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 defence.  Rather, this is a case in which the State has been participating in its defence.  Given that, it was incumbent upon counsel having carriage of the matter for the State to draw to the plaintiff’s attention the existence of the defence and raise the issue of s. 5 notice.   In most claims against the State, the issue of notice under s. 5 of the CBASA is often dealt with first. This is because of the fact that, giving notice is a condition precedent to any claim against the State.  If the issue is determined in favour of plaintiffs, only then do the Courts allow cases to proceed further against the State.  

6.	Thirdly, having allowed judgment to go against the State, the correct step to take procedurally for the State was to file and move a motion for a set aside of the default judgment. If the State had the necessary factual and legal basis to bring such an application, it should have been the State’s priority next step. The State failed to take such a step. If it took such a step, it could have in fairness, given the Plaintiff enough notice and an opportunity to better prepare and respond to the matters belatedly raised by the State.  Further, and in any event, I noted that, this is not a case in which the Plaintiff failed to give notice of her intention to make a claim against the State.  The fact of the matter was that, she gave the required notice within the required time.  The issue the State was raising concerned the kind of information that should have been disclosed or provided. The State was seeking to raise this issue without specifically stating what exactly should have been in the notice. Also, the State was seeking to raise the issue without first taking up the issue soon upon its receipt of the Plaintiff’s notice of intention to make a claim. Correctly, counsel should have raised the issue of notice loudly and clearly and first up before judgment, but counsel failed.  For these reasons, I ruled that the State was precluded from belatedly raising the issue.

7.	Fourthly, the law on the effect of the entry of default judgment is clear. In Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182, I summarised the principles that govern an assessment of damages after the entry of default judgement in the following terms:

“A survey of the authorities on assessment of damages after entry of judgement on liability mainly in default of a defendant’s defence, clearly show the following:

1.	The judgement resolves all questions of liability in respect of the matters pleaded in the statement of claim.

2.	Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.

3.	In the case of a claim for damages for breach of contract as in this case, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4.	The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

5.	A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”

8.	The Supreme Court in PNGBC v. Jeff Tole (2002) SC694 adopted and applied this summation of the principles. Later, the decision of the Supreme Court in William Mel v. Coleman Pakalia (2005) SC790, did the same. Additionally, however, the Court in that case went further by noting several decisions of the National Court in which the principles were adopted and applied. It then added the following:

“Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:

 the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

 if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;

 only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.”

9.	Having ruled against the State, I allowed myself to be guided by these principles and proceeded to hear the parties on the Plaintiff’s damages. The Plaintiff’s damages come under five categories.  These are damages for: 

(a)	general damages for pain and suffering;

(b)	loss of fertility and inability to conceive;

(c)	exemplary/punitive damages;

(d)	aggravated damages; and

(e)	special damages/out of pocket expenses.

Relevant factual background

10.	The factual background giving rise to and forming the foundation for the Plaintiff’s damages is not in any serious contest.  They are set out in the evidence of the Plaintiff in the form of her affidavit, sworn on 20th and filed on 24th March 2015 and her supplementary affidavit sworn on 27th and filed on 28th October 2016 and another affidavit deposed to by a Dr John McKup, sworn on 28th May 2015 and filed on 04th June 2015.  From these evidences, it is clear that, on 13th March 2008, the Plaintiff went to the Labour ward at the Port Moresby General Hospital (the Hospital).  She was then aged 24 and was already a mother of one. Hence, she was going into labour for her second child.  Prior to her attendance at the Hospital, she had been a healthy and a faithful antenatal clinic patient.  She had no problem with her foetus or herself during her period of pregnancy.  She was admitted into the Labour Ward at 5:30pm.  Since her admission, she sat on the floor of the ward for more than an hour before a nurse (midwife) attended to her.  That was the only time a doctor or a nurse attended to her. 

11.	Whilst at the Hospital, the Plaintiff experienced severe bleeding and labour pain.  After waiting in vain for appropriate medical attention, she approached Dr. Aine and asked him to carry out a caesarean section on her because she had her first birth through that process.  The doctor did not carry out any medical check on her and told her that, it was a woman’s natural ability to give birth and did not pay any more attention to her. She was left unattended either by a doctor, or a nurse for some time. By then, she was suffering more pain and bleeding.  This continued into the rest of the night until 3:00am the next morning, being 14th March 2008, when a different doctor attended to her.  By this time, she had gone into a state of unconsciousness.

12.	At that point, she was diagnosed to have suffered a rapture of her uterus with foetal death. Around 6:00am, a surgery called hysterectomy was performed on her.  Such a procedure is used to surgically remove a woman’s uterus. It may also involve a removal of the cervix, ovaries, fallopian tubes and other surrounding structures.  This kind of surgery can be classified as partial or complete, depending on what is removed.  If it involves the removal of the uterus with the cervix, it would be complete but, if the surgery only involves the removal of the uterus while leaving the cervix intact, it would be regarded partial.  Such a surgery comes with risks.  An inevitable consequence is a patient becoming infertile which means, not being able to conceive and bear children.  This is in addition to other long-term effects. Given that, this kind of surgery is normally recommended when other treatment options are not available or have failed. 

13.	Three days after the surgery on 18th March 2008, Dr. Glen Mola with a team of obstetrics and gynaecologist visited her. They informed her of the surgery that was performed on her. She was also told that, she will never be able to experience her menstruation cycle and will not be able to conceive and bear any children again. They then encouraged her to adopt, if she wanted more children.  This news no doubt, overwhelmed her, and she went into much distress and became emotionally unstable thereafter. 

14.	These facts stand uncontested and established because they were pleaded and upon which, the default judgment was entered.   They are also uncontested, as the State took no issue with the affidavits being admitted into evidence for the Plaintiff. It is also the effect of Dr. Aine, not filing and serving his notice of intention to defend and thereafter, his defence.  He took no step whatsoever to defend this proceeding. The other defendants also failed to meaningfully defend this proceeding.  Hence, all matters pleaded or said against Dr. Aine and the other medical staff of the Hospital and the rest of the defendants, stand uncontested.  Subsequently, the signing of the default judgment against the defendants firmly established liability against each of the defendants.  They are thus, liable in damages to the Plaintiff.  The primary tortfeasor is Dr. Aine followed by the Hospital and the State in vicarious liability.

15.	Bearing these facts in mind, I will now proceed to consider and assess the Plaintiff’s damages under each of the heads of damages submitted for her by her learned counsel.  The first head of damages I will turn to is, general damages for pain and suffering.

(a)	General damages for pain and suffering

16.	The law on assessment of damages and its purpose is clear and well settled in our jurisdiction. The Supreme Court’s decision in the matter of Motor Vehicles Insurance Limited v. Maki Kol (2007) SC902 discussed the relevant principles governing the assessment of damages and highlighted the following:

(1)	Generally speaking, a desire to compensate one’s loss and suffering is at the very core of the whole body of law governing the assessment of damages, be it for a breach of contract situation or personal injuries. Usually, the law looks at awarding damages in monetary terms not more or not less than what has actually been suffered or lost.  

(2)	Lord Blackburn in Livingstone v. Rawyards Coal Co,…formulated the classical and often quoted principle in the following terms:

‘where any injury is to be compensated by damages, in settling the sum of money to be given for … damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation.’

(3)	In time, this principle has become known as the principle of restitution in integrum.  This principle applies to personal injuries cases with emphasis on the plaintiff being compensated to make good ‘so far as money can do’ his loss or damage.

(4)	At the same time, it is accepted that, an order for payment of money cannot possibly fully restore a condition of physical injury or loss by a person.  In other words, assessing damages for personal injuries is not a matter of mathematics. It is rather an estimate in money terms, what one’s loss or injury is, with the aim of, trying to restore the loss as is nearly as is possible to do. This, therefore, leaves much room for difference of views in assessment of damages in anyone given case.  
  
