N9115

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1250 OF 2019
BETWEEN:
JOHN TOBY KARIAGU ON BEHALF OF THE IMMEDIATE FAMILY MEMBERS OF LATE STEVEN TOBY WHO’S NAMES ARE LSITED IN PARAGRAPH 17(b) BELOW 
Plaintiff
AND:
RAMU NICO MANAGEMENT (MCC) LIMITED
Defendant
Madang: Narokobi J
2021: 17th June
2021: 7th September

DAMAGES – negligence – medical negligence - death of employee at employer provided medical clinic at mine site – liability established by default-claim for damages by dependents of deceased – assessment of damages for each dependents-damages for loss of dependency-special damages: funeral expenses-estate claim-solatium.

A man died from tuberculosis, when he was not properly diagnosed by the medical clinic operated by his employer. The brothers, sister and mother of the deceased brought a claim against Ramu Nico Management (MCC) Limited. Liability was established by default judgement entered against the defendant. What is now before the court is a trial on assessment of damages. 
Held:
1)	The pleadings and the evidence tendered demonstrate to the requisite standard, that is, on the balance of probability that the plaintiff suffered damages as a result of the negligence of the defendant.

2)	A formally employed family member taking care of immediate family members in the village is a usual expectation in Papua New Guinea. The plaintiffs are the immediate family members of the deceased, being subsistence farmers ordinarily resident in the village who have been relying on the deceased for economic benefit.

3)	Damages for dependency loss are based on the amount of actual pecuniary benefit which those claiming damages might reasonably be expected to enjoy had the deceased not been killed (Tirima v. Angau Memorial Hospital Board [2006] PGNC 127; Jackson Koko and Elisha Koko v. MVIT [1988] PNGLR 167; and Richard Dennis Wallbank and Jeanette Minifie v. The State [1994] PNGLR 78).

4)	The “dependency period” commences at the deceased’s age at the time of death and expires at the end of the deceased’s working life.  The appropriate age at which one’s working life expires is fifty-five (55) years (Tirima v. Angau Memorial Hospital Board, adopted).

5)	Calculating from the age the deceased died to the life expectancy of 55 at K40 per dependent after deducting contingency of 15%, would mean each plaintiff is entitled to K15,028.00 for dependency claim.

6)	Special damages claimed of K10,050 is reduced by K7,000, being assistance already given by the defendant to the family of the deceased. An award of K3,050.00 is therefore made for special damages.

7)	No award for solatium is made as under s 29 of the Wrongs (Miscellaneous Provisions) Act 1975, as it is only provided for claims by parents for the loss of a child. Instead, an award of K10,000 for pain and hardship endured by the mother, two elder brothers and a younger sister of the deceased is made. (Robert Wandokun v. Manase Leeman & Madang Provincial Government [2015] N5950, adopted).

8)	An estate claim is for loss of expectation of life of the deceased leading to reduction of his estate, occasioning loss and damage, usually awarded under s 34(1) of the Wrongs (Miscellaneous Provisions) Act 1975.  An award of K 8,000.00 under this head of claim is made (MVIL v Roy Manduru (2018) SC1750, followed).

9)	Interest is awarded at 8% pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act 2015 on the total of damages claimed from date of filing of the writ to the date of judgement of assessment of damages, a total of K12,985.92.
Cases Cited:

Jackson Koko and Elisha Koko v. MVIT [1988] PNGLR 167
MVIL v Roy Manduru (2018) SC1750
Richard Dennis Wallbank and Jeanette Minifie v. The State [1994] PNGLR 78
Roy Manduru v. MVIL (2016) N6509
Tirima v. Angau Memorial Hospital Board [2006] PGNC 127 
William Mel v Coleman Pakalia and Others (2005) SC790

Statutes Cited:

National Court Rules
Wrongs (Miscellaneous Provisions) Act 1975

TRIAL
This is a trial on assessment of damages.
Counsel

Mr B Meten, for the Plaintiff
Ms E Valakvi for the Defendant

JUDGMENT
7th September, 2021
1.	NAROKOBI J: On 24 July 2020, default judgement was entered against the defendants on liability, with damages to be assessed pursuant to Order 12 Rules 25(b) and 28 of the National Court Rules. The trial on assessment of damages was conducted on 20 November 2020 and submissions thereafter. This is the court’s decision on assessment of damages.

