N11018
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1550 OF 2014

BETWEEN
CARLSON KOMBIKU BY HIS NEXT FRIEND CHARLES KOMBIKU
Plaintiff

AND
SISTER JANET LUMA
First Defendant

AND
EZEKIEL YAUM
Second Defendant

AND
THE MANAGEMENT BOARD OF WEWAK (BORAM) GENERAL HOSPITAL
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Wewak: Makail, J
2024: 15th April, 20th May & 30th September
 
NEGLIGENCE – ASSESSMENT OF DAMAGES – Medical negligence – Incorrect supply of medical drug – Use of incorrect medical drug – Award of damages – General damages – Pain and suffering – Mental torment Higher sum awarded – Inflation – Permanent disability – Special damages – Out-of-pocket expenses – Exemplary damages – Proof of 

Cases Cited:

Daniel Pomat v. Consort Express Lines Limited (2020) N8300 
Andrew Moka v. Motor Vehicle Insurance Limited (2004) SC729
Julie Jack v. Dr Glen Mola & The State (2008) N3537 
Albert v. Aine (2019) N7772 where K200,000.00 was awarded, 
Sally Tiwari Kunong v. Paradise Private Hospital Ltd (2022) N9698 
Ruth Veapi v. Mathew Kaluva, Dr Nassar Gadelkarem & The State (2024) N10707 
Theresia T Mangi v. Dr Willie Trane & The State (2024) N10819
Roselyne Cecil Kusa v. Motor Vehicle Insurance (PNG) Trust (2003) N2328

Counsel:

Mr A Kana, for Plaintiff 
Mr E Manihambu, for Defendants

JUDGMENT  
30th September 2024	

1.	MAKAIL, J:  This is a trial on assessment of damages on the papers.  The assessment of damages arises from a medical negligence action against the defendants whereby a judgment on liability was entered following a contested trial on 21st September 2021 by presiding judge Gora J.
2.	Following directions for the parties to file and serve written submissions on assessment of damages, the Court received submissions from the plaintiff and none from the defendants.
Assessment of damages
3.	It is trite law that judgment on liability does not establish damages.  The plaintiff still bears the onus to prove his losses.  According to paragraph 37 of the writ of summons and statement of claim, the plaintiff seeks the following relief: 
3.1.	General damages
3.2.	Special damages 
3.3.	Exemplary damages 
3.4.	Interest pursuant to statute 
3.5.	Costs of the proceedings 
Evidence 
4.	The plaintiff relies on the following:
4.1.	Affidavit in support of Cathleen Kombiku sworn and filed on 17th December 2014.
4.2.	Affidavit in support of Charles Kombiku sworn on 25th February 2015 and filed on 17th March 2015.
4.3.	Affidavit of Dr Graham Haina sworn on 31st August 2018 and filed on 6th September 2018.
4.4.	Affidavit of Dr Kauve Pomat sworn on 7th August 2019 and filed on 8th August 2019.
4.5.	Further affidavit of Charles Kombiku sworn on 5th June 2022 and filed on 7th June 2022.
4.6.	Affidavit in support of Cathleen Kombiku sworn on 17th October 2022 and filed on 18th December 2022.
Findings of Fact
5.	For the purposes of assessment of damages and based on the affidavits outlined above, it is the findings of the Court that the plaintiff was an infant patient at the third defendant’s hospital at the material time.  The first defendant was employed as a sister or Health Worker at the Labour Ward operated by the third defendant.  The plaintiff was under the care of the first defendant at the time of his delivery and after delivery on 24th July 2011. 
6.	The plaintiff was born to Charles and Cathleen Kombiku.  He was diagnosed with “Moderate Birth Asphyxia” and put in the Special Care Nursery at the third defendant hospital. After birth of the plaintiff, the first defendant did not put the plaintiff in the Special Care Nursery after he was diagnosed with the above condition.  He was denied that care for one and a half hour.  
7.	Eventually the plaintiff was taken to the Special Care Nursery.  However, after three days he developed “Bacterial Meningitis”.  He was admitted to the hospital and received further medical treatment.  He remained at the hospital until he was discharged at the out-patient.
8.	On 20th October 2011 the plaintiff was reviewed by Dr Regina Niagra the resident paediatrician at the third defendant hospital. A drug call “Carbamazepine” was prescribed by Dr Niagra.  The second defendant worked at the Medical Drug Dispensary at the third defendant hospital.  Instead, the plaintiff was given a medical drug called “Carbimazole” which the plaintiff took three times daily for fourteen days.  
9.	The incorrect supply of medical drugs by the second defendant to the plaintiff was discovered when the plaintiff returned to the third defendant hospital for review at the Consultation clinic on 3rd November 2011.
10.	Dr Kauwe Pomat who is a senior medical specialist in paediatrics at the material time was based at the third defendant hospital reviewed the plaintiff in or around October 2018.  He provided a medical report dated 31st October 2018. 
11.	The medical report outlined the chronological history, current clinical status, diagnosis and cause of the condition of the plaintiff.  Significantly, under the current clinical status, the:
•	Weight is 8.8 kg.  Expected weight for his age should already be over 25 kg.