(5)	Other principles include the need to take into account:

(a)	the prevailing circumstances, especially the economic conditions at the time of the assessment of damages in the country as well as the views of the community as to what is fair and reasonable compensation or [those prevailing in a Plaintiff’s country if different from PNG].  The main reason for this is simple. The plaintiff will have to use the money awarded in compensation to cover for his loss in the country where he or she is going to live and within that country’s prevailing economic circumstances;

(b)	awards in previous similar or comparable cases and arrive at an award of damages that are similar to the awards in the comparable verdicts. This does not however, mean that the Court must be oblivious to the change in circumstances since the award in the past comparable verdicts.  Instead, they are duty bound to take into account such things like rise in inflation and changes in the economy since the awards in the previous cases. 

17.	I allow myself to be guided by these principles of law to assess the Plaintiff’s damages.   I note that the Plaintiff was a healthy young woman, mother of one child. She delivered her first child through a caesarean process, which means she did not give birth in the normal way.   Hence, she had an history of child birth that was not normal.  She was this time, pregnant with her second child.  During the period of her pregnancy, she was a normal faithful antenatal clinic patient.  Both her and her foetus did not show any abnormality or any matter of concern.  They were both healthy until she was due for delivery and she got admitted to the Hospital. 

 18.	The evidence before the Court reveal gross carelessness or negligence that borders on criminal negligence on the part of Dr. Aine, and his medical team who were on duty from the time the Plaintiff arrived at the Hospital until 3:00am the next day, 14th March 2008, when she was attended to.  That was several hours of anguishing pain and suffering right before the eyes of the medical doctors and other medical staff on duty at the relevant time.  No human being should be allowed to suffer unnecessarily under the eyes or the nose of a medical doctor or a nurse in a hospital.  The Plaintiff required immediate medical attention, given her medical history and her worsening condition.  She did not have to go looking for a doctor or a nurse.  It was their duty and responsibility to attend to her the moment she entered the door of the Hospital.   The medical team then on duty, starting with Dr. Aine failed to professionally and appropriately attend to the Plaintiff.  This caused her to go looking for medical attention.  She was specific and clear both about her medical history and the very sufferings she was experiencing on this occasion.  A professional doctor, nurse or a medical staff who is true to the medical calling as a profession, would have immediately attended to the patient until the patient received the correct and appropriate level of medical attention, care and treatment. Instead of treating the Plaintiff as a high-risk patient, Dr. Aine and his medical team treated her like any other person with no serious medical condition warranting immediate attention and left her unattended for a very long time. The situation would have worsened with the Plaintiff’s own death, had it not been for the other doctors who came on the next shift and attended to her.  Unfortunately, by that time, she had already raptured her uterus and lost her child. Then due to lack of appropriate medical attention and treatment, she also lost her ability to conceive, become pregnant and give birth to children as a normal young mother of only one child. Also, through the negligence of Dr. Aine and his team, the Plaintiff was forced to have her menopause much earlier.   These are serious losses and consequences, forced upon the Plaintiff due to no fault of hers but for that of Dr. Aine and his team that failed, to appropriately attend to the Plaintiff in a timely manner. No doubt, these medical operations and the resultant loss and disabilities had a serious mental and emotional impact on the Plaintiff.  Additionally, the Plaintiff suffered strains to her matrimonial setting because of her inability to conceive again and bear children.

19.	Counsel for the State tried his very best to play down the seriousness of this case.  He did so without demonstrating if any remedial steps were taken and are in place for the Plaintiff and other persons who go through the kind of medical process, the Plaintiff had to go through to utilize and overcome their mental and emotional challenges as they get discharged from the hospitals and get back into society.  In developed countries like, Australia, New Zealand and elsewhere, there are well set up counselling and follow up programs for such patients. None of these exists in Papua New Guinea and other less developed countries.  This means, patients like the Plaintiff here are left to suffer or recover as best as they can on their own.  Hence, the pain and suffering experienced and suffered by the victims of medical negligence in PNG are serious and worse off, compared to patients in other countries.

20.	Learned counsel for the Plaintiff cited the decision of Sevua J., (has he then was) in Julie Jack v. Dr. Glen Mola & Ors (2008) N3537, as a comparable case on point.  That was also a case of medical negligence by doctors and nurses at the Port Moresby General Hospital.  In that case, the Plaintiff a first-time mother was wrongly diagnosed as an HIV positive person. Based on that wrong diagnosis, she was caused to have a tubal ligation done after the birth of her first-born child.  After the child was born, the whole of the Plaintiff’s family under went further blood tests. These tests repeatedly confirmed the Plaintiff and her husband and child were HIV negative. By then, much damage had already been caused to the Plaintiff whose ability to conceive and be a mother of a few more children were taken away. However, I note this is capable of reversal by surgery though it comes with its own risks as well. Given the possible risks, the Plaintiff chose not to undergo such surgery.  In addition to these loss and damages, the Plaintiff and the entirety of her family had to face the adverse consequence of being labelled as persons living with HIV.  She was caused to suffer much shock and mental anguish and pain from the moment she was told she had HIV.  She continued to suffer psychologically. She also suffered physical assaults over her inability to conceive and bear children, with her marital relationship seriously affected. 

21.	The Court found that the pain, suffering, losses and damages she was forced to bear were serious. Proceeding on that basis, the Court assessed general damages at K100,000.00.  Further, the Court awarded K175,000.00 for partial loss of fertility and K50,000.00 each in exemplary and aggravated damages. Furthermore, the Court awarded K490 in proven special damages for medical expenses.

22.	Learned counsel for the Plaintiff in the present case, also drew the Courts attention to the case of Gima Oresi v. Chris Marjen and The State (1998) N1784.  There, again a mother underwent surgery at the Port Moresby General Hospital.  The Plaintiff was admitted to the Hospital for abdominal pain and was diagnosed with acute appendicitis. She was then operated on by a team of hospital staff. During the operation, it was discovered that the abdominal pain was not caused by appendicitis but by an ectopic pregnancy, which occurs when a fertilised ovary gets stuck in the fallopian tubes. It requires a medical procedure to clear it.  Medically, once a woman has an ectopic pregnancy there has been cases of some damage to the reproductive organs, which reduces the ability to get pregnant again.

23.	In the Gima Oresi’s case, the surgery performed on her took care of her problem. She got discharged some 18 days after her surgery. However, she continued to suffer persistent pain in her abdomen area where the surgery was performed. This resulted in her re-admission to the Hospital. A second surgery was performed through which it revealed the presence of two gauze swabs which had been left inside her stomach from the previous surgery. The gauzes were removed, and that resolve the persistent pain problem.  Unfortunately, she was left with the problem of not being able to conceive and bear children anymore.   She and her husband already had two children. They were trying their best to have a boy to balance their family. The Court noted that, the ectopic pregnancy, was the first primary cause of her problem, At the same time, the Court was of the view that, the additional surgery that removed the gauze swabs would have resulted in further internal trauma and therefore damage to the organs. This could have resulted in a further reduction in ability to become pregnant. For the purposes of assessing damages, the Court found for reduction in likelihood of pregnancy.  Ultimately, the Court decided to make a global award of K20,000.00 for pain and suffering and reduction in the likelihood of pregnancy.

