N3409

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 579 of 2005

BETWEEN:

JOYCE FUGAMAREFA
Plaintiff

AND:

DR. ALPHONSE TEI as the
Chief Executive Officer of Port Moresby General Hospital
First Defendant

AND:

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Defendant

Waigani: Davani, .J
2008: 15th, 19th May,
17th June

DAMAGES - Default judgment - claim for damages - tubul ligation - thereafter, plaintiff conceived.

DAMAGES - Heads of damages – issues of public policy – whether a claim for damages can lie.

Facts

The plaintiff underwent a tubul ligation but conceived four months later. Prior to or immediately before the operation, she was not advised that there was a chance that she could become pregnant again.

Default judgment was entered. The Court only considered the damages claim. The public policy issue of whether a woman or both parties can claim damages because of an ‘unwanted pregnancy’ or an ‘unwanted child’, was discussed.

The Court held that a plaintiff can do so.

Cases Cited:

Papua New Guinean Cases
Gima Oresi v Chris Marjen and the State, N1784
Baupupu Arinuma v Likeman and The Government of PNG (1976)
Tabie Mathias Koim v. The State & Ors, N1737
Peter Wanis v. Fred Siliot & The State, N1350
Eriave Lanyat v Henry James Tamarua & The State
Obed Lalip & 20 Ors v. Fred Sikiot & The State, N1457
Jonathan Mangope Paria v. The State, N1343

Overseas Cases
Thake and another v Maurice [1985] 2 WLR 215
Emeh v Kensington and Chelsea and Westminster Area Health Authority and Others [1985] 2 WLR 233
Macfarlane v Tayside Health Board (1997) SLT 211
Caparo Industries pIc v Dickman [1990] 2 AC 605
Johnson v University Hospitals of Cleveland (1989) 540 NE 2d 1370
Melchior & Anor v Cattanach & Anor [2000] QSC 285
Perre v Apand (1999) Aust Torts Reports 81-516
Gray v Varr [1970] 2 Q.B. 626
Teubner v Humble (1963) 108 CLR 491

Counsel

T. Tingni, for the plaintiff
F. Barton, for the first and second defendants

DECISION

17 June, 2008

1. DAVANI .J:	This matter comes before me for assessment of damages, default judgment having been entered against the first and second defendants on 11th October, 2005.

2. The Writ of Summons and Statement of Claim was filed on 26th April, 2005 claiming damages for the first defendant’s alleged negligence arising out of a tubal ligation conducted by Doctors and Nurses of the Port Moresby General Hospital.

3. The undisputed facts are that after the birth of her third child, the plaintiff sought medical advice on how she could stop having children. The doctors advised her that a vasectomy or a tubal ligation were available. She chose the latter. On 8th August, 2002, a tubal ligation was performed upon the plaintiff.

4. However a year later, the plaintiff conceived and gave birth to a male child on 1st November, 2004. She claims general damages for pain and suffering; the costs of raising a child including future costs, special damages, exemplary damages, costs and interest.

Evidence

5. The plaintiff relies on several affidavits which are; 

i.	the plaintiff’s affidavit, sworn on 13th March, 2007 and filed on 13th March, 2007;

ii.	the plaintiff’s affidavit, sworn on 21st August, 2007 and filed on 22nd August, 2007;

iii.	the plaintiff’s affidavit, sworn on 29th February, 2008 and filed on 3rd March, 2008;

iv.	Gabriel Manga’s affidavit, sworn on 28th May, 2007 and filed on 13th June, 2007.

6. The defendants were to rely on the affidavit of a Dr. Glen Mola, however, Dr. Mola was not available having left Papua New Guinea on 1st May, 2008 on an overseas trip, to return on 31st May, 2008. Although defendant’s counsel requested a vacation of the trial because of the unavailability of Dr. Mola, I refused that application after hearing all counsel, for the following reasons;

i.	Because the matter was for assessment of damages, that Dr. Mola’s affidavit was not relevant;

ii.	Defendant’s counsel had not demonstrated to me that they had informed the witness Dr. Glen Mola, of today’s trial, which was probably the reason why he left Papua New Guinea.

7. The defendants did not rely on any other evidence, only cross examining the plaintiff on the contents of her affidavits.

