WS. NO.850 of 2016; Jacinta Albert v Dr. Joseph Aine (First Defendant) and Professor Glen Mola (Second Defendant) and Board of Management of Port Moresby General Hospital (Third Defendant) and the Secretary for the Department of Health (Fourth Defendant) and the Independent State of Papua New Guinea (Fifth Defendant) (2019) N7772
Jurisdiction | Papua New Guinea |
Date | 15 March 2019 |
Citation | (2019) N7772 |
Court | National Court |
Year | 2019 |
Full Title: WS. NO.850 of 2016; Jacinta Albert v Dr. Joseph Aine (First Defendant) and Professor Glen Mola (Second Defendant) and Board of Management of Port Moresby General Hospital (Third Defendant) and the Secretary for the Department of Health (Fourth Defendant) and the Independent State of Papua New Guinea (Fifth Defendant) (2019) N7772
National Court: Kandakasi, DCJ
Judgment Delivered: 15 March 2019
N7772
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS. NO.850 of 2016
BETWEEN
JACINTA ALBERT
Plaintiff
AND
First Defendant
AND
PROFESSOR GLEN MOLA
Second Defendant
AND
BOARD OF MANAGEMENT OF PORT MORESBY GENERAL HOSPITAL
Third Defendant
AND
THE SECRETARY FOR THE DEPARTMENT OF HEALTH
Fourth Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant
Waigani: Kandakasi, DCJ
2016: 03rd November
2019: 28th February & 15th March
JUDGEMENT & ORDERS – Default judgment – Effect of – Relevant principles governing assessment of damages after entry of default judgement - All matters pleaded stands established – Plaintiff still obliged to prove by appropriate evidence damages and losses suffered.
DAMAGES – Assessment of – Principles governing – Prevailing circumstances of the country – Comparatively people in Papua New Guinea worse off than people in developed economies – Poor facilities and support services for after hospital care and recovery for disabled persons - More damages required to adequately compensate plaintiffs - Claim arising out of medical professional negligence – Pregnant mother due for deliver left unattended at a hospital for more than 10 hours – Bleeding, rapture of uterus, loss of child, medical surgery resulting in complete infertility – Confusing medical opinion - Heads of damages – General damages for pain and suffering – Loss of fertility and ability to conceive and bear children – Aggravated damages – Exemplary or punitive damages – Special damages - Past awards failing to deter medical negligence – No evidence of State disciplining doctors and other medical staff found negligent – Awards need to substantially increase to compensate, penalise and deter others.
MEDICAL DOCTORS – Duties of medical doctors and other medical staff – Depending on the seriousness of medical condition, doctors and medical staff have a duty to immediately attend to patients once they enter the hospital or their medical establishments - Payment of fees and meeting other requirements secondary – Duty to exercise care and provide competent, diligent efficient and effective medical care - Failing to take note of patient’s past medical history - Leaving a pregnant mother of one due for deliver to suffer bleeding and pain for 10 hours without care or attention given resulting in rapture of uterus, death of foetus and mother, surgical removal of raptured uterus, cervix and other – Patient rendered completely infertile - Avoidable consequences - Serious breach of duty bordering on criminal negligence - Need for prompt action against negligent doctors and medical professionals – Effect of prompt action – Enables medical doctors and professionals to discharge their respective duties and responsibilities diligently, competently and faithfully - No prompt action in PNG - Courts must and have a duty to award more and more exemplary damages until there is improvement.
COSTS – Relevant principles – Costs usually allowed on party and party basis – Claim for costs on solicitor and own client basis – Relevant principles - Relevant facts – Failure to meaningfully engage in settlement discussions and settle the matter – Factors favouring settlement – No valid and sustainable defence – No evidence in rebuttal of that of the Plaintiff – Liability already resolved in Plaintiff’s favour – Submissions on damages by the defendants having no foundation in law and relevant facts – Costs ordered on solicitor and own client basis.
LAWYERS – Counsel has duty first to the Court and then to the client to make submissions that are sound and based on facts and the law – Counsel under duty to draw to the Court’s attention all relevant cases and law on point, including those not favouring his or her client - Making a submission that is clearly baseless borders on deliberate professional negligence.
INTEREST - Usual rate – Repeal and replacement of relevant Act by Judicial Proceedings (Interest on Debts and Damages) Act 2015 – Effect of – Usual rate of interest at 8% not changed – Change to 2% only for claims for “breach of expressed or implied contract or mercantile usage” and post judgement interest.
