N10819
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 821 OF 2018

BETWEEN:
THERESIA T MANGI
Plaintiff

AND
DR. WILLIE TRANE
First Defendant

AND
DR. UMESH GUPTA
Second Defendant

AND
PORT MORESBY GENERAL HOSPITAL
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani:  Bre, AJ
2024: 12th April & 17th May

MEDICAL NEGLIGENCE – tubal ligation without patient's consent- elements of negligence considered – duty of medical doctors to patients – admission by hospital management of mistake – negligence established.

ASSESSMENT OF DAMAGES – comparable cases considered – contributory negligence not established - exemplary damages awarded against Hospital management for failing to discipline doctor – damages awarded. 

Cases Cited 

Albert v Aine (2019) N7772
Dope v Malai (2012) N4574  
Figa v Agong (2012) N4707
Fugamarefa v Chief Executive Officer of Port Moresby General Hospital [2008] N3409
Jack v Mola (2008) N3537
Jerry Goria v. Sergeant Jeffery Simara & Ors (2001) N2066
Kuman v Digicel (PNG) Ltd [2019] SC1851
Kunong v Paradise Private Hospital Ltd (2022) N9698
Limitopa v The State [1988-89] PNGLR 364
Luana v Fleming (2022) N9819
Mek v Kumi (2023) N10394
Moka v Motor Vehicles Insurance Ltd (2004) SC729
Oresi v Marjen (1998) N1784  
Seeto v Dekenai Constructions Ltd (2023) N10172
Tirima v Angau Memorial Hospital Board (2005) N2779
Veapi v Kaluva [2024] N10707
Yaman v the State (2022) SC1942

Legislation 

Claims By and Against the State Act 1996
Judicial Proceedings (Interest on Debts and Damages) Act 2015, ss 4 and 6.
National Court Rules O12r6(2), O22r11

Statement Of Claim 

Trial by affidavit on liability and assessment of damages where the plaintiffs sought to prove medical negligence. 
  
Counsel 

Mr T Kuma, for the plaintiff 
Ms Z Waiin, for the Defendants 

JUDGMENT
17th May 2024

1.	BRE AJ:	INTRODUCTION: The plaintiff, Theresa T Mangi, underwent a caesarian section surgical operation on 03 January 2018 to assist her give birth. In the process, a tubal ligation was conducted on her without her and her husband's consent. She seeks to prove liability and injuries sustained for loss of fertility.

PLAINTIFF'S CLAIM 

2.	The plaintiff's claim is one of medical negligence and vicarious liability. Dr Willie Trane allegedly performed tubal ligation on 03 January 2018 without her permission that resulted in her alleged permanent infertility. The plaintiff filed this proceeding six months later on 10 July 2018, seeking general damages for pain and suffering, exemplary damages, special damages, costs and interest. 

DEFENDANTS' DEFENCE 

3.	The State defendant filed its Notice of Intention to Defend on 02 August 2018 and Defence on 07 September 2018. On 18 October 2018 the State filed an amended Defence.  

4.	The State's defence is that the first defendant should be held personally liable, and the plaintiff did not mitigate her loss by attending follow-up consultations with the second and third defendants to confirm the option of a reversal procedure.

PARTIES EVIDENCE 
Plaintiff's evidence
 
5.	The plaintiff relies on her Affidavits which were tendered into evidence and accepted:- 

1)	Affidavit of Theresa T Mangi filed on 27 March 2019 marked "P1"
2)	Affidavit of Theresa T Mangi filed on 27 March 2019 marked "P2" 
3)	Affidavit of Theresa T Mangi filed on 27 March 2019 marked "P3"  

The plaintiff's evidence deposes to her and her husband's lack of consent to the tubal ligation which she found out after she was recovering from what she understood to be only the cesarean operation. Her evidence indicates her dismay and the lack of consultation she disputes the State’s defence of contributory negligence or failure to mitigate as she deposes that she was within easy reach as an employee of the third defendant and works near the labour ward.    

Defendant's evidence 
 
6.	The defendant relies on the Affidavit of Dr Paki Molumi filed 26 July 2019 which was accepted into evidence as an exhibit and marked 'D1'. Dr Paki's evidence is that he instructed Dr Bagita to prepare a medical report to which she did. The report confirmed the tubal ligation was performed on the plaintiff left fallopian tube during the ceasarian section operation and the tubal ligation was an oversight. He also annexes the the Second defendant's written instructions, by email to the State Lawyers to settle the claim as it was a mistake was attached. 

