Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Mek v Kumi [2023] PGNC 229; N10394 (26 July 2023)

N10394

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE ]

WS NO. 60 OF 2017

BETWEEN
JOSEPH MEK
Plaintiff

AND
JOE KUMI
First Defendant

SAI HAGUAI, Officer in Charge – Togoba Health Centre
Second Defendant

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mount Hagen: Collier J
2023: 6^th July

MEDICAL NEGLIGENCE – implant of contraceptive device – resultant infection – resultant muscle atrophy and fibrosis – principles of medical negligence – vicarious liability – principles of assessment of damages

The plaintiff was the widower of a woman who had a contraceptive implant inserted into and removed from her left arm. The deceased suffered infection, and subsequently muscle atrophy and fibrosis in her arm. The deceased commenced a claim in negligence against two medical practitioners and the State as their employer, but died, from unrelated causes, before the case came to Court. Her husband was substituted as the plaintiff in the proceedings.

Held:

The Court held that the first defendant was under a duty to properly inform the deceased of risks associated with the procedures and to properly inform her of appropriate wound care. On the balance of probabilities that duty had been breached. The State of Papua New Guinea (the third defendant) as the employer of the first defendant was vicariously liable for the negligence of the first defendant. The Court found that the second defendant was not negligent. Total damages were assessed at K35,600.00, with interests, and costs following the event.

Cases Cited:

Papua New Guinean Cases
Burns Philp (NG) Ltd v George [1982] SC259
Cheong Supermarket Pty Ltd v Muro [1987] PNGLR 24
Dinogo v Motor Vehicles Insurance Ltd [2005] N2839
Koep v Kinipi [2021] N9853
Laki v Gawi [2018] N7146
Luana v Fleming [2022] N9819
Oka v Motor Vehicles Insurance Ltd [2001] N2122
Pomat v Consort Express Lines Ltd [2020] N8300
RD Tuna Canners Ltd v Sengi [2022] SC2232
Tirima v Angau Memorial Hospital Board [2005] PGNC 165
Yaman v Independent State of Papua New Guinea [2022] SC1942

Overseas Cases
Power v Bernard Hastie & Company Ltd [2022] EWHC 1927 (QB)
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Strempel v Wood [2005] WASCA 163

Legislation
Claims By and Against the State Act 1996
Constitution of the Independent State of Papua New Guinea
Judicial Proceedings (Interest on Debts and Damages) Act 1962
Provincial Health Authority Act 2007
Wrongs (Miscellaneous Provisions) Act 1975

Counsel:
Mr O.P. Kewa, for the Plaintiff
No appearance by the Defendants’ Counsel.

26^th July, 2023

1. COLLIER J: INTRODUCTION: Before the Court is a Writ of Summons filed in the National Court of Justice at Mount Hagen on 6 February 2017 by Ms Namie Joseph (alias Naomi Joseph) (Writ of Summons).
   
2. Ms Joseph’s claim was against:
   
   • (1) The first defendant, Joe Kumi – a health worker working with the Western Highlands Provincial Health Authority, and based in Mount Hagen;
   • (2) The second defendant, Sai Haguai – the Officer in Charge of the Togoba Health Centre (Health Centre); and
   • (3) The third defendant, the Independent State of Papua New Guinea.
     
3. Ms Joseph sought the following relief:
   
   15. The Plaintiff spent monies which incurred costs were necessarily and reasonably incurred.
       

Particulars of out of pocket expenses

a) hospital/medical bills

b) transportation costs/bus fares

c) Legal advice

16. In the absence of any documented proof, a reasonable conventional sum of K600 is claimed.
    

And the Plaintiff seeks the following relief:-

1. General Damages for ;

a) Injuries, loss of amenities and suffering

b) Professional medical negligence.

c) Physical hardship, stress and inconvenience.

2. Special Damages (or out of pocket expenses as pleaded above).

3. Interests pursuant to Statute.

4. Costs of an incidental to this proceeding.

5. Such other orders the as the Court deems appropriate.

4. It was alleged that the first defendant owed a duty of care to Ms Joseph during and after the insertion of a contraceptive implant in her left arm on or around 20 January 2014 as a choice of family planning. It was also alleged that a duty of care was owed to Ms Joseph when the implant was removed by the first defendant, and when she was later treated for infection by the second defendant. Ms Joseph alleged that the first and second defendants were negligent in breaching the duty of care owed to her, and that the third defendant was vicariously liable for the acts and omissions of the first and second defendants.
   
5. On 26 October 2018 Ms Joseph passed away aged 30 years old. Her death certificate, which was annexed to the affidavit of her husband, Mr Joseph Mek filed 21 October 2019, lists her cause of death as cardiopulmonary arrest. The Writ of Summons before the Court does not plead that any conduct of the defendants contributed in any way to her ultimate death.
   
6. On 21 October 2019 Ms Joseph’s solicitor filed a notice of motion seeking the following orders:
   
   1. Pursuant to Section 155 (4) of the Constitution, Order 1 Rule 7, Order 12 Rules 1 of the National Court Rules, requirement for substitution of parties within three (3) months stipulated under Order 5 Rule 12 be dispensed with.
      
   2. Pursuant to Order 5 Rules 10 and 11 of the National Court Rules, the Plaintiff, now deceased by substituted by her surviving husband, Joseph Mek.
   3. No order as to costs.
   4. Time be abridged forthwith.
   5. Such further Orders as the Court deems appropriate.
      
7. On 7 August 2020 the National Court ordered:
   

1. Joseph Mek be substituted in place of Naomi Joseph as a Plaintiff.

2. The matter is adjourned to 20^th August 2020 for listing.

8. It follows that although the proceedings were originally commenced by Ms Joseph, the plaintiff is now her widower, Mr Mek.
   
9. Evidence in the proceeding was given by affidavit. No witnesses who gave affidavits in this proceeding were cross-examined at the final hearing.
   
10. Mr O.P. Kewa, Counsel for the plaintiff, appeared before me at the National Court in Mount Hagen on 4 July 2023.
    
11. Neither Counsel for the defendants, nor the defendants themselves, attended the hearing.
    
12. On 26 June 2023, Eliakim AJ ordered, among other things that:
    
    2. The Plaintiff to immediately file and serve Notice of Trial no later than 27 June 2023 and file an Affidavit of Service no later than 30 June 2023.
       
13. Mr Kewa advised the Court that service had been effected on the office of the Solicitor General representing the defendants on 26 June 2023, however the affidavit of service had not been filed due to his filing clerk not being present to sign the affidavit of service.
    
14. Mr Kewa handed up a signed acknowledgement of service form to the Court, which I marked for identification.
    
15. I am satisfied that the defendants’ lawyers were aware of the hearing, and did not attend. The defendants did not file written submissions in the proceeding.
    
16. Mr Kewa failed to provide oral submissions of any substance on 4 July 2023. On his application, I ultimately gave leave to Mr Kewa to file written submissions to assist the Court in this proceeding by 10.00am on 5 July 2023.
    
17. Mr Kewa tendered a number of affidavits which were marked as exhibits. I shall turn to these affidavits later in this judgment.
    

BACKGROUND

18. Ms Joseph was from Telga Village in the Lower Nebilyer District of Western Highlands Province.
    
19. At the relevant time, the first defendant was working at the Health Centre, outside of Mt Hagen.
    
20. The second defendant was the officer in charge of the Health Centre and was responsible for the administration of the Health Centre including the control of the staff and their discharge of duties to patients attending the Health Centre.
    
