General Damages Awards for Personal Injuries: should the English JSB guideline figures be uplifted to reflect the cost of living in the Bahamas or Bermuda?

Anyone who has ever been to a supermarket in Bermuda, or had to pay an electricity bill, could be forgiven for making the assumption that the cost of living in Bermuda is much higher than it is in England (conveniently overlooking, for the time being, the different systems and rates of personal taxation).

Such an assumption is only fortified by the surveys that are published from time to time in the newspapers (more often than not the Daily Mail), ranking global cities according to which is the most expensive to live in. (Answer: Hamilton, Bermuda).

There is, as a result, a long tradition in jurisdictions such as Bermuda and the Bahamas of judges making similar such assumptions, when assessing general damages awards in personal injury cases.

In Scott v The Attorney General [2017] UKPC 15, on appeal from the Bahamas, the Privy Council has recently held, however, that general damages (for pain, suffering, and loss of amenity) should be assessed by local Courts, applying local judgment, local standards, local values, and local expectations, but not by making ‘cost of living’ adjustments on a ‘finger in the air’ basis.

While the level of awards made in other common law jurisdictions, and the English JSB Guidelines, may offer some assistance and guidance in the common law world, they are not to be followed slavishly, and there is no general rule of law (or procedure) that the English guideline figures should be adopted elsewhere, and then made the subject of a currency conversion and ‘cost of living’ uplift.

The Privy Council’s decision is worth reading in full, but the following two passages are particularly interesting, to my mind:

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…

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“.

In Bermuda, the issue has been considered in a number of cases, most recently in Smith v Jennings [2016] Bda LR 22, per Acting Justice David Kessaram:

To convert this sum [taken from the English JSB Guidelines] to Bermuda Dollars it was submitted by counsel for the Plaintiff that I should adopt what was said by Ground CJ in the case of  Coller v Hollis [1993] Bda LR 50 (following the decision of Collett J in  Wittich v Twaddle  (1979) Civil Jurisdiction No 117). Ground CJ applied a conversion rate of two dollars to the pound. This rate was not based solely on the actual exchange rate of the two currencies or an average over a period of time; but took into account what was perceived then as “the marked difference” in the cost of living between Bermuda and the UK. As this rule is routinely followed and was not disputed, I do not intend to depart from it. I would only comment that it seems to me to be a rule of practice rather than of law and might be ripe for review.”

Well, it seems that Acting Justice Kessaram’s suggestion has now been followed – the Privy Council having reviewed the rule of practice fairly categorically.

The Privy Council’s decision is in marked contrast to a 1989 judgment from the Court of Appeal for Bermuda, Deshields v James [1989] Bda LR 4, in which the Court of Appeal expressly stated that: “We also take into account that in Bermuda the cost of living is higher than that in England and that therefore equivalent awards may be expected to be that much greater“.

But while the exorbitant price of groceries might be a notorious fact in Bermuda and the Daily Mail, it is plainly not yet a notorious fact in the Privy Council, sitting in London.

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