This article originally appeared in Issue 5 (May 2020).
This case arose out of two actions for damages for personal injury brought against a doctor employed on the island of St Helena (in the South Atlantic Ocean). The trial judge had awarded the claimants significant damages for PSLA, calculated using the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (“JC Guidelines”) published in England and Wales. The issue in these proceedings was whether the trial judge should have discounted the amounts awarded by one third to reflect the differences in average earnings between those in St Helena and those in England and Wales.
It was agreed that quantification of PSLA damages in St Helena was a matter governed by the common law of England. The issue was whether local circumstances made adaptation to the common law necessary.
At  the Board started by setting out the purpose of PSLA damages, namely to compensate the Claimant for non-pecuniary injury. At  the Board noted that: “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…” noting that in difference societies, the amount that is fair may differ.
At  to  the Board emphasised the principle that the identity of the Defendant must be irrelevant to the assessment of PSLA. The Board noted at  the suggestion by the Attorney General’s counsel 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.”
This argument was given short shrift and at  it was noted 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 Board went on to consider a further argument as to whether there was sufficient evidence before the lower court to come to its conclusions. The Board dismissed this ground of appeal too.
Overall, this short judgement of the Judicial Committee of the Privy Council is a helpful reminder of the purpose of PSLA damages and the basic principles upon which they are founded.