Cases Cited:
Papua New Guinea Cases
Coecon Ltd v The National Fisheries Authority of PNG [2002] PNGLR 506
PNGBC v. Jeff Tole (2002) SC694.
William Mel v. Coleman Pakalia (2005) SC790
David Lambu v. Paul Paken Torato (2008) SC953
Rupundi Maku v. Steven Maliwolo (2011) SC1171
Jack Pinda v. Sam Inguba (2012) SC1181
Motor Vehicles Insurance Limited v. Maki Kol (2007) SC902
Julie Jack v. Dr. Glen Mola & Ors (2008) N3537
Gima Oresi v. Chris Marjen and The State (1998) N1784
Shelley Kupo v MVIT (In Liquidation) [2002] PNGLR 240
Abel Tomba v. The State (1997) SC518
Seresa Kakipa v. Kai Nikilli & he State (2002) N5689
Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605
Kembo Tirima v. Angau Memorial Hospital Board (2006) N3106
PNG Aviation Services v Somare & Ors (2000) SC658
Margaret Potane v. National Development Bank (No. 2) (2013) N5099
Ibi Enei v. Rimbunan Hijau Ltd (2011) N4402
Eva Aglum & Ors v. MVIT (1988) N678
Thomas Aiwara v. Cocoa Board of PNG (2017) N6788
Alphonse Willie v. Simon Kaupa (2016) N6553
PNG Ports Corporation Ltd v Canopus No 71 Ltd (2010) N4288
Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636
Able Construction v. W.R. Carpenter (supra)
Island Helicopter Services Ltd v. Wilson Sagati &Ors (2008) N3340
PNG Water Board v. Gabriel M Kama, 15
Overseas Cases
Livingstone v. Rawyards Coal Co,…
Waterhouse v. Broadcasting Station 2GB Pty. Ltd (1985) Aust. Torts Reports 80-728
MacNaghton in Strom Bruks Aktie Bolag v. Hutchinson [1905] AC 515
Rooks v. Barnard (1964) AC 1129
Legislation Cited:
Claims By and Against the State Act 1996
Judicial Proceedings (Interest on Debts and Damages) Act 2015
Counsel:
P. Tamutai, for the Plaintiff
H. Monei, for the Defendants
15th March, 2019
1. KANDAKASI DCJ: Jacinta Albert (Plaintiff) is claiming damages for suffering a raptured uterus resulting in loss of fertility and inability to conceive and bear children due to alleged medical professional negligence of Dr. Joseph Aine and nurses and other medical staff who work with him at the relevant time (Dr. Aine and his team). Judgement entered on liability with damages to be assessed, resolved the question of liability. That left only the question of the Plaintiff’s damages to be resolved. However, before the trial on assessment of damages could commence, counsel for the Third and Fourth Defendants (the State), Mr. Monei sought to raise the issue of notice under s.5 of the
2. Dr. Aine and the other Defendants have not taken any step in their defence despite due service of the writ against them. This resulted in the judgment on liability against them.
3. Thus, the issues for the Court to resolve are:
(1) Are the Defendants entitled to raise the issue of notice under s. 5 of the CBASA after the entry of judgment on liability?
(2) Subject to an answer to the first question, what are Plaintiff’s damages?
Notice under s. 5 of the CBASA and principles governing assessment of damages after entry of default judgment
4. I dealt with the first issue as a preliminary point before commencing the hearing on assessment of damages and ruled against the State. I gave four reasons for that decision. Firstly, although the State had filed an amended defence and before that a defence, after the entry of default judgment, neither versions of the defence was served on the Plaintiff. That meant that the State had not properly brought to the attention of the Plaintiff that, the State was questioning liability based on lack of proper notice under s. 5 of the CBASA. That being the case, it was not fair and hence, unreasonable to allow the State to raise the issue in the way it was seeking to do after liability had already been determined.
5. Secondly, the Court earlier dealt with the question of liability and had that resolved in favour of the Plaintiff. The Plaintiff argued and the Court accept that, if there was an issue on s. 5 notice, it should have been raised when the Court was dealing with the question of liability. Counsel for the State did not raise the issue and the Court proceeded to signing judgment against the State. Accordingly, I ruled that the State is precluded from raising the issue. I observed that, this is not one of those cases in which the State...
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