21. The plaintiff alleged negligence on the part of the third defendant pursuant to:
    

s 247(2) of the Constitution of the Independent State of Papua New Guinea;

Chapter 30, s 2 of the Claims By and Against the State Act 1996; and

Chapter 279, s 1 of the Wrongs (Miscellaneous Provisions) Act 1975.

22. It is clear that, at all material times, the first and second defendants were servants or agents of the third defendant pursuant to s 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act 1975.
    
23. On or around 20 January 2014, Ms Joseph attended the Health Centre where an implant was inserted into her left arm by the first defendant as a family planning choice. It is not in dispute that, at that point, Ms Joseph had given birth to six children.
    
24. The Writ of Summons pleaded that, a few weeks later, Ms Joseph developed complications, and upon her return to the Health Centre the implant was removed by the first defendant. The defendants did not dispute that the implant was removed at the Health Centre by the first defendant, although it was the defendants’ case that the implant was not, at the time of removal, infected.
    
25. The plaintiff further pleaded that complications developed in respect of Ms Joseph, namely:
    

numbness;

infections; and

discolouration of the skin around the region of the implant.

26. In or around March 2014 (in the defendants’ case, three to four weeks after the implant was removed), Ms Joseph was admitted as an outpatient at the Health Centre and was treated for infection by the second defendant. Ms Joseph was given IV antibiotics, and according to the defendants, her condition improved on the medication and she was discharged home.
    
27. The defendants argued that Ms Joseph was told to return for review, but never did.
    
28. The plaintiff alleged that Ms Joseph’s condition worsened.
    
29. On or around 5 February 2015, Ms Joseph attended the Mt Hagen General Hospital and was examined. The plaintiff claimed that the examination revealed that the complications were a direct result of the implant administered to Ms Joseph by the first defendant.
    
30. The plaintiff’s notice of intention to make a claim against the State and its agents and servants was given to the Solicitor General’s Office on 14 September 2016 in a letter dated 12 September 2016 pursuant to an order for extension of time granted by the National Court on 9 September 2016 in OS No 306 of 2016 – Namie Joseph v The State.
    
31. On 6 February 2017 Ms Joseph filed the Writ of Summons.
    
32. On 30 May 2017 the defendants’ filed a Notice of Intention to Defend. The Defence was also filed on 30 May 2017.
    

SUBMISSIONS AND EVIDENCE

Plaintiff

Writ of Summons

33. In the Writ of Summons, the plaintiff alleged the following particulars in relation to the duty of care owed to Ms Joseph:
    

(a) Duty to properly insert the implant on the medical aspect of the left arm.

(b) Duty to promptly evaluate and assess the Plaintiff’s condition before removing the implant.

(c) Duty to administer appropriate treatment and care to ensure no infection occurred after the removal of the implant.

(d) Duty to ensure or take prompt earlier intervention to avoid complications.

(e) Duty to make prompt referral of the Plaintiff to seek further medical advice or treatment when the [infections] persisted and or developed further.

(f) Duty to discharge a high degree of professional medical care and administration to the Plaintiff.

(g) Duty to discharge a high degree of due care and attention to the Plaintiff.

34. The plaintiff alleged the following particulars in relation to negligence:
    

(a) Failed to properly insert the implant on the medical aspect of the left arm.

(b) Failed to promptly evaluate and assess the Plaintiff’s condition before removing the implant.

(c) Failed to administer appropriate treatment and care to ensure no infection occurred after the removal of the implant.

(d) Failed to ensure or take prompt earlier intervention to avoid complications.

(e) Failed to make prompt referral of the Plaintiff to seek further medical advice or treatment when the [infections] persisted and or developed further.

(f) Failed to discharge a high degree of professional medical care and administration to the Plaintiff.

(g) Failed to exercise a high degree of due care and attention.

35. As a result of the alleged negligence of the defendants, the plaintiff claimed that her condition deteriorated.
    
36. The plaintiff alleged Ms Joseph was, “pragmatically rendered useless as she [was] unable to attend to all her household chores” and that as a result, her family lost the support, care and help of Ms Joseph which was previously exclusively rendered to them by Ms Joseph in her natural life.
    

Affidavits

37. The plaintiff relied on the following affidavit evidence:
    

affidavit of Ms Joseph filed 25 August 2017;

affidavit of Dr Tone Wakil filed 24 November 2017;

affidavit of Mr Joseph Mek filed 21 October 2019; and

affidavit of Mr Joseph Mek filed 30 November 2020.

Affidavit of Ms Joseph

38. Ms Joseph deposed, in summary:
    

In 2012 she gave birth to her sixth child and visited the Health Centre for family planning. She was put on contraceptive (“Depo”) injections, but was advised that an implant was best.

On 20 January 2014, she attended the Health Centre and filled in the necessary forms. She was given a local anaesthetic and the implant was inserted in her left arm.

A few weeks later she developed complications and upon return to the Health Centre, the implant was removed.

Over the following months, she developed numbness and further complications and the insertion site developed infections with discolorations of the skin of her left hand

39. Annexed to Ms Joseph’s affidavit was a letter from Dr Clive Wurr of the Mt Hagen Hospital dated 5 February 2015. It is unclear to whom the letter was addressed:
    

Re: Naomi Joseph with Volkmann’s Contracture of the left upper limb

The above patient had been visiting the Togoba Health Centre regularly for family planning since 2012. She had been getting Depo injections. On the 20^th January 2014 after discussing with one of the Health Workers at Togoba she decided to have the Family Planning implant. She was given local anaesthetic and the Implant was inserted on the medical aspect of the left arm.

However, she did this without the consent of the husband who found out a month later and was unhappy about the Implant. He demanded that she remove the implant so in March 2014 she presented again to Togoba to have the implant removed.

After the implant was removed the wound where the implant was removed became infected. She was treated with antibiotics, but she developed sever swelling and blackish discoloration of the limb distal to the implant wound. She was admitted to the Togoba health centre and treated with IV antibiotics and had physiotherapy. The infection improved on antibiotics and the discoloration also improved.

However, she now has muscular atrophy of all the extensor and flexor muscles of the affected forearm. She is unable to use her left upper limb as a result. The left upper limb has very minimal function left. She presented to AOPD in Hagen where she was seen and assessed to have Volkmann’s contracture.

Volkmann’s contracture is due to fibrosis of the muscles due to muscle ischemia. Most likely in this instance the injection or the resulting infection may have impaired the blood supply to the distal limb and caused limb ischemia.

The current disability is permanent and she is unlikely to regain full use of her affected limb.

For your information and perusal.

(errors in original)

40. Also annexed to the affidavit of Ms Joseph was a letter from the first defendant to Mr Philip Talpa, Deputy Director – District Health Services, Public Health Directorate, Western Highlands Health Authority dated 24 February 2015.
    
41. This letter read:
    

Subject: Incident Report on Inserting Implant.

In every Health Facility, many procedures are carried out to help the client who comes to the facility to seek different types of health services that different heath workers provided.

During the processes of providing the services before or after, the incidents do occur once in every one hundred or once in every one thousand procedures that the health workers performed.

Hence, here at Togoba Health Centre, I was certified to do vasectomies, iuds and implants without fear or favour but to serve the needy clients who seek these services as well as other services too. I do performed the above three procedures at Togoba health centre since 2012.