A	BACKGROUND

2.	The plaintiffs are immediate family members of one late Steven Tobby. At the time of his death, he was 38 years old and was an employee of the defendant as an Operator Assistant.

3.	 Few weeks prior to his demise, late Steven Tobby attended Kurumbukari mine site clinic owned and operated by the defendant for medical attention. At those visits, he complained of chronic productive coughs, occasional nausea and generalized body weakness. He only received medication for quick relief.

4.	On the night of Saturday 20 January 2018, his condition worsened.  He attended Kurumbukari mine site clinic at around 11pm and complained that he continuously vomited, had chest pain and shortness of breath.

5.	At around 11.30pm on the same day he was sent home after giving him 2 weeks medicine supply. The two weeks medicine supply provided includes paracetamol and penicillin dosages. 

6.	On the following day, 21 January 2018, Stephen attended the clinic again complaining that nothing has changed of his physical condition.

7.	Steven died at 4am on the morning of 5 March 2018 at his official house provided by the defendant at the mine site.

8.	 An autopsy examination was conducted on the body of late Steven Tobby by Dr. Lucas Komnapi on 3 March 2018. In his view, the immediate cause of the death was pulmonary tuberculosis.  The other condition that contributed to his death was broncho-pneumonia.

9.	The negligence of the defendant was that the medical officers of the clinic run by the defendant showed total disregard for the deceased’s continuing worsening physical condition. This eventually led to his death, which could have been avoided if the appropriate professional care was administered.

10.	Liability was determined by default judgement, entered on 11 November 2020 with damages to be assessed.

B	EVIDENCE 
  
11.	Trial on evidence of assessment of damages was conducted on 20 November 2020.

12.	The plaintiffs tendered five (5) affidavits.

Exhibit No	Deponent  	Evidence 	
P1	Affidavit of John Kariagu Tobby filed 21 April 2020	•	At the time of his death, he was 38 years old and was an employee of the defendant as an Operator Assistant.
•	 Few weeks prior to his demise, late Steven Tobby attended Kurumbukari mine site clinic owned and operated by the defendant, on several times, complained of the Chronic productive cough, nausea at times and generalized body weakness. Every time they sent him away after giving quick relief medicines.
•	On the night of Saturday 20 January 2018, the deceased was very ill.  He attended Kurumbukari mine site clinic at around 11pm and complained that he continuously vomited few, had chest pain and shortness of breath.
•	At around 11.30pm on the same day he was sent home after giving him 2 weeks medicine supply. The two weeks medicine supply provided includes paracetamol dosages and penicillin dosages. 
•	On the following day, 21 January 2018, the late deceased attended the clinic again complaining that nothing has changed of his physical condition.
•	Steven died at 4am on the morning of 5 March 2018 at his official house provided by the defendant at the mine site.
•	 An autopsy examination was conducted on the body of late Steven Tobby by Dr. Lucas Komnapi on 3 March 2018. In his view, the immediate cause of the death was pulmonary tuberculosis.  The other condition that contributed to his death was broncho-pneumonia.	
P2	Affidavit of Korai Tobby filed 28 August 2020	•	Youngest and only sister of the deceased.
•	She is 35 years old, is married and has two (2) children.
•	Agrees with the contents of the affidavit of John Kariagu Toby.
•	She says for the dependency claim, K40 would be reasonable. Life expectancy is ordinarily 70 years, so the deceased would’ve supported her for another 35 years as she is 35 years old.
	
P3	Affidavit of Joseph Taure Tobby filed 28 August 2020	•	Agrees with the contents of the two affidavits of John Kariagu Toby.
•	At the time of the death of Steven he was 45 years old and has five (5) children.
•	He says for the dependency claim, K40 would be reasonable. Life expectancy is ordinarily 70 years, so the deceased would’ve supported him for another 25 years as he is 43 years old.
	
