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 [1988-89] PNGLR 167
Kembo Tirima v Angau Memorial Hospital Board and the State (2005) N2779
Makire Napiri v The State (2005) N2976
MVIT v Reading [1988-89] 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 [1988-89] 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, plaintiff, the deceased’s wife,
10.02.05	States that she is illiterate and lives in the village [an interpretation clause is attached to the affidavit] – prior to her husband’s death she and the family lived a happy life – he was normally paid K222.09 per 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, deceased’s eldest daughter,
10.02.05	States that she has completed her law degree at UPNG – since the death of her father, her mother and relatives have paid a substantial amount of money for school fees for herself and her three siblings; 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 Pole,
deceased’s brother,
14.08.01	States that K44,994.00 was spent on the deceased’s funeral and mourning period, in accordance with Pangia, Southern Highlands, custom, including haus krai at the deceased’s residence at Butibam village, 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 Pole,
deceased’s brother,
10.02.05	States that he has been assisting his late brother’s wife in the legal proceedings and in the upbringing of the four children of the marriage – has spent K96,497.54 on legal costs – has spent K103,550.00 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 PERSONSCONNECTED TO THE PROCEEDINGS

No 	Description	Age at date of death,
28.01.95	Age at date
of writ
19.12.96	Age at date
of judgment	
1	Paul Tirima, the deceased	36	deceased	deceased	
2	Kembo Tirima, plaintiff	36	37	47	
3	Monica Tirima, child of marriage	16	17	27	
4	Morris Tirima, child of marriage	10	11	21	
5	Margaret Tirima, child of marriage	6	7	17	
6	Moslin Tirima, child of marriage	6	7	17	

THE CAUSE OF ACTION

9. This is a common law action for negligence brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). Specifically the action arising out of the deceased’s death falls into two parts: 

•	the plaintiff’s dependency claim under Part IV (wrongful act or neglect causing death) of the Wrongs (Miscellaneous Provisions) Act; and 

•	an estate claim under Part V (survival of causes of action).

(For an explanation of the distinction between the two parts of an action arising from the death of a person, see Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167, National Court, Bredmeyer J, at p 168 and Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78, Supreme Court, Los J, Brown J, Sakora J, at pp 88-89.) 

Dependency claims

10. Part IV of the Wrongs (Miscellaneous Provisions) Act ensures that if a person causes the death of another person, by wrongful act, neglect or default, the first person, the ‘wrongdoer’, has a continuing liability to the relatives of the second person, the deceased. These provisions preserve the cause of action that the deceased would have had against the wrongdoer, if the deceased had not died. Part IV is a standard piece of legislation found in many common law jurisdictions. It overcomes the position of the common law, which was that a person’s cause of action dies with the person. The key provisions of Part IV for the purposes of the present case are Sections 25, 26 and 28.

11. Section 25 imposes liability on the wrongdoer or the person (in this case, the State) vicariously liable for the wrongdoer’s actions. Section 26 prescribes the relatives to whom there is liability. Other provisions of Part IV, which consists of Sections 24 to 33, regulate that liability. 

Section 25 (liability for death wrongfully caused, etc) states:

Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the person injured and notwithstanding that the death has been caused under such circumstances as amount in law to an offence.

Section 26 (actions under Section 25) states:

(1)	An action referred to in Section 25 shall be for the benefit of the wife, husband, parent and child of the deceased person, and a person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased person, and shall be brought by and in the name of the executor or administrator of the person deceased.

(2)	In the case of the death of a native within the meaning of the Interpretation Act 1975, an action referred to in Subsection (1) may be for the benefit of the persons who by custom were dependent on the deceased immediately before his death, in addition to the persons specified in that subsection.

Section 28 (amount of damages) states:

(1)	In an action referred to in Section 25, the court may award such damages as it thinks proportioned to the injury resulting from the death to the respective parties for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those parties in such shares as the court directs. 

