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Kuk v Independent State of Papua New Guinea [2011] PGNC 359; N4448 (16 November 2011)

N4448

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1376 OF 2000

BETWEEN

SIMON KUK
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mount Hagen: Makail, J
2011: 10th & 16th November

DAMAGES - Assessment of damages - Damages arising from medical negligence causing death - General damages - Loss of expectation of life - Loss of pecuniary benefits - Loss of mother's extra services - Future risk of orphan-hood - Special damages - Various awards made.

Cases cited:

Papua New Guinea cases:

Richard Dennis Wallbank & Anor -v- The State [1994] PNGLR 78
Apa Jethro Gogla -v- Police & The State: WS No 830 of 2000 (Unnumbered & Unreported Judgment of 17th October 2011)
Kembo Tirima -v- Angau Memorial Hospital Board & The State (2006) N3106
Esther Kuri -v- Trans Niugini Airways Ltd (2011) N4222
John William Paine -v- The State [1979] PNGLR 99
Jackson Koko & Elisha Koko by their next friend Mawa Koko -v- Motor Vehicles Insurance Trust Limited [1988] PNGLR 167
Nolnga -v- Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 436
Pinzger -v- Bougainville Copper Ltd [1985] PNGLR 160

Overseas cases:

Hay -v- Huges [1974] EWCA Civ 9; [1975] QB 790
Regan -v- Williamson [1976] 1 WLR 305
Mehmet -v- Perry [1977] 2 All ER 529
Fisher -v- Smithson [1978] 17 SASR 223

Counsel:

Mr M Tamutai, for Plaintiff
No appearance, for Defendant

JUDGMENT

16th November, 2011

1. MAKAIL, J: This is an ex-parte trial on assessment of damages arising from medical negligence of doctors and staff of Mt Hagen General Hospital which resulted in the death of one Regina Kuk. She died from severe loss of blood following delivery of a baby on 24th December 1999. She is survived by the plaintiff and two children, Sandra and Mary-Christy. The plaintiff sued the State for damages as a result of her death. On 25th January 2002, he obtained default judgment against the State. He claimed the following reliefs from the Court:

1. General damages,

2. Special damages,

3. Interest at 8%, and

4. Legal costs.

2. It is trite law that even though a plaintiff has obtained default judgment against a defendant, he still bears the onus of proving his damages. Has the plaintiff established his damages in this case? He relied on a number of affidavits which I will refer to where relevant as some of them are not relevant to establishing damages.

Loss of expectation of life

3. In his written submissions, Mr Mathew Tamutai of counsel for the plaintiff submitted K6,000.00 would be a fair amount to award, as the conventional sum of K3,000.00 approved by the Supreme Court in Richard Dennis Wallbank & Anor -v- The State [1994]PNGLR 78 is no longer appropriate given the fall in the value of money and the high inflation on goods and services in the country. I agree with his submissions. I also took into account the weak PNG Kina and inflation in a recent case on assessment of damages when I was considering an award of damages for loss of expectation of life.

4. That was in the case of Apa Jethro Gogla -v- Police & The State: WS No 830 of 2000 (Unnumbered & Unreported Judgment of 17th October 2011) where I awarded a total of K8,000.00 (K4,000.00 each) to the parents of the deceased who was shot by police at the outskirts of Kundiawa town in March of 2000. I reached that decision after I took into account the award of K6,000.00 in Kembo Tirima -v- Angau Memorial Hospital Board & The State (2006) N3106 and K12,000.00 awarded to the wife and child (K6,000.00 each) of a deceased pilot who died in a plane crash in Esther Kuri -v- Trans Niugini Airways Ltd (2011) N4222. For these reasons, I award K6,000.00 for loss of expectation of life.

Loss to the children

4. In his written submissions, Mr Tamutai relied on the cases of John William Paine -v- The State [1979] PNGLR 99, Jackson Koko & Elisha Koko by their next friend Mawa Koko -v- Motor Vehicles Insurance Trust Limited [1988] PNGLR 167 and submitted damages under this head are awarded for loss of any pecuniary benefits which the infant children might reasonably have expected to enjoy had the deceased not been killed. Such pecuniary benefits are past loss of value of mother's extra services and future risk of orphan-hood.