24.	Considering the awards in these two cases and the Courts progressively increasing awards in personal injuries claims to reflect increases in inflation and costs of living and other factors, counsel for the Plaintiff submits here for an award of K200,000.00 in general damages.  She cited the decision in Shelley Kupo v. Motor Vehicle Insurance Limited (In Liquidation) (2002) N2282, in support of her submissions for the increase in the awards.   The Supreme Court in Motor Vehicle Insurance v. Maki Kol (supra) acknowledged, adopted and applied this approach as is noted in the following passage from that judgment:

“23.	This Court’s decision in the Andrew Moka case makes it clear that, the awards in the 1980s and 1990s are outdated and had increased the awards in personal injuries claims by over 134 percent.  We agree with the observations of the Supreme Court in that case.  On our part, we consider this necessary in the light of changes in the economy where costs of living have become far higher or expensive, with the purchasing power of the Kina substantially reduced. Dwelling on the kind of awards made in the 1980s and 1990s will no doubt place injured people like Maki Kol in a disadvantage position in two respects. First, they will be left to live with their injuries and disabilities for the rest of their lives. Secondly the amount of compensation instead of restoring their losses as much as money is able to, it will leave them in a position where they will have no adequate compensation for their losses and may have to look elsewhere for their survival. 

24.	The award by the learned trial Judge in this case, increased the award by well short of even a one hundred percent (100%) increase from the comparable verdicts His Honour considered.  We do not consider the amount awarded by the National Court as reasonable compensation especially in today’s economic environment.  We note that, without any formal cross appeal by Maki Kol, (sic) is seeking an increase of the award by the National Court up to K90,000.  If there was a formal and proper cross appeal on foot, we would not hesitate to increase the award to K80,000 but because there is no such cross appeal, we are disinclined to increasing the award.”  

25.	On the other hand, relying only on the decision in the Gima Oresi’s case, counsel for the State argues for an award of K20,000.00. With respect, that submission does not despite repeated requests by the Court for counsel to do so, point out what factors favour such a lower award of damages.   The award in the case relied upon by counsel, was more than 20 years ago.  The submission does not acknowledge that fact and the established practice of the Courts progressively increasing awards in personal injuries claims as noted above.  Counsel’s submission here, are nothing short of an insult, unprofessional and adding salt to the wound so to speak.  All counsel appearing before the Court are first and foremost officers of the Court. They have a duty first therefore, to the Court.  Secondly, they have a duty to their clients.  These duties require counsel to draw to the Courts attention all cases and law on point and make submissions that are sound in law and based on the relevant facts.

26.	Obviously, the facts and the law as noted in the present case, do not support Mr. Monei’s submissions. In the case Mr. Monei relies upon, apart from the award being 20 years old, the Plaintiff had already developed a medical condition that required surgery to clear it. That condition and the medical surgery came with the inherent risk of reducing the patient’s ability to conceive and bear children.   The medical negligence was in the wrong diagnosis which was minor as the doctors identified the real problem and got to it.  However, the most significant negligence was in leaving foreign surgical objects inside the plaintiff’s stomach which required further surgery to have them removed.  The plaintiff’s main injuries and damage was the second surgery and the pain and suffering she had to endure as a result of the surgery and the presence of the foreign objects in her stomach for a short while.  She did suffer reduction in her ability to conceive and bear children. But that was set in motion by the medical problem she had at the first place, which was independent of any medical negligence of the doctors or the Hospital.

27.	Contrasting that case with the present, places the current case in a much more serious and worse category. Here, as already noted, the Plaintiff had normal pregnancy. This was her second child.  She gave birth to her first child through a medically assisted process of caesarean.  She attended her antenatal clinics faithfully.  When she was due for delivery, she presented herself at the Hospital. No doctor, no nurse or any staff on duty attended to her for more than 10 hours. While waiting at the Hospital, she bled and was suffering in much pain and anguish. She went to Dr. Aine and informed him of her condition, her medical history and asked specifically if she could be assisted to deliver in the same way as her first child.  Her bleeding and the relevant medical history meant nothing to the medical doctor and she was left to continue to bleed and suffer in pain.  Her condition worsened under the watch of doctors and nurses and other staff on duty at the relevant time.   Eventually, the lack of appropriate medical intervention, resulted in a rapture of her uterus, death of her foetus and hence, a loss of her child. By then, she had developed into a state of unconsciousness.  Only after these sufferings and losses, help came from a new shift of doctors and other medical staff who eventually surgically operated upon her and performed a hysterectomy.  That supposedly removed her raptured uterus and possibly her cervix, ovaries, fallopian tubes and other surrounding structures.  The procedure was supposed to have resulted in early menopause with no normal mensuration cycle and a complete loss of fertility for the Plaintiff.  However, she subsequently experienced her monthly period shortly after her discharge from the Hospital.  She was confused as to what was happening to her, given the earlier medical advice on the surgery performed on her and the possible adverse consequences that would follow.  She underwent further medical reviews and was told her uterus and ovaries were normal.   How was that possible? None of the defendants were able to provide any explanation to the Plaintiff?

28.	I am not too sure if the subsequent medical advice is correct. There is no evidence of some form of investigatory surgical procedure that was conducted to look for and confirm existence of a normal uterus and cervix and everything else that was supposedly removed under the hysterectomy she went through.  If, however, the later medical advice is correct, the earlier advice must be erroneous. But, given the fact that 8 years have passed as at the time of the submissions and that the Plaintiff has not conceived at all, confirms in my view the nonexistence of her uterus and all other properties that could enable the Plaintiff to conceive again.  In these circumstances, I find the Plaintiff has completely lost fertility.  That has resulted in the Plaintiff suffering strains in her matrimonial setting because of her inability to conceive again and bear children.  This is an ongoing loss which does not give the Plaintiff a good future. 

29.	These facts bring the present case closer to the case of Julie Jack’s case. 
I find the Plaintiff in the present case has suffered and lost more as I outlined earlier. Her pain, sufferings, loss and grief a far worse than what the Plaintiff suffered in Julie Jack’s case.  Obviously, this calls for an award of damages higher and above the award in Julie Jack’s case.  The submission of learned counsel for the Plaintiff is for an award of K200,000.00 which, learned counsel for the State failed to rebut with any convincing argument based on a proper and firm factual or legal foundation.  I consider the submission for an award of K200,000.00 is in order for three main reasons. Firstly, as already noted, the present Plaintiff’s pain, sufferings, loss and grief a far worse than what the plaintiff suffered in Julie Jack’s case.  This warrants a higher award of damages. Secondly, the award in Julie Jack’s case was more than 10 years ago.  The economic circumstances coupled with inflation are not the same as it was 10 years ago.  In fact, the costs of living have increased substantially. Thirdly, it is only in PNG that awards of damages for personal injuries or losses caused by negligence are far less compared to the kinds of awards given in other jurisdictions for similar injuries and losses.  In other jurisdictions like Australia, and the United States of America, damages get assessed in the millions of dollars.   There is no real justification for awards to be much lower comparatively in PNG.  One might argue the economies in other countries are strong which warrants higher awards of damages. I do not consider that to be a valid argument because, an award of damages must reflect the kinds of difficulties the victims of negligence will have to face and deal with in their respective daily living.   Awards for damages should be far greater than those awarded in developed jurisdictions.  For in the developed jurisdictions, there are well developed and functional welfare services and health and other facilities even to get disabled persons to function normally in society and indeed live longer.   These kinds of services and facilities are none existent in PNG and other third world countries.   A person who is injured and left with a disability in PNG will have a much more difficult time adjusting to get back to living a good life and is often made to suffer for the rest of his or her life.  This in my view calls for higher awards then the kinds of awards the Courts have been making to date to adequately compensate the victims of careless, reckless or negligent conduct.  Substantially increasing awards will indeed, deliver on the law’s object of awarding damages which is to “nearly as possible … put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation.”  Those engaging in negligent conduct such as medical doctors, nurses and other medical workers, drivers of motor vehicles or persons in possession of things that would cause others harm, damage and loss should be warned that damages for any injury, loss or damage they cause, will result in substantially increased awards of damages.  Having regard to all these factors, I find the Plaintiff’s submissions for an award of K200,000.00 in general damages for pain and suffering is sound.  Accordingly, I award that amount in general damages.

