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Kunong v Paradise Private Hospital Ltd [2022] PGNC 242; N9698 (24 June 2022)

N9698


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 965 OF 2018 (CC2)


BETWEEN:
SALLY TIWARI KUNONG
Plaintiff


AND:
PARADISE PRIVATE HOSPITAL LTD
Defendant


Waigani: Shepherd J
2020: 10th February
2022: 24th June


JUDGMENTS & ORDERS – default judgment – relevant principles for assessment of damages after entry of default judgment – role of trial judge - trial judge must be satisfied that facts and cause of action are pleaded with clarity – if clearly pleaded then liability should be regarded as proven – liability established for professional medical negligence.


DAMAGES – assessment of damages – heads of damages claimed must be expressly pleaded – heads of damages not pleaded cannot be subject of any award of damages – claim for exemplary damages not pleaded – exemplary damages not allowed - quantum of damages - principles relating to general damages – principles relating to special damages – principles relating to interest on damages – conventional rate of interest at 8% yearly on general damages – interest rate is discretionary – discussion on rate of 4% yearly when claimed under head of special damages on notional loss of earnings.


COSTS – principles relating to award of solicitor/client costs.


Cases Cited:


Papua New Guinean Cases
Albert v Aine (2019) N7772
Bishop Brothers Engineering Pty Ltd v Bishop (1989) N705
Bromley v Finance Pacific Ltd (2001) N2097
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
Enei v Rimbunan Hijau Ltd (2011) N4402
Figa v Agong (2012) N4707
Golobadana No. 35 Ltd v Bank of South Pacific Ltd (2013) N5340
Gunambo v Upaiga (2010) N3859
Jack v Mola & Ors (2008) N3537
Kapipi v Andu (2015) N6125
Kupo v The State (2011) N4285
Limitopa v The State [1988-89] PNGLR 364
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144
Mel v Pakalia (2005) SC790
Molomb v The State (2005) N2861
Motor Vehicles Insurance Limited v Kol (2007) SC902
Mulunga v Kami (2011) N4254
National Capital District Commission v Central Provincial Government (2015) SC1429
Opi v Telikom PNG Ltd (2020) N8290
Papua New Guinea Banking Corporation Ltd v Tole (2002) SC694
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288
POSF Board v Imanakuan (2001) SC677
Potane v National Development Bank (No. 2) (2013) N5099
Rabaul Shipping Ltd v Aisi (2006) N3173
Rundle v MVIT [1988-89] PNGLR 618
Songkae v Wagambie (2012) N4807
Simbuaken v Egari (2009) N3824
Taru v New Ireland Shipping Ltd (2008) N3501
Tuwi v Taiya (2010) N3901

Overseas case cited:

Jefford v Gee [1970] 2 QB 131


Counsel:

Mr Francis Alua, for the Plaintiff

DECISION

24th June, 2022

  1. SHEPHERD J: This is an assessment of damages following the entry of default judgment.
  2. The plaintiff by her writ of summons filed on 15 August 2018 claims damages for professional medical negligence by staff of the defendant, Paradise Private Hospital Ltd (PPHL), which resulted in the death of the plaintiff’s infant son less than half a day after his birth on 2 October 2016.
  3. PPHL was served with the plaintiff’s writ of summons on 20 August 2018. Service was effected at PPHL’s registered address for service at Allotment 67 Section 55, Taurama Road, Boroko, National Capital District in accordance with s.431(1)(c) of the Companies Act 1996. PPHL has taken no steps at all to defend this proceeding.
  4. Default judgment on liability was entered against PPHL on 12 November 2018, with damages to be assessed.
  5. On 9 December 2019 the Court ordered, among other things, that the trial for assessment of the plaintiff’s damages be set down as a special fixture on 10 February 2020 at 9:30 am, the trial to be by way of affidavit evidence subject to the parties’ rights of cross-examination. The Court also directed on 9 December 2019 that the case was to return before the Court for status conference on 6 February 2020 at 10:00 am.
  6. When the case returned before the Court for status conference on 6 February 2020 there was no appearance for PPHL despite proof of service having been filed for the plaintiff that a sealed copy of the order of the Court made on 9 December 2019 was served on the registered office of PPHL on 14 January 2020. The Court directed that the trial on assessment of damages proceed on 10 February 2020.
  7. The substantive trial on assessment of the plaintiff’s damages took place at the National Court at Waigani as scheduled on 10 February 2020. The plaintiff was represented at trial by counsel Mr Francis Alua. PPHL made no appearance at trial either by counsel or by any other representative notwithstanding that PPHL had been on repeated notice of the date and time of trial set down for 10 February 2020.

Relevant Factual Background


  1. The uncontested evidence of the plaintiff is contained in her primary affidavit filed on 22 March 2019.
  2. The plaintiff comes from Wetnga Village in the Tewai Siassi District of Morobe Province. She is a journalist by profession. At the material time the plaintiff was aged 31 years of age and was employed by the Reporting Services Unit of the National Parliament at Waigani, NCD.
  3. On 30 September 2016 the plaintiff was then 41 weeks and 3 days pregnant with her first child. She was experiencing light contractions. She attended at PPHL and her symptoms were such that she was admitted to the hospital early that morning and was examined by Dr Mahlon Paiva, a specialist obstetrician and gynaecologist employed by PPHL.
  4. Dr Paiva, after conducting an examination of the plaintiff’s pregnancy, prescribed the drug misoprostol to induce labour. Dr Paiva directed that before misoprostol was administered, the plaintiff was to first have a cardiotocograph (CTG). A CTG is a recording of the foetal heart rate of an unborn child obtained via an ultrasound transducer placed on the mother's abdomen.
  5. The plaintiff says that after waiting an hour for the initial CTG on 30 September 2016, the CTG was repeated three more times by nursing staff at PPHL, following which Dr Paiva informed the plaintiff that the CTGs indicated dips, which meant that the foetal heart of the baby was not performing well during contractions. The plaintiff was then admitted to the Labour Ward of PPHL.
  6. Induction of labour commenced at 1:50 pm in the afternoon of 30 September 2016 which is when the plaintiff commenced her first dose of 25 mls of misoprostol. The plaintiff was informed that she would need to take similar doses of misoprostol every two hours until proper contractions in the uterus occurred.
  7. The plaintiff, when in the labour ward at PPHL, continued to receive 2-hourly doses of misoprostol, until a last dose was received at about 1.50 am the next morning, 1 October 2016.
  8. The plaintiff’s progress with induction was checked by one of PPHL’s midwives in the early hours of 1 October 2016. The midwife informed the plaintiff that despite the increase in the number of contractions, the plaintiff’s cervix had not dilated and remained at 3 cm. The midwife then did an amniotomy, also known as an artificial rupture of membranes (AROM). This obstetric procedure is the intentional rupturing of the amniotic sac. It is the obstetric equivalent of “breaking of the waters” surrounding the unborn child in the womb and is performed to induce labour.
  9. After the AROM procedure was conducted, the plaintiff was placed on an oxytocin drip. Oxytocin is a drug used during childbirth to make contractions stronger if breaking of the waters does not work. Oxytocin is given through a drip that goes into a vein, usually in the wrist or arm of the mother.
  10. The plaintiff says that the midwife informed her after the AROM procedure was carried out that the reason she was being placed on an oxytocin drip was because amniotic fluid extracted from the womb indicated meconium staining, which meant that the unborn baby was showing signs of distress – although surgical intervention was at that point not yet required. The midwife explained to the plaintiff that the oxytocin drip would assist to provide oxygen and an infusion of antibiotics to the unborn baby.
  11. Conventional medical knowledge indicates that up to 25 % of babies born at full term pass meconium in the womb. Meconium is a substance which stains the amniotic fluid dark green. In about 5% of those cases, meconium enters the lungs and causes breathing problems - a condition called meconium aspiration syndrome - which can deprive the brain and body of the baby of oxygen.
  12. The Oxford Concise Medical Dictionary gives the following explanation of meconium aspiration syndrome:[1]

“ A condition which occurs during childbirth in which the baby inhales meconium into the lungs during delivery. This can cause plugs in the airways and the baby may become short of oxygen (hypoxic). Treatment is to assist breathing if necessary, with physiotherapy and antibiotics.”