P4	Affidavit of John Kariagu Tobby filed 28 August 2020	•	He is the elder brother of the deceased.
•	The deceased was very close to all his siblings.
•	Deceased had no wife and children.
•	The claim is filed by the surviving biological members of the deceased, whose details are:

•	Clara Mandai Tobby, F, mother of the deceased, 60;
•	Joseph Toure Tobby, M, brother of the deceased, 45;
•	John Kariagu Tobby, M, brother of the deceased, 43; and
•	Korai Tobby, F, sister of the deceased, 35.

•	The surviving biological members are entirely dependent on the deceased and have no formal employment.
•	The deceased advised him that he earns K500 per fortnight.
•	He spends about K50 a fortnight on him to assist with essentials like soap, rice, salt etc.
•	He says for the dependency claim, K40 would be reasonable. Life expectancy is ordinarily 70 years, so the deceased would’ve supported him for another 27 years as he is 43 years old.
•	The following amount was spent on funeral and burial:

•	Hiring three vehicles at K600 per vehicle;
•	Coffin – K1,500;
•	Hauskrai expenses – K5,000;
•	Cemetery and burial site expenses – K1,000; and
•	Medical report – K750.
	
P5	Affidavit of Clara Mandai Toby, filed 28 August 2020	•	She is the mother of the deceased and she is 60 years old.
•	She is still in mourning for her son, who is everything to her.
•	She agrees with the contents of the affidavit of her son John Kariagu Toby. 	

13.	The defendant tendered two affidavits.

Exhibit No 	Deponent 	Evidence 	
D1	Meng Deyong filed 10 July 2020.	•	Denies negligence on the basis that the deceased was given annual leave to get better treatment as the medical clinic only catered for less serious illness.	
D2	Meng Deyong filed 11 November 2020.	•	Deceased was paid his final entitlements of K2,992.94 to John Kariagu Toby.
•	Funeral associated costs of K7,000.00 was paid.
•	The defendant provides all national employees including the deceased with a medical and life insurance benefit under Pacific MMI Insurance. The deceased family received a total of K35,000.00 as life insurance benefits. 	

C.  ISSUES 

14.	I consider the following to be the issues in relation to this matter:

1)	Whether the plaintiff has established a case for damages as claimed on the balance of probability?
2)	If they have established a case for damages, what types of damages should they be entitled to, and how much, including interests and costs?; and
3)	What orders should the court make?

D.  LAW ON DEPENDENCY CLAIM 
15.	The law on dependency claims is more or less settled in this jurisdiction through various case laws such as Tirima v Angau Memorial Hospital Board (2006) N3106 but more so, it is statutorily regulated by the Wrongs (Miscellaneous Provisions) Act 1975 (hereafter “WMPA”). Part IV of that legislation contains the relevant provisions.
 
16.	Section 25 of the WMPA states that where the death of a person is caused by a wrongful act, neglect or default and the person who died would have been entitled to sue for damages for the tortious acts and or omissions, that actions survives after his or her demise.

17.	Section 26 of the WMPA then states that an action instituted under s 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. That provision further states that the action shall be brought by and in the name of the executor or administrator of the person deceased.

18.	Section 27 of the WMPA allows the beneficiaries to institute proceedings if the executor or administrator of the person deceased does not commence proceedings within six (6) months.

19.	The next provision is s 28, it states:

“28. Amount of Damages.

(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.” (Emphasis added)

20.	Section 28 confers on the court discretion to determine appropriate damages and also provides for costs associated with burial.

21.	Solatium is also allowed for under s 29 of the WMPA for the parents of a child. The provision does not cater for deceased who are adults.

22.	Section 30 of the WMPA excludes from consideration by the court, any insurance that may have been paid as a result of the death when determining damages. 

23.	Contributory negligence is covered by s 40 of the WMPA. Where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, the court shall reduce damages to such extent as the court thinks just and equitable, having regard to the claimant’s share of responsibility.

D.  LAW ON DAMAGES FOLLOWING DEFAULT JUDGEMENT

24.	William Mel v Coleman Pakalia and Others (2005) SC790 is the often-cited authority on damages following default judgement. The trial judge’s role is essentially to take a quick view of the pleadings to ensure that it is clear and there is a cause of action known to law. The burden of tendering admissible and credible evidence to prove the alleged damages still lies with the plaintiff despite the default of the defendant. 