(2)	In an action referred to in Section 25, damages may be awarded in respect of medical expenses incurred as a result of the injury causing the death, together with reasonable expenses of the funeral or cremation of the deceased person (including the cost of erecting a headstone or tombstone over the grave of the deceased person), if those expenses have been incurred by one or more of the parties for whose benefit the action is brought.

Estate claims

12. Part V of the Wrongs (Miscellaneous Provisions) Act ensures that if a person dies his or her estate can be sued or can sue, as if the person had not died. Part V consists of just one section, Section 34 (effect of death on certain causes of action). It has six subsections, the most important one for the present case being subsection (1).

Section 34(1) states:

Subject to this section, on the death of a person … all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate. [Emphasis added.]

COMPETING SUBMISSIONS

13. I will set out in the following table the five categories of damages the plaintiff is claiming, as set out in her lawyer Mr Kange’s submission. The table also summarises the defendants’ response, as per Mr Kumura’s submission for the defendants.

14. Interest is not part of an award of damages and is assessed separately.

TABLE 3: PLAINTIFF’S CLAIMS AND DEFENDANTS’ RESPONSES

No	Category	Amount claimed	Response	
1	Increased risk of orphanhood: K10,000.00 for each child of the deceased	K 40,000.00	K 0	
2	Loss of dependency:
•	Kembo Tirima K1,033,000.00
•	Monica Tirima K29,700.00
•	Morris Tirima K67,800.00
•	Margaret Tirima K89,700.00
•	Moslin Tirima K89,700.00	1,309,900.00
	104,196.98	
3	Special damages:
•	funeral expenses K58,719.00
•	others K290,413.93	349,132.93
	20,000.00	
4	Exemplary damages	50,000.00	0	
5	Estate claim 	25,000.00	3,000.00	
Total	K 1,774,032.93	K 127,196.98	

15. I will now set out and consider the submissions and make an assessment in relation to each category of damages.

CATEGORY NO 1: INCREASED RISK OF ORPHANHOOD

Plaintiff’s submission

16. Mr Kange cited the decisions of Bredmeyer J and Woods J respectively in Koko v MVIT [1988] PNGLR 167 and Nolnga v MVIT [1991] PNGLR 436 as authority for the proposition that damages should be awarded to the children of the deceased, to compensate them for the increased risk of orphanhood brought on by their father’s death. In those cases the deceased was the mother of the child but Mr Kange submitted that the same principle applies irrespective of whether it is the mother or father who has died. He submitted that K10,000.00 should be awarded in respect of each of the children.

Defendants’ submission

17. Mr Kumura did not address this issue in his submission, no doubt because it was not pleaded as a specific head of damage in the statement of claim.

Consideration

18. The writ of summons and statement of claim were filed on 19 December 1996. The relief sought was pleaded in broad terms and was not particularised, namely:

1	Damages
2	Special damages
3	Funeral expenses
4	Interest 
5	Costs

19. The defendants have not taken issue with the pleadings and there has been no request for further and better particulars regarding the relief sought. Therefore I will deal with the claim for damages for increased risk of orphanhood on its merits and regard it as falling within the first category of relief sought, which is damages. 

20. I agree that it is a legitimate head of damage to be awarded to the child of a deceased parent and that it does not matter for purposes of assessing such a claim whether the deceased is a mother or father. In Koko’s case the amount awarded by Bredmeyer J, in 1988, was K1,000.00 for the child aged four at the date of her mother’s death and K1,500.00 for the child aged one. In Nolnga, Woods J, in 1991, awarded nothing under this head of damage for a child aged 16 at the date of judgment and K1,000.00 for a child aged seven years. 

21. I agree that there should be an age beyond which the child of a deceased parent should not be awarded anything under this head of damage. I consider that that age should be when a child is generally regarded as ceasing to be dependent on the parent, which is 18 years old. I prefer Bredmeyer J’s approach, which is to regard the age at the date of the parent’s death as the key criterion for calculation purposes. I agree with Mr Kange’s submission, which was that the amounts awarded, in 2006, should be more than those awarded in Koko and Nolnga to accommodate the effects of inflation over the last 15 to 20 years. 

