The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE country’s highest court has allowed the appeal by a man who became a paraplegic as a result of a beating by police officers in Freeport, Grand Bahama, to determine the amount of damages to which he is entitled.

Shorn Scott had been granted conditional leave to appeal to the Judicial Committee of the Privy Council a ruling by the Court of Appeal with respect to the amount awarded to him for the incident, originally set at more than $880,000 in 2013.

In a 15-page judgment published on the JCPC website yesterday, it was noted that: “In the written submissions for the Court of Appeal, reference had been made to the submission made to the assistant registrar that an adjustment was necessary to reflect the ‘relatively higher cost of living and the higher level of expectation in The Bahamas.’ In those submissions it was argued that an annual increase of five per cent was appropriate so that, even applying the 2010 guidelines, the award for general damages should have been $470,819.25.

“It was submitted that the failure of the Court of Appeal to apply an uplift went counter to an established line of authority. It was also claimed that the court ought to have addressed and resolved the conflict between the Acari and Grant cases. It was claimed that an uplift on the English guidelines should be applied as a matter of principle.

“...The appellant also argued that the Court of Appeal’s findings that there was no loss of sexual sensation and that the loss of bowel and bladder function were part and parcel of the paraplegia were unsustainable in light of the uncontroverted evidence given by the appellant and on his behalf.

“Finally, it was submitted on behalf of the appellant that, in its assessment of the sum to be awarded in respect of the head injury which he sustained, the Court of Appeal fell into obvious error in suggesting that there had been no evidence that he suffered from dizziness or pain in his ear. Evidence had been given that both these complaints continued. That evidence had not been challenged or controverted.”

The court also noted: “Before the Court of Appeal, counsel for the appellant presented an ambitious argument that, because one can lose one’s bladder and bowel function without losing control of one’s legs, or lose control of one’s legs without losing control of bowel and bladder function, the loss of control of these functions had to be treated separately. This argument neglects to address the undisputed scientific and medical fact that paraplegia can cause loss of function to both the lower limbs and the internal organs below the line where damage to the spinal cord occurs. The assistant registrar and the Court of Appeal were entirely right to reject the argument.

“They were likewise right in rejecting the argument about impairment of sexual function. The appellant’s claim that he had no sensation whatever in his genitals was not only not supported by medical evidence, it was plainly unsustainable for the reasons that both courts gave. The appellant had fathered three children after the incident in which he had suffered injury. As the Court of Appeal observed in para 21 of its judgment, this was wholly inconsistent with a complete loss of sensation in the genital area.

“Although the Court of Appeal increased the amount of compensation ordered by the assistant registrar because of her failure to make a separate award for the sequelae of the appellant’s head injury, at para 40 of her judgment Allen P said that there was no evidence that he had suffered dizziness or pain in his ear as a result of having been struck on the head by a baton.

“In fact, the appellant had given evidence that he continued to suffer from transient vertigo when he sat up in the morning or when he rose during the night. He also claimed that he suffered pain in his left ear on a continuous basis. He was not challenged on either claim. And on the hearing before the board, the respondent did not contend that the appellant was not entitled to be compensated for these continuing consequences of his injuries.”

“The board has concluded, therefore, that the compensation which the appellant is entitled to receive ought to be increased to take account of these aspects of his injury. Having regard to the JSB guidelines, the board considers that the appropriate amount to compensate for these continuing symptoms is £1,500 which converts at current rates to B$1,940 in round figures.”

“The board will humbly advise Her Majesty that the appellant’s appeal should be allowed to the extent of increasing the amount of compensation to be recovered by him by B$1,940 but that it should otherwise be dismissed. The parties are invited to make written submissions on costs within 21 days of the delivery of this judgment.”

Mr Scott had filed a civil suit against the Attorney General and Commissioner of Police in 2002. In January 2010, Justice Gray Evans ruled liability in favour of Mr Scott for the injuries he received in a police beating. He listed those injuries as paraplegia, a hematoma, laceration to the head, abrasion to an elbow and injury to lower back.

Justice Evans had ordered that his damages as a result of the incident be assessed, which was done at a hearing in September 2013. Before the hearing, Mr Scott made additional claims to damages, including headaches and loss of bowel and bladder functions.

In 2013, Assistant Registrar Eurika Charlton awarded Scott $886,089 in total damages, which included $257,000 for pain, suffering, and loss of amenities. However, Ms Charlton then subtracted five per cent of the total award, which she said had represented “disability benefits” previously received by Mr Scott.

He contested this amount awarded for general damages on the basis that the allocation was “inordinately low,” arguing that the Assistant Registrar did not consider his additional claims to be a part of the head injury and paraplegia he suffered as a result of the beating.

He further contended that the assistant registrar should not have deducted the five per cent from his total award.

The appellate court handed down its decision on March 2, 2015 which was published online. Justices Dame Anita Allen, Stanley John and Abdulai Conteh, the presiding judges of the appeal, substituted the original awarded sum of $257,000 with $325,000 for general damages.

The court further awarded Mr Scott costs of the legal battle in both the Supreme Court and the appellate court.

However, that decision was subsequently challenged as the principal argument advanced on behalf of the appellant was that the Court of Appeal had failed to address the argument that an uplift should have been allowed on the figure suggested by the English JSB guidelines for general damages.

Dawson Malone argued Mr Scott’s appeal that was presided over by Lords Mance, Kerr, Sumption, Reed and Hughes during a special Privy Council sitting in February in Nassau.

Peter Knox QC, David Higgins, assistant director of legal affairs and Anastacia Hepburn appeared for the respondents.