  1. After being placed on the oxytocin drip in the morning of 1 October 2016, the plaintiff was advised by one of the midwives at some point during the day that cervical dilation was at 3 cm to 4 cm. That evening the plaintiff was advised by the senior midwife on duty that cervical dilation had increased to about 7 cm but the plaintiff was told that the dilation was not yet sufficient for the plaintiff to commence pushing, although painful contractions were coming every 5 to 7 minutes as the oxytocin had started to induce labour. The plaintiff believed at this point that a caesarean section would be needed to deliver the baby because she was in such pain.
  2. The plaintiff says that later that evening on 1 October 2016, the oxytocin infusion was unregulated so the midwife on duty increased the drip rate. This increased the pain of the contractions which by this stage were coming at intervals of 3 minutes apart, then 1 minute apart. The plaintiff says at this point the pain of the contractions was overwhelming and she asked obstetric staff on duty for analgesics but these were refused. The only advice given to the plaintiff by the midwife on duty was that she should breathe hard to control the pain. The plaintiff received no pain-relief medication at all at that juncture.
  3. Towards the end of the evening of 1 October 2016, the plaintiff says she could no longer tolerate the pain of the contractions. She felt as if her uterus were about to rupture and be expelled from her body. She was placed on an oxygen inhaler. The PPHL doctor-on-call for the maternity ward was not available that evening so a general practitioner from PPHL’s Emergency Department was called to attend to the plaintiff. The general practitioner prescribed the painkiller pethidine and after the plaintiff received that strong analgesic, she slept until the morning of Sunday 2 October 2016.
  4. The plaintiff’s progress with childbirth was examined by Dr Simeona, an obstetrician employed by PPHL, when he did his rounds at PPHL’s maternity ward on the morning of Sunday 2 October 2016. Dr Simeona told the plaintiff that labour had been prolonged and that cervical dilation had not increased after the AROM procedure and administration of the oxytocin drip the day before. Dr Simeona advised that a caesarean section had to be done. The plaintiff agreed. She signed a written consent to PPHL to allow a caesarean section to be performed because by that time she was no longer experiencing contractions or labour pain, which I infer was because she had been clinically anaesthetised by the pethidine.
  5. The plaintiff was taken to the surgical theatre at PPHL at breakfast time. Her baby son, whom she named Tikiko Tomagao (the infant) was born by caesarean section at about 9:00 am on Sunday 2 October 2016.
  6. At birth, the infant weighed 3.1 kg. He had a good Apgar score, meaning he cried immediately after birth. The infant was placed in a temperature-controlled incubator at PPHL’s labour ward.
  7. The plaintiff when in recovery at PPHL was informed late that afternoon, Sunday 2 October 2016, that at about 3:00 pm a doctor passing the incubator at PPHL had observed that the infant was pale and that whatever intervention had been tried by nursing staff up to that point had not been successful. The plaintiff was told that the infant had been transferred from PPHL to the Special Care Nursery at Port Moresby General Hospital (PMGH) at about 3:20 pm that afternoon.
  8. The infant died at PMGH’s Special Care Nursery at 8:30 pm on Sunday 2 October 2016.
  9. Dr Angga, who was on duty at the Special Care Nursery at PMGH when the infant died, informed the plaintiff soon after the death of the infant, possibly the next day, that when the infant had arrived at the Nursery mid-afternoon on Sunday 2 October 2016, the only documentation PMGH had was an admission form for the infant. There were no clinical or medical notes from PPHL accompanying the admission form. According to the plaintiff, Dr Angga said that when she checked the infant after admission to the Special Care Nursery, she found that the infant’s blood sugar was very low at 2.4 mmol (normal being 4 to 8 mmol), and that his oxygen saturation level was at 40% (normal being greater than 94%). Dr Angga said that this meant that the infant had not been fed at PPHL for more than 6 hours after his birth by caesarean section and that despite any interventions at PPHL which may have been carried out, these had not been successful in attempting to assist the infant to breathe normally. Dr Angga was concerned that staff at PPHL had delayed for 6 hours after the birth of the infant before transferring him to PMGH’s Special Care Nursery. Dr Angga said that her obstetric team at the Nursery had been able to increase the infant’s oxygen saturation level to about 65% to 75% but that this was not enough to save the infant from oxygen starvation.
  10. A post-mortem on the body of the infant was conducted by Dr Philip Golpak of PMGH’s pathology services on 6 October 2016. A copy of Dr Golpak’s post-mortem report is attached to the plaintiff’s primary affidavit and marked “A”. Dr Golpak’s opinion as to the cause of the infant’s death is that the infant died of intra uterine sepsis. His post-mortem report states:

“At autopsy the external and internal examinations did not reveal any abnormality.

Other systems examined did not show any abnormality.

Tissue for histology showed: Spleen, showed reactive follicles and scattered neutrophils, Lungs, oedema and decomposition only. Liver, showed infiltration of neutrophils in liver tissue and heart showed normal myocytes. Brain showed infiltration of neutrophils and decomposition.

It is my opinion that the cause of death is due to Intra Uterine Sepsis.”

  1. The Oxford Concise Medical Dictionary defines a neutrophil as a type of white blood cell or granulocyte that provides an important defence against infection.[2] Neutrophils comprise 40% to 60% of the white blood cells in human bodies, and are the first cells to arrive when bacterial infection is experienced.
  2. The post-mortem report of Dr Golpak indicates that the infant died of septicaemia, contracted while the infant was in utero and which was not detected or treated by obstetric staff at PPHL for more than 6 hours after the infant’s birth by caesarean section had taken place.
  3. After post-mortem, the body of the infant was kept at Dove Funeral Services Ltd at Boroko, NCD then subsequently buried at Nine Mile Cemetery, NCD on a date in November 2016 which is not stated in the plaintiff’s primary affidavit.
  4. It is clear from the evidence presented for the plaintiff that the infant developed meconium aspiration syndrome while still in the plaintiff’s body. This infection then progressed into intra uterine sepsis, a form of septicaemia, before the birth of the infant. Although the infant had sufficient oxygen at birth by caesarean section to initially be able to breathe and to cry, the sepsis rapidly increased after the infant was placed in the incubator at PPHL’s maternity ward and this caused a partial blockage of the infant’s airway, undetected by doctors and nursing staff at PPHL for just on 6 hours after birth. By the time a decision was taken by a doctor at PPHL to transfer the infant to the Special Care Nursery at PMGH at 3:20 pm, the oxygen saturation level of the infant had been depleted by 56% below the normal level of 96%. Despite all efforts taken by nursing staff at the Special Care Nursery at PMGH to reverse the infant’s morbidity, the sepsis had by that stage spread to the infant’s spleen, liver and brain to the point that the infant could not be saved and this was the cause of his death at 8:30 pm on 2 October 2016.
  5. The plaintiff says at [16] of her primary affidavit to the effect that she has suffered great anguish and distress at losing her firstborn child through the negligence and unprofessional conduct of employed medical staff of PPHL. She contends that if proper care and skill required of PPHL’s medical staff had been employed, she would not have suffered so much pain in the lead up to the caesarean surgery, that her infant’s son post-natal septicaemia would have been properly managed in the 6 hours he was at PPHL in an incubator before transferral to the Special Care Nursery at PMGH and that her infant son would be alive today.
  6. The fact that PPHL, being on full notice of this proceeding, has elected not to defend itself or to attend at trial after being given every opportunity by the plaintiff and this Court to do so, speaks volumes.

