Easter Term
[2017] UKPC 15
Privy Council Appeal
No 0042 of 2016
JUDGMENT
Scott (Appellant) v The Attorney General and
another (Respondents) (Bahamas)
From the Court of Appeal
of the Commonwealth of the Bahamas
before
Lord Mance
Lord Kerr
Lord Sumption
Lord Reed
Lord Hughes
JUDGMENT GIVEN ON
16 May 2017
Heard on 20 February 2017
|
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)
|
LORD KERR:
Introduction
1.
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.
2.
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.
3.
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.”
4.
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.
5.
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.
The appeal to the Court of Appeal
6.
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.
7.
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.
8.
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.
9.
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.
10.
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 appeal before the Board
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
A question of principle?
16.
Is there a principle that guideline figures, suggested by the JSB for
particular types of injury, should be routinely increased to reflect different
levels of the cost of living between England and the Bahamas? The Board has
concluded that there is no such principle. There are three reasons for this.
The first, and most important one, is that a prescriptive approach to the
assessment of damages whereby they are determined by the rigid application of a
scale which is then increased at a preordained rate is incompatible with the
proper evaluation of general damages. The second reason is that, on a proper
understanding of the relevant case law, it is clear that no such principle has
been pronounced by the Bahamian courts. Finally, it would be wrong to apply an
unchanging uplift without evidence of an actual, as opposed to a presumed,
difference in the cost of living between England and the Bahamas.
Assessment of damages for pain and suffering and loss of
amenity
17.
General damages must be compensatory. They must be fair in the sense of
being fair for the claimant to receive and fair for the defendant to be
required to pay - Armsworth v South Eastern Railway Co (2) (1847) 11 Jur
at p 760. But an award of general damages should not aspire to be “perfect
compensation” (however that might be conceived) - Rowley v London and North
Western Railway Co (3) (1873) LR 8 Ex at p 231. It has been suggested that
full, as opposed to perfect, compensation should be awarded - Livingstone v
Rawyards Coal Co (1880) 5 App Cas 25, 39 per Lord Blackburn:
“where any injury is to be
compensated by damages, in settling the sum of money to be given for reparation
of damages you should as nearly as possible get at that sum of money which will
put the party who has been injured, or who has suffered, in the same position as
he would have been in if he had not sustained the wrong …”
18.
As Dickson J, in the Supreme Court of Canada, observed in Andrews v
Grand & Toy Alberta Ltd (1977) 83 DLR (3d) 452, 475-476, applying this
principle in practice may not be easy:
“The monetary evaluation of
non-pecuniary losses is a philosophical and policy exercise more than a legal
or logical one. The award must be fair and reasonable, fairness being gauged by
earlier decisions; but the award must also of necessity be arbitrary or
conventional. No money can provide true restitution.”
19.
Accepting and following this approach, the Court of Appeal in England
and Wales in Heil v Rankin [2000] EWCA Civ 84 at para 23 said:
“There is no simple formula for
converting the pain and suffering, the loss of function, the loss of amenity
and disability which an injured person has sustained, into monetary terms. Any
process of conversion must be essentially artificial.”
20.
In reaching that conclusion, the court drew on the statement of Lord
Pearce in H West & Son Ltd v Shephard [1964] AC 326, 364 to the
effect that the court had to “perform the difficult and artificial task of
converting into monetary damages the physical injury and deprivation and pain
and to give judgment for what it considers to be a reasonable sum”.
21.
The arbitrary nature of the exercise was also recognised in Heeralall
v Hack Bros (1977) 25 WIR 119 where Haynes CJ said at 125 that “the
judicial exercise of measuring in money such things as pain and suffering or
the impairment of capacity to lead life to the full really involves dealing in
incommensurables”.
22.
