IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

DR. LEMAMEA ATA MATATUMUA
of Apia, Medical Practitioner.
Plaintiff

AND:

MORRIS HEDSTROM (SAMOA) LIMITED
a duly incorporated company having its registered office at Apia.
Defendants

Counsel: Ms FM Vaai-Hoglung for the plaintiff
Ms R. Drake for the defendant

Hearing: 21 August 2003
Submissions: 16 September 2003
Decision: 19 December 2003

DECISION OF VAAI J

In February 1998 a Cruise Liner named Albatross called into Apia harbour and one of its passengers, a German national was seriously ill requiring medical attention. The defendant as the local agent for the Cruise Liner requested the plaintiff to attend to the patient. At the time the plaintiff was employed by the Department of Health as a Consultant Specialist in Neurology and on a number of occasions has been requested and was duly paid by the defendant to attend to patients on other ships. After consulting with medical officer on board the Liner the plaintiff arranged for the patient’s admission to the High Dependency Unit at the National Hospital where he stayed for 5 days; at the end of which the defendant’s shipping manager and the patient’s friends sought the opinion of the plaintiff as to whether a medical escort was necessary for the patient’s plane journey back to Germany. Whereas Doctor Watson of the High Dependency Unit thought a medical escort was not necessary, the plaintiff during the meeting with Doctor Watson and the patient considered the medical escort a necessity on the grounds that the patient has multi medical problems and that he has also just come out of the High Dependency Unit. The patient then requested the plaintiff to be the medical escort and the defendant’s shipping manager was told by the patient to arrange airline tickets for the plaintiff. On the 15th February the plaintiff escorted the patient to New Zealand. During the flight to Auckland oxygen was administered continuously and other treatments like oral medical medications and IV fluids were provided so that the patient was monitored throughout the whole flight to New Zealand arriving Auckland about 3 o’clock in the morning. They checked into a hotel and the patient left for Germany the same day at 12 noon accompanied by another doctor.

Ten days later the plaintiff returned to Samoa on the first available flight and rendered his invoice for his services to the Shipping Manager of the defendant who in turn forwarded it to its principal. The defendant has received monies to meet the plaintiff’s invoice but it obviously did not want to hand over the payment to the plaintiff. By letter dated the 22nd April 1998 the defendant’s financial controller wrote to the Director General of the Health Department enclosing a copy of the plaintiff’s invoice as well as copies of the plaintiff’s previous invoices suggesting it was improper for the plaintiff in the employment of the Public Service to charge for his services and that the charges were excessive. By letter dated the 23rd April 1998 the Director General of health responded in writing, concurring and suggesting to the defendant to withhold the payment of the latest invoice pending the department’s investigation into the plaintiff’s conduct.

The plaintiff was duly charged under the Public Service Act 1977 for his conduct allegedly bringing the Public Service into disrepute by submitting bills of costs for services he rendered while he was under the employment of the Public Service. He was also suspended from work pending the outcome of the charges. A Commission of Inquiry investigated the charges and having found the charges proved made the following recommendations:

(i)	That the plaintiff be reinstated to his previous post.
(ii)	That the suspension be treated as leave without pay.
(iii)	Fine of $400.00.
(iv)	A stern warning.

On appeal by the plaintiff to the Public Service Appeal Board the second recommendation of nine months leave without pay was reduced to three months leave without pay.

The plaintiff’s action is founded on contract against the defendant for the non-payment of the invoice for services rendered. There is no denial that services was rendered. In its Statement of Defence the defendant denies that it has received the money to pay plaintiff’s invoice. There is also on file an affidavit sworn by one Morgan Pillay on the 17th April 2002 as the Financial Controller for the defendant that the defendant has not received any money or funds from the patient for onward payment to the plaintiff. This is a deliberate attempt by the defendant not to pay the money it has received for payment to the plaintiff, and Mr Pillay went so far as swearing a false affidavit in an attempt to avoid payment. Mr Raymond Hunt who was the Financial Controller of the defendant prior to Mr Pillay gave evidence at the Commission of Inquiry which investigated the charges against the plaintiff and he did confirm the defendant has received the money from its principal for the plaintiff’s invoice. The current shipping manager for the defendant in his evidence confirmed the money is with the defendant and under cross examination he also confirmed that neither the patient nor the defendant’s principal authorised the defendant to question the plaintiff’s invoice or to write a letter of complaint to the Director General of health. The simple truth of the matter is that the defendant’s principal has in response to the plaintiff’s invoice remitted to the defendant’s bank account in 1998 funds to meet the invoice. There were no other instructions to the defendant so as to authorise the defendant to withhold payment.

As a result of noises generated by the defendant the plaintiff has been appropriately dealt with by his employer, the Public Service Commission under the Public Service Act 1977. The remedial measures administered by the Public Service Commission does not affect the status of the contract. In fact one of the complaints of the defendant to the Director General of health was the excessiveness of the charges and yet the Commission of Inquiry in its findings and recommendations was silent as to the quantum of the invoice. Mrs Drake as counsel for the defendant in her usual co-ordinated and aggressive cross examination took the plaintiff to task on the quantum of this charge. But again it comes down to what counsel for the plaintiff in my view correctly maintained that the defendant has no mandate from its principal to question the invoice in anyway.

The claim accordingly succeeds and the plaintiff is entitled to judgment of NZ$18,500. On the question of general damages, I consider it as appropriate the length of time the funds have been sitting in the defendant’s bank account and the corresponding deprivation of the plaintiff of the funds for some five years. At the same time the conduct of the plaintiff in his capacity as a senior doctor and the measures taken by the Public Service Commission must also be weighed against the plaintiff. I allow general damages of $10,000.

The plaintiff is also entitled to costs which I fix at $1,200.

JUSTICE VAAI