The Issues


  1. The liability of PPHL having been established by the default judgment entered against PPHL on 12 November 2018, I consider that having regard to applicable case law there are two issues that this Court must address:

(1) Have the facts and the cause of action in this instance been pleaded by the plaintiff with sufficient clarity?

(2) If so, what is the quantum of damages to be awarded to the plaintiff for her cause of action?


Issue 1: Has the plaintiff pleaded the facts and her cause of action with sufficient clarity?


  1. The principles which apply to a trial on assessment of damages following entry of default judgment are well settled. Those principles were summarised by Kandakasi J (as he then was) in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182. His Honour said:

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

1. The judgment 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 trial is a matter on which the defendant can take issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment 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.”

  1. This summation of the principles applicable for assessment of damages after entry of judgment by default was approved and adopted by the Supreme Court, also in the context of breach of contract, in Papua New Guinea Banking Corporation Ltd v Tole (2002) SC694 (Amet CJ, Sheehan J, Kandakasi J).
  2. In the later decision of Mel v Pakalia (2005) SC790 (Los J, Jalina J, Cannings J), the Supreme Court applied the outline of the subject principles in the Coecon case to a personal injuries claim based on the tort of negligence. Their Honours said at p.27:

“ We elaborate on the first principle by saying that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven.”

[underlining added]

  1. The Supreme Court in Mel v Pakalia also addressed the matter of the role of the trial judge after entry of default judgment. Their Honours considered the following to be the correct approach to be taken by the trial judge:

“ 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 the 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.”

  1. The pronouncements of the Supreme Court in Mel v Pakalia regarding the principles applicable where damages are to be assessed after judgment by default has been entered and the role of the trial judge when making that assessment have been applied in many subsequent decisions of the National Court: see for example Molomb v The State (2005) N2861 (Cannings J); Rabaul Shipping Ltd v Aisi (2006) N3173 (Lay J); Taru v New Ireland Shipping Ltd (2008) N3501 (Kandakasi J, as he then was); Simbuaken v Egari (2009) N3824 (Davani J); Mulunga v Kami (2011) N4254 (Makail J); Kupo v The State (2011) N4285 (Hartshorn J); Figa v Agong (2012) N4707 (Cannings J).
  2. In the present case an examination of the plaintiff’s statement of claim discloses that the facts and her cause of action have been pleaded with sufficient clarity to establish liability.
  3. The statement of claim comprises 20 detailed paragraphs, including full particulars of the acts of negligence pleaded by the plaintiff against PPHL. The plaintiff’s cause of action as pleaded is squarely founded on the tort of negligence, not breach of contract. The plaintiff seeks general damages for the “injury, loss and damage” she sustained as a result of the professional medical negligence of PPHL. The plaintiff has also claimed for special damages and statutory interest on damages.
  4. Paragraph 18 of the statement of claim encapsulates the plaintiff’s cause of action in these terms:

“18. The Defendant owed the Plaintiff a duty to ensure that whilst being a patient in the Defendant’s Hospital she was treated with all reasonable skill and care. And in breach of that duty of care, the Defendant subjected the Plaintiff and consequently her infant baby to substandard and unprofessional treatment ...thereby directly causing the death of the Plaintiff’s baby and therefore were negligent.”

  1. The statement of claim pleads an extensive set of facts and particulars of negligence in support of the plaintiff’s cause of action against PPHL.
  2. I am therefore satisfied in this instance that the second limb of the approach to be taken by a trial judge to assessment of damages after entry of judgment by default as established by the Supreme Court in Mel v Pakalia has been met. It is clear from the plaintiff’s statement of claim what the facts are that have given rise to the plaintiff’s cause of action in negligence. The factual elements of the plaintiff’s cause of action as pleaded, and their legal consequences, must therefore be taken as proven.
  3. The plaintiff is accordingly entitled to an assessment of damages as claimed in the prayer for relief in her statement of claim. That exercise is most certainly not futile. Given the clarity with which the plaintiff’s statement of claim has been pleaded, it is the plaintiff’s right that this Court embark on that assessment. Issue 1 is determined in the affirmative.

Issue 2: What is the quantum of damages to be awarded to the plaintiff for her cause of action?

  1. The principles enunciated in the Coecon case for assessment of a plaintiff’s damages after entry of default judgment will be applied in this case. What this means is that assessment of the present plaintiff’s quantum of damages will be made by this Court in respect of those heads of damages for which the plaintiff has made actual claim. Assessment of damages for heads of damages not sought in the plaintiff’s statement of claim cannot be entertained.
  2. The plaintiff in the prayer for relief in her statement of claim seeks:

a) general damages;

b) special damages;

c) interest on such damages as may be awarded pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.

a) General Damages

  1. The purpose of an award of general damages is to compensate a plaintiff for the pain, suffering, humiliation, distress and inconvenience caused by the unlawful actions of a defendant. General damages are compensatory in that the Court endeavours by way of an award of money to put the plaintiff as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty: see Limitopa v The State [1988-89] PNGLR 364; Figa v Agong (supra).
  2. The relevant principles governing assessment of damages for personal injury and breach of contract are well settled. Those principles were extensively addressed by the Supreme Court in Motor Vehicles Insurance Limited v Kol (2007) SC902 (Kandakasi, Lenalia, David JJ) at [6] to [9] and can be summarised as follows:

(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.[3] formulated the classic and oft-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 restitutio 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‘ the plaintiff’s 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. Rather, it is an estimate in money terms as to 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 any one 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;

(b) general awards of damages in previous similar or comparable cases and arrive at an award of damages that is similar to the awards in the comparable verdicts. This does not however mean that the Courts must be oblivious to changes in circumstances which have occurred subsequent to awards of damages made in past comparable verdicts. Instead, the Courts are duty bound to take into account such things as the rise in inflation and changes in the economy.