SUBMISSIONS 
Plaintiff's submission 

7.	Mr Kuma for the plaintiff, urged the Court to pay regard to the permanent loss of fertility of a young mother of four, who and her husband still desired to have two more children and that their right to do so has been drastically affected by the unauthorised tubal ligation. Mr Kuma submits the first defendant is liable and by vicarious liability his employers the second, third and fourth defendant. The Court is urged to refer to relevant caselaw cited of medical negligence cases and increase general damages award to K300,000.00 , apply Aine and award a separate head of damages for loss of fertility, factor inflation and increase damages to be awarded to  K450,000.00, increase exemplary damages award to K200,000.00 as the plaintiff did not give her consent, increase aggravated damages to K150,000.00 as the plaintiff continues to suffer the pain and trauma of not having another child and in the absence of documentary payment receipts, the Court to award a global sum of K2000.00 in special damages for fuel costs, food and medicine. In summary the plaintiff's total claim is K1,102,000.00.     

Defendants' Submission 

8.	On liability, Ms Waiin for the State submits that the State agrees a mistake was done by the first defendant but pointed out that the plaintiff did not disclose in her Statement of Claim nor evidence about reversal procedure discussions with Dr Bagita and Professor Amoa. That the State should be absolved, and the first defendant held liable for his negligence.

9.	On assessment of damages, Ms Waiin submitted that this Court apply the Court's decisions in other tubal ligation or infertility cases to note general damages awarded are in the range of K375,490.00 to K785,704.00 but taking into account the reversal discussions with the plaintiff and her lack of follow-up, an award of K50,000.00 should suffice. For exemplary damages, the State submits that should be awarded against the first defendant to serve as punishment and refuse special damages in the absence of receipts.  

ISSUES 

10.	The issues for determination are whether the defendants are negligent and, if so; what damages the plaintiff is entitled to. 

LAW 

11.	The common law of the tort of negligence applies and its elements are well settled and entails the following: -

1. duty of care;
2. breach of the duty;
3. causation of the injury or harm;
4. damages or loss suffered.
5. injuries were not too remote,
6. plaintiff did not contribute to her injuries.
 
See: Tirima v Angau Memorial Hospital Board [2005] N2779 and Kuman v Digicel (PNG) Ltd [2019] SC1851.
.

12.	The Courts in PNG have adopted with approval in Yaman v State, Mek v Kumi (2023) N10394 and Luana v Fleming (2022) N9819 the common law position on the duty of a medical practitioner and the degree of care owed by a medical practitioner to his/her patient as stated in the english case  of R v Bateman [1925] 94 LJK B 791 that:
“If a man holds out as possessing special skills and knowledge and he is consulted as possessing such skill and knowledge by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking that duty and the patient submits to his direction and treatment. Accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment.”
LIABILITY  

13.	My judgement is that liability is established. The uncontested evidence is that the second defendants admits there was an oversight or mistake on the first defendant's part which confirms liability. The evidence also confirms the first defendant is a medical doctor and is employed by the second, third and the fourth defendants. That he conducted the tubal ligation operation without the consent of the plaintiff and her husband and was at work when he performed the surgery. I accept Mr Kuma's submission that the defendants are negligent and that the second, third and the fourth defendants are liable for the negligent actions of the first defendant.

14.	The second, third and the fourth defendants would have an arguable case to discharge vicarious liability if they took some action to discipline the first defendant. Having accepted that the first defendant had made a mistake or an oversight, in not obtaining consent to perform the tubal ligation surgery, the second and third defendants fell short of taking any disciplinary action against the first defendant. If they did, there is nothing in evidence. I find their view that it was a mistake, undermines the serious life consequence it had on the plaintiff and her family in the loss of her fertility.

15.	I find that the State's submission of the plaintiff's failing to mitigate her loss and contributing to the negligence by allegedly failing to follow through with consultations on a reversal procedure is farfetched and irrelevant to the issue of liability. Further, I accept the plaintiff's evidence that she was informed that reversal procedure would be unsafe for her and could not be performed in-country. The medical advice on options for a reversal surgery can be made known to the plaintiff, but she has the final say on whether she will take that advise or not. The tubal ligation was done under anesthetics. The State’s submission on contributory negligence fails.

