money as an admittedly inadequate means of compensation for the non-monetary injuries represented by pain, suffering and loss of amenity. The search is for a necessarily conventional level of necessarily artificial exchange. It is obvious, for example, that 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.

It will already be apparent that the Board is not persuaded by the first ground of the Attorney General’s appeal, namely that the Court of Appeal’s quantification of damages took no account of the requirement for fairness or justice to the defendant. The Court of Appeal was plainly concerned to apply the principles set out in the Scott case for the purpose of answering the question whether the JC Guidelines, without discount or other adjustment, afforded a fair, reasonable and just measure of compensation for PSLA in accordance with local conditions and expectations, and concluded that they did. If the Court of Appeal’s analysis is not vitiated by any other error, then it follows in the Board’s view that its conclusion was as fair and just to defendants in St Helena as the JC Guidelines are (by common consent) agreed to be to defendants in England and Wales. No special circumstances affecting defendants as a class within St Helena were identified, either in the evidence or by submissions. The fact that, in giving judgment in which it expressed itself minded to follow the Scott case, the Court of Appeal did not expressly refer to that requirement, is in the Board’s view of no significance.

It is next submitted for the Attorney General that the Court of Appeal lacked the comprehensive evidence about the economy of St Helena sufficient to equip it to carry out that comparative task. It is certainly true that the only detailed written evidence before the Court of Appeal, as before the Chief Justice, was the Attorney General’s own expert evidence about average earnings. In reaching conclusions about the higher cost of living in St Helena, compared with England and Wales, and about the likely effect upon the community’s prosperity to be attributed to the opening of the new airport, the Court of Appeal was confined to such limited evidence from the Attorney General’s expert as could be extracted during oral examination in chief and cross examination and, in particular in relation to the airport, supplemented by the court’s own perception of the probable consequences of an event which was bound to have some consequences for the local economy, even if problems of wind-shear over the runway may have reduced that contribution below that for which its planners hoped.

But these alleged shortcomings in the evidence were, so far as the Board can see, entirely the consequence of the limited way in which the Attorney General chose to present the Government’s case that local conditions required a modification of the JC Guidelines in their application to St Helena. As noted above, the Attorney General’s case, both before the Chief Justice and in the Court of Appeal, was designed simply to preserve the wages rule as an acceptable means of adjustment of the JC Guidelines. Unsurprisingly, the evidence was therefore focused upon only one, and arguably the least persuasive, of the relevant potential economic indicia.

The Court of Appeal was not carrying out a judicial enquiry of its own motion, with power to commission reports, carry out public consultation and summon witnesses. It was resolving a private law dispute between the parties, upon such evidence as they chose to put before the court. It was not for the plaintiffs, who merely wished that the court should adhere to the JC Guidelines as part of the applicable Adopted English Law under the 2005 Ordinance, to put forward evidence of relevant local conditions, in particular because it was common ground that the JC Guidelines were an appropriate starting point for use in St Helena. It was for the Attorney General, if he wished to do so, to adduce evidence showing that an adaptation of those Guidelines was rendered necessary by local circumstances, under section 3(2).

Still less is it appropriate for the Board to accede to the Attorney General’s request that this appeal should be allowed, and the case remitted for further hearing upon more comprehensive evidence, for example about the possible effect of damages awards upon insurance premiums. The Scott case was available to the parties long before the matter came on for hearing in the Court of Appeal (albeit after the appeal was launched) and it would not be just to the plaintiffs to require the case to be reheard with an opportunity given to the Attorney General to adduce fresh expert evidence about the St Helenian economy, when no attempt to do so was made on his behalf in the local courts which, as is common ground, are the best qualified for dealing with that issue. The plaintiffs have already been kept out of two thirds of their general damages for PSLA during the period of three years following the judgment at first instance. It would be a manifest injustice to extend that period of delay for the sole purpose of enabling the Attorney General to present a better evidential case about the relevant local circumstance and expectations.

A specific ground of appeal, concisely presented by Mr Channer, following Miss Harrison, was that the Court of Appeal wrongly assumed that a historic differential in average earnings would disappear in the reasonably near future, whereas the expert evidence demonstrated that this might take as long as 1,000 years. While it is true that a precise mathematical comparison between tables of UK and St Helenian median average earnings over a four year period between 2012 and 2015 inclusive did suggest a convergence of only £80 per annum over four years, ie only £20 per annum per year, this ground of appeal was neither based upon an accurate interpretation of the Court of Appeal’s finding about this, nor of the expert evidence as a whole, following oral examination and cross-examination.

The Court of Appeal said, at para 24:

The Board does not interpret this passage as conveying an understanding by the Court of Appeal that the one third disparity in average wages demonstrated by the evidence was likely to disappear altogether in the reasonably near future. Rather, the passage suggests an appreciation that to fix the discount by reference to a current disparity in average earnings would be to ignore an improving trend, and facts known to be likely to affect the economy in the near future, such as the opening of the airport, which might cause that disparity to change faster than in accordance with a purely historic trend analysis, and in relation to compensation for pain and suffering which, from the particular injuries suffered by the plaintiffs, was likely to endure for a long period of time.

The Board was taken to passages in the examination in chief and cross-examination of Dr McLeod, the Attorney General’s expert witness, suggesting that her view was that current volatility in the St Helenian economy, coupled with the improved qualifications and education of its working community, were likely to produce much faster convergence in earnings than might be derived from a purely historic mathematical analysis, and that the measurable growth in GDP on St Helena between 2009/10 and 2014/15 of 16.5% per annum suggested a much more rapid convergence with the UK in economic prosperity than a mere £20 per annum convergence in average wages. Accordingly this ground of appeal comes nowhere near being sufficient to disturb that aspect of the Court of Appeal’s analysis.

Next it was submitted that the Court of Appeal’s reliance upon the probable economic effect of the opening of the airport was unsupported by evidence. Again, if the evidence was insubstantial this was primarily the consequence of the way in which the Attorney General’s case was deployed before the Chief Justice. But in any event, the construction and imminent opening of the airport was a major economic development for St Helena, requiring very substantial capital investment about which the local court could to that extent take judicial notice. Whether it was likely to improve the prosperity of the island’s inhabitants beyond historic trends was, in one sense, a matter for speculation but it was hardly something which the court could just ignore. A conclusion that prosperity was likely to be increased by the opening of the airport cannot be said to have been contrary to the balance of probabilities, even if the extent of that increase in prosperity may turn out to be less than had been hoped for.

The Court of Appeal concluded, at the end of para 24, that:

In summary, the Court of Appeal concluded, on the evidence available to it, that a current disparity in average earnings was in effect cancelled out by the higher cost of living in St Helena (itself established by cross-examination of the Attorney General’s expert) 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 cannot fault that conclusion, made by the appropriate local court when upholding, although for different reasons, the same conclusion by the experienced Chief Justice, as having been vitiated by any error of law or wrong turning which would make it appropriate for the Board to advise that it be set aside on a second appeal.

Accordingly the Board will humbly advise Her Majesty that this appeal should be dismissed.