  1. I apply these principles of law to assessment of the plaintiff’s general damages in this case.
  2. As to comparable cases, while there are a number of verdicts in professional medical negligence cases decided in the 1980s and 1990s, the amounts of general damages awarded in those historical cases are patently out of step with the present day economic circumstances of Papua New Guinea. I propose to disregard them.
  3. However, there are two professional medical negligence cases of more recent provenance which provide meaningful guidance to this Court as to the quantum of general damages to which the plaintiff Sally Tiwari Kunong is entitled in the present case.
  4. In Jack v Mola & Ors (2008) N3537, the plaintiff Julie Jack was a first-time mother who had been wrongly diagnosed by doctors and medical staff at PMGH as being an HIV positive person. The plaintiff had been horrified at this diagnosis. However, on medical advice, the plaintiff and her husband consented to the plaintiff having a tubal ligation done after the successful birth of their baby daughter. The purpose of the tubal ligation was to render the plaintiff sterile so that she could not conceive any further children and therefore could not infect any future child of hers with HIV. Evidence was adduced in that case that a tubal ligation may be capable of reversal, although reversal cannot be guaranteed. After the plaintiff’s baby daughter was born and the tubal ligation done, the whole of the plaintiff’s family underwent further blood tests. The blood tests, which were repeated, established that the plaintiff, her husband and the baby were all HIV negative. The plaintiff had never been infected with the virus at all. The plaintiff was initially relieved when told this. However the new diagnosis did not assuage the initial shock which the plaintiff had suffered when she had first been informed that she was HIV positive, nor did it reduce the physical pain she had undergone when recovering from the tubal ligation procedure or the mental anguish she suffered knowing that she could never bear any more children in the future in the absence of an uncertain tubal ligation reversal procedure. Nor did the new diagnosis counteract the family and community stigma which she and her husband had experienced when news of her HIV status had first leaked from PMGH. Moreover, by the time of trial, the Court found that apart from the mental anguish and other sequelae which the plaintiff had suffered from the misdiagnosis, the plaintiff’s marriage had deteriorated because of physical assaults on her by her husband who had become frustrated by her inability to conceive and bear further children.
  5. His Honour Sevua J in Jack’s case, decided in 2008, found that the plaintiff’s pain and suffering was serious. The Court assessed general damages at K100,000 for the plaintiff’s “past and future non-pecuniary losses such as pain and suffering, loss of amenities of life, mental anguish or distress”. The Court also awarded additional damages of K175,000 for the plaintiff’s loss of fertility because of the tubal ligation, K50,000 for exemplary damages as compensation for the grossly negligent conduct of the defendants, K50,000 for aggravated damages because of the unjustified assault on the plaintiff’s dignity and rights and K490 by way of special damages for proven past medical expenses.
  6. The next and most recent leading case on medical professional negligence in Papua New Guinea is Albert v Aine (2019) N7772, a judgment by Kandakasi, DCJ. The uncontested facts in that case were that the plaintiff when going into labour for her second child attended at the Labour Ward at PMGH. She was in good health at that point, having been a regular antenatal clinic patient who had not experienced any problems with her foetus or herself during her period of pregnancy. After admission to the Labour Ward at PMGH, the plaintiff had to sit on the floor of the ward for more than an hour before a midwife attended to her. Thereafter the plaintiff developed severe bleeding and labour pain. In distress, she asked the first defendant, an obstetrician, to carry out a caesarean section on her because she had given birth to her first child through that process. The first defendant did not carry out any medical check on the plaintiff and told her it was a woman’s natural ability to give birth. The obstetrician paid no more attention to her. The plaintiff continued to suffer more pain and bleeding. This continued through the evening until 3:00 am the next morning, by which time the plaintiff was unconscious from the pain. It was at that point that a different doctor attended to the plaintiff. She was diagnosed as having suffered a rupture of the uterus with foetal death. At 6:00 am that morning a hysterectomy was performed on the plaintiff, which involved the removal of her uterus. Three days later, when in recovery, the plaintiff was informed by a team of obstetricians and gynaecologists at PMGH that as a result of the hysterectomy, she would never again menstruate and that she would never be able to conceive and bear another child. The plaintiff was encouraged to adopt. This news overwhelmed the plaintiff. She went into shock and thereafter became emotionally unstable.
  7. None of the defendants cited in the Albert case, including the State, filed a notice of intention to defend or defence to the plaintiff’s statement of claim. Judgment by default was entered against all defendants. Except for one defendant who was removed from the proceeding by order of the Court, the signing of the default judgment established liability against each of the remaining defendants, the State being vicariously liable for the negligence of its employed medical professionals.
  8. On assessment of damages, Kandakasi DCJ awarded the plaintiff in the Albert case general damages of K200,000 for pain, suffering and grief, with a further sum of K350,000 for total loss of fertility. Additional sums were awarded under other heads of damages which had been similarly expressly pleaded, namely K100,000 for exemplary damages, K100,000 for aggravated damages and K35,704 for special damages, with interest at 4% per annum on special damages and 8% per annum on all of other of the pleaded heads of damages from date of issue of the writ to date of judgment and thereafter interest at 2% per annum on all post-judgment debt.
  9. When giving the Court’s reasons for awarding general damages of K200,000 to the plaintiff in the Albert case, his Honour said this at [29]:

“ The submission of learned counsel for the plaintiff is for an award of [general damages] of K200,000 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 is in order for three main reasons:


Firstly, as already noted, the present plaintiff’s pain, suffering, loss and grief is 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 they were 10 years ago. In fact, the cost of living has 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 that 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 ... For in the developed jurisdictions, there are well developed and functional welfare services and health and other facilities [to enable] disabled person to function normally in society and indeed live longer. These kinds of services and facilities are non-existent in PNG and other third world countries ... This in my view calls for higher awards than the kinds of awards the Courts have been making to date to adequately compensate the victims of careless, reckless or negligent conduct. ... 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 damages they cause will result in substantially increased awards of damages.

Having regard to all these factors, I find the plaintiff’s submission for an award of K200,000 in general damages for pain and suffering is sound. Accordingly, I award that amount in general damages.”