The procedure is sterile where we normally picked up the sterile trays at the Marie Stopes at Mt. Hagen. The procedure is done through group, individual and couple counseling and then followed by signing the consent forms from both partners.

As for the above clients (Naomi Joseph ) was on Depo as a choice of family planning since 2012.

In January 2014, she decided to change from Depo to implant family planning so we told her to seek consent from her husband and advised her to come back to the centre with her husband for procedure.

However, on the 20^th January 2014, she presented herself to the centre to sign the consent form and told me that her husband agreed so the procedure was done after she signed the consent form (refer the client signed consent form attached).

No further complains raised after the procedure until some weeks later some weeks later came complaining of pain at the site of the implant inserted but on examination no swelling and infection so advised to do exercise at home.

In March 2014, she came to the health centre complaining of numbness to he left hand and unable to hold things (objects) so the implant was removed.

She later developed discoloration of the skin and was admitted to the ward (Togoba h/c) and was treated with iv antibiotics and improved on the medication so she was discharged home and advised to review but never returned for review till now presenting to us letter and Medical report from the Hagen hospital Doctor.

Therefore, the procedure was done to every woman who wants it and it was done without fear or favour after the consent form was signed thinking that it will help in spacing her children.

(errors in original)

42. Finally, annexed to the affidavit of Ms Joseph was a letter from Mr Onggoglo Palma, District Health Officer, Tambul Nebilyer District to Mr Talpa dated 11 March, 2015. This letter read:
    

This patient was called in to Togoba with her husband and a village elder was reviewed again

The left affected hand is still weak and wasted due to lack of exercise although she was able to move fingers and elbow and shoulder joint with some degree of acute pain.

The Officer (Mr Joe Kumi) who performed the procedure is a trained and qualified officer who has been inserting a lot of implant for birth spacing purposes while working with Marie Stopes and for almost two years when recruited to public service under WHPHA.

Mr. Joe Kumi had followed the pre-procedural counseling and signing of consent form before the actual procedure was carried out on the 20^th January 2015.

The implant was successfully inserted and the client returned home but retuned after some weeks later complaining of pain on the site of the implant insertion.

The insertion site was examined but found no deformities, she was advised to return home and exercise her arm but to that extend she further developed numbness of her left and returned for removal of the implant and removed in March, 2014.

The client further developed infection on the insertion site with discoloration of the skin of her left hand. This got resolved with IV antibiotics as an inpatient at Togoba HC.

The provider had done his best to assist the client who has 6 children by reducing maternal risk factors by introducing long acting birth control contraceptive method.

The procedure was done legally with the consent of the client and not illegally as claimed by the husband.

We sympathize with Mrs Nomi Joseph and family for this very rare and unexpected side effect/complication from the implant insertion.

Refer to attached Incident Report compiled by Mr. Joe Kumi and Client Consent form signed by client with finger print and witnesses.

(errors in original)
Affidavit of Dr Tone Wakil

43. Dr Wakil deposed, in summary:
    

At the time he was a medical doctor by profession.

On 14 September 2017 he wrote a medical report in letter format about Ms Joseph.

44. The medical report was annexed to Dr Wakil’s affidavit and read:
    

SUB: MEDICAL REPORT: MS. NAOMI JOSEPH – LEFT HAND DEFORMITY

This is to certify that the above patient was seen at this clinic today for this medical report.

This patient apparently has sustained a severe bacterial infection three years ago over the left arm after a surgical procedure was carried out at a public health facility to insert birth control device. The device was later removed again at about the same time, but the surgical wound got infected.

After intensive medical treatment a lot wound care the infection has been controlled and the wound has healed with a permanent deformity of the left hand.

On examination today there is gross weakness of the left upper limb from the elbow down to the forearm and hand.

There is atrophy of all muscles of the arm, forearm and hand on the left side. Neurological examination of the limb shows absent sensation to touch from the elbow down to the forearm and hand. The muscle bulk and power is permanently reduced to one out of five (1/5) in the left hand.

SUMMARY.

A surgical procedure done on the left arm has led to bacterial infection. This has affected the nerves and muscles in the limb.

The patient now has a permanently deprived left hand.

She is awarded a one hundred percent (100%) permanent functional loss of the left upper limb.

45. Dr Wakil has passed away. This was confirmed by an affidavit of confirmation of Dr Fred Wurr filed on 19 October 2022.
    

Affidavits of Mr Mek

46. In his affidavit filed 21 October 2019, Mr Mek deposed in summary:
    

He was the husband of Ms Joseph.

At 12.00pm on 26 October 2018 Ms Joseph passed away.

Before Ms Joseph passed away, she asked Mr Mek to pursue this matter for the interests of her children.

As he is next of kin according to local customs and laws as a surviving spouse, he would like to substitute the deceased in prosecuting her matter.

He was advised by his lawyer that time within which to apply for substitution had lapsed.

With regard to delay, he is a villager and had no knowledge about the time limit and did not talk to his lawyers for some time and the matter was sitting idle at the Registry for some time.

He did not inform his lawyers of the death until the lawyer with carriage of the matter requested his deceased wife to provide more instruction as to the filing of an affidavit in compliance with the Court Endorsed Consent Directions issued on 24 September 2019.

He requested the Court to exercise its discretion and grant the orders sought in his Notice of Motion.

47. In his affidavit filed 30 November 2020, Mr Mek deposed, in summary:

He requested the leave of the Court to rely on the affidavit filed by Ms Joseph on 24 August 2017.

Ms Joseph and he had six children. One child passed away as well as his wife and he is left with five children surviving.

In or around 2012, Ms Joseph gave birth to their sixth child and visited the Health Centre for family planning where she was injected with Depo injections as a choice of family planning, as opposed to a family planning implant.

On or around 20 January 2014, he and Ms Joseph attended the Health Centre and an implant was inserted on his wife’s left arm as a choice of family planning after the birth of her sixth child in 2012.

A few weeks later, Ms Joseph developed complications, and upon return to the Health Centre, the implant was removed.

Over the months, further complications developed such as numbness, infections and discoloration of the skin of Ms Joseph’s left arm around the region of the implant.

Consistent medical treatment was received with the advice being that Ms Joseph would gradually recover from the complications. Instead of recovery, the complications worsened.

On or around 5 February 2015, Ms Joseph attended Mt Hagen General Hospital and was examined which revealed that the complications were caused as a direct result of the implant done by the first defendant.

Therefore, the first defendant owed a duty of care to his deceased wife during and after the implant was inserted in Ms Joseph’s arm as pleaded in the statement of claim filed 6 February 2017.

Mr Mek particularised the duty of care and negligence as in the Writ of Summons.

48. On 5 July 2023 the plaintiff filed submissions in this proceeding. The plaintiff submitted, in summary:
    

The first defendant advised Ms Joseph that the implant was better than Depo injections and allowed her to fill in the necessary consent form without proper counselling. There was no evidence that there was proper counselling before Ms Joseph signed the consent form. The plaintiff submitted that Ms Joseph was lured into signing the consent form without proper counselling.

The first and second defendants owed a duty of care to Ms Joseph and were required to exercise reasonable skill and judgment, taking into account all the circumstances in which they were working. The first and second defendants were required to follow standard and accepted medical practices and procedures.

