The New Jersey Law Journal reported that between 2019–2020 approximately $270 million was paid from verdicts or settlements for personal injury claims. The largest award was $125 million, resulting from a fallen Verizon utility pole, which injured a woman. The smallest award for $3.35 million resulted from a woman being injured by a protruding guard rail on an interstate ramp. This range of awards is only a glimpse into the amount of money paid out to the victims of personal injury claims in the U.S. However, a clear distinction can be made with the awards given to victims of personal injury claims in The Bahamas. Upon deciding on the quantum of damages following a claim for personal injuries, the Court consults the Judicial Studies Board Guidelines for the Assessment of Damages in Personal Injury Cases. The Court also considers the following factors: the severity of the injury; the presence and degree of any pain; how it has affected day-to-day living; the degree of dependence on others; how long the symptoms will last; other side effects, such as depression; ability to continue working; and age and life expectancy. In the cases illustrated below, the Court used these guidelines when determining the total award related to general damages.
In Delone Symonette v Charles Turnquest 2008/CLE/gen/01877, the Court awarded the Plaintiff the total sum of $416,806.90, with the claims for pain, suffering and loss of amenities ($148,000.00) and past loss of earnings ($134,968.61) making up the bulk of the sum. In that case, the Plaintiff was injured after being knocked off his motorcycle by the Defendant. He sustained several injuries, including a fracture to his right femur, right ulna, left tibula, open laceration on his right knee, muscle abrasion to his right hand, scaphoid fracture to his right wrist and ulna and multiple soft tissue injuries. He was hospitalized for approximately four weeks and underwent three surgeries, resulting in him having to use a wheelchair and needing a caretaker’s assistance for at least four months following the accident. He was also unable to walk for around seven months and was not fit to work for more than a year. Prior to the accident, he was a healthy young man who was now unable to enjoy his pre-accident life. Although he was able to find employment, he was severely handicapped on the job market.
A similar award was given in Shorn Scott v The Attorney General of The Bahamas [2017] UKPC 15, whereby the Plaintiff suffered personal injuries which rendered him a paraplegic following an assault by police officers in 1998. The Supreme Court made an award of $257,000 for general damages comprising $225,000 for his paraplegia, $1,000 for a laceration and a similar sum for scarring. An appeal was made to the Court of Appeal, and his award for the paraplegia was increased to $314,500.00. Mr. Scott’s case was further appealed to the Privy Council. It was argued that his award for general damages should have been $470,819.25 to account for a 5% annual increase when applying the Judicial Studies Board Guidelines for the Assessment of Damages in Personal Injury Cases. After the lower courts rejected the claim, the Board Court ultimately awarded Mr. Scott only $1,940.00 for chronic headaches and dizziness.
While these guidelines are meant to be used as a guide for the Courts as comparisons to awards given in the United Kingdom, it has been opined several times that it should be treated with flexibility. The Board also made a similar comment and consideration in Shorn Scott (supra), whereby at paragraph 23 of the ruling, they state that “what is reasonable” must reflect local conditions and expectations. At paragraph 25, they continue:
“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.”
While it is understandable to look at our neighbours to the North in comparison, in light of the comments above, it can be assumed that there is a link between a country’s economic growth and development and the granting of higher compensatory awards by the Courts. In my opinion, if the aim of compensatory damages awards is to position the person where he or she would have been before the accident based on the sums awarded by the Courts, have they done that, has it been enough to make the person “whole” again? I do not believe so. The Bahamas, although small in population, is rapidly growing in a multitude of ways and as such, there should be a more robust compensatory regime to accompany such growth. Perhaps, we can look to 2021 with an expectation for changes to be made for greater consideration in the Court’s assessment and award of quantum for damages in The Bahamas.