25.	Where a claim is made by the plaintiff for damages for breach of duty, and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person it is essential to plead all material facts which give rise to a claim (O 8, r 33(1)(b), National Court Rules). See also MVIT v Pupune [1993] PNGLR 370.

E	FIRST ISSUE 

26.	The first issue is whether the plaintiff has established a case for damages on the balance of probability?

27.	Even though liability has been entered by default, I have examined the statement of claim, and determine that medical negligence is a cause of action known to law (Tirima v Angau Memorial Hospital Board (2006) N3106).

28.	The statement of claim pleads the particulars of the negligence and the following heads of damages:

•	Dependency claim;
•	Past Losses;
•	Interest on past losses;
•	Future losses;
•	Special damages, made up of transport, coffin and linens for burial, “haus krai” expenses, burial expenses, 
•	Estate Claim; and
•	Solatium.

29.	The defendant continues to deny negligence on the basis that the deceased was given annual leave to get better treatment as the medical clinic only catered for less serious illness. I reject this contention as liability has been determined. I also note that the defendants have not made any strong submissions for the amount claimed to be reduced on the basis of contributory negligence. 

30.	I have examined the pleadings and considered the evidence tendered (referred to above), and in my view, they demonstrate to the requisite standard, that is, on the balance of probability that the plaintiff suffered damages as a result of the negligence of the defendant.  

F	SECOND ISSUE 

31.	The second issue relates to the various categories of damages claimed by the plaintiffs in their statement of claim and verified by the evidence tendered.

32.	There are four heads of damage claimed together with costs and interest in the statement of claim. They will be considered, and a determination made on each one of them.

1)	Special Damages Past and future pecuniary losses for the dependents as dependency claim (including past loss, interest on past loss and future loss)

33.	At the time of his death, the deceased was 38 years old, and was not married and had no children. He is survived by the following immediate family members: 

Name	Relationship to the deceased	Age	
1.	Clara Mandai Tobby	Mother	60	
2.	Joseph Toure Tobby	Biological Brother	45	
3.	John Kariagu Tobby	Biological Brother	43	
4.	Korai Tobby	Biological Sister	35	

34.	The plaintiffs say that they are totally dependent on the deceased. Whilst I do not think that they are totally dependent, I would think that they would nevertheless receive monetary support from the deceased from time to time for store goods to supplement their subsistence living.  It is not unusual. It often happens in the Papua New Guinea setting. All in all, considering that the plaintiff is not married, does not have children and taking judicial notice of circumstances of the country, I accept this contention.
 
35.	From the evidence, the deceased earned about K500.00 per fortnight.  The evidence further shows that the deceased spent K350.00 on himself, K150 on his immediate family members, since none of them work and earn a fortnight.  These facts were pleaded by the plaintiffs and is not disputed by the defendant. I therefore establish that the dependents are entitled to K150 per fortnight from the deceased.

36.	Damages for dependency loss are based on the amount of actual pecuniary benefit which those claiming damages might reasonably be expected to enjoy had the deceased not been killed (Tirima v. Angau Memorial Hospital Board [2006] PGNC 127; Jackson Koko and Elisha Koko v. MVIT [1988] PNGLR 167; and Richard Dennis Wallbank and Jeanette Minifie v. The State [1994] PNGLR 78).

37.	When assessing damages for dependency loss, Cannings J in Tirima v. Angau Memorial Hospital Board [2006] PGNC 127; N3106 held that the primary focus is on pecuniary benefits and is the amount of income earned by the deceased at the time of his or her death. I apply this to the present case.

38.	The “dependency period” commences at the deceased’s age at the time of death and expires at the end of the deceased’s working life.  In Tirima v. Angau Memorial Hospital Board Cannings J held that the appropriate age at which one’s working life expires is fifty-five (55) years. I also apply this to the present case.

39.	The plaintiff submits that life expectancy is normally 70 years. Since the deceased was the youngest in the family, dependency claim can be calculated against the remaining years of the plaintiffs before they reach 70.  That is for how many years they would have depended on the deceased if it was not for the negligence of the defendant that caused his death.

40.	I decline to follow this approach and instead adopt Tirima v. Angau Memorial Hospital Board and determine that I should calculate the number of remaining working years of the deceased from 38 to 55 years, giving 17 years. I also accept the plaintiff’s submission of K40 each per fortnight.