(b)	Loss of fertility 

30.	The next head of damages for the Plaintiff is loss of fertility.  Learned counsel for the Plaintiff, Ms. Tamutae argues for an award of K175,000.00.  She relies on Julie Jack’s case. The award there was made more than 10 years ago.  On the other hand, learned counsel for the State, Mr. Monei initially argued for no award.  When pressed upon for counsel to point to factors that warrant no award of damages, counsel referred to the surgery the Plaintiff underwent and said, that was necessary to save her and in any case, she gave her consent.  Counsel then attempted to make Julie Jack’s far more serious because the plaintiff there was labelled with HIV positive. Further, he referred to the fact that the Plaintiff still has one child.  Hence, he argued, there is no reason for the Plaintiff to suffer anxieties and distress over not having the ability to conceive and bear children.

31.	Both submissions with respect, fail to appreciate the fact that the present case is far more serious than that of Julie Jack’s or that of Gima Oresi’s cases.  As already noted, this is a case of total and complete loss of the Plaintiff’s fertility.  The Plaintiff was 24 years old as at the time of her being forced or allowed to suffer by Dr. Aine and his team on duty at the relevant time.   Her fertility was no doubt intact at the time she entered the Hospital after having delivered one child already and she was going for a delivery of her second child.  The medical surgical procedure of hysterectomy performed on her has the proven and established side effect of loss of fertility.  That side effect became a reality for the Plaintiff due to no fault of hers or force of nature but the sheer negligence of Dr. Aine and his team.  This changed the Plaintiff and her family’s life for good. Had Dr. Aine and his team at the Hospital at the relevant time appropriately attended to her in a timely manner, this risk and all the other injuries, pain and suffering the Plaintiff had to go through could have been avoided.  At the relevant time, she also lost a child which was otherwise healthy throughout the period of her pregnancy and during the times she was forced to wait until her uterus raptured and the child died. Losing her second child and the inability to conceive and bear other children are permanent losses and damages.  For as long as she lives, she will continue to suffer for the rest of her life, all through no fault of hers.  No level of thought or level of comfort offered to the Plaintiff will enable her to overcome these losses.

32.	Further, I note that having more children in PNG is a form of insurance for parents. In advanced countries like Australia, New Zealand and elsewhere, there are better superannuation and aged care for the old.  Such services are not available in PNG.  Children in PNG are expected to grow up and as the parents become more advanced in life, they become the dependants of their children.  In the present case, having only one child comes with the risk of that child dying before his or her parents, which exposes the parents to the risk of no one in their family living and able to support them.  This in some cases, unfortunately, leads to the parent’s premature deaths.  In the present case, this is a real risk in the absence of any evidence to the contrary from the Defendants. 

33.	This Court already allowed for a hundred percent (100%) increase in general damages for pain and suffering.  No convincing case has been made out for the Court as to why there should be no similar increase in the award of damages for loss of fertility. Indeed, as already observed in Julie Jack’s case, there was only a reduction in the Plaintiff’s ability to conceive and bear children. That was the result of a medical condition the Plaintiff had developed, independent of any negligence of the doctors, nurses and other staff attending to the plaintiff.  Additionally, that inability was reversable, but the plaintiff chose not to take the necessary steps for that to happen.  In the present case, the Plaintiff did not develop any medical condition that was capable of leading to her 100% inability to conceive and bear children.  This loss is not reversable.  These losses were forced upon the Plaintiff in addition to being forced to lose her possible second born child.  Her problems were forced upon her by the gross recklessness or carelessness of Dr. Aine and his team.  Given these and using the same factors to increase the awards made in the Julie Jack’s case, I consider an award of K350,000.00 reasonable and assess the Plaintiffs damages for her total loss of fertility in that amount.

34.	I know that an award of K350,000.00 could sound a lot of money. But in my view, this in no way equates the unwarranted loss of a child and being rendered infertile for life for a young woman with one child.  Having children is a big deal for women and families in PNG. The Plaintiff has been and will continue to face the challenges of not being able to have a child. On top of that, she stands the risk of having no children to look after her in her old age.  The amount I decided to award is at least in my view something that will enable the Plaintiff to feel vindicated and give her the opportunity to make the necessary adjustments and face the challenges brought upon her by her uncalled-for infertility at the hands of Dr. Aine and his team and the Hospital. 

Exemplary damages

35.	Exemplary damages is what I turn to next. The Plaintiff through her learned counsel is asking for an award of K50,000.00. Again, this is going by the award in Julie Jack’s case.  On the other hand, learned counsel for the State, is arguing for an award of K10,000.  Counsel for the State has again failed to refer to any case precedent or authority to support him in his submissions.  He did however, refer to the decisions in Abel Tomba v. The State (1997) SC518 and Seresa Kakipa v. Kai Nikilli & The State (2002) N5689.  These cases stand for the proposition that exemplary damages may come into play “whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence or the like.” 

36.	Then as the Supreme Court noted in Rimbunan Hijau (PNG) Ltd v. Ina Enei 2017 (SC1605):

“This easily covers cases in which a defendant acts illegally and is in breach of clear legislative provisions and other requirements in total disregard and disrespect for the rights and interests of others.  This is why as the learned trial Judge noted, “exemplary damages are vindictive and punitive in nature” to punish the party against whom the award is made.  It is usually at the discretion of the Court to award such amounts as the Court considers appropriate in exemplary damages having regard to the conduct of a defendant in the … circumstances of each case. The main purpose of awarding exemplary damages is dual in purposes.   The first is to punish and the second is to deter the party against whom the award is made as well as others from engaging in future and further such conduct or behaviour.”

37.	In the present case, the conduct of the defendants led by Dr. Aine and followed by his team of nurses and the other staff that were on duty at the Labour Ward of the Hospital at the relevant time, was a serious neglect of duty bordering on criminal negligence.  They could each have been charged for the foetus death of the Plaintiff’s baby and the various operations resulting in the removal of her uterus, cervix and the other parts of her body which ultimately resulted in her being rendered infertile for life.  This is not the first time, doctors and nurses in the public hospitals owned and operated by the State have failed to discharge their duties and responsibilities with competence in a timely and professional manner.  Julie Jack and Gima Oresi’s cases are examples of past cases of doctors, nurses and staff of hospitals owned and operated by the State failing in their duties to attend to patients as they enter the Hospital. Other examples include, Margrette Laki for and on behalf of Delilah Laki (deceased) v. Dr Jiuth Gawi and the Independent State of Papua New Guinea (2018) N7146, a case of death of patient after 8 hours of arrival at the hospital and not attended to appropriately.  Another example is the case of Kembo Tirima v. Angau Memorial Hospital Board (2006) N3106, a case of death from failure to attend to a patient promptly. These are not isolated exceptions to competent medical services given to our people. Instead, these are examples of cases of repeated acts of failure by doctors, nurses and other staff employed by State owned hospitals failing to attend to patients competently and effectively in a timely manner.   Awards of exemplary damages in these kinds of cases have failed to produce a change in the medical culture or attitude. Many patients who could otherwise be spared from dying are unnecessarily caused to die or are ending up with lifelong losses as in this case, by the plain and inexcusable failures of doctors and other medical professionals. 

