Kembo Tirima for Herself and as Best Friend of Monica Tirima, Morris Tirima, Margaret Tirima and Moslin Tirima v Angau Memorial Hospital Board and The Independent State of Papua New Guinea (2005) N2779

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 04 February 2005
• Court: National Court
• Citation: (2005) N2779
• Year: 2005
• Judgement Number: N2779

Full Title: Kembo Tirima for Herself and as Best Friend of Monica Tirima, Morris Tirima, Margaret Tirima and Moslin Tirima v Angau Memorial Hospital Board and The Independent State of Papua New Guinea (2005) N2779

National Court: Cannings J

Judgment Delivered: 4 February 2005

N2779

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1262 0F 1996

KEMBO TIRIMA FOR HERSELF AND AS BEST FRIEND OF MONICA TIRIMA, MORRIS TIRIMA, MARGARET TIRIMA AND MOSLIN TIRIMA

Plaintiff

V

ANGAU MEMORIAL HOSPITAL BOARD

1st Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

2nd Defendant

WAIGANI : CANNINGS J

8 SEPTEMBER, 27 OCTOBER 2004, 4 FEBRUARY 2005

JUDGMENT

Negligence – medical negligence – person injured in criminal attack taken to hospital for emergency treatment – medical treatment administered – death of patient – dependency claim by widow – Wrongs (Miscellaneous Provisions) Act – action based on common law tort of negligence – five elements of the tort of negligence: duty of care, breach of duty, causation, non-remoteness of damage, non-contribution by plaintiff to injury – duty of care – particular relationships – public hospital – emergency and accident department – no issues as to remoteness or contributory negligence or volenti non fit injuria – findings of fact – considerations to take into account in making findings of fact – whether hospital or its staff were negligent – two-step process for determining negligence – standard of care – standard of treatment to be reasonable in all the circumstances – whether the medical staff acted reasonably – considerations to take into account in determining whether medical staff acted negligently – expert opinion – weight to be given to expert evidence – failure to give proper treatment – failure to initiate basic life saving procedures – failure to keep proper records – inference to be drawn in event of failure to keep proper records – paucity of evidence by medical staff to explain what happened – patient’s death preventible – causation – whether death caused by negligence of hospital or its employees or others for whose conduct it is vicariously liable – decision on liability.

Cases cited

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Gima Oresi v Chris Marjen and The State (1998) N1784

Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184

Kembo Tirima v Angau Memorial Hospital Board, The State and Leasemaster Pty Ltd, WS 1262 of 1996, National Court, unreported, 18.11.97

Koko Kopele v MVIT [1983] PNGLR 223

Mahon v Osborn [1939] 2 KB 14

Marshall v Lindsey County Council [1935] 1 KB 516

Maxine George v Burns Philp (NG) Ltd (1981) N324

Moini v Government of Papua New Guinea [1977] PNGLR 39

B Boma for the plaintiff

J Kumura for the defendants

CANNINGS J:

INTRODUCTION

This is a case about alleged negligence on the part of a public hospital and its medical staff. A man was injured as a result of a criminal attack. He was taken to the casualty ward. He was treated but died a few hours later.

His wife claims that he was treated negligently and this caused his death. She is making a dependency claim. She is suing the hospital and the State, which funds it. She seeks damages, ie compensation, on behalf of herself and her children.

The defendants deny that they were negligent. They claim that the medical staff did all that they could to save the man’s life. His death was tragic, but it was not due to negligence. This judgment addresses the issue of liability.

BACKGROUND

Stabbing incident and death

On Saturday 28 January 1995 in Lae, criminals attacked a driver employed by Hertz Rent-A-Car, Paul Tirima, during a hold-up. The Hertz car he was driving was stolen and Mr Tirima was stabbed in the abdomen. He made his way to a nearby service station. He collapsed. One of his friends found him and rushed him to Angau Hospital. The stabbing incident occurred about 7.00 pm. By about 8.00 pm Mr Tirima was in the casualty ward. He was operated on later in the evening. By 4 o’clock the next morning he had died.

Workers compensation claim

On 13 October 1995 the Workers Compensation Tribunal awarded the plaintiff and her children K25,000.00 under the Workers Compensation Act, as Mr Tirima had been injured during the course of his employment.

Statement of claim

Mr Tirima’s widow, Kembo Tirima, is the plaintiff. On 19 December 1996 Warner Shand Lawyers filed a writ of summons on her behalf. Three defendants were named:

· the Angau Memorial Hospital Board;

· the State; and

· Leasemaster Pty Ltd, trading as Hertz Rent-A-Car.