The first defendant illustrated the implant procedure in his evidence, but there was no evidence or record that he followed the implant insertion guidelines.

The first and second defendants did not exercise reasonable care and diligence during the implant insertion and removal and as a result, Ms Joseph experienced complications, numbness, infection and discoloration of the skin of the left hand.

The implant was not properly done in accordance with the implant insertion guidelines and as a result, Ms Joseph suffered complications to her left hand from the time of implant insertion to the time of implant removal and up to when she filed the Writ of Summons.

The first and second defendants breached their duty of care on various occasions including the following:

1. The First Defendant failed to conduct proper counseling (sic) before advising the plaintiff that the implant was better than depo injection and as a result the Plaintiff signed the consent form to undergo the implant insertion.
2. The First Defendant failed to properly insert the implant in accordance with implant insertion guidelines.

100. The Second Defendant failed to make prompt referrals for the Plaintiff to seek further medical advice or treatment when the infections persisted and or developed at the time of insertion of implant and removal thereafter.
     

The first and second defendants owed a duty of care to the plaintiff. They breached that duty of care, therefore liability should be found as against the first and second defendants and the third defendant should be held vicariously liable for their actions.

General damages awarded in the following medical negligence cases ranged from K100,000.00 to K200,000.00: Jack v Mola [2008] N3537 and Kunong v Paradise Private Hospital Ltd [2022] N9698.

General damages for injuries, loss of amenities and suffering, professional medical negligence, physical hardship, stress and inconvenience should be assessed at K70,000.00.

K600.00 should be awarded as special damages for out of pocket expenses in the absence of documentary proof as pleaded in the statement of claim.

Interest on the above damages at the rate of 8% per annum should be added to the judgement.

The defendants should pay the costs of the plaintiff’s proceeding including all costs previously ordered to be paid by the defendants.

The award of damages should be paid to the following deponents:

Defendant

49. The nature of the case of the defendants, and the evidence on which they rely, is unclear in circumstances where they made no appearance at the hearing and filed no submissions.
    

Defence

50. On 30 May 2017 the first, second and third defendants filed a combined Defence.
    
51. In relation to vicarious liability, the defendants alleged:
    
    • (1) The plaintiff failed to name and plead a nexus between the direct employer of the first and second defendants pursuant to s 9(2)(c) of the Provincial Health Authority Act; and
    • (2) The third defendant was not vicariously liable for the acts and omissions of the first defendant which were outside his ordinary course of employment, scope of employment and not in accordance with the Constitution and other laws and any Standing Orders.
52. The defendants admitted that the implant was inserted in Ms Joseph’s arm at the Health Centre and that:
    

The first defendant inserted the implant on Ms Joseph’s left arm pursuant to the request of Ms Joseph and supported by the consent of her husband.

The first defendant followed all necessary and proper steps, procedures and insertion guidelines in relation to the insertion of the implant.

The implant was successfully and properly inserted.

53. The defendants denied that Ms Joseph developed complications and that a few weeks later the implant was removed at the Health Centre. Rather the defendants contended:
    

Ms Joseph did not develop complications and when she attended the Health Centre to remove the implant, it was at her husband’s request as he was not happy with their decision to have the implant inserted.

The first defendant saw and felt that the implant was visible and proceeded to remove the implant by following all necessary and proper steps, procedures and removal guidelines.

The implant was successfully and properly removed.

54. The defendants denied that further complications developed and that Ms Joseph’s condition worsened, despite alleged medical advice that she would gradually recover from the complications. The defendants alleged:
    

Three weeks after the implant was removed, Ms Joseph revisited the Health Centre, complaining of pain and discolouration of the left arm and forearm, and was attended to by the second defendant.

Ms Joseph was immediately admitted to the Health Centre and given the necessary care and medical treatment by the second defendant.

The second defendant discharged Ms Joseph and told her to return for a review, however she did not return for a review.

Ms Joseph subsequently took almost one year to attend the Mt Hagen General Hospital to seek medical attention.

The first and second defendants were surprised when they were notified through a letter from Dr Clive Wurr about Ms Joseph’s condition one year after she was discharged from the Health Centre. The defendants also criticised the reliability of Dr Wurr’s diagnosis, alleging that he was a relative of Ms Joseph.

55. The defendants admitted that the first defendant owed a duty of care to Ms Joseph but alleged that the first and second defendants observed and carried out their duties with professionalism and a high degree of care and attention to her.
    
56. The defendants denied that as a result of the defendants’ negligence Ms Joseph’s condition deteriorated, that she was rendered pragmatically useless and that her family lost her care and support because of the condition.
    
57. The defendants alleged that Ms Joseph was solely negligent and responsible/liable for her medical condition deteriorating and the damage she suffered. The defendants alleged that Ms Joseph owed a duty of care to the health, wellbeing and upkeep of her physical body. In particular the defendants claimed that Ms Joseph:
    

a) Failed to attend to a medical review as advised by the Second Defendant;

b) Delayed and waited for her condition to worsen before attending the Mt Hagen General Hospital 1 year after she was discharged from the Health Centre; and

c) Failed to take good and proper care of her own physical body by immediately seeking medical attention when she notice or feels her condition is deteriorating

(errors in original)

58. The defendants denied Ms Joseph’s claims of damage and for out of pocket expenses, and argued that, in addition to that already alleged and summarised above, Ms Joseph (and now the plaintiff) had the onus of proof.
    
59. Except where admitted, the defendants further denied:
    

a) Each and every allegation of fact made against them in the SOC;

b) That the Third Defendant is not vicariously liable for the First and Second Defendant’s acts or omissions if outside their scope of duties;

c) The plaintiffs are entitled to any loss, damages, or breaches in the Statement of Claim;

d) And any relief claimed in paragraph 16 of the SOC.

Affidavits

60. The defendants filed the following affidavit evidence:

affidavit of the first defendant filed 26 September 2017; and

affidavit of the second defendant filed 26 September 2017.

Affidavit of the first defendant

61. In his affidavit, the first defendant deposed, in summary:
    

He was the nursing officer employed by Western Highlands Provincial Health Authority and served at the Health Centre for, at that time, the last four years.

He was trained and certified as a specialised family planning officer.

The National Family Planning Policy (the Policy) states that the health sector in PNG must support couples and individuals to decide freely and responsibly on the number and spacing of children, including providing them with access to accurate information, education and counselling.

In compliance with the Policy he provided information and counselling on various family planning methods through the health centre, at clinical sites, in school and to the community at large.

It is up to the populace in the community, the family and the individual to decide whether to have more children and the services they require.

The first defendant has completed this procedure many times during his then 15 years of service. Whilst working for the WHP Health Authority, he had inserted 249 implants from February 2013 to September 2014. The first defendant had never encountered such implant complication reports as occurred in this instance.

Ms Joseph approached him at the Health Centre and enquired about changing from Depo to an implant after having six children. The first defendant advised her to come back with her husband to sign the consent form.

Ms Joseph came back and alleged that her husband had given verbal approval for the Ms Joseph to sign the consent form by way of finger print. Following this, the implant was inserted pursuant to implant insertion guidelines.

The process of insertion uses a sterile technique, ensuring equipment are sterile and that the infection prevention guidelines are followed.