  1. His Honour’s reasoning in the Albert case, decided in 2019, provides a most useful guide to assessment of the plaintiff’s damages in the present case.
  2. The plaintiff in the Albert case suffered a physical ordeal that lasted for 9½ hours from 5.30 pm on 13 March 2008, which is when she was admitted to the Labour Ward at PMGH but had to sit on the floor because of overcrowding, to 3.00 am on the morning of 14 March 2008, by which time her uterus had ruptured and she was unconscious from the pain. She would then have suffered post-surgery physical pain when recovering from the hysterectomy performed on her by PMGH’s surgical team on 14 March 2008 when she was still unconscious, followed by the mental anguish and psychological trauma she experienced after being told three days later by the medical specialists that she could never again fall pregnant or bear another child.
  3. In the present case, the plaintiff Sally Tiwari Kunong attended at PPHL in the morning of 30 September 2016. After physical examination by Dr Mahlon Paiva, the plaintiff was prescribed misoprostol to induce labour. At Dr Paiva’s direction, the plaintiff had a CTG, which was then repeated three more times. The plaintiff was then transferred to the Labour Ward at PPHL. Dr Paiva informed the plaintiff that the CTGs indicated that the unborn infant’s heart was not performing well during the contractions. The plaintiff received her first dose of misoprostol at 1:50 pm that afternoon and thereafter she continued to receive 25 mls of misoprostol every 2 hours. Although contractions increased, by 4:00 am the next morning, 1 October 2016, the plaintiff’s cervix had remained at 3 cm. The midwife on duty then did an AROM to artificially rupture the amniotic sac in the womb to try to induce the birth. The plaintiff was at that point placed on an oxytocin drip.
  4. By the early evening of 1 October 2016 the plaintiff’s cervix had dilated to about 7 cm but a senior midwife informed the plaintiff that dilation was not yet sufficient for the plaintiff to commence pushing. The plaintiff was by this time experiencing very painful contractions which were coming every 5 to 7 minutes because the oxytocin had started to commence labour. The plaintiff says at this point she was in such pain that she believed a caesarean section would be needed. The plaintiff asked obstetric staff for analgesics to dull the pain but painkillers were refused. She was told to breathe hard to control the pain.
  5. By midnight on 1 October 2016 the plaintiff was in agony. She says that the pain of her contractions was unbearable. She felt that her uterus was about to explode and be expelled from her body. The plaintiff has deposed in [11] of her primary affidavit: “I eventually could not tolerate the pain from the contractions any more and almost passed out and felt that my uterus was about to pop out.” The plaintiff was finally prescribed pethidine to counter the intense pain and was placed on an oxygen inhaler in the early hours of 2 October 2015. The plaintiff slept for some hours but was awoken before breakfast on the morning of 2 October 2016, at which time obstetrician Dr Simeona told her that her condition was such that she needed to give birth by caesarean section. The plaintiff’s infant son was removed from her body by caesarean section procedure carried out at PPHL’s surgical theatre at about 9:00 am on 2 October 2016.
  6. From the plaintiff’s evidence, uncontested by PPHL, it is obvious that the plaintiff was already in considerable pain from her contractions in the morning of 1 October 2016. The plaintiff’s pain then increased to an excruciating level by midnight that evening, a period of at least 15 hours.
  7. It is the plaintiff’s contention that if the obstetric medical staff employed by PPHL had properly monitored her condition during the course of 1 October 2016 and if a caesarean section been performed early that evening instead of 9:00 am the next morning, she would not have been subjected to the unbearable pain she experienced before pethidine was administered soon after midnight.
  8. The plaintiff further contends that when her infant son was born by caesarean section at about 9:00 am on 2 October 2016, he had by that stage already developed intra uterine sepsis, a serious bacterial infection in his bloodstream, which was not properly detected by PPHL’s medical staff. The infant was placed in an incubator but was discovered by a doctor on duty at 3:00 pm that afternoon to be pale and in distress. The infant had not been fed for more than 6 hours. Whatever interventions obstetric staff at PPHL may have attempted to assist the infant’s morbidity were unsuccessful, resulting in the urgent transfer of the infant to the Special Care Nursery at PMGH at 3:20 pm that afternoon.
  9. Despite every effort taken by obstetric staff at PMGH to increase the infant’s oxygen saturation level and to treat his failing condition, the infant’s septicaemia was so advanced that the obstetric staff at the Special Care Nursery could not save him. The infant passed away at 8:30 pm on the evening of 2 October 2016.
  10. The plaintiff says that in the hours which elapsed after her infant son was born, he did not receive proper care and professional attention by the obstetric staff at PPHL. It is the plaintiff’s contention, again uncontested by PPHL, that after the infant was placed in the incubator, he was not properly monitored. If the infant had been properly observed and regularly monitored, the plaintiff says that his transfer by PPHL to the Special Care Nursery at PMGH would have been hastened, meaning that the infant’s chances of survival would have been dramatically increased.
  11. Having reviewed the evidence of the plaintiff in this case, I find that in addition to at least 15 hours of physical pain and suffering which the plaintiff experienced at PPHL on 1 October 2016, the plaintiff would have also experienced pain when recovering from the caesarean section operation belatedly carried out on her on the morning of 2 October 2016. There is also the mental pain and anguish which the plaintiff says she suffered when informed of the death of her infant. The infant’s death occurred less than 12 hours after his birth. It was a death which in all probability should never have occurred had the obstetric staff of PPHL detected the infant’s neonatal sepsis and transferred the infant to the Special Care Nursery at PMGH soon after birth.
  12. Given this fact situation, I find that the plaintiff’s pain and suffering was greater than that which was experienced by the plaintiff in the Jack case where there was misdiagnosis of HIV infection resulting in an unnecessary tubal ligation operation causing infertility. The present plaintiff’s pain and suffering is more comparable to that which was suffered by the plaintiff in the Albert case. In the Albert case, the plaintiff’s uterus did in fact burst resulting in the death of her unborn baby. In the present case, the plaintiff went through many similar hours of pain but eventually underwent a caesarean section enabling the live birth of her infant son. But the plaintiff’s infant son then succumbed to death less than 12 hours after his birth because of professional medical negligence on the part of obstetric staff at PPHL.
  13. With reference to the Albert case, I observe that the plaintiff was awarded general damages of K200,000 for her pain and suffering. That case was decided more than three years ago. In my view, that assessment of K200,000 should, in a similar case such as this, and in line with the factors mentioned in Motor Vehicles Insurance Ltd v Kol (supra), be increased to allow for the rise in inflation and changes which have occurred in the economy of Papua New Guinea since 2019. I consider that the plaintiff in this case is entitled to an award of general damages for her pain and suffering in the sum of K250,000.
  14. I note that in the Jack case and the Albert case, the plaintiffs were each awarded general damages for loss of infertility, being damages which were in addition to general damages for their pain and suffering. In the Jack case, the plaintiff was awarded general damages of K100,000 for her pain and suffering and an additional K175,00 for reduction in her loss of fertility. In the Albert case, the plaintiff was awarded general damages of K200,000 for her pain and suffering and an additional K350,000 for total loss of fertility.
  15. In the present case, there is no medical evidence to suggest that the plaintiff was rendered infertile by the caesarean section performed on her or that she has sustained any long term inability to conceive or bear further children as a result of the pain and suffering she experienced at PPHL.
  16. General damages for the plaintiff’s pain and suffering are accordingly assessed by the Court at K250,000.

b) Special damages

  1. The head of damages known as special damages relates to out of pocket expenses other than legal costs which a plaintiff has incurred in connection with the litigation.
  2. Order 8 r.34 NCR requires that particulars of out-of-pocket expenses must be expressly pleaded:

34. Out of pocket expenses

Where in proceedings on a common law claim, a party pleading claims damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys.

  1. Particulars of out-of-pocket expenses must therefore be set forth in a plaintiff’s statement of claim. If a plaintiff incurs further out of pocket expenses after the filing of the statement of claim but prior to trial, particulars of those additional expenses must be furnished to the defendant in advance of the trial if those further expenses are to be considered as part of an award of special damages: Enei v Rimbunan Hijau Ltd (2011) N4402 (Gavara-Nanu J); Golobadana No. 35 Ltd v Bank of South Pacific Ltd (2013) N5340 (Davani J).
  2. Not all out of pocket expenses are allowable. They must be reasonably foreseeable expenses. In Kapipi v Andu (2015) N6125 his Honour Hartshorn J said:

“ It must be reasonably forseeable 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 ...”.

  1. Where a head of damage is not pleaded, no damages can be awarded for that head: Tuwi v Taiya (2010) N3901 (Makail J).
  2. In Gunambo v Upaiga (2010) N3859 his Honour Makail J declined to grant any award of special damages because out of pocket expenses were not pleaded even though there was some general evidence that such expenses had been incurred. See also Songkae v Wagambie (2012) N4807 (Cannings J). Out of pocket expenses must be specifically claimed with clarity and strictly proved where receipts are available.
  3. Out of pocket expenses include medical expenses and other expenses reasonably incurred as a direct result of a defendant’s breach, negligence or misconduct: see Albert v Aine (supra) per Kandakasi DCJ at para. 49; Potane v National Development Bank (No. 2) (2013) N5099 (Gauli AJ).
  4. In the present case, particulars of the plaintiff’s out of pocket expenses are contained in her primary affidavit sworn and filed on 22 March 2019.
  5. I am satisfied from the affidavit of service of William Anton sworn on 26 March 2019 and filed on 27 March 2019 that a sealed copy of the plaintiff’s primary affidavit filed on 22 March 2019 was duly served that same afternoon on the registered office of PPHL in Taurama Road, Boroko, NCD. PPHL has, as from that date, been on notice of particulars and copies of receipts in respect of the out of pocket expenses now expressly claimed by the plaintiff.
  6. I am satisfied that the plaintiff has, by her affidavit material, proven that she is entitled to reimbursement by way of an award of special damages in the sum of K11,169 in respect of the following of her out of pocket expenses:

purchase of casket and chapel hire for funeral of the infant
(receipts provided): K 4,009

(3) National Capital District Commission – fee for burial plot

at 9-Mile Cemetery (receipt provided): K 110

(4) PMGH – fee for autopsy report of Dr Phillip Golpak

(receipt unavailable but claim is reasonable): K 500

(5) Expenses associated with customary obligations in

connection with the baby’s funeral, claimed at K5,000
- but in the absence of receipts and/or any further affidavit

material, allowed at: K 2,500

Total of award of special damages: K 11,169

  1. I note that in addition to the above out of pocket expenses, the plaintiff has also claimed by way of special damages the sum of K15,000 being legal fees receipted by Alua Lawyers and which were paid by the plaintiff to that law firm for the period 23 July 2018 to 6 February 2019. The plaintiff has also claimed a further amount of K150, being a fee which was charged at some point by the Public Solicitor’s Office for her initial consultations at that Office. These are claims for legal costs which are compensable at the discretion of the Court under the separate heading of “Costs”. I therefore exclude these expenses from the plaintiff’s claim for special damages as they are addressed under the separate heading of “Costs” below.

c) Interest on damages

  1. The plaintiff’s statement of claim has claimed interest on damages pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 (the Act).
  2. Section 4(1) of the Act deals with pre-judgment interest on debts and damages. It provides:

4(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.

