Jackson Mari v Dr Sano Tahong

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 04 December 2015
• Citation: (2015) N6241
• Court: National Court
• Year: 2015
• Judgement Number: N6241

Full : WS. No 144 of 2009; Jackson Mari for himself and other defendants of the late Lynette Jackson v Dr. Sano Tahong Medical Officer, Mendi General Hospital and Dr. Clement Malau Secretary for Department of Health and the Independent State of Papua New Guinea (2015) N6241

National Court: Kandakasi J

Judgment Delivered: 4 December 2015

N6241

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 144 of 2009

BETWEEN

JACKSON MARI for himself and other Defendants of the late LYNETTE JACKSON

Plaintiffs

AND

DR. SANO TAHONG

Medical Officer, Mendi General Hospital

First Defendant

AND

DR. CLEMENT MALAU

SECRETARY FOR DEPARTMENT OF HEALTH

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Kandakasi J.

2014:

2015: 4th December

TORTS – Wrongful death – Medical negligence – Primary tort feasor primarily liable and must be the first to pay – Failure to give timely and appropriate instructions to the State Lawyers attracts personal liability – Any failure to fully meet judgment by primary tort feasors obliges the State to meet the judgment – State entitled to recover directly against primary tort feasor the mount it pays in satisfaction of a judgment by applying against any of the tort feasors’ savings, other benefits due to him or her in future, his properties and or asserts and even attach it to his salaries until the full amount is recovered.

DAMAGES – Assessment of – Loss of a hard working mother – Value of her loss put less than 100% in the absence of husband being completely useless and unproductive – Loss of mother and risk of orphan hood both factored in but risk of orphan hood only for unknown future years – Funeral expenses established by evidence and not contested allowed as both reasonable and proven.

Cases cited:

Collins v. Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580.

Jennifer Jean Scott v. Michael George Scott (2009) N3881.

Kembo Tirima v. Angau Memorial Hospital Board (2006) N3106.

Koko v. MVIT [1988] PNGLR 167

Nolnga v. MVIT [1991] PNGLR 436.

Counsel:

M. Saka, for the Plaintiffs.

L. Kaiyo, for the Defendants.

4th December, 2015

1. KANDAKASI J: Having lost through the medical negligence of the First Defendant, Dr. Sano Tahong, Jackson Mari, six (6) of his children and 2 of his in-laws (plaintiffs) are seeking to recover damages from the defendants for the death of one Lynette Jackson, their wife, mother and daughter respectively. By judgment in default of the defendant’s defence, the Court on 20th December 2010, resolved the question of whether the defendants’ are liable in favour of the plaintiffs, leaving only the question of damages to be resolved.

Background

2. The background to this claim is simple. Dr. Sano Tahong was the medical doctor who performed an operation on Mr. Mari’s wife, now deceased on 3rd February 2006 at the Mendi General Hospital. That operation resulted in a cutting off of parts of the deceased intestine, which eventually on 21st February 2006, led to her death. Following the death the board and senior management of the Hospital accepted responsibility and paid on 2nd March 2006, K5, 000.00 for solatium.

3. The plaintiffs claim that, prior to her demise, the deceased was a very industrious woman. She supported her husband in raising their children, growing potatoes and vegetables and looking after pigs and selling them, which they have now lost. On top of that, the plaintiffs incurred expenses in terms of funeral and related expenses forced on by the deceased death. Additionally, they incurred further costs in travels, instructing lawyers and pursuing this proceeding.

4. On the defendants’ lawyers’ request, the plaintiffs’ lawyers furnished a detailed settlement proposal in the form of a submission. That submission remains neither accepted nor contested, which meant no out of Court settlement. That forced a trial on the plaintiffs’ damages.

Relevant Issues

5. The issues then for this Court to consider and come to a decision on are as follows:

(1) Whether the deceased had all of the plaintiffs namely, the 6 children, 2 parents, and her husband dependent on her prior to her demise?