22. For the sake of mathematical convenience and to reflect the principle that the younger the child the more that should be awarded under this head of damage, I will assess K1,000.00 for each child for each year of their life from the date of their father’s death to the time they reach the age of 18 years, as shown in table 4.

Assessment

23. After taking into account all the above considerations I assess the following amounts:

TABLE 4: DAMAGES DUE TOINCREASED RISK OF ORPHANHOOD

No 	Description	Age at date of death	No of years to age of 18	Amount for each year (K)	Total	
1	Monica Tirima	16	2	1,000.00	K 2,000.00	
2	Morris Tirima	10	8	1,000.00	8,000.00	
3	Margaret Tirima	6	12	1,000.00	12,000.00	
4	Moslin Tirima	6	12	1,000.00	12,000.00	
	Total				K 34,000.00	

CATEGORY NO 2: LOSS OF DEPENDENCY 

Plaintiff’s submission

24. Mr Kange submitted that the plaintiff should be awarded in excess of K1.033 million and, in addition the four children should get a total of K276,900.00. Those figures were calculated on the following parameters:

•	the deceased had a fortnightly income of K222.09 per fortnight;
•	in addition, the plaintiff was earning K5,000.00 per fortnight from selling items at the market;
•	the plaintiff was receiving K2,000.00 per fortnight from the deceased at the date of death;
•	the children were receiving K300.00 each from the deceased at the date of death;
•	the plaintiff, aged 30 at the time of death, had an expected dependency period of 30 years;
•	each child would have been dependent on the deceased until he or she attained the age of 21 years.

Defendants’ submission

25. Mr Kumura disagreed with most of the parameters in the plaintiff’s claim. He agreed with the deceased’s fortnightly income figure of K222.09 but argued that the K5,000.00 said to represent the plaintiff’s fortnightly earnings was unrealistic and irrelevant. Of the K222.09 per fortnight, K72.09 should be deducted for the amount that the deceased is deemed to have spent on himself, leaving K150.00 per fortnight to be distributed between the plaintiff (K100.00) and the children (a total of K50.00). The dependency period would be 25 years in the case of the plaintiff and periods from one year to nine years in the case of the children.

26. Mr Kumura submitted that a total of K104,196.98 be awarded.

Consideration

27. It is important to appreciate what this head of damages represents. As Bredmeyer J pointed out in Koko v MVIT [1988] PNGLR 167, it is not meant to be an amount of compensation for the loss of the spouse or parent’s love or affection. Nor is it compensation for the grief suffered due to loss of a loved one. That is not the approach of the common law. In a dependency claim general damages are awarded primarily for the loss of pecuniary benefits which the spouse or child might reasonably have expected to enjoy if the deceased had not been killed. In addition to that, damages can be awarded for the loss of a parent’s extra services, eg instruction on essential matters to do with upbringing and help with homework, being services over and above those expected to be provided by a housekeeper. 

28. As the primary focus is on pecuniary benefits, the most important parameter in the calculation is the amount of income generated by the deceased at the time of his death. In the present case it was K222.09 per fortnight, which I presume was the deceased’s net pay. I agree with Mr Kumura that the amount said to be earned by the plaintiff from selling market goods – K5,000.00 – is irrelevant and unrealistic. It is an outlandish and unbelievable figure and I disregard it entirely.

29. I also agree with Mr Kumura that a reasonable amount has to be deducted from the fortnightly income to represent what the deceased would have spent on himself. For the sake of mathematical convenience, a reasonable sum is K52.09, leaving K170.00 per fortnight to be shared between the plaintiff and the four children. I agree with Mr Kange that the plaintiff should be deemed to get the bulk of that. I will apportion it this way:

•	Kembo Tirima, wife, plaintiff: K110.00
•	Monica, daughter: K15.00
•	Morris, son: K15.00
•	Margaret, daughter: K15.00
•	Moslin, daughter: K15.00.