The first defendant explained the insertion procedure in detail which included five steps. The final step was to provide post insertion instructions as follows:

➢ Fill out the two parts of user card (name of client, card no, date of insertion, and date of removal) and fix one part of the client records and give the other part to the client or record in the clients health record book.
➢ Instruct the client about wound care and discuss what to do if she experiences any problems or side effects following insertion.
➢ Inform the client that the two rods is effective for five years (jadelle) or four years (sino implant). We provides this information directly and in writing. We also let her know that she will need to use another method of contraception for the next seven days. If she is switching from another hormonal method or she immediately.
➢ Explain what to return and the need to replace the implants at the end of 5^th year (4the year of sino implant) if she wants to continue the method.
➢ Remind the client about dual protection for STI, including HIV.
➢ Explain the implant can be removed whenever the client wants but that needs to be done by a trained provider.
➢ Ask client to repeat the instructions provided and correct/ clarify as needed.
➢ Ask if she has any questions; thank her for choosing an effective contraceptive method.

After four weeks Ms Joseph’s husband was not happy with the implant. Ms Joseph returned to the clinic and asked the clinic to remove the implant. The implant was felt and seen visible and was removed pursuant to the removal guidelines.

The first defendant explained the removal procedure in detail which included two steps, namely: pre-removal and preparing the procedure site and providing local anaesthesia.

Following this, the first defendant received a copy of a letter of complaint and medical report from the OIC Togoba Health Centre. The first defendant wrote a statement of facts to the OIC Togoba Health Centre, District Health Extension Officer and Deputy Director District Health Services.

To his knowledge and understanding, the procedure requires sterile packaging to insert and remove implants. The incision is 2mm in size and infection may not relate to the wound infection because the wound healed well and had no pus, swelling and was not tender at the time of admission to the Health Centre. The infection claimed by Ms Joseph could be from something else.

There is a possibility that Ms Joseph might have tampered with the implant at home by trying to remove it or squeezing it.

The first defendant annexed what looked like a fact sheet about contraceptive implants. This annexure included “implant removal guidelines” which contained five steps. Relevantly, step five was the “post insertion instructions” which read the same as the final step in the insertion guidelines extracted above.

Affidavit of the second defendant

62. The second defendant deposed in summary:
    

He was the officer in charge of the Health Centre.

Medical staff at the Health Centre were working under the second defendant’s supervision and are widely educated, skilled and knowledgeable.

Ms Joseph and her husband approached the first defendant and made a formal implant request.

Ms Joseph signed the consent form and claimed that her husband gave verbal approval.

Ms Joseph’s husband later claimed that the implant was a mistake and requested that the implant be removed.

The implant was removed.

Some three weeks later Ms Joseph attended the Health Centre complaining of pain and discoloration of the left arm and forearm and was attended to by the second defendant. Ms Joseph was admitted to the Health Centre and the condition improved on treatment so she was discharged.

Ms Joseph was advised to return to the Health Centre for review.

Dr Clive Wurr is a family member of Ms Joseph, and consequently Dr Clive Wurr’s impartiality is questionable. Ms Joseph may need to be seen by a neutral Doctor to provide a neutral medical report.

The second defendant annexed certifications of the first defendant, Ms Joseph’s general admission notes dated January 2014, and various letters that were also attached to Ms Joseph’s affidavit.

63. The affidavit of the second defendant annexed a letter from Mr Joseph Mek to Mr Philip Keruwa, Assistant Secretary, District Health Services dated 9 February 2015. This letter read:
    

RE: PERMANENT LEFT HAND INJURY

Attached herewith for you please find a copy of the concerned patients covering letter from the undersigned Doctor.

I, the husband, Joseph facing big problems looking after my five children from her plus another six children from my divorced wife, digging kaukau, cooking and washing cloths and utensils etc...

I believe this problem, should not have come about on my wife and I put this matter as a failure of duty upon your Rural Health Worker.

I wish you to look into this matter as soon as possible and I will call you at your office with the patient (lady) at a later date so you will see it yourself.

Thank you for looking into this matter.

64. As mentioned above, the defendants did not provide written or oral submissions in this proceeding.
    

CONSIDERATION

Findings based on evidence before the Court

65. As a first step in considering the evidence before me, I find that the following occurred based on the facts contained in the affidavits relied on by the plaintiff and the defendant:
    

On 20 January 2014 Ms Joseph attended the Health Centre where the first defendant inserted the implant in Ms Joseph’s left arm.

In March 2014 Ms Joseph presented to the Health Centre whereby the first defendant removed the implant.

Ms Joseph’s wound was not infected before the removal of the implant.

After the removal of the implant, Ms Joseph’s wound became infected and she again presented to the Health Centre, was admitted as an outpatient and was treated with IV antibiotics. At this time, Ms Joseph was treated by the second defendant.

Upon this treatment being administered, Ms Joseph’s infection and the discoloration of her arm improved.

Following the treatment however, Ms Joseph experienced muscular atrophy and fibrosis of her left arm.

66. There is inconsistency in the evidence before the Court in relation to the following facts:
    • (1) why Ms Joseph wanted the implant removed;
    • (2) whether following removal of the implant, Ms Joseph’s infection worsened after the IV antibiotic treatment;
    • (3) whether Ms Joseph lost the use of her left arm;
    • (4) whether the loss of the use of Ms Joseph’s arm directly resulted from the insertion and subsequent removal of the implant; and
    • (5) whether the loss of the use of Ms Joseph’s arm directly resulted from the negligence of the first and second defendant.
67. To the extent that there was dispute between the parties as to whether Ms Joseph’s husband consented to her having the implant procedure, I consider that his views in this regard are irrelevant to the proceedings. It is unnecessary to have further regard to this issue.
    
68. I have placed particular reliance on the following evidence before the Court:
    

The letter from Dr Clive Wurr dated 5 February 2015;

The letter from the first defendant to Mr Talpa dated 24 February 2015;

The letter from Mr Palma to Mr Talpa dated 11 March 2015;

Dr Wakil’s medical report contained in his affidavit filed 24 November 2017; and

The letter from Mr Mek to Mr Keruwa dated 9 February 2015.

69. The defendants submitted that the Court ought not have regard to evidence of Dr Clive Wurr because they alleged that he was a relative of Ms Joseph. This allegation is not substantiated. However, even if he was a relative of Ms Joseph, the defendants have not persuaded me that Dr Clive Wurr’s evidence should be discounted because of issues of bias or other matters of credibility.
    
70. From this evidence, and the affidavits before the Court, I consider that, on the balance of probabilities, the following occurred:

Ms Joseph wanted the implant removed, but for reasons of her own, and not because the wound referable to the implant was infected. The implant was removed in March 2014 by the first defendant at the Health Centre.

Upon removal of the implant, the wound on Ms Joseph’s left arm became infected. She attended the Health Centre three to four weeks after the implant was removed and was treated with IV antibiotics. Ms Joseph’s infection appeared to improve at this time.

However, due to the initial infection and/or complications following the treatment of the infection, Ms Joseph suffered lasting damage to her left arm.

The disability suffered by Ms Joseph was permanent. Ms Joseph was assessed by Dr Clive Wurr on 5 February 2015, who concluded that she was unlikely to recover the use of her limb, and that she had muscular atrophy of her left forearm.

Ms Joseph received further medical advice on 14 September 2017. The medical report of Dr Wakil stated that the surgical procedure on Ms Joseph’s left arm lead to a bacterial infection, which in turn affected the nerves and muscles in that limb. As a result, Ms Joseph had a permanently deprived left hand. Dr Wakil concluded that Ms Joseph had a 100% permanent functional loss of her left upper limb.