(2) Did the deceased generate any income and provided support for each of the plaintiffs as claimed or at all?

(3) If the answer to question (2) is in the affirmative, what was the level or measure of such support?

(4) Have the plaintiffs suffered any special out of pocket expenses and if so how much?

Dependents - Liability

6. I deal firstly with the issue of whether each of the plaintiffs were dependent on the deceased prior to her demise. The uncontested evidence

See paragraph 11 of the Statement of Claim & paragraph 2 of Affidavit of Jackson Mari sworn on 20th November 2009 and filed on 02nd December 2009.

1 before the Court supports the plaintiffs’ submission and a finding that as at the time of the deceased death, she was married to Jackson Mari, who was then 38 years old. Out of that marriage, the 6 children plaintiffs were born. As at the time of the deceased’s death, Israel M. Jackson was an infant, Collin M. Jackson was 2 years old, Jocelyn M. Jackson was 4 years, Oiki M. Jackson was 6 years old, Nimson M. Jackson was 10 years old and Gibson M. Jackson was 12 years old. Also as at the time of the death of the deceased her mother, Beres Masu, was 55 years old while her father Masu Pera was 58 years old. In the absence of any evidence to the contrary, I find these persons were dependent on the deceased.

7. As to the extent of the plaintiffs’ dependency on the deceased, I note there is no evidence suggesting that, Mr. Jackson Mari dependent entirely on the deceased and thus failed to discharge his duties as husband, father and son in law to the deceased parents and as a man. A man especially in the highlands of Papua New Guinea is required and has the duty and responsibility to be the main bread winner and provide for his wife, children and in some instances his parents and in-laws. In rural subsistence style dwellings, this would amongst others entail assisting in the making of gardens for food and any cash crop for the family’s cash income, building and maintaining of the family’s house or home, provide for the children’s school fees and generally provide for all the needs of his family. In the absence of any evidence of the Mr. Mari failing in his duties I am of the view that he provided for these needs of his family and the deceased assist where she was able to.

The Remaining Issues - Damages

8. Having determined the question of dependency which is a question of liability in favor of the Plaintiffs in the way I have done above, it is now necessary to consider and resolve the remaining questions. The remaining questions all concern the issue of the Plaintiffs’ damages. These issues are from the source and the level of income, to possible support and the period of loss from the date of the deceased’s death. I will thus deal with the remaining questions as one.

(a) Income source

9. Consistent with PNG Highlands custom and practice, I find that the deceased was a hardworking and industrious woman who looked after pigs and basically worked very hard in the gardens. She used to plant potatoes, cabbages, carrots, broccolis, and other cash crops in large quantities and sold them frequently on monthly basis at the Mendi Vegetable Depot owned by one, Peter Suku earning between K300 to K400 a month

See paragraphs 11 & 12 of the Statement of Claim, and Affidavit of Peter Suku sworn on 20th September 2009 and filed on 02nd December 2009; Paragraphs 3 – 5 & 10 of the Affidavit of Kevin Sapul sworn on 23rd September 3009 and filed on 02nd December 2009; Paragraph 3 – 6 of Pr. Pora Kora’s affidavit and also paragraphs 6, 7 and 8 of Affidavit of Michael Papol sworn on 20th November 2009 and filed on 2nd December 2009.

2 with some additional income from the sale of vegetables which brought the total monthly family income to around K833.00. Again in the absence of any evidence to the contrary, I find that generating this level of income would have been possible with Mr. Mari and the other plaintiffs’ assistance, except for the very young children. Consequently, I find also in the absence of any evidence to the contrary that, the deceased would have contributed anywhere from 30% to up to a maximum of 50% of the family’ income, upkeep and survival. Hence, I find the loss of the deceased represents up to 50% of the income the family generated. I accept submissions for the Plaintiffs that, after the deceased died Mr. Mari had been struggling to look after the children and attend to their gardens and raise pigs. I also accept that, the family’s income dropped with their well-being also affected

See paragraph 22 of the Affidavit of Jackson...