16.	I accept the plaintiff's evidence that tubal ligation surgery was performed on her without her and her husband's consent. Medical doctors have special skills to perform and operate on other human beings and must exercise that care and skill with caution and diligence in ensuring any potential legal issues that might arise such as failure to obtain consent is mitigated through express written consent. Doctor's work with human lives and must take the required precautions at all times. The first defendant's failure to take precaution has permanently altered the natural state of the plaintiff to bear children and his actions in performing the tubal ligation and ommissions to confirm the ambit of the consent or the nature of surgery is reckless conduct which amounts to malpractice and is negligible conduct.  

17.	Obtaining consent from patients is a paramount legal requirement for the medical profession and are administrative matters which the second, third and the fourth defendants' control and manage. They did not produce any evidence to demonstrate genuine remorse and empathy for the plaintiff when they admitted the tubal ligation surgery was a mistake or oversight. They also did not produce any evidence of any disciplinary actions they took against the first defendant to express their position about his negligence. To me, this confirms they are vicariously liable for the first defendant's actions and omissions. 

18.	My judgement is that the first defendant's actions in not obtaining consent of the plaintiff and her husband to conduct the tubal ligation and proceeding to execute the tubal ligation after successfully delivering the plaintiff's baby, was outside the confines of the plaintiff's consent and a reckless disregard of the care and diligence that medical doctors are dutybound to uphold to patients. Dr Trane's actions and omissions amount to professional medical negligence to which the rest of the defendants are also vicariously liable for failing to take disciplinary action against him and in not proving that the first defendant's actions and omissions were unauthorised and outside the normal scope of his duties. 

ASSESSMENT OF DAMAGES 

19.	In assessing damages, I am guided by the principles of restitution in integrum and to do the best I can, in assessing damages based on comparable caselaw, evidence and reasonable judgement. Inflation is also a factor to be considered and  importantly, the particular facts and circumstances of the case as distinguished from other comparable cases.

20.	In Kunong v Paradise Private Hospital Ltd (2022) N9698 at [50] the Court explained:- 

"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 (2012) N4707."

21.	Additionally, the rule in assessing damages is that the plaintiff must prove her losses, particularly those losses that can be quantified such as special damages. In considering damages I am guided by relevant caselaw, evidence and reasonable judgement in doing the best I can. See Mel v Pakalia (2005) SC790.

22.	I am mostly guided by comparable caselaw which comprise the following cases concerning tubal ligation and loss of fertility; Oresi v Marjen (1998) N1784, Jack v Mola (2008) N3537, Albert v Aine (2019) N7772), Kunong v Paradise (2022) N9698, and Mek v Kumi (2023) N10394.

23.	Oresi v Marjen is one of the first medical negligence cases where two gauze swabs were left in the abdomen of the plaintiff after an operation. The plaintiff experienced pain and discomfort in her abdomen and was operated on when the two gauze swabs were located and removed. The Court considered the difficulty in arriving at a figure for injuries of this nature and awarded K20,000.00 for general damages for pain and suffering plus K3,042.20 for interest. This case was decided in 1998 about 26 years ago while the quantum may not be appropriate in today's economic conditions, the grouping of the damages and the remarks about the difficulty about quantifying such damages are noted and accepted in my reasoning.

24.	In Jack v Mola a misdiagnosis led to a tubal ligation operation and stigma resulting in infertility of the plaintiff. The Court considered general damages sought of K50,000.00 not appropriate for the negligent actions causing infertility, considered similar caselaw being Oresi v Marjen and Jerry Goria v. Sergeant Jeffery Simara & Ors (2001) N2066 which was decided seven years ago, took into account the economic conditions at the time of judgement and doubled the amount claimed for general damages in  pain, suffering, loss of amenities, mental anguish/distress to K100,000.00.

25.	The Court awarded further general damages amount of K175, 000.00 against the defendants for being highly culpable and negligent resulting in the plaintiff’s loss of fertility.

26.	The Court awarded exemplary damages for K50,000.00 and aggravated damages for K50,000.00. The total damages awarded was K375,000.00.

27.	In Albert v Aine a pregnant mother due for delivery was left unattended at the Port Moresby General Hospital for more than 10 hours. This led to her bleeding and rapturing her uterus resulting in foetal death. The medical surgery called hysterectomy was performed on her to remove the foetus. This resulted in removal of her ovaries and her becoming permanently infertile and unable to menstruate. The Court considered this case was much worse than Jack v Mola and Oresi v Marjen because of the permanent nature of the infertility, the loss of a child and the avoidable nature of the case and the increased cost of living and awarded the following damages:

1)	General damages: plaintiff claimed K200,000.00, K200,000.00 was awarded.
2)	General damages for loss of fertility, the court considered the case of permanent infertility was worse than Jack v Mola which it considered was for partial infertility and the culture of PNG for children caring for the parents when old, which the plaintiff will be permanently deprived of and her state as a healthy young women who faced permanent infertility because of the careless and reckless action of the defendants and awarded amount of K350,000.00 as reasonable damages. 
3)	For exemplary damages, the Court considered the lack of evidence by the State Defendants in disciplining medical professionals for negligence found in earlier cases, considered the punitive nature of exemplary nature of damages and exercised its discretion to increase by 100% the award in Jack v State to K100,000.00.
4)	The court awarded aggravated damages of K100,000.00 based on the considerations discussed above. This was also a 100% increase from the award in Jack v the State.
5)	Special damages were awarded subject to evidence provided.
6)	For future medical expense and surgery overseas; no award was granted because the Court found the medical advice conflicting and the claim speculative in the absence of “confirmed arrangements for review and treatment over a definite time frame." A claim for K150,000.00 based on the view of a local private doctor was rejected.

28.	In Kunong v Paradise the plaintiff sued the defendants for medical negligence in the loss of her newborn child after untreated prolonged labour pains, subsequent caesarean section and the death of her newborn baby six (6) hours from low blood sugar and oxygen saturation due to not being fed after delivery by the defendants. The Court distinguish the facts to Albert v Aine and Jack v State, noted there was no infertility but relied on the general damages for pain and suffering of K200,000.00 in Albert v Aine, catered for inflation and increased cost of living and the time factor being three years since Albert v Aine decision and increased the award by K50,000.00 to K250,000.00 for general damages in pain and suffering. 

29.	No exemplary damages were awarded because the court found it was not pleaded. Though contrast this with Albert v Aine where the Court exercised its discretion to award exemplary damages due to the serious nature of the negligence, which it found of the worst kind. 

30.	The most recent case is that of Mek v Kumi which concerned after care treatment of an wound after the removal of a contraceptive device implant in the left arm of the plaintiff's wife. The wound was not treated well which resulted in infection and muscle loss (muscle atrophy) of the limb. The Court considered at [129], muscle atrophy cases of personal injury cases decided in 2001, 2005 and 2020 all awarding K35,000.00 and awarded K35,000.00 for general damages for physical hardship, stress and inconvenience.

31.	In Jack, Aine and Kunong, the plaintiffs were left unattended or misdiagnosed which the Court found the careless actions to be gross and reckless. In this case, the plaintiff was not left unattended nor misdiagnosed. She was attended to and the right steps taken to obtain her consent and that of her husband's including explaining the procedure of caesarian section, when she had complications in giving birth naturally. The evidence of the plaintiff is that these aspects were explained to her and her husband and they both consented to the caesarian section operation. The plaintiff's baby was born, the caesarian section operation was successful. The first defendant should have stopped there.  

32.	However, the first defendant exceeded the bounds of consent when he performed tubal ligation during the same operation. There are no further physical complaints adduced in evidence. The principle injury the plaintiff claims is of loss of fertility. These are the distinguishing factors with these three cases.

33.	In my recent decision of Veapi v Kaluva [2024] N10707 the plaintiff suffered several bladder and stomach problems as a result of a retained surgical instrument, which I consider was very serious as it affected the plaintiff's quality of life permanently unless she undertook further surgery overseas. Thus, I awarded K625,000.00 in general damages. Veapi is distinguished from this case in terms of the severity of internal problems of the body, operated a second time to remove the retained instrument and the adverse impact on her daily quality of life years after the two surgeries. 

34.	The plaintiff claims K300,000.00 for general damages. The plaintiff's case for general damages is that the tubal ligation was illegal, without her consent, unauthorised and severely affects her ability to bear more children which she and her husband were intending to have two more children. In comparing the cases of Oresi, Aine, and Jack, the plaintiff submitted that an award of K300,000.00 in general damages would be sufficient. 

35.	A major part of the increases in the awarded in the comparable cases is what each Court considered in its reasonable judgment and award incorporating inflation or increased costs of living. However, there is no reference to a formular or guide for the Court to apply when factoring inflation.  I take it, that it is left to the Court's reasonable judgement and lived experience. On factoring inflation or increased cost of living, I note an increase of between 50% to 100% of prior similar awards or amount submitted is factored in the above cases where the Court has made a finding of gross negligence.

36.	I also refer to the case of Moka v Motor Vehicles Insurance Ltd (2004) SC729 where the Supreme Court held:

"We are of the opinion that in the light of the high rate of inflation existing at the present time the Courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher now than what the Court was awarding in 1988 and 1998, when the above cases were decided. Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case."