Issues

i.	Whether the plaintiff is entitled to the damages she claims;

Analysis of evidence and the law

8. As I stated above, the plaintiff claims damages for the costs incurred before and after the operation and also, the costs associated with the birth of the child and for raising the child.

9. The particulars required under Order 8 Rule 33 of the National Court Rules (‘NCR’) as taken from the plaintiff’s statement of claim are as follows:

" (5)	Where or relevant, a statement as to whether or not with respect to the injured Plaintiff, the Plaintiff has sustained any permanent disability and if so, particulars of the disability.

(a) The Plaintiff has sustained permanent scarring to the body area on which she was operated upon.

(b) The Plaintiff has also suffered interference with her internal organs as a result of the tubal ligation surgery, the result or effects of which are unknown.

(c) Additional financial burden thus leading to mental stress and physical exhaustion in looking after and caring for the additional child’s need and demands.
…

(7)	Details of each item or special damage claims including wages and other economical loss, both present and future.

The Plaintiff has incurred expenses prior to, during and after the injury as follows: 

i.	Vehicle/fuel cost	K 100.00
ii.	Bus fare	K50.00
iii.	Ante-natal clinic fee	K8.00
iv.	Discharge fee	K 20.00
v.	Baby’s clothes, nappies, powder, etc…	K 269.20
vi.	Additional financial burden for looking after additional child –
	approximately K 100.00 per week for 52 weeks in
	one year and for 21 years = 	K 109,200.00
…

AND THEREFORE the Plaintiffs claim against the Defendants jointly and severally:
1.	General Damages.
2.	Special Damages.
3.	Exemplary Damages.
…".

10. The plaintiff filed written submissions setting out damages she should be awarded, claiming the following;

The cost of raising the child	- K450,000.00	
Past cost	- K 50, 000.00	
Future cost	- K250, 000.00	
Damages suffered by plaintiff as a result of the injuries sustained in the operation 	
- K 15,000.00	
Loss of the right of freedom to limit size of family	- K 8,000.00	

11.	Claim for damages, are usually considered and listed in the following categories;

-	General damages, i.e. damages for pain and suffering and loss of amenities;

-	Special damages, i.e. the costs and expenses incurred as a result of the negligence;

-	Future loss, i.e. the costs that will be occasioned and incurred in future.

12. For the plaintiffs purposes, the heads of damages that are appropriate to this claim are first of all, pain and suffering and loss of amenities, then, losses associated with the birth and finally, future losses.

A.	PNG Case authorities

13. There are very few cases in this jurisdiction on damage claims for failure of a sterilisation exercise e.g. a vasectomy, tubul ligation, the administration of pills or injections etc. The few cases that I have come across in my research and that were also pointed out to me by plaintiffs counsel are;

a.	Gima Oresi v Chris Marjen and the State N1784: In that case, the plaintiff was operated upon to remove an ectopic pregnancy. After the operation the plaintiff continued to suffer continuous pain in her abdomen. Because of the recurring pain and discomfort, she had a further operation and it was discovered that two gauze swabs were left inside her after the operation for the removal of the ectopic pregnancy. The court considered the following heads of damages;

-	Pain, suffering, discomfort and trauma caused by the negligence in the surgical procedure;

-	The trauma and pain of the necessary additional operation;

-	The cosmetic disfigurement caused by the need to make a larger incision in the first operation, which of its very nature, created a larger scar;

-	The reduced likelihood of further pregnancies.

The court assessed a figure of K20,000-00 for general damages to cover all the heads, together with interest.

b.	Baupupu Arinuma v Likeman and The Government of PNG [1976] PNGLR 200 (N40), a claim for damages were made following the birth of the plaintiff’s seventh daughter, after a tubul ligation was performed upon her without her consent or the consent of her husband. The plaintiff claimed damages for negligence or alternatively assault.

The court held that;

-	the performance of a surgical operation upon a person without that persons consent amounts in law to an assault and battery or trespass to the person.
-	The nature of the remedy available to such a person depends on whether the injury inflicted is caused by an intended act, in which case the cause of action is trespass to the person, or whether the injury results from an unintentional act, in which case the cause of action is in negligence.
-	The cause of action was properly framed as trespass to the person.
-	As a matter of law, a mistaken belief by the person performing the operation that consent had been given, affords no defence to him in an action for trespass to the person.
-	In assessing damages it was relevant to consider the plaintiff’s sense of grievance and disappointment at being unable to produce a son, the possibilities that the plaintiff might never have produced a son, of accident to the plaintiff or her husband preventing achievement of such a desire, and the refusal of an offer made immediately after the operation to perform a further operation which would have given the plaintiff a fifty percent chance of again conceiving.

