Zita Seupain, Infant by her Next Friend, Kabwan Marung v Dongo Doro, Aid Post Orderly and The Independent State Of Papua New Guinea (2009) N3573

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 January 2009
• Court: National Court
• Citation: (2009) N3573
• Docket Number: WS NO 455 OF 2006
• Year: 2009
• Judgement Number: N3573

Full Title: WS NO 455 OF 2006; Zita Seupain, Infant by her Next Friend, Kabwan Marung v Dongo Doro, Aid Post Orderly and The Independent State Of Papua New Guinea (2009) N3573

National Court: Cannings J

Judgment Delivered: 27 January 2009

N3573

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 455 OF 2006

ZITA SEUPAIN, INFANT

BY HER NEXT FRIEND, KABWAN MARUNG

Plaintiff

V

DONGO DORO

AID POST ORDERLY

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Madang: Cannings J

2008: 12 September

2009: 27 January

JUDGMENT

NEGLIGENCE – assessment of damages – infant plaintiff’s leg amputated due to negligent administration of medicine – general damages for pain and suffering, loss of enjoyment of life.

Facts:

The plaintiff was three months old when she was taken by her parents to an aid post for treatment of skin lesions. The aid post orderly negligently injected her with a drug, which resulted in severe neurovascular damage including gangrene. Her left leg had to be amputated below the knee. Her father commenced court proceedings on her behalf against the orderly who administered the drug and the State. Default judgment was entered and a trial has been held to assess damages. Two heads of damages are claimed: general damages and special damages.

Held:

(1) General damages were assessed to compensate the plaintiff for pain and suffering, permanent loss of functionality of her leg and loss of enjoyment of life. A global sum of K100,000.00 was awarded.

(2) Special damages were assessed at 13,500.00.

(3) The total amount of damages awarded was K100,000.00 + K13,500.00 = K113,500.00.

(4) In addition, interest of K14,082.00 is payable, making the total judgment K127,582.00.

Cases cited:

Barry Maurice Stamp v MVIT (1979) N179

Bogil Guma v The State (1980) N262

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

David Korrolly v MVIT [1991] PNGLR 415

Joyce Fugamarefa v Dr Alphonse Te (2008) N3409

Milia Yongole Kuri v Walter Kapty & NHC, WS No 1775 of 2004, 20.02.08

MVIT v Reading [1988] PNGLR 236

Ngants Topo v The State (2008) N3478

Pike Dambe v The State [1993] PNGLR 4

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Reading v MVIT [1988] PNGLR 266

Richard Tom Mandui v The Commissioner, Correctional Service [1996] PNGLR 187

Rom Tinpul v Moses Yere & Mt Hagen Golf Club [1998] PNGLR 582

Rose Terema v MVIT [1994] PNGLR 41

Susanna Undapmaina v Talair Pty Ltd [1981] PNGLR 559

Abbreviations

The following abbreviations appear in the judgment:

% – percent

& – and

AJ – Acting Judge

cm – centimetre

J – Justice

K – Kina

Ltd – Limited

MVIT – Motor Vehicles Insurance Trust

N – National Court judgment

NHC – National Housing Corporation

No – number

PNGLR – Papua New Guinea Law Reports

Pty – Proprietary

v – versus

WS – Writ of Summons

TRIAL

This is a trial on assessment of damages.

Counsel

R Uware for the plaintiff

No appearance for the defendants

27 January, 2009

1. CANNINGS J: The plaintiff, Zita Seupain, was three months old when she was taken by her parents to the Zizi Aid Post for treatment of skin lesions. The aid post orderly negligently injected her with a drug, benzathine penicillin, which resulted in severe neurovascular damage including gangrene. She was admitted to Modilon General Hospital a month later. The condition of her left leg had deteriorated to the extent that it had to be amputated, below the knee.

2. Her father commenced court proceedings on her behalf against the orderly who administered the drug, Mr Dongo Doro, and the State. Default judgment was entered and a trial has been held to assess damages. I am not satisfied that the first defendant, Mr Doro, has been given proper notice of these proceedings. So I will only assess damages against the second defendant, the State.

3. Two heads of damages are claimed: general damages and special damages.

GENERAL DAMAGES

4. This is intended to compensate the plaintiff for pain and suffering, permanent loss of functionality of her leg and loss of enjoyment of life. She is now eight years old.