38.	I have not seen any evidence of the State taking any meaningful and effective steps to ensure that medical doctors and other medical professionals discharge their duties professionally and in a timely, diligent and most competent and effective manner. There can be no gamble with human life. Every human life is precious.  Medical doctors and other professionals within hospitals or medical establishments be it, public like the Port Moresby General Hospital or, private like the Pacific International Hospital or any other medical establishments have a duty to appropriately attend to patients who get to their hospitals for treatment.  Payment of fees and meeting of other requirements are secondary to a doctor or a medical establishment’s duty to save lives. Until there is a due recognition and appropriate change of attitude to promptly, diligently and competently attend to patients as they enter medical establishments, the Courts have a social and moral duty as part of a legal duty to award damages in a way that it serves the dual purposes of, those who fail in their duties being punished and serve as a deterrent to other doctors and medical professionals and establishments in the discharge of their duties and responsibilities.

39.	The past awards of damages for exemplary damages have failed to achieve that objective. That has been the case, in my view, because of the insignificant amount of damages awarded.  Failure of the medical profession to appropriately attend to patients competently and diligently in a timely manner must stop for many people’s lives are at stake.  Accordingly, I am of the view that, award of damages for exemplary damages must substantially increase until the medical profession wakes up and makes serious improvements in its current level of failures. As demonstrated by this case, doctors, nurses and other staff of hospitals and clinics are continuing to be reckless and are causing deaths, far more pain, harm, loss and sufferings to a lot of innocent people.  It is thus necessary and appropriate that the award of exemplary damages need to increase substantially to send a strong deterrent message to doctors, nurses and other hospital staff, hospitals and other medical establishments and their owners that, serious consequences will follow against them if they continue to fail in their duties and responsibilities. Such an increased award is also necessary as against the State as owners of hospitals and employer of careless or reckless doctors, nurses and other staff for its failure to ensure it employs only the best qualified, competent and diligent doctors, nurses and other staff who value their calling as medical professionals and who are faithful and committed to performing well.  An increase in exemplary damages is also necessary to highlight the State’s failure to swiftly and decisively deal with or discipline medical doctors, nurses and staff who fail in their duties and responsibilities.  If the State appropriately took note of the awards in the past cases and did take the necessary meaningful steps to ensure that, it had within its employ only diligent and competent medical doctors, nurses and other staff, the Plaintiff in this case and many other cases would have not suffered at the hands of careless or negligent doctors and other hospital staff.

40.	In other countries, negligent or reckless doctors or other medical officers usually get dealt with promptly and decisively.  Such actions hold doctors and other medical officers in check and causes them to discharge their respective duties and responsibilities diligently, competently and faithfully. In PNG, negligent and incompetent doctors and other medical professionals appear to get away easily without any form of punishment or discipline.  I am yet to hear or see a medical doctor being disciplined for professional negligence and am certainly, not aware of the existence of a functional disciplinary process.  Until we get to that point, the Courts must and have a duty to award more and more exemplary damages.

41.	Having regard to the foregoing discussions, I consider an award of K100,000.00 is appropriate and reasonable.  This represents an increase of 100% from the award in Julie Jack’s case for exemplary damages.  This is warranted by the lack of any evidence of the defendants learning from and being deterred by the past award of exemplary damages in Julie Jack and the other cases, which in itself, calls for a stronger deterrent and punitive award in exemplary damages.  Also, the amount of recklessness shown in this case by Dr. Aine and his team on duty at the relevant time spanning over almost 10 hours during which the Plaintiff was forced to go through an ordeal that was avoidable, calls for such an award.  Further, the consequential serious levels of sufferings, damages and losses suffered by the Plaintiff calls for such an award so it can serve as a deterrent from hereon after for all doctors, nurses and staff employed at all hospitals and clinics and other medical establishments in our country. Hopefully, by virtue of this award, doctors, nurses and other staff in our hospitals will be caused to become diligent, attentive and competent and enable them to promptly attend to their patients’ needs instead of letting them suffer as they did with the Plaintiff in this case. 

Aggravated damages

42.	Aggravated damages, is the next head of damages to be dealt with, to which, I now turn. Correctly, there is no contest that, this is a head of damages that is separate from all the other heads of damages.  Learned counsel for the State, argues for no award under this head of damages without clearly spelling out the basis for making that submission.  All that counsel tried to do, was to dwell on the fact that the Plaintiff was taken into surgery which process saved her from dying.  On the other hand, learned counsel for the Plaintiff is arguing for an award of K50,000.00. In support of that submission, counsel drew the Court’s attention the decision of the Supreme Court in PNG Aviation Services v. Somare & Ors (2000) SC658.  There Salika J., (as he then was) with whom, Sakora and Sevua JJ (as they then were) said:

“Aggravated damages differ from other types of damages and exemplary damages. They are not designed to punish a defendant or to act as a deterrent. They are compensatory in nature. There are the normal or ordinary compensatory damages but there are those which are aggravated: see ROOKS v. BARNARD (1964) AC 1129. Lord Devlin in that case said an injury done to the plaintiff may be exacerbated by the conduct of the defendant, thereby attracting higher compensatory damages. Where the conduct of the defendant has been ‘high handed, malicious, insulting or oppressive’ the award may be at the highest of the range ‘that could fairly be regarded as compensation.’ 
…
Furthermore, aggravated damages are awarded where the defendants conduct has lacked bona fides or is somehow improper or unjustifiable”

43.	Quoting Waterhouse v. Broadcasting Station 2GB Pty. Ltd (1985) Aust. Torts Reports 80-728, His Honour noted that the Court in that case held in the context of a defamation case that:

“1.	Aggravated compensatory damages are awarded where either the circumstances of both the publication or the defendants conduct then or subsequently make the injury to the plaintiff worse.
2.	They are usually only awarded in relation to the injury to the plaintiffs feelings, but may also be awarded in respect of conduct which has the effect of increasing injury to the plaintiff’s reputation.
3.	Conduct relevant to the issue of aggravated damages must be capable of amounting to conduct which was in some way unjustifiable, improper or lacking in bona fides.”

44.	Applying these principles to the case at hand, learned counsel for the Plaintiff submits aggravated damages are called for here.  In support of that submission, counsel points to and I note the fact that the Plaintiff’s medical history was completely ignored even after she volunteered that information. Then based on her medical history, she requested a caesarean birth procedure be performed, which request was denied for no good reason.  Further, the foetus heart beat and other vitals were not checked at all from time to time.  The Plaintiff who was by then bleeding and was in severe pain and the baby that was due for delivery were completely ignored.  They were instead, caused to suffer for more than 10 hours.   Eventually, the Plaintiff’s uterus raptured, she lost her baby and became completely infertile for life. These are serious factors in aggravation.  Accordingly, I accept the submission that aggravated damages are warranted.

45.	In Julie Jack’s case, she was awarded K50,000.00 in aggravated damages.  The factors that warranted that award of damages are comparatively lesser than what the Plaintiff was put through and has suffered and will continue to suffer in the present case.  In particular, and as already been noted, the loss of her possible second born child and loss of fertility are permanent losses and are for life. This has and will continue to affect the Plaintiff both mentally, emotionally and socially for as long as she lives in a country where no professional help to overcome such sufferings is available to her. In my view, this calls for a higher award of aggravated damages than what was awarded in the Julie Jack case.  Taking these factors into account with the change in economic circumstances now compared to those prevailing at the time of the award in Julie Jack’s case and using the same 100% increase factor from the awards from Julie Jack’s case, I consider an award of K100,000.00 is appropriate. Accordingly, I make that award for aggravated damages.

Special damages

46.	This leaves us to deal with the last and final head of damages, namely, special damages.  Under this head of damages, the Plaintiff is claiming:

(1)	Domesticated services 		K15,600.00

(2)	Pharmaceutical costs		K 01,000.00

(3)	Accommodation costs 		K22, 750.00

(4)	Consultation and Reviews	K09, 400.00

(5)	Costs of air travel			K02,554.00

(6)	Future surgery (overseas) 	K150,000.00

47.	Where these items of expenses are supported by receipts, learned counsel for the State says his clients have no issue. Hence, the State is opposed to any award of damages for any item of expenses in special damages that are not supported by any receipts.  However, counsel failed to indicate which of these items are supported by evidence and which of them are not. Hence, I will do the best I can using the evidence that is available before me, which has not been rebutted at all.