Given the essentially artificial, and therefore arbitrary, nature of the
exercise involved in the assessment of general damages, there is a risk of
markedly different levels of compensation resulting from individual assessments
of what they should be. The need for some general guidance as to the
appropriate amounts in similar cases is obvious. It was that need which
prompted the statement in Heil v Rankin in para 25 to the following
effect:
“The assessment of general damages
requires the judge to make a value judgment. That value judgment has been
increasingly constrained by the desire to achieve consistency between the
decisions of different judges. Consistency is important, because it assists in
achieving justice between one claimant and another and one defendant and
another. It also assists to achieve justice by facilitating settlements. The
courts have become increasingly aware that this is in the interests of the
litigants and society as a whole, particularly in the personal injury field.
Delay in resolving claims can be a source of great injustice as well as the
cause of expense to the parties and the justice system. It is for this reason
that the introduction of the guidelines by the Judicial Studies Board (‘JSB’)
in 1992 was such a welcome development.”
23.
What is a reasonable sum must reflect local conditions and expectations.
In para 38 of Heil v Rankin the Court of Appeal said, “… The decision
[on the amount of general damages] has to be taken against the background of
the society in which the Court makes the award. The position is well
illustrated by the decisions of the courts of Hong Kong. As the prosperity of
Hong Kong expanded, the courts by stages increased their tariff for damages so
that it approached the level in England. [See Chan Pui-ki v Leung On
[1996] 2 HKLR 401 (at pp 406-408)]”.
24.
The Chan Pui-Ki decision followed that given in the earlier Hong
Kong case of Lau Che Ping v Hoi Kong Ironwares Godown Co Ltd [1988]
2HKLR 650 where the Court of Appeal responded positively to the argument that
awards fixed in a 1980 decision in Lee Ting Lam should be reviewed and
increased. In giving the judgment of the court in Lau Che Ping, Cons ACJ
said at 654F:
“Apart from … automatic adjustment
for inflation, a general adjustment of the guidelines may be necessary on
account of change in social and economic conditions … Changes inevitably take
place in the everyday life of any growing society and the expectations of the average
person and family tend to increase as each year goes by. Hong Kong is no
exception, and those changes must be reflected in the general standards of
awards, otherwise the awards will cease to be regarded as fair and reasonable
compensation.”
25.
The Bahamas must likewise be responsive to the enhanced expectations of
its citizens as economic conditions, cultural values and societal standards in
that country change. Guidelines from England may form part of the backdrop to
the examination of how those changes can be accommodated but they cannot, of
themselves, provide the complete answer. What those guidelines can provide, of
course, is an insight into the relationship between, and the comparative levels
of compensation appropriate to different types of injury. Subject to that local
courts remain best placed to judge how changes in society can be properly
catered for. Guidelines from different jurisdictions can provide insight but
they cannot substitute for the Bahamian courts’ own estimation of what levels
of compensation are appropriate for their own jurisdiction. It need hardly be
said, therefore, that a slavish adherence to the JSB guidelines, without regard
to the requirements of Bahamian society, is not appropriate. But this does not
mean that coincidence between awards made in England and Wales and those made
in the Bahamas must necessarily be condemned. If the JSB guidelines are found
to be consonant with the reasonable requirements and expectations of Bahamians,
so be it. In such circumstances, there would be no question of the English JSB
guidelines imposing an alien standard on awards in the Bahamas. On the
contrary, an award of damages on that basis which happened to be in line with
English guidelines would do no more than reflect the alignment of the aspirations
and demands of both countries at the time that awards were made for specific
types of injury.
26.
Cost of living indices are not a reliable means of comparing the two
jurisdictions even if one is attempting to achieve approximate parity of value
in both. Cost of living varies geographically and may well do so between
various sectors of the population. The incidence of tax, social benefits and
health provision (among others) would be relevant to such a comparison.
27.
It is perhaps unfortunate that the Court of Appeal did not address the
argument that the proper way to determine compensation for general damages was
to fix the basic rate by reference to the JSB guidelines and apply a notional
uplift. The lack of reference to that argument in the judgment should not be
taken as an indication that it was not considered, however. It must be assumed
that the Court of Appeal decided that this was not how general damages should
be assessed, since, although the English JSB guidelines were followed, no
uplift was applied.
28.
