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

Wango v Independent State of Papua New Guinea [1992] PGNC 124; N1039 (2 March 1992)

N1039

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MANTZ WANGO

V

POT ANDAKUNDI

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen
Woods J

30 January 1992
2 March 1992

DAMAGES - Personal injury - Assessment of damages.

LIABILITY - Of government for assault by employee.

VICARIOUS LIABILITY - Tortfeasor paid by provincial government but working for national government - Acting within course of employment.

Facts

The plaintiff brought a claim on her own behalf for compensation for the personal injuries received when she was assaulted by the first defendant at Mt Hagen General Hospital. Plaintiff was attending the hospital with her child and claims that the first defendant, a security guard at the hospital, assaulted her by kicking her across the side of the stomach and ribs. Plaintiff was hospitalised as a result of her injuries and was forced to have her spleen removed.

The State denies liability for the actions of the first defendant, stating that the first defendant is employed by the provincial government, not the national government. The State further claimed, in the alternative, that the acts of the first defendant were beyond the scope of his duties.

Issues

1. Whether the national government is liable for the actions of a provincial government employee who worked at a national institution.

2. Whether the first defendant was acting within the scope of his employment.

Held

1. Responsibility for health services is a concurrent function of the national government and the provincial governments. Public hospitals, like the Mt Hagen General Hospital, come under a national government act and are matters of national interest. No provincial legislation brings the Mt Hagen hospital under the provincial government's power. While the first defendant may have been paid by the provincial government, he is employed at a national government institution, and works under supervision of national government employees. The State is responsible for his acts.

2. The first defendant was acting in the course of his employment as directed by hospital staff.

Cases Cited

Amini v The State [1987] PNGLR 465
Kofowei v Siviri [1983] PNGLR 449

Counsel

MA Pryke for the plaintiff
R Kisau for the State

2 March 1992

WOODS J: The plaintiff is claiming for damages for injuries she received when she was assaulted by the first defendant at the Mt Hagen General Hospital. At the time she was attending the hospital with her child and she claims that the first defendant, who was a security guard at the hospital, assaulted her by kicking her across the side of the stomach and ribs. As a result of the assault, the plaintiff was hospitalised and had to have an operation for the removal of her spleen.

The incident happened on Wednesday 18 July 1990 and the plaintiff filed a writ of summons in June 1991. The summons was served on the first defendant and the State shortly after. In November 1991 the plaintiff applied for judgment in default of the defendants filing any notices of intention to defend or defences. I refused that application and ordered the matter be set down for trial. Neither of the defendants has filed any defence although the first defendant appeared in person at the hearing and the State was represented by counsel.

The plaintiff says that she and her husband were waiting near the typhoid ward with her son, who was a patient at the hospital. At about 10 am, a nurse came and complained about some human faeces on the ground and told the people to clean it up. The nurse told the security guard, namely the first defendant, to ensure that the job was done. The plaintiff says that the first defendant then came across and kicked her in the side of the stomach. She says she felt pain and fell unconscious. She was then hospitalised. The plaintiffs story is supported by her husband who was there at that time, and some other women who were there also.

The first defendant denies kicking the plaintiff, although he does admit that there was some compensation paid at a later date.

The State denies any liability for the actions of the first defendant, saying that the first defendant is not employed by the national government but rather is employed by the provincial government. Further the State says that the acts of the first defendant were outside the scope of his duty.

Under the Organic Law on Provincial Government, responsibility for health services is a concurrent function of the national government and the provincial government. However, public hospitals like the Mt Hagen General Hospital come under the Public Hospitals Act Ch 232, a national government act, and are clearly, therefore, matters of national interest. There is no provincial legislation bringing the Mt Hagen General Hospital under the power of the provincial government. The Secretary of the Mt Hagen General Hospital confirms that most of the staff of the hospital are national government employees. So whilst the first defendant may have been employed by the provincial government for ancillary purposes at the hospital, he is clearly working for a national government institution and working under the direction of national government public servants. In the circumstances, therefore, it is not a matter of who pays him but who he works for, and the State must accept responsibility for any staff who work for national government institutions.

On the point that his acts in assaulting the plaintiff are outside the scope of his duties, I refer to the case Kofowei v Siviri [1983] PNGLR 449, where the judge examines in great detail the question of the vicarious responsibility of the State for actions by public servants and, especially in that case, the police. His Honour there analyses authorities from other jurisdictions and concludes that there is no benefit to the community in protecting the police force or individual members from responsibility for assaults done in the course of their duty. His Honour says at page 465:

"It is also my understanding that a feature of the traditional Melanesian customary way of compensating for injuries is collective responsibility. In summary I consider that the independent discretion rule is inconsistent with the Constitution and the Claims By and Against the State Act. I further find it inappropriate to the circumstances of Papua New Guinea to adopt this much criticized common law anomaly when it had as at 1975 effectively ceased to be a rule of law in England and in many other jurisdictions."

Of course, the Court must be satisfied that the employee as a servant was acting in the course of his employment or purporting to so act. However, here in this case I see no problem as the first defendant was clearly acting in his employment and as directed by hospital staff. I am satisfied on the evidence, the first defendant did assault the plaintiff and such assault was a wrongful and unauthorised mode of doing his duty as required at the hospital. He is liable and the State must also accept responsibility.

DAMAGES

The plaintiff suffered severe pain when she was kicked and fell unconscious. She spent ten days in hospital. The hospital record show that she was examined by a doctor and found to have a ruptured spleen, and she was operated on immediately and her spleen was removed. The medical prognosis is that the plaintiff is now prone to have severe bouts of malaria and her resistance to other infections has decreased with the removal of the spleen. She must also continually take prophylactic anti-malarials. The plaintiff says she now feels much weaker and is unable to do her normal gardening work and feels depressed because she cannot effectively do what is required to provide for her husband and three children.

In Amini v The State [1987] PNGLR 465, damages were assessed for a policeman who received leg and back injuries and the loss of his spleen. In that case, taking into account the added question of possible future complications, loss of earning capacity, and minor periodical expenses, a figure of K18,000 was assessed for general damages. Of course, that figure was not just for the loss of the spleen but for the pain and discomfort in the left hip and lower back. In this case before me now, it is only the spleen which has serious long term implications. I will allow a figure of K15,000 for general damages for pain and suffering and loss of amenities.

With respect to economic loss from gardening, I am prepared to allow for some loss as it is an essential part of a woman's life to provide by gardening the food for herself and her family. I am satisfied that she will be restricted in the future and I assess an amount of K4 per week. For past loss from 18 July 1990 to 2 March 1992, being 85 weeks, I assess K360.00. Future loss for 29 years on the 3 percent tables is K4,064.00 and, less 10% for contingencies, becomes K3,657.60. I allow interest at 8% on K5,000 of the general damages from the date of the writ to date. I allow interest at 4% on the past economic loss.

To summarise:

General Damages K15,000.00

Past Economic Loss 360.00

Interest on Past Economic Loss 10.33

Future Economic Loss 3,657.60

Interest on Part of General Damages 287.12

Total K19,315.05

Less Cash Customary Compensation 550.00

Total K18,765.05

I order judgment for K18,765.05.

____________

Lawyer for the plaintiff: Henao Priestley
Lawyer for the defendant: State Solicitor