On 18 November Marc Willems QC and Stefanie Cochrane appeared before the Judicial Committee of the Privy Council at the Supreme Court in London instructed by the St Helena Public Solicitor on behalf of three respondents.
They represented the Respondents in an Appeal from the St. Helena Court of Appeal following a trial which Marc dealt with at first instance in the St Helena Supreme Court (Sitting in St Helena). Marc and Stefanie both successfully represented the Respondents in the St Helena Court of Appeal.
Did the St Helena Court of Appeal err in the principles it applied when considering the appropriate level of damages for pain, suffering and loss of amenity (‘PSLA’)?
AB and AC: On 5 November 2012, Dr Du Toit, a doctor employed by the St Helena Government, negligently performed a caesarean section upon AB. Whilst doing so, and without AB’s consent or knowledge, he also sterilised her by tubal ligation. AB’s baby died two days later. AB and her partner, AC, brought claims seeking damages for PSLA, loss of earnings, the costs of fertility treatment and for breaches of their constitutional rights.
NK: On 29 March 2013, Dr Du Toit delivered NK’s fourth child by caesarean section. At the same time, without her knowledge or consent, he sterilised NK by tubal ligation. NK brought claims for PSLA, the costs of fertility treatment and for breaches of her constitutional rights.
The cases of AB, AC and NK were heard together. In respect of PSLA, AB was awarded £130,000, AC was awarded £15,000 and NK was awarded £120,000. These awards were based on guidelines for the assessment of damages in personal injury cases in England and Wales, the Supreme Court of St Helena finding that it would amount to discrimination if persons living in St Helena received a lower level of damages than other British citizens.
The Attorney General challenged these awards in the St Helena Court of Appeal, which did not agree with the Supreme Court’s reasoning but which nevertheless considered that the awards were correct. This was because the wages in St Helena were catching up to those in England and there was a justifiable expectation among St Helenians that they would be treated the same as other citizens living in England and Wales.
The board comprising Lady Hale, Lord Wilson, Lord Briggs, Lady Arden and Lord Sales are expected to deliver judgement soon.