It is likewise not to be assumed that the Court of Appeal decided that
it need only apply the JSB guidelines to arrive at the appropriate amount,
without regard to local economic conditions and the expectations of citizens of
the Bahamas. As has been observed at para 25 above, if JSB guidelines happen to
coincide with what is regarded as appropriate for the Bahamas, there is no
reason that they should not be adopted. And the Board should be properly
reticent about interfering with the Court of Appeal’s assessment unless
satisfied that a wrong principle of law was applied or that the award was so
inordinately small or exceedingly great that it was plainly wrong. As the Board
said in Nance v British Columbia Electric Railway Co Ltd [1951] AC 601,
613:
“… before the appellate court can
properly intervene, it must be satisfied either that the judge, in assessing
the damages, applied a wrong principle of law (as by taking into account some
irrelevant factor or leaving out of account some relevant one); or, short of
this, that the amount awarded is either so inordinately low or so inordinately
high that it must be a wholly erroneous estimate of the damage (Flint v
Lovell [1935 1 KB 354]), approved by the House of Lords in Davies v
Powell Duffryn Associated Collieries, Ltd [1942 AC 601].”
29.
The Board is not in a position to say that the choice of the Court of
Appeal to order that general damages should be in line with the JSB guidelines
involved the application of a wrong principle of law or resulted in an
inordinately low award. As has been said (at para 25 above), this is primarily
a matter for Bahamian courts, familiar with local conditions and the hopes and
aspirations of the society which they serve.
The relevant case law
30.
In Matuszowicz v Parker (1987) 50 WIR 24, 25, Georges CJ said:
“Until a pattern of local
decisions emerges it appears to me sensible to look to the English decisions.
They should not be treated as inflexible guides. There is no income tax in the
Bahamas. The cost of living is somewhat higher than in Great Britain. It would
also be true to say that expectations in relation to awards are higher because
of awareness of the very high awards common in the USA, awards which
incidentally have built into them the costs of counsel paid on a contingency
basis. English awards could therefore be treated as a guide, but increased as
seems appropriate, having regard to local conditions.”
31.
It is important to note that Georges CJ was careful to stipulate that
English decisions should not be treated as inflexible guides. Indeed, in an
earlier passage in his judgment he had expressed the view that the most useful
precedents could be drawn from Bermuda and the Caymans which had similar legal
systems and whose economic and social conditions were most like those in the Bahamas.
But cases from those jurisdictions were “not likely to be many and, in the
absence of law reports, access to decided cases [would] not be easy.” Recourse
to English decisions was a matter, therefore, of tapping the best, rather than
the ideal, source. And it is clear that the Chief Justice did not propound a
principle that English awards, with an appropriate uplift, were in any sense
the infallible guide to the appropriate levels of award in the Bahamas.
32.
In Lubin v Major Appeal No 6 of 1990 (unreported) the Court of
Appeal took a similar approach. It suggested that English decisions could be
treated “as a guide, though not as an inflexible guide, to the level of awards
in personal injury assessments adjusted upwards as appropriate having regard to
the relatively higher cost of living in the Bahamas.” Again, it is clear that
the court did not suggest that this approach was the one to be invariably
followed. Resort to the decisions in England was not inflexibly required and
the upward adjustment should be made “as appropriate”. No general principle was
enunciated.
33.
Acari v Lane was the third of the cases on which the appellant
relied to advance the argument that there had been an established practice in
the Bahamas of fixing the level of general damages by following the JSB
guidelines and applying an uplift to reflect a cost of living that was higher
there than that experienced in England. In that case the Court of Appeal (Zacca
P, Churaman and Ganpatsingh JJA) increased an award of $60,000 for pain suffering
and loss of amenity associated mainly with back injuries to $100,000. At pp
10/11 of his judgment, Ganpatsingh JA said at pp 10-11:
“In the Bahamas we have, as yet,
not established categories and a tariff of assessments in the nature of
conventional sums for these kinds of cases. This may well be as a result of the
relatively limited number of claims in which harm of varying degrees of
seriousness have occurred … One is therefore compelled to look elsewhere for
guidance. The Judicial Studies Board Guidelines for the Assessment of General
Damages in Personal Injury Cases, categorises back injuries as being severe to
moderate … the damages range from £14,000 at the moderate end to £35,000 at the
higher end of the scale. These figures are of course only guidelines and 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 here than in England; See Lubin v Major Civil Appeal
6 of 1990 and Matuszowicz v Parker 1987 50 WIR 24.”