37.	In Jack, K50,000.00 was sought for general damages, the Court considered inflation and doubled the sum claimed to K100,000.00 In Aine, K200,000.00 was sought and K200,000.00 was granted. Here plaintiff is seeking K300,000.00.

38.	The plaintiff provided no evidence of any physical pain during or after the tubal ligation surgery or that it affected her quality of life as was the case in Fugamarefa v Chief Executive Officer of Port Moresby General Hospital [2008] N3409 and Veapi v Kaluva [2024] N10707.

39.	Considering the distinguishing factors, I would award an amount within the range awarded to Jack but assuming inflation of 5 % every year since 2019, the year of Aine's decision which I use as a basis, the amount of K100,000.00 and increase it to factor inflation to K125,000.00.

LOSS OF FERTILITY

40.	Loss of fertility is a particular award of damages as it incorporates Papua New Guinea culture of children growing up to take care of the parents in their old age as explained in Aine.

41.	In considering that, I consider distinguishing factors in the following cases as to the age of the plaintiff at the time of the incident and the number of children she had.

In this case, the plaintiff was 33 years old at the time of the tubal ligation and she and her husband had three children of which the newborn baby at that time was the fourth child.

42.	In the cited comparable cases, the plaintiffs had an average of two children. I think this factor is relevant in considering the Court's concerns in Aine which I accept and apply concerning the role of children to care for their parents in PNG culture. The plaintiffs in these comparable cases can be said to be worse off given the number of their children compared to the plaintiff.

Still, the choice and right of a female or married woman and her spouse to have children or not is a right that was wrongly taken away by the first defendant. 
In Aine, the Court considered the circumstance of the ruptured uterus and the loss of an otherwise heathy foetus a reckless act resulting in the permanent infertility of the plaintiff with just one child, a grave matter; and awarded K350,000.00.

43.	In Jack the Court awarded K175,000.00 for loss of fertility, she would also have one child. In Kunong, there was no loss of fertility but there was death of the plaintiff's newborn child a day after delivery due to the negligence of the defendants.  Loss of fertility did not apply and was not awarded, however general damages were increased when compared with the awards in Aine and Jack. 

44.	After these considerations, the comparable cases would be Jack and Aine.
I consider Aine of the relevance for those cases of similar factual circumstance and more on the high severity scale, followed by Jack. Both Theresa Mangi and Julie Jack have permanent infertility following tubal ligation, Jack upon a wrong diagnosis while Theresa Mangi, upon an unauthorised procedure. Julie Jack had one child while Theresa Mangi has four children. Therefore, I would apply an amount that is less than K175,000.00.

I would award K100,000.00 and since I have considered inflation from resources relied at 5% per annum, I add 5% for inflation assuming that to be the rate each year since 2018, the year of the surgery to this year of judgement, I would add K30,000 as inflation costs, and award K130,000.00 to the plaintiff in general damages.

EXEMPLARY DAMAGES

45.	The purpose of exemplary damage is to punish and deter. Medical negligence is a serious matter as it concerns the life of individuals. The Constitution values and protects the sanctity of life. Medical negligence cases are slowly increasing with the Courts expressing concerns as in Aine about the lack of discipline of medical doctors or medical staff and I would add, the lack of improvements to the handling of patients and their care which appear to be ignored with medical negligence cases increasing. There is also no evidence of the corrective or disciplinary actions taken against the negligent medical doctor. There might be a plausible reason such as the shortage of doctors and the hours worked compared to patient ratio however, those facts are not in evidence. 

46.	Section 12(1) Claims By and Against the State Act 1996 precludes an award of exemplary damages against the State, unless the constitutional breach is severe and continuous. However, my view is that this exclusion does not prevent an award against the rest of the defendants.

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

47.	The Plaintiff submits to increasing the exemplary damages award to K200,000.00 as she did not give her consent. However, I consider K200,000.00 too high as no constitutional breaches have been claimed by the plaintiff and exemplary damages against the State are not awarded in non-constitutional breach cases pursuant to Section 12 CBASA. Instead, I consider an amount of K20,000.00 in exemplary damages against the second and third defendant as a deterrent and punishment for not taking disciplinary actions nor adducing evidence of improvements done in patient and doctor administration to ensure such negligible conduct is minimised. I consider K20,000.00 a reasonable amount given the state of the public hospital as is publicly known and its need for adequate funding, hence K20,000.00 is considered sufficient against the Management for a deterrent effect. 