•	He hasn’t uttered a recognizable word. He appears to hear loud noises.  He is not able to follow light and doesn’t appear to focus on objects, let alone faces.  He is bedridden.  His muscle tone is hypertonic seem unable to exhibit fine controlled movements apart from swallowing.”
12.	A further significant matter is the cause of the medical condition.  The medical report stated that:
•	There are reasonable grounds of mismanagement of the newborn Carlson at birth by the obstetric team, including the lack of urgency to call the on call medical officer to attend to Carlson.

•	Acquiring of Meningitis at SCN may have been due to a number of factors discussed above and will require investigation and studies to ascertain the hygienic control in the Labour ward and SCN.

•	Carbimazole mistake for Carbamazepine is outright gross negligence on the part of the hospital dispensary staff with outcomes which may have had a high impact in (sic) the progression of Carlson’s health status.”
13.	Finally, the medical report stated that:
“Carbimazole is a drug used in a medical condition called Thyrotoxicosis where the Thyroid gland produces excessive Thyroid hormone, an important metabolism regulating hormone.  It supresses excessive production.
Dosage of Carbimazole in children is 250 micrograms (0.025 mg) per day and 5mg per day in adults.
Carlson was administered Carbimazole instead of Carbamazepine at a dose of 10 mg three times a day.  This was gross medical negligence on the part of the hospital dispensary staff in administrating the wrong medicine.
Massive toxicity may have caused massive suppression and possible regression of the Thyroid gland.  This may explain the lack of Thyroid hormone activity rather than the suspected extent of brain injury discussed above.  Side effects of Carbimazole includes bone marrow suppression leading to pancytopenia (low production of all blood cells) rendering the person immune compromised and vulnerable to repeated infections.  Low red blood cells also mean lowering of oxygen carrying of the circulating system of the body further rendering the already compromised brain more vulnerable.”
14.	In addition, Dr Pomat produced three photographs of the plaintiff.  The picture in each photograph shows the plaintiff in an extremely lean (skinny) body and that of a child and corroborates Dr Pomat’s report that “Carlson had been gaining weight satisfactorily from birth but started flattening early November 2011 and his weight is now well below the 60 percent weight for age graph.  He has been admitted countless times to the Paediatric ward for fattening and is preexisting problem.  His clinic status has not improved.  He has not attained milestone as expected with age.”
General Damages
15.	To reinforce the purpose of an award of general damages, in Daniel Pomat v. Consort Express Lines (2020) N8300 at [74] and [75] the Court observed: 
“74.	General damages are generally awarded in monetary form to compensate the plaintiff for pain and suffering as a result of the defendant’s wrong caused to the plaintiff.  Its objective is to put the plaintiff in a position he was immediately prior to the accident or injury.
75.	A claim for general damages will be awarded if it is proved that it is directly attributed to the wrong and that it is not too remote.  The measure of damages is not based on a fixed sum or scale but may vary from case to case depending on the type of wrong and degree of loss.”
16.	In addition, in assessing damages, it is appropriate to include inflation.  In Andrew Moka v. Motor Vehicle Insurance Limited (2004) SC729 the Supreme Court included inflation.  It said:
“We note the awards in both cases and we think that the two Judges’ views that the awards should be slightly higher were correct. 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 then 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.”
17.	The Court notes the plaintiff’s counsel’s reference to the award of general damages in past cases in Julie Jack v. Dr Glen Mola & The State (2008) N3537 where K100,000.00 was awarded, Albert v. Aine (2019) N7772 where K200,000.00 was awarded, Sally Tiwari Kunong v. Paradise Private Hospital Ltd  (2022) N9698 where K250,000.00 was awarded, Ruth Veapi v. Mathew Kaluva, Dr Nassar Gadelkarem & The State (2024) N10707 where K325,000.00 was awarded and Theresia T Mangi v. Dr Willie Trane & The State (2024) N10819 where K125,000.00 was awarded.