48.	The law on what damages can be allowed under special damages and before that, its definition is clear.  

“Special damages are limited in the same way as general damages. It must be reasonably foreseeable to the defendant that the special damages claimed would be likely to follow the breach. Further, the special damages sought should have been incurred as a direct result of the breach...”

49.	These kinds of damages “are intended to compensate a plaintiff for some sort of loss or damage incurred that is not presumed by law to have been incurred. It is a special sort of damage that must be expressly pleaded, particularised and proven.”  As noted in several judgments, as in Margaret Potane v. National Development Bank (No. 2) (2013) N5099, special damages are actually out of pocket expenses the plaintiff incurred up to the date of filing the claim. They usually include medical expenses, transportation, accommodation and food.  These damages are very special, and they must be pleaded with clarity and proven in court by evidence.  Damages of this nature should relate to the proceedings only.

50.	Provided there is foundation in the pleadings, receipts for such expenses will easily establish the incurrence of the expenses and form the foundation for an award of damages in the amounts disclosed in the receipts. The most problematic aspects of damages claimed under special damages is in cases where no receipts are produced. In Ibi Enei v. Rimbunan Hijau Ltd (2011) N4402, Gavara-Nanu J., noted the relevant principle for such cases was developed by Lord MacNaghton in Strom Bruks Aktie Bolag v. Hutchinson [1905] AC 515 in the following terms:

“General damages are such as the law will presume to be the direct natural or probable consequence of the action complained of. Special damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary cause. They are exceptional in character and therefore they must be claimed and proved strictly.”

51.	His Honour then noted correctly that, this principle applies with one qualification especially in cases where the plaintiff is illiterate or in cases where it is shown that there were expenses incurred but it was not possible to keep records of the expenses.  His Honour then expressed the qualification in the following terms:

“In such cases the Courts have, after satisfying themselves from evidence that there were expenses incurred, made reasonable estimates of expenses incurred. A typical example is expenses incurred for a funeral in a village: Eva Aglum & Ors v. MVIT (1988) N678; Inabari v. Sapat and Independent State of Papua New Guinea [1991] PNGLR 427; Robert Brown v. MVIT [1980] PNGLR 409 and Susanna Undapmaina v. Talair Pty Ltd [1981] PNGLR 559.” 

52.	Applying these principles to the case at hand, I note the first item of expense listed in the pleadings and repeated in counsel for the Plaintiffs submission, namely, domesticated services in the sum of K15,600.00, lacks particulars and evidence. There is neither any evidence, nor is there any explanation in the Plaintiffs pleadings or submission as to how the Plaintiff incurred this particular item of expenses.  Similarly, there is neither any pleading nor any evidence or explanation in the Plaintiff’s submission as to what this expense is for and how it was an expenditure necessitated by the negligence and the resultant loss, harms and sufferings that were brought upon.  Further, there is no evidence of expenses in the amounts claimed being incurred.  Accordingly, I dismiss the claim for domesticated services.

53.	There are receipts evidencing and confirming the expenses incurred for pharmaceuticals in the pleaded amount of K1,000.00. The same is the case for medical consultation and reviews in the amount of K9,400.00.  Similarly, the claim for accommodation costs of K22, 750.00 in Port Moresby has been pleaded and explained in the Plaintiff’s evidence. The serious medical problems, the Defendants caused her to suffer as a result of their negligence necessitated numerous medical reviews and consultations.  This, as of necessity, required the plaintiff to be in Port Moresby rather than return to her then home town of Mt. Hagen.  Clearly, this was necessary to enable her to readily attend the various medical reviews and consultations required of her.  There is evidence of the property she had to rent and the rentals she had to pay and paid.  Finally, the claim for K2,554.00 in airfares is also made out in the pleadings and the evidence. The plaintiff had to travel to and from Port Moresby and Mt. Hagen for the purposes of filing the proceeding and serving them on the defendants in accordance with the requirements of the CBASA. At that point, she took up the matter herself and as such it was necessary for her to incur this expense.  On these bases, I allow each of these items of expenses and they each will form part of the award under special damages.

54.	I now turn to the only item of expense yet to be dealt with, namely, future medical treatment in the form of surgery overseas.   The basis for this claim is the conflicting medical advice the Plaintiff has received.  Initially, she was advised that, as a result of the hysterectomy performed on her, her uterus and cervix amongst others were removed. As a consequence of that, she would not experience her normal menstrual cycle and she would be rendered totally infertile. However, not long after her discharge from the Hospital she experienced her menstrual period.  Further medical checks confirmed that, her uterus, cervix and other parts of her body that would help to conceive and bear children were intact. It is not clear how that medical view was arrived at. Similarly, it is not clear how the earlier view and advice could be wrong.  It has been recommended to her that, she would have to undergo further tests and surgery in Australia to clear the confusion and firmly establish what was done to her during the hysterectomy.  

55.	The sum of K150,000.00 claimed is an estimate given by Dr. McKup, who has a private clinic in Mt. Hagen.  Other than Dr. McKup’s estimates, there is neither any evidence, nor is there any pleading that clearly indicates how the estimated figure has been arrived at.  There should be at least some evidence from a medical establishment or a doctor in Australia as to the nature of the review that would be conducted and the kind of surgery, if need be, that could be performed on the Plaintiff.  In other words, no evidence has been adduced that clearly shows firm arrangements being made and are now in place and that the Plaintiff will indeed undergo such further reviews and surgery.  Further, it has been, more than 10 years since the Plaintiff was discharged from the Hospital and the need for her to get the kind of further medical review and if need be surgery thereafter has been around with her for this long.   She issued this proceeding in 2016, which was more than a few years since discharge from the Hospital and the subsequent reviews and consultations.   The need for her to go for a further review and surgery, if need be, has always been around  with her. The Plaintiff has not provided any convincing evidence and argument as to why she could not undergo such reviews and or surgery and have her damages crystallized and come to this Court with firm figures and a firm program of medical reviews and treatment.  In the absence of such evidence, this claim in my respectful view, is speculative and may not be an expense the Plaintiff will definitely incur.  I know in some cases, future medical treatment and expenses have been allowed. However, those have been on the strength of confirmed arrangements for review and treatment over a definite time frame.  Given all this, I am not persuaded that this item of expenses is reasonable and should be allowed. Accordingly, I refuse to allow it.

56.	In summary I award special damages in terms of the following:

(1)	Pharmaceutical costs					K 01,000.00

(2)	Accommodation costs in Port Moresby 		K22, 750.00

(4)	Consultation and Reviews				K09, 400.00

(5)	Costs of air travel						K02,554.00
	
							TOTAL		K35,704.00

Summary of damages awarded

57.	In summary the damages that I have decided to award are as follows:

(1) General damages for pain and suffering 		K200,000.00
(2) Total loss of fertility					K350,000.00
(3) Exemplary damages					K100,000.00
(4) Aggravated damages				K100,000.00
(5) Special damages					K  35,704.00
								
Total K785,704.00
 
Interest on damages

58.	Interest on the damages is the next issue for the Court to deal with.  Learned counsel for the Plaintiff drew the Courts attention to the decision of the Supreme Court in Anton Johan Pinzger v. Bougainville Copper Ltd [1985] PNGLR 160 as the authority on point.  Having regard to that decision and Judicial Proceedings (Interest on Debts and Damages) Act 2015, counsel for the Plaintiff submits interest at 8% should be awarded for general and other damages. But for special damages she submits interest should be allowed at 4%.   In response, learned counsel for the State, argues for interest to be allowed at 2% based on recent changes to the law with the enactment of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.	