30. As for the dependency period, the starting point is the deceased’s age at the time of death. The end point is the end of his working life, which I deem to be when the deceased would have attained the age of 55 years. In the present case I have found that the deceased was aged 36 at the time of death, which means the dependency period, at least for the plaintiff, is 55 – 36 = 19 years.

31. As for the children, it is conventional to regard a child as ceasing to be dependent when he or she attains the age of 18 years. However, I have recently expressed the view that such an approach does not necessarily represent the way that families operate in PNG. The PNG family unit involves a much more complex, intricate set of interdependent relationships than in western societies, from where the principles that have been applied in the cases referred to above seem to have emerged. (See Makire Napiri v The State (2005) N2976 and Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School and Others (2005) N2979.) Children continue to be dependent on their parents and vice-versa, even after the children reach the age of 18 years. If a person earns a regular income it is customary, in both urban and village environments, for them to share their income with other members of the family; irrespective of whether the income-earner is a parent or a child.

32. In the present case I am going to keep the calculations simple. I will assume that the children – as well as their mother – would have continued to be dependent on their father until he finished his working life.

33. The calculations therefore are:

•	Kembo Tirima, wife, plaintiff: K110.00 per fn x 26 fn per year x 19 years = K54,340.00.

•	Monica Tirima, daughter: K15.00 per fn x 26 fn per year x 19 years = K7,410.00.

•	Morris Tirima, son: K15.00 per fn x 26 fn per year x 19 years = K7,410.00.

•	Margaret, daughter: K15.00 per fn x 26 fn per year x 19 years = K7,410.00.

•	Moslin, daughter: K15.00 per fn x 26 fn per year x 19 years = K7,410.00.

34. As for the children’s loss of their father’s extra services, I will assess this by comparing the present case with Koko, where each child received K3.50 per week for the period from the date of death until their 18th birthday. I agree that for this sub-head of damage, the 18th birthday is the relevant parameter. As Koko was decided 18 years ago, I will increase the fortnightly figure to K10.00. That means, having regard to the ages of the children at the date of death (see table 2) the calculations are:

•	Monica Tirima, daughter: K10.00 per fn x 26 fn per year x 2 years (the period between the child’s age at the time of her father’s death and the child’s 18th birthday) = K520.00.

•	Morris Tirima, son: K10.00 per fn x 26 fn per year x 8 years = K2,080.00.

•	Moslin Tirima, daughter: K10.00 per fn x 26 fn per year x 12 years = K3,120.00.

•	Margaret Tirima, daughter: K10.00 per fn x 26 fn per year x 12 years = K3,120.00.

Assessment

35. The amounts of the dependency awards are therefore:

•	Kembo Tirima, wife, plaintiff: K54,340.00.

•	Monica Tirima, daughter: K7,410.00 + K520.00 = K7,930.00.

•	Morris Tirima, son: K7,410.00 + K2,080.00 = K9,490.00.

•	Margaret, daughter: K7,410.00 + K3,120.00 = K10,530.00.

•	Moslin, daughter: K7,410.00 + K3,120.00 = K10,530.00.

CATEGORY NO 3: SPECIAL DAMAGES

Plaintiff’s submission

36. Mr Kange submitted that the plaintiff should be awarded two amounts of special damages:

(a)	funeral expenses of K58,719.00; and
(b)	expenses incurred in pursuing the present case of K290,413.93.

Defendants’ submission

37. Mr Kumura agrees that a reasonable amount should be awarded for funeral expenses: K20,000.00. However, he submits that nothing should be awarded for other expenses said to have been incurred in pursuing the case.

Consideration

Funeral expenses

38. Section 25 of the Wrongs (Miscellaneous Provisions) Act specifically provides for funeral expenses. In Inabari and Another v Sapat and The State [1991] PNGLR 427 Salika J, explained how a reasonable figure should be assessed, having regard to the normal costs and customary obligations that are generated by a death in PNG. 