  1. Section 5(1) of the Act states that nothing in Section 4(1) authorises the awarding of interest on interest. In other words, Section 4(1) does not per se authorise a Court to award compound interest. If compound interest is to be awarded by a court, the parties must have agreed to such an arrangement or there must be some lawful source other than Section 4(1) for compound interest to be imposed. There is no issue in the present case that compound interest should apply to any money award of damages.
  2. Section 6 of the Act governs post-judgment interest on debts and damages. Section 6(1) provides:

6(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.

  1. The rate prescribed by s.4(2) and s.6(2) of the Act for pre-judgment and post-judgment interest on money judgments against the State is 2% yearly. However the Act is silent as to rate prescribed for pre-judgment and post-judgment interest on money claims where the judgment debtor is a party other than the State.
  2. I am mindful that Order 12 r.6 NCR states that where the Court directs the entry of judgment for the payment of money and makes an order for the payment of interest under the Act, interest shall, unless the order otherwise provides, be payable on so much of the judgment money as is from time to time unpaid at the rate of 8% yearly. This rate prescribed by the NCR clearly applies to both pre-judgment and post-judgment monies that are owing, but the rate is discretionary. The Court can impose some other rate of interest if it can be satisfied that it should do so in the particular circumstances of the case.
  3. Contemporary case law on interest on damages indicates that the Courts are in most cases continuing to apply the conventional rate of interest of 8% yearly referred to in Order 12 r.6 NCR on damages ordered to be paid by defendants other than the State. I see no reason to depart from that rate of interest in the present case in respect of general damages and special damages. Counsel for the plaintiff has made no submission to the contrary.
  4. I am aware that where special damages claims include allowance for loss of past income, the trend has been for the Court to apply a lower interest rate of 4% to awards of that nature. In Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 (Pratt, Amet, Woods JJ) the Supreme Court held that where statutory interest is awarded on special damages which include amounts for loss of earnings, interest should be awarded at half “the appropriate rate” from the date of accident to the date of trial, unless special circumstances indicate otherwise. Citing the English case of Jefford v Gee [1970] 2 QB 131, the Supreme Court in Pinzger ruled that interest on loss of earnings claimed as special damages should be awarded at half the usual rate normally applied to most other awards of damages. This is because loss of earnings occurs over a period of time. Earnings such as wages are not paid in one lump sum on one single occasion. As the purpose of interest is to compensate a plaintiff for being kept out of money that ought to have been paid, allowance needs to be made to take into account the fact that money derived from earnings and then invested on a regular periodic basis in turn progressively earns interest for each period that it is invested. Rather than the Court having to go into the tedious detail of calculating interest on notional earnings from date of each accrual of earnings to date of trial, interest at half the normal rate should normally be applied to awards of special damages featuring pre-trial loss of regular income. This principle has been applied in countless cases since Pinzger’s case was decided in 1995: see for example Rundle v MVIT [1988-89] PNGLR 618 (Bredmeyer J); Bromley v Finance Pacific Ltd (2001) N2097 (Kandakasi J, as he then was).
  5. However, in the present case, the plaintiff’s claim for special damages does not include any component for loss of past or future income as a result of the injuries she sustained at the hands of the medical staff of PPHL. The plaintiff has claimed as special damages her out of pocket monies paid for her hospitalization at PPHL, for an autopsy report and for expenses associated with the funeral and burial of her deceased infant. There is therefore to my mind no basis on which the applicable interest rate for special damages claimed by the plaintiff should be reduced to 4% yearly, being half the conventional rate of 8% yearly “prescribed” by O.12 r.6 NCR. Interest on allowable special damages claimed by the plaintiff will accordingly be awarded at 8% yearly.
  6. As to the period for which pre-judgment interest of 8% yearly should be applied to general and special damages in this case, I consider that the appropriate period is from the date when the plaintiff’s cause of action arose through to the date of this judgment. The evidence establishes that the plaintiff’s cause of action accrued on 2 October 2016, this being the date on which plaintiff underwent caesarean section. It is also date on which the plaintiff’s infant died at PMGH’s Special Care Nursery from septicaemia, oxygen starvation and lack of food after the infant’s transfer from PPHL had been delayed for more than 6 hours from the time of his caesarean birth.
  7. Pre-judgment interest on total damages of K261,169, comprising general damages of K250,000 and special damages of K11,169, will therefore be calculated at the rate of 8% from date of accrual of the plaintiff’s cause of action on 2 October 2016 to the date of this judgment, 24 June 2022, a period of 5 years 8 months and 22 days or 2,091 days, by applying the formula D x IR x (N/365) = I, where: D is the total amount of damages, IR is the applicable percentage rate of interest per annum, N is the number of days expressed as a percentage of years and I is the amount of interest. Pre-judgment interest is therefore K380,863.11 computed as follows:

K261,169 x 8% x (2091/365 days) = K110,694.11

  1. Post-judgment interest will accrue at the same rate of 8% yearly on K261,169, being the aggregate of the general damages of K250,000 and special damages of K11,169.00, as may from time to time remain unpaid by PPHL. This is because s.5(1) of the Act does not allow the Court in this instance to award post-judgment interest on the interest component of K110,694.11 which is to be included in the overall judgment amount of K261,169.