59.	The new Act came into operation on 1st January 2014. The prescription of interest at 2% first appears at s. 4 (2) (3). The first subsection to s.4 provides for the general authorization for the award of interests before the second subsection introduces the 2% interest rate. This provision relevantly reads:

“4.	Pre-Judgment Interest on debts and damages.

(1) 	Subject to Section 5, in proceedings in a court for the recovery of a debt or damages, the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, 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), including proceedings arising out of a breach of express or implied contract or mercantile usage, are taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.
(3)	The maximum rate of interest in Subsection (2) applies not withstanding that the proceedings against the State arose out of a breach of express or implied contract or mercantile usage and the relevant interest rate in the contract or mercantile usage is higher than 2%.
(4)	A judgment entered contrary to Subsections (2) and (3) is a nullity and is liable to be set aside and re-issued according to law by the same judge or judges on application —
(a)	by the lawyer for the State; or
(b)	by the registrar, clerk or other proper officer of the court by which the judgment is given; or
(c)	by any party to the proceedings.”
							(Emphasis supplied)

60.	A careful reading of these provisions makes it clear that, the Court is given a wider authorization by subsection 1 to order interest at “a rate as it thinks proper to be applied to the sum for which judgment is given interest”.  This authorization is, however, subject to the provisions of s. 5, which prohibits interest upon interest.  Also, I find this authorization under subsection 1 is subject to the provisions of subsection 2, which stipulates that, if the claim is for damages for “breach of expressed or implied contract or mercantile usage … the rate of any interest … shall not exceed 2% yearly.”

61.	Relevantly s. 6 (1) and (2) provide as to the rate of interest to apply post judgment.  These provisions read:

6.	Post-Judgment interest on debts and damages.
(1)	Subject to Subsections (2) and (3), where judgment is given or an order is made for the payment of money, interest shall, unless the court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on such of the money as is, from time to time, unpaid.
(2)	Where the judgment referred to in Subsection (1) is taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.
								(Underlining mine)

62.	In my view, s.6 (1) allows for the relevant interest ordered under s.4 to apply to so much of the judgment or order remains unpaid or unsatisfied from time to time.   This is, however, subject to subsections 2 and 3.  Subsection 2, as can be noted from the above, post judgement interest against the State is fixed at 2%.   Section 3 provides against any interest applying against the State if the judgment is satisfied within 30 days of judgment or order.

63.	In my respectful view, effectively, the change introduced by the new Act is not a blanket restriction of interest on all debts and damages to 2% where the State is a party.  Instead, the 2 % interest rate is applicable to cases in which the state is sued for “breach of expressed or implied contract or mercantile usage” and for post judgment for any unsatisfied judgment.  Except for the specific limits or restrictions placed by the Act itself, the wide power to award interest by a court at an interest “rate as it thinks proper to be applied to the sum for which judgment is given interest” remains unchanged. This view, although not expressly discussed, has been effectively adopted and applied by Anis AJ (as he then was) in Thomas Aiwara v. Cocoa Board of PNG (2017) N6788 who awarded interest at the prevailing interest rate of 8%.  For these reasons, I now do not subscribe to judgments such as the one in Alphonse Willie v. Simon Kaupa (2016) N6553, per Canning J., which take the opposite view.

64.	Applying this position of the law to the present case, I allow interest at 8% on all the damages awarded except for special damages.  For special damages, I allow for interest at 4% in line with the Plaintiff’s counsel’s submissions.  Thereafter if judgment is not paid in full within 30 days interest at 2% will apply until the judgment is satisfied.

Costs of the proceeding

65.	Costs is the last and final matter I turn too.  Learned counsel for the Plaintiff argues for costs to be awarded on a solicitor and own client basis.  The main argument offered in support of that argument is that, this matter should have been settled long time ago if the Defendants took note of and appreciated the plaintiff’s claim was straight forward and the fact that the question of liability was resolved by default judgment in the Plaintiff’s favour. She points out also that, proposals for settlement did not attract any meaningful response from the State and the State failed to engage in any settlement discussions to get this matter settled.  There is evidence of the Plaintiff having forwarded settlement proposals such as annexure “C” to the affidavit of the Plaintiff filed on 28th October 2016.  Learned counsel for the State made no submissions on the question of costs. 

66.	A case that quickly comes to mind is my decision in the matter of PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288.  There, I decided to award costs on an indemnity basis against the plaintiff for amongst others, its failure to meaningfully engage in settlement negotiations and have the matter settled.  Eventually, the matter did settle but at the direction of the Court.  In arriving at that decision, I had regard to the many repeated encouragements by the Supreme and National Courts for parties to take real and meaningful steps to having their disputes resolved. I then noted that, Parliament enacted amendments to the National Court Act by adding sections 7A – 7E in recognition of “the importance of having matters resolved out of Court”. These provisions allow for the use of mediation and other forms of ADR by the Court to expedite resolution of disputes.   I then concluded:
  
“All these now make it abundantly clear if not already done, the need for parties to seriously explore and exhaust out of Court settlement before coming to Court.  If all parties involved in a dispute did that, they would be only appropriately reserving the courts for the hearing and determination of cases, which have merit that warrant only judicial consideration and determination…. Thus, unless a case falls into such a category, most of the disputes should be settled and should never get to court.”  

67.	Later in Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636 I listed the kinds of issues that warrant judicial determination and thus inappropriate for resolution by mediation or the parties’ own direct negotiations at paragraph 18 of that judgment, as follows:

“…This worldwide focus on mediation is not surprising as mediation is suitable for all cases. The only exception to this would be cases in which mediation is inappropriate because:

• 	a real possibility of setting a legal precedent through a judicial determine which would clarify the law or inform public policy is presented;
• 	any settlement out of court is not in the public interest;
• 	protective orders such as injunctions are required immediately; 
• 	there is a clear case warranting summary judgment; ...
•	a genuine dispute requiring the Court to give a declaratory relief is presented; 
•	family disputes especially involving child abuse, domestic violence, etc, is presented;
•	the parties are in a severely disturbed emotional or psychological state, such that they cannot negotiate for themselves or others; …
•	a genuine dispute requiring interpretation of a constitutional or other statutory provision is presented; 
•	there is a genuine dispute over the meaning and application of a particular provision in a contract or an instrument, a determination of which will help finally determine the dispute; 
•	a preliminary issue such as questions on jurisdiction, condition precedents, … statutory time bar and the disclosure of valid cause of action requires determine before anything else; or
•	a public sanction as in a criminal case is needed for public health, safety and good order.”

68.	As I observed in that case:

“What this means then is that, a party who fails to give any serious consideration and fails to make good faith efforts toward resolving a dispute out of Court should be responsible for the other party’s costs.   Where as in this case, one of the parties has taken all of the right steps toward having a dispute resolved through the parties’ own negotiations or with the assistance of a mediator or an independent and neutral third party and the matter subsequently settles after much costs have been incurred, the party concerned should be responsible for the costs thrown away on a solicitor and client basis, unless the parties otherwise agree. ... Hence, forcing a matter into court or unnecessarily prolonging a dispute and its resolution should be at the costs of the party responsible.”