5. In relation to past loss of value of mother's extra services, in Koko's case (supra), Bredmeyer, J referred to a remark made by Lord Edmund-Davies in the Court of Appeal in the English case of Hay -v- Huges [1974] EWCA Civ 9; [1975] QB 790 at 802:

"While it is undoubtedly established that damages can be awarded under the Fatal Accident Acts only in respect of pecuniary loss and not as a solatium for injured feelings (see Taff Vale Railway Co v Jenkins [1912] UKLawRpAC 60; [1913] AC 1 at 4 per Viscount Haldane LC and Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 617) so that these two children could recover nothing for the deprivation of their mother's love, yet it may sometime have to be considered whether Mr Mc Gregor is not right in saying (McGregor on Damages (13th ed, 1972), par 1232)

'It may be argued that the benefit of a mother's personal attention to a child's upbringing, morals, education and psychology, which the services of a house keeper, nurse or governess could never provide, has in the long run a financial value for the child, difficult as it is to assess.'"

6. Bredmeyer, J further noted that this remark was acted upon by single judge, Watkins, J in Regan -v- Williamson [1976] 1 WLR 305, who in his decision, increased the award of damages over and above the costs of a housekeeper because of the extra services provided by a mother, such as instruction on essential matters to do with the upbringing and help with homework. This decision was followed in Mehmet -v- Perry [1977] 2 All ER 529, and the South Australian Full Court in Fisher -v- Smithson [1978] 17 SASR 223. His Honour followed the decision in Regan -v- Williamson (supra) because, as he said:

".......it is a welcome trend to say that a mother's services are, in the normal case, more valuable than that of a paid housekeeper and that the difference can be assessed although the task is hard; and because their services are more valuable than that if a housekeeper, the loss of them to the children is a loss for which they should be compensated."

7. It is, as Bredmeyer, J noted, difficult to put a value on the extra services the deceased mother supplied, but Bredmeyer, J agreed with the plaintiff's counsel that K3.50 per week per child was reasonable. This amount was also applied in the case of Nolnga -v- Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 436.

8. In the present case, there is uncontroverted evidence from the plaintiff in his affidavit sworn on 01st July 2002 and filed on 04th July 2002 (exhibit "P1") that before the deceased died, they lived a happy life. The deceased was a normal young, loving and caring wife and no doubt cared and loved their first born child, Sandra and in the context of a typical village setting, cared for her full time. Pastor Marcus Panga in his affidavit sworn on 07th April 2005 and filed on 12th May 2005 (exhibit 'P6") and the Village Peace Officer Andrew Kerua in his affidavit sworn on 15th May 2002 and filed on 06th June 2002 (exhibit "P7) also verify the plaintiff's evidence that the deceased was a loving and caring wife and mother. Further, according to the plaintiff's evidence in his supplementary affidavit sworn on 19th June 2003 and filed on 20th June 2003 (exhibit "P4"), she was 26 years when she died.

I accept the plaintiff and his witnesses' evidence that the deceased was a loving and caring wife and mother to him and Sandra. I take into account the fact that value of Kina has declined since the judgment in Nolnga's case (supra) and accept K7.00 per week as loss and further accept the age of dependency in Papua New Guinea as 18 years. Sandra is now 19 years old and Mary-Christy is now 12 years old. Sandra is over the age of dependency and Mary-Christy has 6 more years of dependency. I assess the losses as follows:

Sandra's loss of mother's extra value

9. K7.00 per week x 52 weeks per annum = K364.00 x 18 years = K6,552.00 as past loss.

10. There shall be no award for future loss for Sandra as she has reached 18 years before the date of trial and judgment.

Mary-Christy's loss of mother's extra value

11. K7.00 per week x 52 weeks per annum = K364.00 x 12 years = K4,368.00 as past loss.

12. 329.949 (6 years dependency on the 3% discount tables) x K7.00 per week = K1,979.69 as future loss.

13. Total for past and future losses is K6,347.69.

Future Risk of Orphan-hood

14. Under this head of damages, the Court in Koko's case (supra) awarded K1,000.00 to Jackson Koko who was 9 years old at the time and K1,500.00 to Elisha Koko who was 6 years old at the time. The Court in Nolnga's case (supra) followed the decision in Koko's case (supra) and awarded K1,000.00 to the dependent, Simon, who was 11 years old at the time.