34.
Although the Court of Appeal considered that the JSB guidelines were an
obvious source of comparative awards, there is nothing in the judgment that
suggests that general damages should not be geared primarily to meet the needs
of the citizens of the Bahamas. On the contrary, it was precisely because
English guideline figures were deemed akin to those that were appropriate for
the Bahamas that the JSB guidelines were chosen as a source of reliable
comparison. A claim made by the appellant in Acari that comparison
should be made with awards in USA was dismissed because that country was
“dissimilar socially, economically and industrially” to the Bahamas.
35.
The use of JSB guidelines as a means of determining awards in the
Bahamas has no intrinsic authority. Its value lies in assisting to produce
awards which are considered to suit the requirements of Bahamians. If or when
the guidelines are deemed incapable of bringing about that result, their use
will no longer be justified.
36.
The use of JSB guidelines with an uplift to cater for the difference in
cost of living between the Bahamas and England was again canvassed in the case
of Grant v Smith (referred to above at para 4). The Court of Appeal
(Churaman, Ibrahim and Osadebay JJA), while accepting that the JSB guidelines
could be used, rejected the argument that an uplift should be applied. The
observation of Osadebay JA that the cost of living in London was now higher
than in the Bahamas was criticised by the appellant in this case on the basis
that the cost of living in London was much higher than in other parts of the UK
and the JSB guidelines were designed to apply to England and Wales generally.
37.
This observation does not appear to have been based on evidence. It was
stated that “it is now generally accepted” that this was the position. In those
cases where an uplift was applied, however, it does not appear that evidence
was adduced to support the claimed difference in the cost of living between
England and the Bahamas. For reasons earlier set out, the Board considers that
assumptions as to any difference in the cost of living in the two countries
cannot be a sound basis on which to calculate the appropriate award of general
damages. Be that as it may, it is quite clear that the Court of Appeal did not
accept that there was a principle or binding practice that an uplift should be
applied.
38.
In none of the cases to which the Board has been referred, therefore,
has any principle or practice requiring an increase to be applied to JSB
guidelines been recognised. The differences in the cases of, on the one hand, Acari
and Matuszowicz, and, on the other, Grant, do not represent
“conflicting decisions” on a matter of principle but rather a preparedness on
the part of the courts in the earlier cases to accept that there was a
difference in the cost of living between the Bahamas and England and in the
case of Grant a refusal to accept that this was so.
The basis on which an uplift might be applied
39.
In none of the cases in which the question of whether an increase to the
figures given in the JSB guidelines should be applied was evidence adduced as
to what the mooted difference in the cost of living between the two countries
actually was or on what basis it had been calculated. In the course of the hearing
before the Board it was suggested that this was a matter of which judicial
notice could be taken. The Board cannot accept that proposition.
40.
Judicial notice is the acceptance by the courts of facts or a state of
affairs which are so notorious, or so clearly established, that evidence of
their existence is deemed unnecessary. As Cross and Tapper on Evidence
12th ed (2010), p 76 state:
“Judicial notice refers to facts
which a judge can be called upon to receive and to act upon either from his
general knowledge of them, or from inquiries to be made by himself for his own
information from sources to which it is proper for him to refer.”
41.
Moreover, the party seeking judicial notice of a fact “has the burden of
convincing the judge (a) that the matter is so notorious as not to be the
subject of dispute among reasonable men, or (b) the matter is capable of
immediate accurate demonstration by resort to readily accessible sources of
indisputable accuracy” - Morgan, Some Problems of Proof under the
Anglo-American System of Litigation 36.
42.