69.	Further, I noted at paragraph 25 of the same judgment that solicitor and own client costs have been ordered in several settings. Of relevance to the present case are the following:

(a)	running a defence when there is a complete lack of any valid defence and where the claim could be settled but unnecessarily delayed by the defendant causing the plaintiff to litigate unnecessarily and thereby incur expenses;

(b)	taking a defence position at trial by a defendant when it had no factual or legal basis;

(c)	Where the defendant’s conduct in terminating the plaintiff’s contract of employment was harsh and oppressive and had no good defence on the merits when the plaintiff sued for damages which could have settled but the plaintiff was put to unnecessary expense in litigating the claim; 

70.	In Island Helicopter Services Ltd v. Wilson Sagati &Ors (2008) N3340 Injia DCJ (as he then was) considered the practice of asking for costs on a “solicitor and client basis” against lawyers. His Honour held that, there must be proper forewarning as noted in the Supreme Court decision in PNG Water Board v. Gabriel M Kama (2005) SC821, and proper pleading by way of a motion clearly asking for such costs and supported by affidavit evidence which clearly identifies the conduct complained of against the party from whom “solicitor and client costs” is sought.

71.	His Honour also held that:

“…there are very rare cases in which the conducts of the parties or their lawyers in proceedings are known to the Court.  This is possible in cases where say the proceedings are conducted and completed before the same judge.  In such cases, there would be no need for formal notice of motion and affidavit.  A party or a lawyer could make an oral application for “solicitor and client costs” and the matter may be argued on the pleadings, the material already before the Court, any new material such as copies of correspondences exchanged between the parties which may be handed up from the bar table by consent of the parties.”

72.	Applying the foregoing principles to the case then before me, I noted amongst others PNG Ports Corporation Ltd:

(1)	failed to respond in any manner or form to Canopus which had the legal right’s numerous attempts to reason with them and reach an agreement or arrive at a mutually beneficial outcome;

(2)	issued Court proceedings without having a reasonable cause of action which had a likelihood of success; and 

(3)	failed to explore and exhaust all prospects of having the matter settled without the need for court action or further delay.

73.	In the case now before me, I note the following are important factors:

(1)	This was a clear case of medical professional negligence to which none of the defendants provided any sustainable defence;

(2)	Accordingly, liability was resolved in favour of the Plaintiff;

(3)	The Plaintiff made numerous attempts to have the matter settled both before and after the issuance of the proceeding and the entry of default judgment;

(4)	The defendants did not respond to anyone of the Plaintiffs requests for the matter to be resolved without further litigation;

(5)	The defendants gave no good reason for their failure to engage in settlement discussions and have the matter settled;

(6)	The matter was forced into trial by the defendants’ failure to meaningfully engage in settlement negotiations and hence their failure to have the matter settled;

(7)	At the trial, the defendants produced no evidence in rebuttal of those produced by the Plaintiff;

(8)	The defendants made submissions on damages that were not supported by any evidence or any case precedent or any comparable verdict and instead they made submissions that went clearly contrary to the law and the facts.

74.	These factors in my view warrant an order for costs on a basis other than the usual party and party costs basis.  In my view, an award of costs, that will have the Plaintiff fully reimbursed of the costs she has been unnecessarily put through by the defendant’s conduct is called for.  I consider the submissions of learned counsel for the Plaintiff for the costs to be on own solicitor and client basis is warranted. Accordingly, I order costs in favour of the Plaintiff’s on solicitor and own client basis to be taxed, if not agreed.

Who should satisfy the judgment and orders?

75.	Before ending, I consider I should make it clear who should satisfy the judgment and orders.   I have in the past asked and had the question answered in several cases. One such case is my decision in Jackson Mari v. Dr Sano Tahong (2015) N6241, which was referred to in his submissions by counsel for the State.  I noted in those cases that, the State was being made to continue to pay for the negligence of medical doctors, who fail even to defend the proceedings against them.  In the case cited I said:

“… the State should not continue to bear responsibilities for medical doctors and other servants or agents who have been plainly careless or reckless in the discharge of their duties and responsibilities. This carelessness on the part of State servants and agents is often carried into court proceedings. Despite being named and served with Court proceedings, the offenders often fail to take appropriate steps to defend the proceedings.  By adopting this kind of attitude, they simply do not care about what they do or fail to do and the consequence that has against the people through the State.”  

76.	I then went on to express the view that:

“It is about time that the State should take firm steps against these kinds of people who are primary tortfeasors and a primarily response to meet any judgment consequential on their tortuous actions.  The State can do this easily by making them meet the judgment personally and directly from their own resources.  If, however, despite best efforts, the offenders fail to pay either in whole or in part any judgment against them, the State should pay.  Should or where the State pays, the amounts it so pays should be a debt automatically recoverable by the State against the responsible servant or agent.  This can be done by forfeiting any savings or any benefit due to the servant.  This could be savings with the superannuation fund, bank account or other forms of saving. If such do not prove sufficient, any property or asset the offenders have should be forfeited to the State up to the value of the judgment.  If that proves still not enough, the judgment could be attached as a debt to the offender’s salary or other future benefits due to him.”

77.	I then went on to note that:

“Taking the kind (sic) action .. mentioned above will bring about at least three important developments into the way public servants and agents behave and carry out their powers and functions.  Firstly, professionals like the doctors, lawyers, accountants and all other servants and agents of the State who are careless or reckless in the discharge of their duties and responsibilities will be forced to carry out their duties and obligations with much care, skill and attention, when it becomes clearer to them that they are personally liable for their actions and not the State.   Secondly, this will help reduce the large number of negligence cases that are mounted each year against the State and thereby save the people from spending millions of Kina unnecessarily on consequences of negligence or carelessness of State servants and agents.  Thirdly, it will force the State servants and agents to become smart professionals who will function with much care and attention to detail and doing their jobs properly in timely manners as professionals in whatever capacity they are called to serve the people of PNG and others.  This will in turn raise the level of the type and quality of service to much better levels than the bad and untrustworthy ones we see in most State departments and agencies nowadays.”

78.	As was held in the case cited, what this means for this case is simple.   The First Defendant, Dr.  Joseph Aine is primarily responsible for satisfying the judgment with the orders for interest and costs. He is the person primarily responsible for the Plaintiffs’ loss.  The Third and the Fourth Defendants should also contribute to meeting of the judgment say by up to 50% for their failure to take head of past judgments against doctors and failing to ensure that the First Defendant and others carry out their duties and responsibilities with much care and attention.  Then unless the First and Third Defendants are able to satisfy the judgment in full within the usual 14 days from the date of this judgment, the State should fully satisfy the judgement with the orders for costs and interests and recover what it pays as a debt from the First Defendant by having his savings, retirement pensions, any other savings or property and assets forfeited to the State or attached the judgment debt to his salaries or other income up to the value of the judgment plus the costs and interests it is forced to meet.

Formal judgment and orders of the Court

79.	The formal judgment and orders of the Court are:

1.	Judgment in the sum of K785,704.00 comprising of:
(a) General damages for pain and suffering 		K200,000.00
(b) Total loss of fertility					K350,000.00
(c) Exemplary damages					K100,000.00
(d) Aggravated damages					K100,000.00
(e) Special damages					K  35,704.00
be entered for the Plaintiff against each of the Defendants jointly and severally except the Second Defendant who has been removed as a party under a previous order.

2.	Interest at 8% for all heads of damages and 4% for special damages shall apply from the date of the issue of the writ to date of judgment and thereafter at 2% for all post judgment debt.

3.	Each of the Defendants shall jointly and severally pay the Plaintiff’ costs on a solicitor and own client basis to be taxed, if not agreed.

4.	The First Defendant shall primarily be response for the satisfaction of the judgment with costs and interest failing which, the Third and Fourth Defendants shall meet them.

5.	Upon payment of the judgment, costs and interests in full by the Third and Fourth Defendants the amounts paid by them shall become a debt due from the First Defendant to them and they shall be at liberty to have it enforced against any of the First Defendants savings, other assets and or by way of attachment to his salary or other sources of income.   						
________________________________________________________________
Tamutai Lawyers:		Lawyers for the Plaintiff	
Solicitor General:		Lawyers for the Defendant