15. In Koko's case (supra), in awarding K1,000.00 to Jackson Koko and K1,500.00 to Elisha Koko following their mother's death, I note Bredmeyer, J took into account the considerations that their father was 31 years old, in good health, had an excellent job with PNG Harbours Board as an engineer and was about to be promoted and had taken in a de-facto wife who would have increasingly shared the parenting role. Their father also had a supportive family of four brothers and sisters who would have helped raised the children.

16. In Kembo Tirima's case (supra), Cannings, J computed damages under this head of claim based on the earnings of the deceased father per annum from the date of death of the deceased to the date when the children who have reached 18 years and awarded a total of K34,000.00 for four dependent children.

17. In the present case, Mr Tamutai's submitted that K2,000.00 to Sandra and K1,500.00 to Mary-Christy would be reasonable earnings per annum as these amounts take into account the decline in the value of Kina and inflation. Based on these amounts, he computed the losses from the respective ages of the two children at the date of their mother's death to the date of maturity of 18 years and arrived at K24,000.00 and K27,000.00 respectively, and submitted the Court award these amounts.

18. It is important to understand the purpose such an award of damages under this head of claim and that is, it is awarded to the children of the deceased to compensate them for the increased risk of orphan-hood brought on by their mother's death. With that in mind and accepting the evidence of the plaintiff in his affidavit (exhibit "P1") and his supplementary affidavit sworn on 19th June 2003 and filed on 20th June 2003 (exhibit "P4"), that he has not remarried since the death of the deceased, that he is involved in some cash earning activities such as sale of pigs, chickens and food crops and that there is no suggestion that he is suffering from ill health, posing threat to his life, I am not satisfied that there is an increased risk of orphan-hood such that it would warrant awards in the amounts as was submitted by Mr Tamutai.

19. However, I do agree that there should be some damages awarded under this head of claim and I will adopt the approach taken by Cannings, J in Kembo Tirima's case (supra) by using 18 years as the cut-off date for assessing loss under this head of claim. For Sandra, as she has reached the age of 18 before the date of trial and judgment, I am of the view that she is not entitled to any award. That appeared to be the position taken by Woods, J in Nolnga's case (supra) where he did not make any award for one of the dependant's of the deceased, namely Martha because she had reached 16 years at the date of trial and judgment. In the circumstances, I make no award for Sandra.

20. As for Mary-Christy, I consider K2,500.00 per annum would be a reasonable amount, as first, the increase will reflect the decline in the value of Kina and inflation, and secondly, the cases of Koko's (supra) and Nolnga's (supra) were decided almost 23 years and 20 years ago, respectively. Thus, the awards would not necessarily reflect the circumstances of the present day. Applying K2,500.00 per annum for the next 6 years until Mary-Christy reaches the age of 18, this gives K15,000.00. I award this amount for Mary-Christy.

Loss to the plaintiff

21. This is another head of general damages that the plaintiff claims against the State. Mr Tamutai relied on the plaintiff's affidavit sworn on 01st July 2002 and filed on 04th July 2002 (exhibit "P1"), affidavit of Pastor Marcus Panga sworn on 07th April 2005 and filed on 12th May 2005 (exhibit "P6") and affidavit of Andrew Kerua sworn on 15th May 2002 and filed on 06th June 2002 (exhibit "P7") to support this head of claim. The plaintiff and his witnesses again deposed that the deceased was a loving and caring wife and mother. She worked in the garden and planted food crops such as carrots, cabbage, potatoes, kaukau and peanuts for personal consumption and sale at the market. She also raised pigs and chickens for sale.

22. In Nolnga's case (supra), a wife and mother was killed in a motor vehicle accident. The husband, a salaried public servant brought a dependency claim on behalf of himself and the three children of the marriage, aged 19, 16 and 11. Prior to her death, she was involved in producing income from pigs, coffee and running a tavern, which contributed to the income and standard of living of the family. After her death, the husband needed to employ labourers and to pay his mother for extra help with the children. He claimed loss for deceased's involvement with helping to produce income from the pigs and coffee and also from running the tavern including gardening.

23. Woods, J was prepared to find some financial loss to the plaintiff for her death over and above the extra burden on him for the children. His Honour also stated that he would have to come to an estimate for her work in the cash rural projects and went on to say that he was prepared to assess, on the basis that the deceased was a very industrious person, a figure of K2,000.00 per year. Based on that amount, his Honour assessed damages for past loss from the date of death to the date of judgment, being 4.9 years and awarded K9,800.00. As for future loss, he awarded K5,000.00.