Plaintiff’s claim for exemplary damages

  1. Counsel for the plaintiff in his submissions has requested the Court to consider making an order which would compel PPHL to pay exemplary damages of K150,000 to the plaintiff so as to punish the operators of the hospital for the negligence of its medical staff. Counsel has referred in this regard to the award of exemplary damages of K100,000 which was made in the Albert case. Counsel submits that by awarding exemplary damages of K150,000 to the plaintiff in this instance, this would operate as a deterrent so that PPHL’s oversight of its medical staff would be improved and so that other patients of PPHL could be spared a repetition of the medical neglect which the plaintiff and her deceased infant sustained at the hands of the obstetric staff at PPHL.
  2. I have considered counsel’s submissions in this regard. However, in the exercise of the Court’s discretion in this matter, I find that I am unable to accede to counsel’s request for two reasons.
  3. Firstly, the plaintiff’s pleadings make no claim against PPHL for exemplary damages. It is a fundamental principle of procedural law that an originating process must clearly state the relief that is claimed. Order 4 r.7 of the National Court Rules (NCR) provides:
    1. Relief claimed
  4. A plaintiff is restricted to what has been included in the plaintiff’s statement of claim or originating summons: PNG Banking Corporation Ltd v Tole (supra); Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144 (Davani J, Hartshorn J, Sawong J). The reason for this is obvious. A defendant is entitled as a matter of right to know from the originating process what orders are being sought by the plaintiff. The corollary to this is that an order or finding should not be made if it is not sought in the originating process: National Capital District Commission v Central Provincial Government (2015) SC1429 (Lanalia J, Hartshorn J, Kassman J).
  5. Counsel has endeavoured in his submissions to circumvent this basic tenet of procedural law by conceding that although exemplary damages have not been specifically pleaded in the plaintiff’s statement of claim, the plaintiff’s prayer for relief has, in addition to general damages, special damages, statutory interest and costs, also sought “such other orders as the Court deem[s] fit”. Counsel argues that this residual claim for relief enables the Court to invoke its inherent jurisdiction under s.155(4) of the Constitution to make “such orders as to do justice in the circumstances of a particular case”. Counsel submits that this is just such a case where justice requires that an award of exemplary damages should be made. With respect, to my mind the seeking of residual orders in the prayer for relief in a statement of claim by use of the words “such other orders as the Court deems fit” relates to consequential or ancillary orders which the Court, in its discretion, may consider are appropriate to make after primary orders have been made. It is not a means of substituting “other orders” in lieu of primary orders. In this instance, no order for exemplary damages was sought in the plaintiff’s statement of claim. An order for exemplary damages is a primary order; it is not incidental to an order for general or special damages. The considerations which apply to the circumstances where an award of exemplary damages can be made are distinct from the principles applicable to awards of general damages, aggravated damages and special damages, each of which categories of damages have their own separate principles. If a plaintiff is seeking an award of exemplary damages, O.4 r.7 NCR requires that exemplary damages must be specifically claimed. In this instance exemplary damages were not sought in the plaintiff’s statement of claim.
  6. Secondly, quite apart from the absence of any claim for exemplary damages having been pleaded by the plaintiff, there is no evidence before the Court that PPHL was given any forewarning prior to trial that exemplary damages would be sought by the plaintiff. No application to amend the plaintiff’s statement of claim to include a claim for exemplary damages was made. No notice in writing that such an additional claim would be made was given by the plaintiff’s lawyers to PPHL. It would be unfair and offend principles of natural justice if the Court were to now allow the plaintiff at trial on assessment of damages to pursue a claim for a head of damages of which PPHL had no notice prior to trial.
  7. For these reasons the Court, in the exercise of its discretion, declines to grant any award of exemplary damages against PPHL.

Summary of damages awarded

  1. The total of the judgment inclusive of pre-judgment interest which is to be awarded to the plaintiff in this suit is K380,863.11 comprising:

General Damages: K 250,000.00

Special Damages: K 11,169.00

Total of Damages: K 261,169.00

Pre-judgment interest on total
of combined Damages at 8% yearly: K 110,694.11

Total of Judgment: K 380,863.11

Costs

  1. The general rule is that costs follow the event, which is to say that the successful party has its legal costs paid for by the losing party. Order 22 r.11 NCR states:
    1. If the Court makes any order as to costs, the Court shall, subject to this Order, order that the costs follow the event, except where it appears to the Court that some other order should be made to the whole or any part of the costs.
  2. The Court has a wide discretion in the matter of costs. The Court can award costs on a party/party basis, on a lawyer/client basis, on an indemnity basis or on some other basis tailored to the circumstances of the particular case.
  3. My decision in the matter of Opi v Telikom PNG Ltd (2020) N8290 canvassed the different costs orders that the Court can make. When focusing on the issue of party/party costs, I stated at para. 215 of that decision:

“ In practice, an order that costs follow the event means that the costs are to be taxed on a party/part basis: O.22 r.24(1). Table 1 of Schedule 2 NCR is the Scale of Costs which a taxing officer must adhere to when assessing a bill for party/party costs. This Scale of Costs has not been revised since the coming into operation of the NCR in 1983. It is generally recognized by lawyers and members of the judiciary that this Scale is out of step with contemporary fees charged by lawyers to their clients. For example, when appearing and arguing a contested hearing for final relief where the claim is for an amount in excess of K50,000, counsel is only allowed K350 for the first day and 2/3rds of that for every subsequent day: Schedule 2 Table 1 Item 6(1) (Counsel’s fees). This equates to about K60/hour for the first day and K40/hour for every subsequent day of a contested trial or hearing. This does not bode well for a party who, having been awarded party/party costs, is in reality these days paying legal fees to his or her counsel or lawyer which could be well in excess of K800 per hour, but whose fees when taxed and payable by the party are restricted to that which is allowed by Table 1 of Schedule 2 NCR. The Scale of Costs for orders which follow the event and are made on a party/party basis is clearly well overdue for revision or repeal.”

  1. Order 22 rr.34 and 35 NCR deal with costs orders which are taxable on a solicitor/client basis, also known as a lawyer/client basis. This category of costs order is more attuned to economic reality. Order 22 r.35 NCR relevantly states:

35. Solicitor and client basis

(1) All costs shall be allowed except as specified in this Rule.
(2) Costs shall not be allowed in so far as they are of an unreasonable amount, unless the amount has been approved by the client.
(3) Costs shall not be allowed in so far as they are unreasonably incurred, unless incurred with the approval of the client.
(4) An approval for the purpose of this Rule may be express or implied.
(5) Notwithstanding Sub-rules (2) and (3) where costs are incurred which in the circumstances of the case are of an unusual nature and such that they would not be allowed on a taxation of costs on a party and party basis under Rule 24 the costs shall not be allowed, unless it is shown –
  1. In short, the test for solicitor/client costs is largely one of “reasonableness”.
  2. A sampling of cases where the Courts have ordered that costs be paid on a solicitor/client basis is to be found in PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288 (Kandakasi J, as he then was). One of the many cases on point referred to in that judgment is Bishop Brothers Engineering Pty Ltd v Bishop (1989) N705 where the defendant’s wilful and deliberate defiance of Court orders warranted an award of costs on a solicitor/client basis. Another such instance is POSF Board v Imanakuan (2001) SC677 where the Supreme Court ordered the appellant to pay the respondent’s costs in the National Court and on appeal on a solicitor/client basis on the grounds that the claim could have been settled but instead the respondent was put to unnecessary expense by having to litigate. And in Mel v Pakalia (supra) the Supreme Court awarded costs in favour of the appellant on a solicitor/client basis where the respondents had failed to appear on the hearing of the appeal.
  3. It is noteworthy that in Albert’s case, already cited, a professional medical negligence case so very similar in its facts to the present case, Kandakasi DCJ ordered each of the defendants, which included not only the negligent attending doctor but also the Board of Management of PMGH, the Department of Health and the State, to jointly and severally pay the plaintiff’s costs on a solicitor/client basis. His Honour, having noted that it was a clear case of medical professional negligence which had no sustainable defence, there having been no evidence in rebuttal of the plaintiff’s evidence, said this:

“ 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 defendants’ conduct is called for. I consider the submissions of learned counsel for the plaintiff for the costs to be on [an] own solicitor and client basis is warranted.”