39. The deceased’s brother, Nepol Pole, deposes in his second affidavit (exhibit P2-4) how the amount of K58,719.00 for funeral expenses was calculated. Some of this is not supported by documentary evidence, which is understandable, given that, as Mr Pole stated in his first affidavit (exhibit P2-C) it was the last thing on his mind at the time. However, I accept the general thrust of Mr Kange’s submission, that there is evidence that there were funeral feasts at both Butibam, Lae (where the death occurred) and at the deceased’s village in Southern Highlands Province. There was considerable expenditure on transport and food for mourners. When a tragedy of this nature occurs these sorts of expenses are an ordinary result of what has happened. I find nothing extraordinary in the type of expenditure that has been claimed. However, the statement of claim does not particularise the amount spent and in view of the gaps in the evidence, I think that an amount of about two thirds of that referred to in the evidence is a reasonable sum to fix on.

40. I therefore award K40,000.00 as special damages for funeral expenses. This amount will be awarded to the plaintiff, as the surviving spouse. Mr Pole is not a party to the proceedings and will not receive an award of damages.

Expenses incurred in pursuing the case

41. This head of damage was not pleaded in the statement of claim and in any event it is not a proper claim. It includes a claim for legal costs, which will be accommodated if and when the court makes an award of costs in favour of the plaintiff.

Assessment

42. I award the plaintiff K40,000.00 for funeral expenses and nothing for expenses incurred in pursuing the present case. 

CATEGORY NO 4: EXEMPLARY DAMAGES

Plaintiff’s submission

43. Mr Kange submitted that as this is one of the first cases of medical negligence to go to trial on both liability and assessment of damages in PNG, it would be appropriate to award exemplary damages. It would express the disapprobation of the legal system for the degree of negligent conduct that occurred.

Defendants’ submission

44. Mr Kumura pointed out that the current approach of the courts in PNG is to make exemplary damages payable, if at all, by the individual persons who were the wrongdoers who were negligent and caused injury or death to the victim. It is not appropriate to award exemplary damages against the State, he submitted. 

Consideration

45. I uphold Mr Kumura’s submission. Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC518, Amet CJ, Los J, Salika J, the courts have been reluctant to award exemplary damages against the State for abuse of power or any other type of negligence or civil wrong by the State, its servants or agents. The court is also constrained by Section 12(1) (judgments against the State) of the Claims By and Against the State Act 1996, which states:

No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.

46. No breach of constitutional rights has been proven in this case. None of the medical staff who gave negligent medical treatment to the deceased have been joined as parties. It is not appropriate to award exemplary damages.

Assessment

47. Nothing is awarded for exemplary damages.

CATEGORY NO 5: ESTATE CLAIM

Plaintiff’s submission

48. Mr Kange submitted that an estate claim is a normal component of a dependency claim. He acknowledged that the usual sum awarded is K3,000.00, arising from the Supreme Court’s decision in Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78. However, the figure had to be increased to make it realistic. He submitted that K25,000.00 should be awarded. 

Defendants’ submission

49. Mr Kumura argued that the National Court should not depart from the conventional sum of K3,000.00 without a Supreme Court ruling to that effect.

Consideration

50. The amount of the estate claim is supposed to represent the deceased’s estate’s loss of expectation of life. I am persuaded by Mr Kange’s submission that K3,000.00 is an inadequate sum. I bear in mind what Mr Kumura says about departing from Supreme court precedent. However, the sum of K3,000.00 is only a guideline. Twelve years have passed since Wallbank was decided. I consider that a more appropriate figure would now be K6,000.00. This will be awarded to the plaintiff as the surviving spouse, not the children.

Assessment

51. I award the plaintiff K6,000.00 for the estate claim.

SUMMARY OF DAMAGES AWARDED

52. I will now summarise the amount of damages awarded. It is important to note that there are five recipients: the wife of the deceased, plus the four children. Each of them will get a separate award of damages.

