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
• Judge: Kandakasi, DCJ
• Judgment Date: 15 March 2019
• Citation: (2019) N7772
• Court: National Court
• Year: 2019
• Judgement Number: N7772

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

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

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 Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182

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. Motor Vehicle Insurance Limited (In Liquidation) (2002) N2282

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 Claims By and Against the State Act 1996 (CBASA), arguing a notice purportedly given by Plaintiff was not sufficient. Plaintiff took issue with that.

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 fails to take any step in its...