  1. I am of the view that the same approach to the issue of costs is merited in the present case. Here the defendant, PPHL, has taken no steps at all to defend the plaintiff’s claim.
  2. The plaintiff’s writ of summons filed on 15 August 2018 was served on the registered office of PPHL on 20 August 2018 at 2:14 pm, acknowledged by the hospital’s receptionist on duty.
  3. When the time limited for the filing of any defence by PPHL had expired without any notice of intention to defend or defence having been filed, on 12 November 2018 the Court ordered that judgment by default be entered against PPHL with damages to be assessed. The Court further directed in its order of 12 November 2018 that the parties were to enter into out-of-court negotiations to have the matter settled, failing which a statement of relevant facts and issues was to be agreed by 5 February 2019 and the parties were to return to Court on 7 February 2019.
  4. A sealed copy of the Court’s order of 12 November 2018 was served on the registered office of PPHL on 29 November 2018 at 1:36 pm, service having been acknowledged on this occasion by an administration officer of the hospital.
  5. On 14 January 2019 a letter from Alua Lawyers dated 6 December 2018 containing a proposal for settlement of the plaintiff’s claim was served at 2:00 pm on the registered office of PPHL, with service acknowledged by an administration officer of the hospital. PPHL did not respond to the settlement proposal set forth in Alua Lawyers’ letter of 6 December 2018.
  6. On 7 February 2019 the case was deferred to return before the Court on 12 February 2019, at which time there was again no appearance by PPHL. On 12 February 2019 the Court further adjourned the case to return on 12 March 2019 and directed that if PPHL continued to show lack of interest in defending the proceeding, the Court would proceed to assess the plaintiff’s damages.
  7. A sealed copy of the Court’s order of 12 February 2019 was served on the registered office of PPHL on 20 February 2019 at 2:28 pm, with service acknowledged by PPHL’s receptionist then on duty.
  8. On 20 February 2019 a draft Statement of Relevant Facts and Issues for Resolution as ordered by the Court and prepared by Alua Lawyers was served on the registered office of PPHL at about 10:00 am, service having been acknowledged by another of PPHL’s receptionists. PPHL failed to convey any response to that draft Statement to Alua Lawyers.
  9. On 12 March 2019 there was again no appearance by PPHL when the case was called by the Court. His Honour Kandakasi DCJ directed that if PPHL was taking any issue with the damages claimed by the plaintiff, then PPHL was to file and serve its affidavit evidence by the end of March 2019. His Honour adjourned the case to return before the Court on 2 April 2019 at 9:30 am.
  10. At about 3:30 pm on 22 March 2019 a sealed copy of His Honour’s order of 12 March 2019 together with a sealed copy of the plaintiff’s lengthy affidavit sworn and filed on 22 March 2019 deposing at length to matters in connection with the plaintiff’s claim for damages were served on the registered office of PPHL, service of same having been acknowledged by a front desk officer at the hospital.
  11. On the return of the case before the Court on 2 April 2019, there was again no appearance by PPHL. His Honour ordered PPHL to “forthwith release a complete copy of their file in respect of the plaintiff as a patient”. Both parties were directed to file written submissions in respect of the plaintiff’s damages claim. The case was, by that order, adjourned to return before the Court on 30 May 2019.
  12. A sealed copy of His Honour’s order of 2 April 2019 was served on the registered office of PPHL at 10:48 am on 30 April 2019, service having been acknowledged by the personal assistant to the hospital’s chief executive officer.
  13. After a series of further adjournments, on 18 October 2019 his Honour ordered that this case be referred to me as trial judge to conduct the hearing on assessment of damages. By this stage, Alua Lawyers had already prepared the plaintiff’s written submission on damages, which was filed on 17 September 2019 and served on the registered office of PPHL on 4 October 2019.
  14. As noted in the introductory remarks to this decision, on 9 December 2019 I ordered that the trial for assessment of the plaintiff’s damages be set down as a special fixture on 10 February 2020 at 9:30 am, the trial to be by way of affidavit evidence, subject to the parties’ rights of cross-examination. As there was no appearance by PPHL before the Court when the case was called on 9 December 2019, I directed that the plaintiff was to file and serve on PPHL a notice of trial by 13 December 2019 and that the case was to return for status conference on 6 February 2020 at 10:00 am to confirm readiness for the trial to proceed to assessment of damages on 10 February 2020.
  15. On 10 December 2019 Alua Lawyers filed a notice of trial, which properly stated that this cause would be tried at Waigani National Court on 10 February 2020 at 9:30 am.
  16. A sealed copy of the plaintiff’s notice of trial was served on the registered office of PPHL on 12 December 2019 at 11:36 am, service having been acknowledged by an accountant employed by PPHL.
  17. On 14 January 2020 a sealed copy of the Order I made on 9 December 2019 was served on the registered office of PPHL, service having been acknowledged by a front desk officer of the hospital.
  18. There was no appearance by PPHL at the status conference which I conducted for this case on 6 February 2020. As PPHL was on notice of the date and time of that status conference, I ordered that the matter of assessment of damages was to proceed to trial on 10 February 2020 at 9:30 am and that a copy of the order made that day was to be served on PPHL by 5:00 pm on 7 February 2020, with an affidavit of service to be tendered to the Court at the commencement of the trial on 10 February 2020.
  19. A sealed copy of the order I made on 6 February 2020 was served on the registered office of PPHL on 7 February 2020 at 1:31 pm, service having been acknowledged by a front desk officer of the hospital.
  20. The trial on assessment of damages duly proceeded before me on 10 February 2020. The plaintiff was represented at trial by counsel Mr Francis Alua, he having appeared for the plaintiff on all prior occasions when the case had returned before the Court. There was no appearance by PPHL at the trial on assessment of damages.
  21. At the commencement of the trial on assessment of damages on 10 February 2020 I noted that PPHL had failed to comply with the following pre-trial orders of the Court, despite compelling proof of service having been filed by Alua Lawyers in respect of each of the relevant orders:
  22. I find that the board of management of PPHL, via its staff, was on full notice of orders made at every pre-trial stage of this proceeding but that, for whatever reason, the board decided not to defend the plaintiff’s claim in this suit and to give no evidence in rebuttal. It deliberately refused to engage in any settlement negotiations when ordered to do so. I find that what is particularly reprehensible is PPHL’s failure, in defiance of the Court’s order of 2 April 2019, to release to the plaintiff’s lawyers and to the Court a copy of PPHL’s patient file in respect of its treatment of the plaintiff from 30 September 2016 to 2 October 2016 and beyond, including the medical notes in connection with the birth of the infant by caesarean section which occurred at about 9:00 am on 2 October 2016 until the emergency transfer of the infant to the Special Care Nursery at PMGH at 3:20 pm that afternoon, following which the infant died at PMGH at 8.30 pm that evening. I can only infer from PPHL’s non-compliance with the Court’s order for production of its patient file for the plaintiff and the infant that PPHL has no such file or that if it did have such a file, then the file has been lost or intentionally destroyed by someone at PPHL. No explanation has been given by PPHL for its failure to comply with the subject Court order, or indeed to explain its failure to obey or observe any of the other Court orders requiring its compliance.
  23. For these reasons PPHL will be ordered to pay the plaintiff’s costs of the whole of this proceeding, including all interim costs previously ordered to be paid by PPHL, on a solicitor/client basis. This costs order will entitle the plaintiff to claim, among other outgoings, for the amount of K15,000 she paid in legal fees to Alua Lawyers between July 2018 and February 2019 and for all further legal fees, provided same were reasonably incurred, as well as incidental expenses such as the K150 fee the plaintiff paid to the Public Solicitor’s Office prior to engaging Alua Lawyers to represent her in this proceeding.

Formal judgment

  1. The formal judgment of the Court is as follows:

Total of Judgment: K 380,863.11

(2) Post-judgment interest shall accrue at the rate of 8% yearly on so much of the sum of K261,169, being the aggregate of the above general damages and special damages, as remains from time to time unpaid.
(3) The defendant shall pay the plaintiff’s costs of the whole of this proceeding, including all costs previously ordered to be paid by the defendant, on a solicitor/client basis, such costs to be taxed if not agreed.
(4) The time for entry of this Judgment is abridged to the time of signing by the Court which shall take place forthwith.

Judgment accordingly
________________________________________________________________
Alua Lawyers: Lawyers for the Plaintiff


[1] (8th Ed) 2010 Oxford University Press at p. 440.
[2] (supra) at p. 500.
[3] [1880] UKHL 3; (1880) 5 App. Cas. 25

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