It is plainly impossible to take judicial notice of the difference in
cost of living between the Bahamas and England. Where that difference was
accepted in cases such as Acari and Matuszowicz, it must have
been on the basis of agreement or assumption. Absent agreement, however, this
is not something which can be assumed. For the reasons given earlier, the Board
considers that a mechanistic adherence to JSB guidelines with an automatic increase
cannot be the proper way in which to assess general damages in the Bahamas. If
such an approach was appropriate, it could only be contemplated on the basis of
evidence to establish the fact that there was a difference in the cost of
living between the two countries, rather than an assumption that this was so.
It should be made clear, however, that the Board does not commend such an
approach. As already observed, JSB guidelines can provide an insight into the
proper awards of compensation for pain and suffering and loss of amenity in the
Bahamas but only in so far as they meet the standards and expectations of
Bahamians. An automatous method of assessing general damages by seeking out the
norm in England and adding an automatic increase cannot fulfil those
requirements.
Particular aspects of the appellant’s continuing problems
43.
The appellant complained that the Court of Appeal had wrongly dismissed
or downgraded three aspects of difficulties that he continued to experience as
a result of the injuries that he had sustained. The first of these related to
his claimed loss of bladder and bowel function which, he claimed, required
separate assessment from his general paraplegic condition. Secondly, he claimed
to have suffered total loss of sensation in the genital area which affected his
sexual enjoyment. Finally, he argued that the assistant registrar and the Court
of Appeal had failed to fully reflect the continuing effects of the head injury
which he had sustained.
44.
The assistant registrar rejected the argument that loss of bladder and
bowel function should be treated as a separate head of damage. She said that
she did not consider that the medical evidence established “any injury to
internal organs per se”. She considered that the loss of bladder and bowel
functions was a feature of the appellant’s paraplegia. This was a conclusion
which the assistant registrar was clearly entitled to reach. There was no
medical evidence to suggest that the loss of bladder and bowel function had a
separate aetiology from that of the injury which caused the paraplegia.
45.
Before the Court of Appeal, counsel for the appellant presented an
ambitious argument that, because one can lose one’s bladder and bowel function
without losing control of one’s legs, or lose control of one’s legs without
losing control of bowel and bladder function, the loss of control of these
functions had to be treated separately. This argument neglects to address the
undisputed scientific and medical fact that paraplegia can cause loss of
function to both the lower limbs and the internal organs below the line
where damage to the spinal cord occurs. The assistant registrar and the Court
of Appeal were entirely right to reject the argument.
46.
They were likewise right in rejecting the argument about impairment of
sexual function. The appellant’s claim that he had no sensation whatever in his
genitals was not only not supported by medical evidence, it was plainly
unsustainable for the reasons that both courts gave. The appellant had fathered
three children after the incident in which he had suffered injury. As the Court
of Appeal observed in para 21 of its judgment, this was wholly inconsistent
with a complete loss of sensation in the genital area.
47.
Although the Court of Appeal increased the amount of compensation
ordered by the assistant registrar because of her failure to make a separate
award for the sequelae of the appellant’s head injury, at para 40 of her
judgment Allen P said that there was no evidence that he had suffered dizziness
or pain in his ear as a result of having been struck on the head by a baton. In
fact, the appellant had given evidence that he continued to suffer from
transient vertigo when he sat up in the morning or when he rose during the
night. He also claimed that he suffered pain in his left ear on a continuous
basis. He was not challenged on either claim. And on the hearing before the
Board, the respondent did not contend that the appellant was not entitled to be
compensated for these continuing consequences of his injuries.
48.
The Board has concluded, therefore, that the compensation which the
appellant is entitled to receive ought to be increased to take account of these
aspects of his injury. Having regard to the JSB guidelines, the Board considers
that the appropriate amount to compensate for these continuing symptoms is
£1,500 which converts at current rates to B$1,940 in round figures.
Conclusion
49.
The Board will humbly advise Her Majesty that the appellant’s appeal
should be allowed to the extent of increasing the amount of compensation to be
recovered by him by B$1,940 but that it should otherwise be dismissed. The
parties are invited to make written submissions on costs within 21 days of the
delivery of this judgment.