From around March 2014 until Ms Joseph’s death on 26 October 2018, Ms Joseph and her family suffered damage due to her disability and the plaintiff himself suffered damage by not having his wife’s assistance in caring for their children due to her disability.

Legal principles

71. The parties agreed that the legal issues for the Court’s consideration were:
    

1. Whether or not there was a duty of care owed by the first and second defendants to the plaintiff to hold the Third Defendant liable?

2. Whether or not the Defendants breached the duty of care?

3. If answer to issue #2 is yes, what are the Plaintiff’s loss and damages?

72. Principles of negligence are well-settled. As the Supreme Court observed in Yaman v Independent State of Papua New Guinea [2022] SC1942:
    
    43. Negligence is a common law principle which we have adopted that is based on the notion of conduct that is injurious to a neighbour. It revolves around what a reasonable person should or should not do that might result in harm or injury suffered by his neighbour. For a claim in negligence to constitute an actionable wrong four (4) essential elements must be pleaded in the SoC ; that the defendants owed a duty of care to the plaintiff, the defendants breached that duty of care, the breach of duty had caused injury or harm to the plaintiff and the plaintiff suffered harm or loss.
        
    44. In Michael Kuman v Digicel (PNG) Ltd (2019) SC1851 the Supreme Court in discussing the constituent elements of the tort of negligence explained:
        

63. The tort of negligence is an English common law claim founded on the principle of duty of care. This principle has long been adopted and applied in our jurisdiction. It has its genesis in the much-celebrated English Court of Appeal case Donoghue v Stevenson [1932] AC 562.

64. To establish a cause of action based on negligence, a plaintiff is required to prove four elements –

1. duty of care;

2. breach of the duty;

3. causation of the injury or harm;

4. damages or loss suffered.

65. Generally speaking, when a person is injured as a result of the careless or negligent act of another, the careless or negligent person will be legally liable for any resulting harm or injury sustained by the other person.

66. To succeed in a claim of negligence , the plaintiff must prove that the defendant acted carelessly or negligently by adducing credible evidence showing that –

1. the defendant owed a legal duty of care to the plaintiff in the circumstances of the case;

2. the defendant breached that legal duty by acting or failing to act in a certain way;

3. it was the defendant’s action, inaction or omission to act that in fact caused the plaintiff’s injury; and

4. the plaintiff was harmed or injured as a result of the defendant’s action.

73. Medical negligence in this jurisdiction is not a well-developed area of law. I note the following statement of Cannings J in Tirima v Angau Memorial Hospital Board [2005] PGNC 165:
    

This is a common law action for negligence, brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). There is no Papua New Guinea case law that provides precedent on how this case is to be resolved. In many other countries medical negligence is a burgeoning area of law. But that seems not to be the case in Papua New Guinea; at least as far as giving rise to decided cases and judgments which set out the principles of law applicable. Neither counsel was able to provide the Court with any local precedent. My own research revealed only one.

In Gima Oresi v Chris Marjen and The State (1998) N1784, Woods J awarded damages of K23,042.20 to a woman who brought a claim for medical negligence against the chief executive officer of the Port Moresby General Hospital and the State as owner and operator of the hospital. The plaintiff underwent an operation for acute appendicitis but the doctors who performed the operation left two gauze swabs in her abdomen, causing severe pain and discomfort. She had to have another operation. That was a clear case of negligence, and his Honour did not address what a plaintiff needs to prove to establish a cause of action.

74. It appears that since 2005 there has been increasing litigation in respect of claims of medical negligence. Recently, in Luana v Fleming [2022] N9819, Justice Batari summarised the principles relating to medical negligence as follows:
    
    31. The common law position on duty of a medical practitioner and the degree of care owed by a medical practitioner to his patient was stated in R v Bateman [1925] 94 LJKB 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 .”

32. In the context of the case before this Court, the case of Kembo Tirima v Angau Memorial Hospital Board and the State (2006) N3106 proposed the following in determining the issue of liability:
    1. That defendant owed a duty of care to the Plaintiff or the person in whose stead the plaintiff is suing.
    2. That Defendant breached that duty - i.e., by act or omission the defendant’s conduct was negligent.
    3. That Defendant’s negligent conduct caused injury to the person.
    4. That the person’s injuries were not too remotely connected to the defendant’s conduct.
    5. That the plaintiff had not contributed to his or her injuries, e.g., by being contributorily negligent or voluntarily assuming the risk of injury.
       
75. It was not in dispute that the first and second defendants owed the plaintiff a duty of care.
    
76. The first defendant inserted and removed the implant and the second defendant treated Ms Joseph for infection.
    
77. The first defendant admitted in his affidavit that he possessed special skills and knowledge, namely, was a qualified nursing officer specifically trained and certified as a specialised family planning officer and qualified to conduct vasectomies and insert intrauterine devices and implants.
    
78. The defendants did not appear to dispute that the second defendant was the officer in charge of the health centre and was immediately responsible for the administration of the health centre including the control of the staff and the discharge of their duties to patients.
    
79. Accordingly, I am satisfied that:
    

the first defendant owed a duty to Ms Joseph to use diligence, care, knowledge, skill and caution in inserting and removing the implant in Ms Joseph’s arm; and

the second defendant owed a duty to Ms Joseph to use diligence, care, knowledge, skill and caution when treating Ms Joseph for infection and discharging Ms Joseph from the Health Centre.

80. What was in dispute, was whether the first and second defendants breached their duty of care owed to the plaintiff.
    

Breach

81. The plaintiff bears the onus of proof in establishing his case. As Kariko J observed in Koep v Kinipi [2021] N9853:
    

A basic rule in litigation is that the party who asserts must prove it; Shaw v Commonwealth of Australia [1963] PNGLR 119 and Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, and the standard of proof in civil litigation is on the balance of probabilities.

82. As I have already observed, the defendants have filed limited evidence and have not filed submissions.
    
83. The evidence before the Court is that Ms Joseph signed a consent form before undergoing the procedure of having the implant inserted in her left arm.
    
84. The second defendant annexed a copy of the general admission notes of Ms Joseph. At the end of this form is a section, “client consent”. Here, Ms Joseph consented, by way of fingerprint signature, to undergo an “implant” procedure. The client consent section had the following statement about the procedure:
    

The nature and effect of which, including the indications, benefits, alternatives and potential complications, have been explained to me by the doctor, and have been outlined in detail to me in the procedure specific consent form.

85. Neither the plaintiff nor the defendants provided a copy of the “procedure specific consent form”.
    
86. Further, there is no evidence that Ms Joseph signed a consent form before having the implant removed. As a general proposition, it must surely be the case that a separate consent by Ms Joseph was required for the separate surgical procedure of implant removal.
    
87. In circumstances where procedure specific consent forms signed by Ms Joseph have not been provided to the Court, I am unable to reach any conclusions as to the contents of such forms.
    
88. In Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 the High Court of Australia set out the following principles:
    

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.

(emphasis added, footnotes omitted)

89. These principles were further elaborated in Strempel v Wood [2005] WASCA 163 where McClure JA at [28] observed :
    

In some circumstances questions as to reasonableness of a conclusion or conduct are a matter of common sense: Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 at 275-276.