18.	The plaintiff’s counsel submits that based on the above awards, the present case is one of the worst cases of medical negligence and a sum of K300,000,00 is appropriate.  However, this case is rare and distinct from those past cases because the sum of general damages awarded were in cases where the plaintiffs suffered serious and painful injuries associated with child births. None of them concerned an infant or child being given incorrect drug medication.   
19.	 In the present case the plaintiff is a victim of an incorrect drug medication usage supplied by the second defendant at the dispensary of the third defendant hospital.  The resultant effect is devastating.  The plaintiff’s “………..weight is now well below the 60 percent weight for age graph.  ……...  His clinic status has not improved.  He has not attained milestone as expected with age.”
20.	The plaintiff was born on 24th July 2011 and by October 2018 he was seven years and three months old, but physically he had a body of a child. A recent medical report is preferrable to indicate to the Court if the plaintiff’s physical and medical condition have improved.  However, it is not necessary because Dr Pomat’s medical report sufficiently explained that “His clinic status has not improved.  He has not attained milestone as expected with age.”  I am satisfied that the plaintiff’s physical and medical condition remained unchanged since October 2018 and into the future.  It is a permanent disability.  The plaintiff will live with it for the rest of his life. In my view, this consideration sets this case apart from the other past cases and makes it a worst medical negligence case in this jurisdiction.  Therefore, a higher award is called for to compensate the plaintiff for the pain and suffering including the mental torment he has and is going through.   
21.	Using the highest award of K350,000.00 in Ruth Veapi case (supra) as a starting point, I have decided to increase the sum because of inflation and permanent disability.  Considering the circumstances of the entire case, a fair and reasonable sum to award to the plaintiff is K500,000.00.  This sum is awarded.
Special damages 
22.	It is common in an action arising from personal injury or death where special damages are sought that special damages will be related to and associated with accessing medical treatment and care.  They are commonly referred to as out-of-pocket expenses.  Some of the common ones are, costs of consultation, admission, treatment and medication, food, transportation (land, sea and air), reviews, and medical reports and police accident reports.   
23.	In this jurisdiction it is necessary to specifically claim and prove strictly special damages pursuant to Order 8, rule 34 of the National Court Rules (“NCR”) which states that “Where in proceedings on a common law claim, a party pleading claims damages which include money which he has paid or is liable to pay, he shall give particulars of those moneys.” see also Roselyne Cecil Kusa v. Motor Vehicle Insurance (PNG) Trust (2003) N2328.
24.	The particulars must be pleaded as required by Order 8, rule 35(1) of the NCR which states that “Where any of Rules 29 to 32  or Rule 34 require particulars of any pleadings to be given, the particulars shall be set out in the pleading or, if that is inconvenient, shall be set out in a separate document referred to in the pleading and that document shall be filed and served with the pleading.”
25.	The plaintiff’s counsel concedes that it is necessary to specifically claim and prove strictly the claim for special damages.  At [31] - [32] of his written submissions, the plaintiff’s counsel refers to [35] and [37(b)] of the statement of claim and outlines the out-of-pocket expenses as follows:
	(a)	Total Airfares 		– 	K7,941.40
	(b)	Medical expenses 		– 	K2,850.00
	(c)	Legal Fees 			– 	K1,000.00
	(d)	Meals 			– 	K10,500.00
	(e)	Additional travel costs 	– 	K9,600.00
							---------------		
Grand Total 			– 	K 31,891.40	
							---------------
26.	I am satisfied that the plaintiff has pleaded the claim for special damages (out-of-pocket expenses) at [21], [23], [35] and [37(b)] of the statement of claim.  As to proof, the plaintiff did not produce all the receipts of payment to verify the sum claimed for the out-of-pocket expenses.  However, based on the further affidavit in support of Charles Kombiku sworn on 5th June and filed on 7th June 2022, except for legal costs which may be recovered separately and is excluded, I am satisfied that these costs were directly incurred by the parents of the plaintiff who did not give up on him but brought him to Lae and Port Moresby in search of a medical solution to his condition.  I award a sum of K30,891.40.