The plaintiff sued for herself and as best friend of four children of her marriage to Mr Tirima: Monica Tirima, aged 17 years; Morris Tirima, aged 11; Margaret Tirima, aged 7; and Moslin Tirima, aged 7.

The statement of claim attached to the writ claims that the hospital staff who treated Mr Tirima were negligent and that the first and second defendants are vicariously liable for the staff’s negligence. The alleged negligence was particularised as:

· failing to administer any anaesthetic drugs to the deceased;

· failing to perform a surgical operation to remove or reduce internal bleeding;

· failing to assist in the surgical operation required by the deceased; and

· refusing to accept the assistance of Dr Aikebuse, a private doctor, to assist in a surgical operation.

The plaintiff seeks damages, special damages, funeral expenses, interest and costs.

Events since filing of writ

On 15 April 1997 the Solicitor-General filed a defence on behalf of the first and second defendants. The circumstances in which Mr Tirima was stabbed and taken to hospital were admitted. But the alleged negligence by the hospital staff was denied outright. No issue was taken as to whether the plaintiff had complied with the time limitations for giving notice under the Claims By and Against the State Act 1996. So the Court has not addressed that issue and it is too late to raise it now.

On 18 November 1997 Sawong J summarily dismissed the claim against the third defendant, Leasemaster, for not disclosing a reasonable cause of action. His Honour held that in light of the award made by the Workers Compensation Tribunal a common law claim against the employer was prohibited by Section 84 of the Workers Compensation Act. (Kembo Tirima v Angau Memorial Hospital Board, The State and Leasemaster Pty Ltd, WS 1262 of 1996, National Court, unreported.)

The case was then set down for trial on several occasions over a number of years, but the trial dates were vacated.

In December 2002 Warner Shand ceased to act and Paul Paraka Lawyers of Port Moresby commenced acting for the plaintiff. Then in November 2003 Paul Paraka Lawyers ceased to act and Poro Lawyers of Port Moresby commenced acting for the plaintiff.

On 6 September 2004 the trial started at Waigani. By agreement of the parties, witnesses were not called to give oral evidence. It was agreed that the case would be run on the basis of nine affidavits, all tendered by consent. Submissions were made on 29 October 2004.

THE EVIDENCE

Nine affidavits

The first seven affidavits in the table below were tendered by the plaintiff; the remaining two by the defendants.

Exhibit Date Deponent and description

A 02.07.01 Joanness Poya, brother-in-law of deceased

B 05.06.01 Kembo Tirima, plaintiff, wife of deceased

C 07.06.01 Aisik Wanu, service station manager

D 14.08.01 Wapeya Kire, friend of deceased

E 13.04.04 Dr Doura Vele, private medical practitioner

F 15.06.04 Dr Ponifasio Ponifasio, consultant surgeon, university lecturer

G 04.07.01 Monica Tirima, daughter of deceased

H 30.11.99 Dr Koimbu, doctor, Angau Hospital

I 11.10.01 Dr Polapoi Chalau, chief surgeon, Angau Hospital

Treatment of evidence

Exhibits A, B, C, D and G are affidavits by friends or relatives of the deceased, all of whom were present at the hospital. I will summarise those affidavits first. Most of them contain references to statements made by other persons in Tok Pisin. The English translations of those statements have been agreed to by the lawyers for the parties and will be referred to, where relevant. I will then summarise the remaining four affidavits, which contain medical evidence. Exhibits H and I are affidavits by medical practitioners employed by the hospital. Exhibits E and F are affidavits of two other doctors, which the plaintiff asserts contain independent expert opinion as to the standard of treatment given to the deceased. As those affidavits contain extensive references to medical terms, I will present a glossary.

Joanness Poya

He is the plaintiff’s brother. He was at the family home with the plaintiff and her four children on the night of the incident. At about 8.00 pm they were informed by three police officers that the deceased had been stabbed and that he was in the hospital. He and the plaintiff went with the police officers in their car to the hospital. They were immediately led to where Mr Tirima was lying, where he was “undergoing a sugar-water transfusion”. Mr Tirima was conscious at that stage. He asked him about the incident but Mr Tirima’s only reply was:

Plis yupela katim na rausim blut. Blut ipulap long bel bilong mi. Yupela laikim mi idai na yupela wok long isi, isi istap.

[Please, you people...