Failure to warn of the risks

90. As a general proposition, failure to warn a patient of inherent risk in a medical procedure is a factor to be taken into consideration in determining whether the medical practitioner has breached the duty of care owed to the patient.
    
91. In the case before me, there is no evidence at all that any risks inherent in the procedures were explained to Ms Joseph. Equally, there is no evidence that Ms Joseph would have proceeded with the procedures even if the risks had been explained to her. Taking into consideration Ms Joseph’s position as a stay at home mother, caring for six children, and running a home, I consider it reasonable to infer that, if Ms Joseph had she been warned of the risk of infection and the subsequent muscle atrophy, she would likely have attached significance to it.
    
92. I am further satisfied that the first defendant, having spoken to Ms Joseph prior to her having the implant inserted, would have or should reasonably have been aware that if Ms Joseph was warned of the risks of infection, she would have attached significance to it.
    

Treatment for infection

93. The second defendant treated Ms Joseph for infection by administering IV antibiotics. The second defendant deposed in his affidavit that Ms Joseph revisited the Health Centre complaining of pain and discoloration of the left arm and forearm, and was attended by the second defendant. The second defendant deposed that Ms Joseph was admitted to the Health Centre, that her condition improved on treatment, and she was discharged home.
    
94. There is no evidence before the Court of any:

medical notes from this visit;

consent signed for the IV antibiotic treatment;

discharge notes from the treatment and admission;

information given to Ms Joseph about the infection.

95. Such evidence as is before the Court was that the infection improved following the treatment by the second defendant. On the balance of probabilities, and on the limited evidence before me, I do not consider that the plaintiff has substantiated his claim against the second defendant that the second defendant breached the duty of care he owed Ms Joseph when he treated her for infection following the removal of the implant.
    

Foreseeability

96. I consider that it is reasonable to infer that there is always a prospect of infection after any surgery. I consider that this is even more significant in circumstances where Ms Joseph lived in a village, potentially with limited urban utilities, and may not have had access to medical equipment to clean her wound or water to clean the wound and prevent infection. I am satisfied that the risk of infection leading to muscle atrophy was real and foreseeable: see Burns Philp (NG) Ltd v George [1982] SC259.
    

Failure to advise how to properly care for the wound

97. In circumstances where a wound is not properly cared for, there is an increased risk of infection. Plainly, the cost of avoiding this risk could have been reduced had the first defendant unequivocally and adequately advised Ms Joseph (in the context of her personal circumstances in the village) how to properly care for the wound, to ensure that it did not get infected, or had told Ms Joseph to immediately return to the Health Centre upon any medical signs of infection. I also consider it common sense that the first defendant should have prescribed an antibiotic or at least antiseptic treatment for Ms Joseph to use upon her return to the village to reduce the risk of infection. There is no evidence that this occurred.
    
98. I note that the first defendant deposed in his affidavit as to proper procedures which are standard practice including wound care. The first defendant referred generally to the implant insertion guidelines and deposed that, “the implant was inserted or performed following the implant insertion guidelines”. The first defendant deposed that, “the implant was felt and seen visible so removed according to the removal guidelines”.
    
99. Step five of the guidelines was to provide post insertion instructions which included:
    

Instruct the client about wound care and discuss what to do if she experiences any problems or side effects following insertion.

100. Such evidence was not specific to Ms Joseph’s case and the first defendant failed to produce medical records or notes from Ms Joseph’s surgeries to indicate that he either told her about the risks associated with the surgeries or advised her on how to care for her wound appropriately in her circumstances. The plaintiff submitted that Ms Joseph was “lured” into signing the consent form on the basis that she was informed by the first defendant that the implant was better than Depo injections, and that there was no evidence of proper counselling of Ms Joseph before she signed the consent form. The allegation of “luring” is somewhat theatrical, however ultimately, I am not satisfied that Ms Joseph was adequately informed of the risks of the procedure by the first defendant.
     
101. Step five of the implant insertion guidelines also stated:
     

Fill out the two parts of user card (name of the client, card no., date of insertion, and date of removal) and fix one part of the client records and give the other part to the client or record in the clients health record book.

102. The defendants have not adduced into evidence any specific client records referable to Ms Joseph, which would have supported their case, or which would potentially have answered the plaintiff’s claim. In RD Tuna Canners Ltd v Sengi [2022] SC2232 Salika CJ and Berrigan J observed :
     
     91. ... Where a party fails to produce evidence which they would be expected to rely on in support of its case, and the party fails to provide an adequate explanation for the absence, a decision maker may infer that the evidence would not have assisted the case of that party, or it may draw with greater confidence an inference that is unfavourable to that party, provided that such an unfavourable inference can be drawn from other evidence in the case: Jones v Dunkel.
     92. The rule cannot, however, be used to fill gaps in the evidence or convert conjecture and suspicion into inference. There must be an evidentiary basis for any such inference: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [53].

(emphasis added)

103. Either the defendants have chosen not to produce medical records specific to Ms Joseph for a specific reason unfavourable to them, or the medical records were not kept. If records were not kept, a failure to keep adequate records is a factor that I must weigh in the balance when determining if the first defendant breached the duty of care owed to Ms Joseph.
     

Conclusion on breach

104. I accept that infection can occur even where the medical practitioner may not have been negligent. However, I conclude, critically, that the first defendant did not:
     

Adequately explain the risks of the surgery to Ms Joseph to enable her to give informed consent to the relevant procedures; and

Did not explain how to appropriately mitigate and manage any potential risks of infection.

105. Finally, I note the social utility in the service that the first defendant is undertaking. However, to the extent that there are risks associated with such procedures, it is vital that patients be appropriately informed and instructed on the risks of surgery and proper post-surgery care, and that guidance on post-surgery care be specific and adequate to the patient’s circumstances.
     

Causation

106. As Cannings J explained in Laki v Gawi [2018] N7146:
     

23. The causation issue can be resolved by asking the simple question:

Would the deceased have died but for the negligent conduct of Dr Gawi?

(See generally J G Fleming, The Law of Torts, 5th edition, Law Book Company, pp 179-182.)

107. On the evidence before the Court, I am satisfied that the Ms Joseph’s condition and the loss of her left limb was the direct result of the negligence of the first defendant when removing the implant from Ms Joseph’s arm in 2014 and that, but for the surgery removing the implant, Ms Joseph would not have lost the functional use of her left arm.
     
108. In the letter from Dr Clive Wurr dated 5 February 2015, Dr Wurr states:

Volkmann’s contracture is due to fibrosis of the muscles due to muscle ischemia. Most likely in this instance the injection or the resulting infection may have impaired the blood supply to the distal limb and caused limb ischemia. The current disability is permanent and she is unlikely to regain full use of her affected limb.

109. In addition, in the medical report annexed to Dr Wakil’s affidavit, Dr Wakil concluded:
     

A surgical procedure done on the left arm has led to bacterial infection. This has affected the nerves and muscles in the limb.

The patient now has a permanently deprived left hand.

110. The defendants have not adduced any evidence to dispute this conclusion.
     
111. I am satisfied that the first defendant’s negligent failure to properly advise Ms Joseph of risks associated with insertion and removal of the implant materially contributed to Ms Joseph’s infection and resulting disability.
     
112. I consider that, had she been properly informed and warned of the potential risk of infection and given Ms Joseph’s use of her arms in her daily duties in the home, that she would not have had the implant as her choice of birth control.

