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 (2006) N3106

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 30 November 2006
• Docket Number: WS NO 1262 OF 1996
• Citation: (2006) N3106
• Court: National Court
• Year: 2006
• Judgement Number: N3106

Full Title: WS NO 1262 OF 1996; 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 (2006) N3106

National Court: Cannings J

Judgment Delivered: 30 November 2006

N3106

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1262 OF 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

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2006: 31 March,

30 November

JUDGMENT

DAMAGES – negligence – medical negligence – death of outpatient in emergency department of hospital – claim for damages by dependants of deceased – assessment of damages for each dependant – damages for increased risk of orphanhood of deceased’s children – damages for loss of dependency – special damages: funeral expenses – exemplary damages – estate claim – deceased’s widow and each child awarded different sums.

A man died in the emergency ward of a public hospital due to the negligence of medical staff. The plaintiff, his widow, brought a negligence claim against the hospital and the State on behalf of herself and the four children of her marriage to the deceased. The plaintiff succeeded at a trial in establishing liability. This was a separate trial on assessment of damages.

Held:

(1) Where a plaintiff makes a claim for damages following the death of a person on whom he or she was dependent, it is appropriate to bring the claim on behalf of the plaintiff and other dependants; in which case the court will make a separate award of damages for each dependant.

(2) The plaintiff sought five categories of damages and the court made an assessment of damages, for each of the five dependants, in respect of each category of damage.

(3) The total award of damages, plus interest, for each claimant, was as follows:

No Claimant Damages Interest Total

1 Kembo Tirima K 100,340.00 K 25,011.89 K 125,351.89

2 Monica Tirima 9,930.00 5,236.97 15,166.97

3 Morris Tirima 17,490.00 10,716.77 28,206.77

4 Margaret Tirima 22,530.00 14,369.72 36,899.72

5 Moslin Tirima 22,530.00 14,369.72 36,899.72

Totals K 172,820.00 K 69,705.07 K 242,525.07

(4) Costs were awarded to the plaintiff.

Cases cited:

Abel Tomba v The State (1997) SC518

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167

Kembo Tirima v Angau Memorial Hospital Board and the State (2005) N2779

Makire Napiri v The State (2005) N2976

MVIT v Reading [1988] PNGLR 236

Nolnga v MVIT [1991] PNGLR 436

Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School and Others (2005) N2979

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Reading v MVIT [1988] PNGLR 266

Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for the death of a man caused by the negligence of a public hospital, following a trial on liability.

Counsel

F Kange, for the plaintiff

J Kumura, for the defendants

INTRODUCTION

1. CANNINGS J: This is a case about assessment of damages. A man died in a public hospital and his widow brought a negligence action against the hospital and the State. She succeeded at a trial in establishing liability.

BACKGROUND

2. 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 where he collapsed. A friend found him and rushed him to Angau Hospital. The stabbing incident occurred about 7.00 pm. By 8.00 pm he was in the casualty ward. By 4 o’clock the next morning he had died.

3. In 1996 the plaintiff, Mr Tirima’s widow, Kembo Tirima, brought a negligence action against three defendants: the hospital, the State and Hertz. She commenced the proceedings on behalf of herself and the four children of her marriage to Mr Tirima. The action against Hertz was summarily dismissed in 1997, while the action against the hospital and the State remained and was the subject of a trial, before me, in 2004.

4. In 2005 I found that the plaintiff had established liability against the hospital and the State. The medical staff of the hospital was found to have been negligent, in that:

· the patient, Paul Tirima, was not given proper and immediate treatment when he was first admitted to the emergency ward;

· there was an inordinate and unexplained delay in commencing the laparotomy (surgical incision into the abdominal cavity, for diagnosis or in preparation for major surgery);

· no attempt was made to repair a major cause of blood loss: a severed iliac artery;

· no attempt was made to manage the pneumothorax (the presence of air or gas in the cavity between the lungs and the chest wall, causing collapse of the lung), which was overlooked both in the accident and emergency department and during the course of the laparotomy;

· the anaesthetic management of the patient was inadequate and hazardous;

· proper records were not kept;

· there was an unexplained disparity between the operating theatre notes and the post-mortem report;

· there was a paucity of evidence by the medical staff and little explanation of what happened;

· the hospital failed to keep the patient’s relatives and friends informed of what was happening.

5. The plaintiff succeeded in proving the existence of all elements of the tort of negligence against the defendants, including that the negligent conduct of the hospital’s medical staff caused Paul Tirima’s death (Kembo Tirima v Angau Memorial Hospital Board and the State (2005) N2779).

PLAINTIFF’S EVIDENCE

6. Four affidavits were admitted into evidence for the trial on assessment of damages. None of the deponents was required to give oral testimony. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS

TENDERED BY PLAINTIFF

Exhibit Description Content

P2-1 Kembo Tirima, States that she is illiterate and lives in the village [an
plaintiff, the interpretation clause is attached to the affidavit] –
deceased’s prior to her husband’s death she and the family lived
wife, a happy life – he was normally paid K222.09 per
10.02.05 fortnight – she used to spend her time sewing clothes
and selling them and other items, eg ice blocks and
eggs, at the market – she was earning K5,000.00
every fortnight from those sales – therefore they had
K5,229.09 each fortnight to be shared amongst the
family – the first born daughter, Monica, has
completed her law degree at UPNG, while the other
children are now in high school – however, now that
their father is dead and she is illiterate and in the
village, they are all having problems with money and
depend entirely on the assistance of relatives.

P2-2 Monica Tirima, States that she has completed her law degree at
deceased’s UPNG – since the death of her father, her mother and
eldest relatives have paid a substantial amount of money
daughter, for school fees for herself and her three siblings;
10.02.05 Morris, Moslin and Margaret, itemised as:
Monica K43,790.00
Morris K24,220.00
Moslin K12,680.00
Margaret K12,680.00.

P2-3 Nepol States that K44,994.00 was spent on the deceased’s
Pole, funeral and mourning period, in accordance with
deceased’s Pangia, Southern Highlands, custom, including haus
brother, krai at the deceased’s residence at Butibam village,
14.08.01 Lae; transport; pigs and cash for funeral feast – he
did not keep receipts as that was the last thing in his
mind – he was only interested in arranging the
mourning and transportation and funeral
arrangements.

P2-4 Nepol States that he has been assisting his late brother’s
Pole, wife in the legal proceedings and in the upbringing
deceased’s of the four children of the marriage – has spent
brother, K96,497.54 on legal costs – has spent K103,550.00
10.02.05 on matters connected with the case, including caring
for witnesses (air tickets and accommodation
receipts etc are annexed to the affidavit).

DEFENDANTS’ EVIDENCE

7. The defendants offered no evidence.

OTHER MATTERS OF FACT

8. The age of the deceased at the time of his death and the age of the plaintiff are not particularised in the statement of claim; though the ages of the children are. The affidavits do not expressly state the ages of the deceased and the plaintiff, as they should have done. I am therefore going to estimate and make findings on the ages of the persons involved, for the purposes of calculating damages, as shown in table 2.

TABLE 2: AGES OF PERSONS

CONNECTED TO THE PROCEEDINGS

No Description Age at date of Age at date Age at date
death, of writ of judgment
28.01.95 19.12.96

1 Paul Tirima, the 36 deceased deceased
deceased

2 Kembo Tirima, 36 37 47
plaintiff

3 Monica Tirima, 16 17 27
child of marriage

4 Morris Tirima, 10 11 21
child of marriage

5 Margaret Tirima, 6 7 17
child of marriage

6 Moslin Tirima, 6 7 17
child of marriage

THE CAUSE OF...