41.	I also decline the plaintiff’s submission to divide the dependency claim into past loss, interest for past loss and future loss. I will instead calculate from the age the deceased died to the life expectancy of 55 and calculate interest from the date of filing of the writ to the date on assessment of damages.

42.	 This would give the following amounts for each dependent K17,680, using this formula: K40 x 26 fortnights x 17 years.

43.	I will deduct contingency of 15%, meaning each plaintiff is entitled to K15,028.00 for dependency claim.

44.	The total amount for the dependency claim is therefore K60,112.00. 

2)	Special Damages 

45.	For special damages, the plaintiff claims K10,050.00 based on the evidence provided for transport, customary obligations and constructing a burial place. This claim is allowed for under s 28 of the WMPA. Plaintiffs have deducted K7,000.00 being the assistance provided by the defendant. They claim K3,050.00, which I consider to be reasonable. I therefore award K3,050.00 for special damages.

3)        Solatium 
46.	 I do not make any award for solatium as under s 29 of the WMPA, it is only provided for claims by parents for the loss of a child. This is not such a case. The plaintiffs however, claim in lieu of solatium, pain and hardship endured by the mother, two elder brothers and a younger sister of the deceased, following Robert Wandokun v. Manase Leeman & Madang Provincial Government [2015] N5950. The plaintiff claims K10,000.00. This amount is consistent with the relevant case authority referred to here, and I award this sum.

4)        Estate Claim 

47.	The plaintiffs claim that the expectation of life of the deceased was considerably reduced, and his estate has suffered loss and damage.  The plaintiffs claim K 8,000.00 under this head of claim pursuant to Section 34(1) of the WMPA and relies on the case precedent of Roy Manduru v. MVIL (2016) N6509 (decision on this aspect was confirmed on appeal in MVIL v Roy Manduru (2018) SC1750). I accept this claim as reasonable and award this sum.

5)        Interest  

48.	I do not see any factors preventing the awarding of interest. I award interest at 8% pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act 2015 on the total of damages claimed from date of filing of the writ to the date of judgement of assessment of damages, ie 10 October 2019 to 7 September 2021.

49.	This gives a period of one (1) year and 11 months, which I round off to two (2) years. The calculation is therefore as follows – Total damages: K81,162 x 0.08 (8% interest) x 2 (2 years) = K12,985.92. 

6)        Costs  

50.	The plaintiffs ask for costs in the fixed sum of K 20,000.00. I have awarded similar sums on the basis that taxation does not occur regularly in Madang, for substantive hearing of the matter. I therefore order costs in the fixed sum of K20,00 in favour of the plaintiffs.

7)        Summary of Total Damages Awarded, Interest and Costs    

51.	The table hereunder is a summary of the claim awarded. 

Summary of Damages	Amount	
Dependency claim	K60,112.00	
Special Damages	K3,050.00	
Estate Claim	K8,000.00	
Damages for pain and hardship	K10,000.00	
Total Damages
	K81,162.00	
Interest from the date of filing of writ to the date of judgement	K12,985.92.	
Total Judgement Sum	K103,887.36	
Costs at a fixed sum	K20,000.00	

G.  ORDERS 

52.	The third issue relates to the orders I should make. Based on the above discussions and findings, I make the following orders:

1.	The defendant pays the plaintiffs a total damages assessed at K81,162.00;
2.	The defendant pays the plaintiffs interest, assessed at K12,985.92;
3.	The total judgement sum payable to the plaintiffs by the defendant is therefore K103,887.36, to be paid equally as follows:

Name	Damages Entitled to	
1.	Clara Mandai Tobby	K23,536.98	
2.	Joseph Toure Tobby	K23,536.98	
3.	John Kariagu Tobby	K23,536.98	
4.	Korai Tobby	K23,536.98	

4.	The defendant pays the plaintiffs fixed costs of K20,000;
5.	Time is abridged; and
6.	File is closed.

Judgement accordingly

________________________________________________________________
Meten Lawyers: Lawyers for the Plaintiff
Ramu Nico Inhouse Lawyers: Lawyers for the Defendant