Contributory negligence

113. It is not possible at this point to assess the extent to which Ms Joseph may have contributed to the muscular atrophy which afflicted her arm. The defendants in their evidence suggest that Ms Joseph was negligent herself in failing to return for review and failing to seek medical treatment prior to 2015. I note however that Ms Joseph was a lay person, that it appears that the onset of the muscular condition was not immediate, and that she may not have appreciated the connection between the medical procedure she had undergone, the resulting infection, and the evolving deterioration of her arm. In the absence of Ms Joseph to give this evidence, or the defendants or any witnesses for the defendants to inform the Court on this point, I am not prepared to find that Ms Joseph contributed to her own condition.
     

Liability of the third defendant

114. The plaintiff submitted that the third defendant was vicariously liable for the conduct of the first defendant. As I noted earlier in this judgment, the defendants disputed this aspect of the plaintiff’s claim.
     
115. The principles of vicarious liability were codified by s 1 of the Wrongs (Miscellaneous Provisions) Act:
     

1. GENERAL LIABILITY OF THE STATE IN TORT.

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject–

(a) in respect of torts committed by its servants and agents; and

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process.

116. In Laki v Gawi, Cannings J summarised the elements pertaining to vicarious liability as:
     
     27. For the second defendant, the State, to be vicariously liable for the negligence of the first defendant, three elements must be proven:
         

(a) an employer-employee relationship existed between it and the first defendant (the tortfeasor);

(b) the tort of negligence was committed by the first defendant;

(c) the tort was committed in the course of the employee’s employment (Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486).

117. It was also not in dispute that, at all material times, the first defendant was a servant or agent of the third defendant pursuant to s 1(1)(a) of the Wrongs (Miscellaneous Provisions Act) 1975.
     
118. The defendants argued that:
     
     1. The Plaintiff has failed to name and plead a nexus between the direct employer of the First and Second Defendants pursuant to section 9(2)(c) of the Provincial Health Authority Act; and
     2. the Third Defendants is not vicariously liable for the acts and omissions of the First Defendant which are outside his course of employment, scope or employment, not in accordance with the Constitution and other laws and any Standing Orders.
        
119. Section 9(2) of the Provincial Health Authority Act 2007 provides:
     
     • (1) There are established by this section such provincial health authorities as are specified from time to time in Schedule 1.
       
     • (2) Each provincial health authority, by operation of this Act –
       

(a) is a body corporate with perpetual succession; and

(b) shall have an official seal; and

(c) may sue and be sued in its corporate name; and

(d) is capable of purchasing, taking, holding, selling, leasing, taking on lease, exchanging and disposing of real and personal property; and

(e) is capable of doing and suffering all acts and things which bodies corporate may by law do or suffer.

(3) All courts, judges and persons acting judicially shall take judicial notice of seal of a provincial health authority affixed to a document and shall presume that it was duly affixed.

120. Section 9(2)(c) is irrelevant in the circumstances of this case. Reliance on this section to argue against vicarious liability is completely unfounded. I do not accept this argument of the defendants.
     
121. Further, the defendants did not raise any arguments about how the first defendant was allegedly acting outside of the scope of his employment. The evidence speaks for itself. The first defendant gave medical treatment to Ms Joseph, at the Health Centre where he was employed, and in accordance with his skills and employment. I consider that the defendants’ contention that the third defendant is not vicariously liable for relevant conduct of the first defendant is:
     

wholly unfounded,

unsubstantiated, and

factually incorrect based on the evidence before me.

122. I am satisfied that the third defendant is vicariously liable for the actions of the first defendant.
     

Damages

123. In circumstances where negligence has been established, it is appropriate to now turn to the quantum of damages to which the plaintiff is entitled.
     

Special damages

124. The plaintiff sought special damages for out-of-pocket expenses including hospital/medical bills, transportation costs/bus fares and legal advice. In the absence of any document proof, a reasonable conventional sum of K600 was claimed.
     
125. I am prepared to order K600 in special damages.
     

General Damages

126. The plaintiff also sought general damages for
     

injuries, loss of amenities and suffering;

professional medical negligence; and

physical hardship, stress and inconvenience.

127. From around March 2014 until Ms Joseph’s death on 26 October 2018, she suffered the loss of her left arm as a result of the negligence of the first defendant. There is no evidence before the Court that her muscle atrophy either caused or contributed to Ms Joseph’s death.
     
128. An issue before the Court of course is that although the plaintiff is Mr Mek, the general damages sought by reference to injuries, loss of amenities and suffering includes that suffered by Ms Joseph who passed away in 2018. However I note that an order has been made substituting Mr Mek for Ms Joseph in the proceedings, which order was not challenged by the defendants. Further, there is authority that a right to damages of a person who has died may nonetheless be vested in another. A recent example of such was the decision of the High Court of Justice of England and Wales in Power v Bernard Hastie & Company Ltd [2022] EWHC 1927 (QB).
     
129. I have had regard to comparable cases in which successful plaintiffs, who had suffered loss of the use of a limb, were awarded general damages, including:
     

Oka v Motor Vehicles Insurance Ltd [2001] N2122 where the plaintiff suffered atrophy to his right leg and was awarded K35,000.00 in general damages;

Pomat v Consort Express Lines Ltd [2020] N8300 where the plaintiff suffered a head injury and loss of muscle strength in his left upper limb and lower limb and was awarded K35,000.00 in general damages;

Dinogo v Motor Vehicles Insurance Ltd [2005] N2839 where the plaintiff was awarded K35,000.00 in general damages for inter alia disability of the lower limb.

130. I note that the plaintiff has not sought any damages for his own pain and suffering.
     
131. In my view the plaintiff should be awarded K35,000.00 in general damages for:
     

Ms Joseph’s injuries, loss of amenities and suffering;

Professional medical negligence; and

Ms Joseph’s physical hardship, stress and inconvenience.

Interest

132. The plaintiff has sought interest at a rate of 8% annually pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act. The awarding of interest under that legislation is discretionary: Cheong Supermarket Pty Ltd v Muro (1987) PNGLR 24.
     
133. I am satisfied that the plaintiff is entitled to interest at the rate of 8% annually on the total amount awarded of K35,600.00 from the date of filing of the Writ of Summons on 6 February 2017 to the date of judgment.
     

COSTS

134. The award of costs is also discretionary, however as a general proposition costs follow the event. The first and third defendants are ordered to pay the plaintiff’s costs on a party-party basis, to be taxed if not otherwise agreed.
     

CONCLUSION

135. The plaintiff has substantiated his claim in negligence against the first and third defendants in this proceeding. The plaintiff has been unsuccessful against the second defendant. The plaintiff is entitled to a total award of damages of K35,600.00 with interests, and his costs on a party-party basis.
     

136. The Court Orders That:

1. The first and third defendants pay the plaintiff damages totalling K35,600.00.
   
2. The first and third defendants pay the plaintiff interest at the rate of 8% annually, pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, on the total amount awarded of K35,600.00 from the date of filing of the Writ of Summons on 6 February 2017 to the date of judgment.
   
3. The first and third defendants pay the plaintiff’s costs of and incidental to the proceedings on a party-party basis, such costs to be taxed if not otherwise agreed.

________________________________________________________________
Public Solicitor: Lawyer for Plaintiff
Solicitor General: Lawyer for Defendants