5. The nature and effect of her disability are explained in a medical report by Dr John Mackerell dated 20 September 2006:

Zita requires a prosthesis. This must be reviewed periodically as she grows until she reaches adulthood. Even with the prosthesis Zita will be permanently disadvantaged by her disability. She will have difficulty performing the work required of girls and women in her village. She will have difficulty walking long distances, particularly to the school that she must start attending next year. Her marriage prospects will also be adversely affected.

On examination, Zita is a very pleasant, vivacious young girl. There is no developmental delay. There is a left below knee amputation. Her right lower leg is 31 cm long measured from the inferior pole of the patella; the left is 17 cm. Thus, there is a 45% physical loss of her lower left leg. Without a prosthesis, the functional loss is 100% of the effective use of her entire left leg.

6. In determining an appropriate amount of general damages I have looked at a number of previous National Court cases in which the plaintiff has had to have his or her leg amputated due to the defendant’s negligence. The cases are shown in the following table.

TABLE 1: ASSESSMENT OF GENERAL DAMAGES – AMPUTATED LEG

No Case Details Assessment

1 Barry Maurice Plaintiff, a 37-year-old motor K20,000.00
Stamp v MVIT mechanic, had his left leg
(1979) N179, amputated as a result of a road
accident. General damages awarded
Wilson J for pain and suffering and loss of
amenities of life.

2 David Korrolly v The plaintiff, a 19-year-old K25,000.00
MVIT [1991] subsistence farmer, required a
PNGLR 415, Ellis J below-the-knee amputation due to a
road accident. He had to wear a
prosthesis. He had a grade 10
education and was an active
sportsman.

3 Rose Terema v The plaintiff, a 34-year-old married K26,000.00
MVIT [1994] woman, required a below-the-knee
PNGLR 41, amputation after being struck by a
Woods J backhoe negligently operated on a
public street.

4 Richard Tom The plaintiff was a 28-year-old K40,000.00
Mandui v The correctional officer who required a
Commissioner, below-the-knee amputation due to a
Correctional road accident.
Service
[1996] PNGLR
187, Injia J

5 Rom Tinpul v The plaintiff, a grade 5 student, was K40,000.00
Moses Yere & Mt a junior golfer injured in a tractor
Hagen Golf accident at a golf club. He required
Club[1998] an above-the-knee amputation.
PNGLR 582, Injia J

7. There is a clear trend of increasing awards of damages over time. This reflects the reduced buying power of the Kina. It is also relevant to take account of the amounts of damages that have been awarded for other less serious forms of leg injuries. Makail AJ recently reviewed those sorts of cases in Ngants Topo v The State (2008) N3478. The plaintiff suffered a 65% loss of function of a leg, following a bridge collapse. His Honour awarded him general damages of K30,000.00. In a recent Madang case, in Milia Yongole Kuri v Walter Kapty & NHC, WS No 1775 of 2004, 20.02.08, I awarded K50,000.00 general damages to a woman who suffered a 45% loss of function of a leg after it was broken when she fell through the floor of her rented house, the incident being due to the negligent failure of the landlord to repair the property.

8. An amputated leg must be regarded as the most serious form of leg injury. So, having regard to the trend towards increased amounts of damages in table 1, and also to the amounts of damages being awarded for leg injuries other than amputations, it is necessary in this case to award significantly more than in the cases cited in table 1. I also take into account that the plaintiff had this disability thrust upon her at an age when almost her entire life was ahead of her.

9. I award the sum of K100,000.00 for general damages.

SPECIAL DAMAGES

10. The plaintiff’s grandfather, Nick Mare, has given evidence of payment of out-of-pocket expenses incurred on medical treatment, transport (going to and from Madang town on numerous occasions) and accommodation, all relating to the family’s attempts to ensure that the plaintiff was properly treated and cared for. Mr Uware submits that K27,106.05 should be awarded, but there is insufficient evidence to warrant an award of this amount. I will allow K13,500.00.

SUMMARY OF DAMAGES AWARDED

General damages = K100,000.00

Special damages = K13,500.00

Total damages = K113,500.00

INTEREST

Discretion

11. It is normal practice in a case in which damages are awarded to also award interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1(1) is the relevant provision. It states:

… in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

12. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on...