Baycourt Chamber’s senior Partner, Raynard Rigby, landed a major decision on the quantification of damages in personal injury litigation.
In Symonette v Turnquest CLE/gen/1877 of 2008 Justice Winder confirmed that the UK’s Ogden Tables are not applicably in The Bahamas. He followed the approach of the Privy Council in Cadet’s Car Rentals Limited et al v Pinder Justice Winder stated:
Having given the matter careful and anxious consideration, I will decline to make use the Ogden Tables. I find that it is inappropriate to do so. My concerns, as indicated by their Lordships, are based upon the simple fact that they are based upon actuarial tables and calculations, not only prepared in the United Kingdom, but based upon the United Kingdom econometrics. As their Lordship rightly noted, the Tables are intended to reflect the particular conditions prevailing in the United Kingdom which are likely to differ considerably from those in The Bahamas.
The Ruling also confirmed that an automatic uplift is not applicable on PSLA awards in The Bahamas. This is the first time that the Bahamian Court had to consider the approach of the Privy Council in Scott v AG et al [2017] UKPC 15.
The Court also addressed the issue of mitigation.
Mitigation as it relates to this claim is also in dispute between the parties. The Defendant relies heavily upon a letter dated 14 November 2018 which notified the Plaintiff that they would plead that there was a failure to mitigate his loss of earnings on his part. They say that this letter is adequate notice and rely on Geest v Lansiqot [2002] UKPC 48 affirmed in by the Bahamas Court of Appeal in Baptiste v Peet [2016] 2 BHS J. No.28.
This principle applies equally to non-pecuniary losses as reflected in the current matter. The question of mitigation of damage by the plaintiff is one of fact and not of law. The medical report of 1 July 2008 by Dr. Grimes indicates that the Plaintiff was unfit for work for 1 year after the accident, however no evidence has been led that the Plaintiff actively sought work following this period. The Plaintiff’s evidence is that he did not work again until May 2009 when he was employed with IBC. I find therefore that the Defendant ought not to be held responsible for the Plaintiff’s job loss and failure to mitigate after the loss of his employment with BFF. I will reduce his income loss for the period by 40% for his failure to mitigate.