AGGRAVATED DAMAGES

48.	The plaintiff has not pleaded nor claimed in her prayer for relief aggravated damages. The plaintiff's claim for K150,000.00 in aggravated damages is disallowed for lack of pleadings.  

SPECIAL DAMAGES

49.	 I accept that the plaintiff incurred some expenses though, those may be nominal as the surgery was performed at a public hospital where the fees are nominal and not comparable to private hospitals. Where medicines are purchased, receipts should be kept especially where one is expecting litigation to ensue. 

Special damages require documentary receipts. The plaintiff submits an amount of K2000.00 be awarded for fuel, food and medicine, however there is no distinction as to these costs incurred for the purpose of delivery of the fourth child by caesarian section  or any further visit about the tubal ligation procedure. The evidence of the plaintiff does not support further visits. The costs of accessing public hospital services are nominal compared with private hospitals. In the absence of such receipts, no special damages are awarded.

INTEREST

50.	Interest where the State is a party is to be awarded at 2 % pursuant to sections 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 1962 “in proceedings for the recovery of debt or damages.” This is a  common law damages  claim for medical negligence and comes with the 2% award .  I award pre-judgement interest from the date  the cause of action arose, being the date of the initial surgery of 03 January 2018 to the date of this judgment, 17 May 2024, I consider this appropriate given the circumstances. This amounts to 2326 days (about 6 and a half years). 

Applying the interest formula formulated by his Honour Cannings J in Dope v Malai (2012) N4574:

D x I x N = A
	Where:
D is the amount of damages assessed;
I is the rate of interest per annum;
N is the appropriate period in numbers of years;
A is the amount of interest.

K 275, 000.00 x 0.02 x 6.5 = K 35,750.00

I award pre-judgement interest at the rate of 2% per annum for six and a half years which equates to K 35,750.00

51.	Post-judgment interest is discretionary pursuant to Section 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6(1) of the National Court Rules. I make no order on post judgement interest because no economic loss has been claimed. I consider that post-judgement interest would be more appropriate where an economic loss has been incurred or a physical loss would be one requiring recurring costs or pain and suffering into the future.

The plaintiff has not provided evidence of any ongoing or future physical medical conditions nor a psychological report about emotional distress and suffering.
Hence, I exercise my discretion not to award post judgment interest of 2%.

COSTS

52.	Costs follow the event and are awarded to the successful party. See O22 r11 NCR. The legal costs of the plaintiff in this proceeding are awarded in her favour and are to be paid by the defendants on a party/party basis to be taxed, if not agreed. 

CONCLUSION

53.	The first defendants and the rest of the defendants by vicarious liability are  negligent in carrying out the tubal ligation surgical procedure without the plaintiff's and her husband's consent,. This has resulted in an gross invasion of privacy resulting in a regrettable loss of fertility for the plaintiff and her husband. Medical doctor's must operate within the bounds[ of their authority when treating and performing surgery. There was evidence of failure and negligence, and the defendants are liable for professional medical negligence.

54.	In assessing damages, the distinguishing factors of comparable cases assisted in deciding an appropriate award of damages which as nearly as money can do to restore the plaintiff for the loss of fertility and further children. Judgement on liability is entered for the plaintiff and an award of damages totaling K275,000.00 plus 2% pre-judgement interest of K35,750.00 and costs are awarded to the plaintiff. 

FORMAL JUDGEMENT

55.	The formal judgement of the Court are: -

1)	Liability is entered in favour of the plaintiff and against the defendants for medical negligence.

2)	Judgment is entered in favour of the plaintiff in the total sum of K310, 750.00 comprising: -

a)	General damages for pain and suffering: K125,000.00.

b)	General damages for loss of fertility: K130,000.00.

c)	Exemplary Damages against the third defendant: K20,000.00.

d)	Aggravated Damages: Nil

e)	Special damages: Nil

f)	Pre-Judgment Interest at a rate of 2% per annum pursuant to Sections 4 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015 on damages of K275,000.00, is K35,750.00 calculated from date of the cause of action being 10 July 2018, to the date of judgement, 17 May 2024. 

3)	The defendants shall pay the plaintiff's legal costs of the proceedings, on a party/party basis to the taxed, if not agreed.

4)	Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.

	Judgement accordingly,.

Bradshaw Lawyers:   Lawyers for Plaintiff 
Solicitor General:  Lawyers for First, Second Third and Fourth Defendants