24. In the present case, according to the affidavits refer to above, there is uncontroverted evidence that when the deceased was alive, she assisted him in raising pigs and poultry and also cash crop projects. She was a hardworking and industrious woman. From the sale of chicken, on average, they earned K1,890.00 per annum and from the sale of cash crops, they earned an average income of K1,900.00 per annum. This gives an average total of K3,790.00 per annum.

25. I would apportion K3,790.00 per annum by half because it appears this amount was earnings earned by the plaintiff and the deceased together. Thus, the plaintiff would have lost the deceased's contribution towards the family's earnings per annum by half. Based on K1,895.00 per annum, I assess the plaintiff's past loss from the date of death of 24th December 1999 to the date of judgment of 16th November 2011 at roughly 12 years gives K22,740.00.

26. As for future loss, computing it from date of judgment of 16th November 2011 to the average age of 55 years, gives roughly 17 years. Therefore, K1,895.00 x 17 years = K32,215.00. I would reduce that amount by 10 % for contingencies as such early death, divorce, etc. 10% of K32,215.00 is K3,221.50 and deducting this amount from K32,215.00 gives K28,993.50.

27. Adding K22,740.00 and K28,993.50, the total sum for past and future losses is K51,733.50. I award this amount.

Special damages

28. In his written submissions, Mr Tamutai submitted K1,500.00 should be awarded for special damages because, apart from the plaintiff producing receipts of payment totaling K975.98, the costs would have been more as the plaintiff is unable to produce receipts of all the payments. Special damages by its nature require specific proof. That means, the plaintiff must produce records of the costs incurred to prove it. Such records would include receipts of payments.

29. In this case, the plaintiff has produced receipts of payments annexed to his affidavit sworn on 04th July 2002 and filed on 01st July 2002 (exhibit "P1") which I have examined. They were costs for baby Mary-Christy's milk. Based on the receipts, I am satisfied the plaintiff has incurred costs of K975.98. On the other hand, I am not inclined to award K1,500.00 because there are no further receipts to prove it. I award K975.98 as special damages.

Inflation

30. Mr Tamutai also submitted the Court make a separate award for inflation but I am not inclined to do that because I have taken inflation into account in the awards in the various heads of claim. As a result, the awards under the various heads are significantly higher than those awarded in past cases.

Interest

31. Finally, the plaintiff claims interest at 8%. The Court has discretion under to section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act, Ch, 52 to award interest not exceeding 8% on either part or whole of the judgment debt. The purpose of awarding interest is to compensate a party for being kept out of money which ought to have been paid to him had judgment been entered earlier: see Pinzger -v- Bougainville Copper Ltd [1985] PNGLR 160. In this case, given that there has been a long delay in bringing the matter to trial and that the total judgment debt is substantial, in the exercise of the Court's discretion, I award interest at 4% from the date of the issue of writ of summons of 04th October 2000 to the date of judgment of 16th November 2011. 4% interest is calculated as follows:

1. Number of days from the date of the issue of writ of summons of 04th October 2000 to the date of judgment of 16th November 2011 is 4,049 days.

2. 4% multiply by total judgment debt of K86,609.17 is K3,464.37.

3. Daily rate is K3,464.37 divided by 365 days per annum is K9.49.

4. Total number of days of 4,049 multiply by daily rate of K9.49 gives K38,425.01.

5. 4% interest is K38,425.01.

Summary

32. The awards are:

1. Loss of expectation of life - K 6,000.00

2. Loss to the children:

(a) Sandra's Past Loss of mother's

extra services - K 6,552.00

(b) Mary-Christy's Past and Future Losses

of mother's extra services - K 6,347.69

(c) Sandra's Increased Risk of Orphan-hood - K Nil

(d) Mary-Christy's Increased Risk of Orphan-hood

- K15,000.00

3. Loss to the husband (plaintiff) - K51,733.50

4. Special damages - K 975.98

5. Inflation - K Nil
=========

33. Total sum awarded - K86,609.17

6. 4% interest - K38,425.01 ========

34. Final judgment K125,034.18 ========

Order

35. There shall be a judgment for the plaintiff in the total sum of K125,034.18 inclusive of interest at 4% interest. The defendant shall also pay the plaintiff's cost of the proceeding to be taxed if not agreed.

Judgment and orders accordingly.
____________________________________
Tamutai Lawyer: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the Defendant