TABLE 5: SUMMARY OF DAMAGES AWARDED

No	Recipient	Orphan-hood	Dependency
claim	Funeral expenses	Exemplary damages	Estate claim	Total	
1	Kembo Tirima	N/A	K54,340.00	K40,000.00	K 0	K6,000.00	K100,340.00	
2	Monica Tirima	K 2,000.00	7,930.00	0	0	0	9,930.00	
3	Morris Tirima	8,000.00	9,490.00	0	0	0	17,490.00	
4	Margaret Tirima	12,000.00	10,530.00	0	0	0	22,530.00	
5	Moslin Tirima	12,000.00	10,530.00	0	0	0	22,530.00	
Total	K34,000.00	K92,820.00	K40,000.00	K 0	K6,000.00	K172,820.00	

INTEREST

Relevant law

53. The Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 is the governing law. Section 1 (interest on certain debts and damages) is the appropriate provision. It states:

(1)	Subject to Section 2, 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.

(2)	Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

Discretion

54. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run. 

Exercise of discretion

55. I exercise that discretion in the following way:

1	A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. Interest will be included in the sum for which judgment is given. 

2	The standard rate of interest being used these days by the courts is 8 percent. It has been decided in some cases that awards of special damages should attract interest at only half of the proper rate (eg Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, National Court, Bredmeyer J; approved on appeal in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Supreme Court, Pratt J, Amet J, Woods J). I will follow that approach. 

3	Interest should be payable on the total of the pre-judgment components, if any, of the various categories of damages that have been assessed. The governing principle is that interest is not intended to be compensation but an award of money paid to the plaintiff for being kept out of money that ought to have been paid to her. In Pinzger the Supreme Court acknowledged the sound arguments in favour of dividing up damages for pain and suffering and loss of amenities of life into components for past and future and confining interest awards to the component for past pain and suffering and loss of amenities. It follows that if a head of damage is compensation for future losses it will not attract any interest. I identify the pre-judgment and post-judgment components of the various categories of damages in the following tables.

TABLE 6: KEMBO TIRIMAPRE-JUDGMENT AND POST-JUDGMENT 
COMPONENTS OF CATEGORIES OF DAMAGES

No	Category	Pre-judgment	Post-judgment	Total
	
1	Dependency claim	K 31,517.00	K 22,823.00	K 54,340.00	
2	Special damages	40,000.00	0	40,000.00	
3	Exemplary damages	0	0	0	
4	Estate claim	6,000.00	0	6,000.00	
Total	K 77,517.00	K 22,823.00	K 100,340.00	

TABLE 7: MONICA TIRIMAPRE-JUDGMENT AND POST-JUDGMENT 
COMPONENTSOF CATEGORIES OF DAMAGES

No	Category	Pre-judgment	Post-judgment	Total
	
1	Orphanhood	K 2,000.00	K 0	K 2,000.00	
2	Dependency claim	4,599.00	3,331.00	7,930.00	
3	Special damages	0	0	0	
4	Exemplary damages	0	0	0	
5	Estate claim	0	0	0	
Total	K 6,599.00	K 3,331.00	K 9,930.00	

TABLE 8: MORRIS TIRIMAPRE-JUDGMENT AND POST-JUDGMENT 
COMPONENTSOF CATEGORIES OF DAMAGES

No	Category	Pre-judgment	Post-judgment	Total
	
1	Orphanhood	K 8,000.00	K 0	K 8,000.00	
2	Dependency claim	5,504.00	3,986.00	9,490.00	
3	Special damages	0	0	0	
4	Exemplary damages	0	0	0	
5	Estate claim	0	0	0	
Total	K 13,504.00	K 3,986.00	K 17,490.00	

TABLE 9: MARGARET TIRIMAPRE-JUDGMENT AND POST-JUDGMENT
COMPONENTSOF CATEGORIES OF DAMAGES

No	Category	Pre-judgment	Post-judgment	Total
	
1	Orphanhood	K 12,000.00	K 0	K 12,000.00	
2	Dependency claim	6,107.00	4,423.00	10,530.00	
3	Special damages	0	0	0	
4	Exemplary damages	0	0	0	
5	Estate claim	0	0	0	
Total	18,107.00	K 4,423.00	K 22,530.00	

