Assessment of General Damages in the Bahamas

In the recent case of Scott v The Attorney General of The Bahamas [2017] UKPC 15, the Privy Council considered the question whether it was legitimate for the Bahamian courts to assess general damages in personal injuries actions by reference to the Judicial Studies Board (JSB) guidelines in England and Wales. In a number of previous Bahamian cases, notably Acari v Lane (Civ App No 18 of 2000), Mantuszowicz v Parker (1987) 50 WIR 24, and Resorts International (Bahamas) Ltd v Rolle (Civ App No 44 of 1994) it had been held that such reference was appropriate, but that the English figures would need to be adjusted upwards to take into account the higher cost of living in the Bahamas. On the other hand, in Grant v Smith (Civ App No 32 of 2002), the Court of Appeal had suggested that upward adjustment of the English figures was no longer justified, as it was ‘generally accepted that the cost of living in London was now higher than in the Bahamas’.

In the Scott case, claimant’s (appellant’s) counsel had argued that an automatic uplift on the JSB guidelines should be applied as a matter of principle, but the Privy Council rejected that approach. In the view of Lord Kerr, cost of living indices were not, in themselves, reliable means of comparing the two jurisdictions; there were other relevant factors to consider, such as the enhanced expectations of Bahamian citizens, the changes taking place in a developing society, and the incidence of taxation, social benefits and health provision. The Privy Council concluded that the JSB guidelines could ‘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’, and an automatic uplift of the JSB figures did not fulfil those requirements. Above all, a ‘slavish adherence to the JSB guidelines, without regard to the requirements of Bahamian society’, was not appropriate. Reference to the guidelines was justified only if they were found to be consonant with the reasonable requirements and expectations of Bahamians, which was a matter for the local courts to determine.

It appears that in this case no evidence was led in the lower courts as to the comparative costs of living in the Bahamas and England, so there was no justification for an uplift based on the ‘supposed’ higher costs in the Bahamas. It was suggested that, in any event, the most useful precedents might be drawn from the Cayman Islands and Bermuda, which have legal systems similar to that of the Bahamas and whose economic and social conditions are most like those in the Bahamas. No doubt, such issues will come before the courts again in future litigation.

Gilbert Kodilinye