Exemplary damages 

27.	The plaintiff’s counsel submits an award of exemplary damages will deter the defendants and others not to engage in such conduct in the future.  Referring to Theresia T Mangi case (supra) where the National Court awarded a sum of K20,000.00 as exemplary damages, the plaintiff’s counsel submits that a sum of K40,000.00 should be awarded and paid by the third and fourth defendants for the negligent conduct of the first and second defendants.
28.	I accept that the plaintiff should be awarded exemplary damages.  Hopefully it will deter such conduct from happening in the future.  As to the sum to award, it is troubling to note from the number of reported medical negligence cases, some of which are referred to above, that they are increasing.  This case adds to the growing number of such cases.  As the facts show, this was a case of a supply of an incorrect medical drug by the second defendant to the plaintiff.  However, the result was devasting. The negligent conduct of the second defendant has completely destroyed the life of the plaintiff and worst of all, from an early age.  Given this I accept the sum sought by the plaintiff’s counsel and order the third and fourth defendants to pay a sum of K40,000.00 as exemplary damages.
Summary
29.	In summary there will be a judgment for the plaintiff in the total sum of K570,891.40 comprising of:
28.1.	 General damages 		– K500,000.00
28.2.	 Special damages 		– K30,891.40
28.3. 	Exemplary damages 	– K40,000.00

Interest
30.	The plaintiff seeks pre-judgment and post-judgment interest at the rate of 2% pursuant to Sections 4 and 6 of the Judicial (Proceedings Interest on Debts and Damages) Act 2015.
31.	The plaintiff is awarded interest at the rate of 2% on the total judgment sum of K570,891.40 from the date of issue of writ of summons of 17th December 2014 to the date of judgment on assessment of damages and until the date of final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
Costs
32.	 Costs are discretionary.  As the plaintiff has proven negligence and damages, costs will be awarded to him, to be taxed, if not agreed. 
Order
33.	The final terms of the order are:
1.	Judgment is entered in favour of the plaintiff in the total sum of K570,891.40 comprising of:
1.1.	 General damages 		– K500,000.00
1.2.	 Special damages 		– K30,891.40
1.3. 	Exemplary damages 	– K40,000.00
2.	Judgment is entered in favour of the plaintiff for interest at the rate of 2% on the total judgment sum of K570,891.40 from the date of issue of writ of summons of 17th December 2014 to the date of judgment on assessment of damages and until the date of final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
3.	The defendants shall pay the plaintiff’s costs of the proceedings, to be taxed, if not agreed.
4.	Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place, forthwith.
________________________________________________________________
Public Solicitor:	Lawyers for Plaintiff
Solicitor-General:	Lawyers for Defendants