TABLE 10: MOSLIN TIRIMAPRE-JUDGMENT AND POST-JUDGMENT 
COMPONENTSOF CATEGORIES OF DAMAGES

No	Category	Pre-judgment	Post-judgment	Total
	
1	Orphanhood	K 12,000.00	K 0	K 12,000.00	
2	Dependency claim	6,107.00	4,423.00	10,530.00	
3	Special damages	0	0	0	
4	Exemplary damages	0	0	0	
5	Estate claim	0	0	0	
Total	K 18,107.00	K 4,423.00	K 22,530.00	

4	The appropriate period for which interest is to run is also the subject of Supreme Court guidelines in Pinzger. It varies according to the category of damages. For general damages it is from the date of service of the writ to the date of trial. For special damages it is from the date of the incident to the date of trial. In other cases the date of judgment has been substituted for the date of trial (eg Reading v MVIT [1988] PNGLR 266, National Court, Woods J; affirmed on appeal in MVIT v Reading [1988] PNGLR 236, Supreme Court, Kidu CJ, Amet J, Cory J). I consider that the date of judgment is a fairer end-mark for the period. As that lies within the boundaries of my discretion, I set it at that date. In the present case the date of the incident is 28 January 1995. The date of service of the writ is 30 December 1996. The date of this judgment is 30 November 2006. Interest will run for the following periods: 

(a)	Orphanhood, dependency claim and the estate claim, all to be treated as general damages, interest will run at 8 percent from 30 December 1996 to 30 November 2006, a period of 9.92 years; and

(b)	Funeral expenses, to be treated as special damages, at 4 percent, from 28 January 1995 to 30 November 2006, a period of 11.83 years.

Calculation

56. I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:

•	D x I x N = A

Where:

•	D is the amount of damages assessed;

•	I is the rate of interest per annum;

•	N is the appropriate period in numbers of years;

•	A is the amount of interest.

57. Therefore:

Kembo Tirima

•	interest on general damages = K31,517.00 x 0.08 x 9.92 =K25,011.89; plus

•	interest on special damages = K40,000.00 x 0.04 x 11.83 = K18,928.00; therefore 

•	total interest = K43,939.89.

Monica Tirima

•	interest on general damages = K6,599.00 x 0.08 x 9.92 =K5,236.97; plus

•	interest on special damages = Nil; therefore 

•	total interest = K5,236.97.

Morris Tirima

•	interest on general damages = K13,504.00 x 0.08 x 9.92 =K10,716.77; plus

•	interest on special damages = Nil; therefore 

•	total interest = K10,716.77.

Margaret Tirima

•	interest on general damages = K18,107.00 x 0.08 x 9.92 =K14,369.72; plus

•	interest on special damages = Nil; therefore 

•	total interest = K14,369.72.

Moslin Tirima

•	interest on general damages = K18,107.00 x 0.08 x 9.92 =K14,369.72; plus

•	interest on special damages = Nil; therefore 

•	total interest = K14,369.72.

COSTS

58. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule. Costs will be awarded to the plaintiff.

JUDGMENT

59. The court directs entry of judgment in the following terms:

1	damages payable by the defendants to the plaintiff, Kembo Tirima, and to each of the other claimants in the lump sums as itemised in column 3 of the table below;

2	interest payable by the defendants to the plaintiff, Kembo Tirima, and to each of the other claimants in the following lump sums as itemised in column 4 of the table below;

3	being total judgment lump sums payable to the plaintiff, Kembo Tirima, and to each of the other claimants as itemised in column 5 of the table below;

TABLE 11: SUMMARY OF TOTALJUDGMENT LUMP SUMS

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	in the event that the total judgment lump sums for the plaintiff, Kembo Tirima, or the other claimants are not paid within 30 days after the date of entry of this judgment interest shall be payable at the rate of 8 percent yearly from the date of entry of the judgment on so much of the relevant total judgment lump sum as is from time to time unpaid;

5	costs to be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
__________________________

Poro Lawyers: Lawyers for the plaintiff
Solicitor-General: Lawyers for the defendants