General Damages was accessed at K400-00

B.	Australian and UK authorities

14. A very prominent issue that faced the English and Australian Courts, was whether the parents should, as a matter of principle, be permitted to recover damages for the costs of maintaining the child. This was a much more difficult question than the question of whether damages should be awarded for pain and suffering associated with childbirth and any loss of her earnings due to the pregnancy and birth. Logically the position may be the same by arguing that had the plaintiff not conceived because of the doctor’s negligence, that there would have been no new member of the household to feed, raise and educate. This was the public policy issue in Macfarlane v Tayside Health Board [1997] SLT 211, court of first instance, where the plaintiffs sued the Health Board in negligence claiming that as a result of the surgeon’s negligent advice, the second plaintiff became pregnant, thereby suffering damages. The second plaintiff claimed £10,000 for pain, suffering and distress resulting from the unwanted pregnancy. Both plaintiffs claimed £100,000 for the cost of bringing up their daughter. At first instance, the plaintiffs’ action was dismissed in respect of both heads of claim. The trial judge observed that;

"the privilege of being a parent is immeasurable in monetary terms and that the benefits of parent hood transcend any patrimonial loss"

15. In regard to the claim for pain and suffering over the birth, the trial judge held that pregnancy and child birth do not amount to personal injury. The trial judge was of the view that the existence of the child and the mother’s happiness out weighed any pain and discomfort that she may have experienced.

16. An appeal was unanimously allowed with the Court ruling that physical and financial consequences of the conception and birth were recoverable heads of damage. Lord Justice Clerk said that the claim was for the physical and pecuniary consequences resulting from the second plaintiff’s pregnancy and childbirth rather than the child being the "harm" to the parents. There was no reason for thinking that the law did not recognise the pain and distress arising from pregnancy and childbirth as damage. To say that discomfort was cancelled out by post-natal happiness was not acceptable. As to the costs of rearing the child, Lord Justice Clerk did not accept that such costs did not result from the defendant's negligence. His Lordship further held that keeping the child rather than arranging an abortion or adoption did not break the chain of causation. The plaintiffs were entitled to decide not to have a child. It was unwarranted, in his Lordship's opinion, to assume that the joy of having the child in every case exceeded any monetary claim that might arise. 

17. As to whether the joy to be received from the birth of a child cancelled out pain and financial loss, Lord McClusky said: 

"I know of no principle of Scots law that entitles a wrongdoer to say to the victims of his wrongdoing that they must look to their perspective and impalpable gains on the roundabouts to balance what they actually lose on the swings. I conclude that the benefits to the parents of having a live healthy child cannot be taken into account under any principle known to Scots law". 

18. Lord Allanbridge accepted that there was injury. Once the first plaintiff was told that his sperm counts were negative and that he could dispense with contraceptive measures, the damage occurred when his wife became pregnant. His claim therefore arose before the birth of the child. He also thought that the plaintiff’s failure to arrange abortion or adoption was not a novus actus interveniens.

19. The Health Board appealed to the House of Lords. It held that the birth was due to the second plaintiff’s decision not to have an abortion which broke the chain of causation or made the damage too remote or was a novus actus interveniens. The Board's primary submission was that the plaintiffs' claim should fail because the natural processes of conception and childbirth cannot in law amount to personal injury. The Board contended that damages for the cost of rearing the child were not recoverable because its negligence had not caused harm to the plaintiffs. The child herself was not a harmful event and she was not productive of harm. 

20. The question for the House of Lords was not just the quantification of damages. It was not in dispute that the Board owed the first plaintiff a duty to take reasonable care to prevent a foreseeable risk of injury. The question was the extent to which a duty was owed and whether that duty extended to damage in the form of economic loss suffered by the plaintiffs because they had to raise a child that was conceived because of the defendant’s negligence.

21. The test in England in determining whether a duty of care is owed for economic loss is set out in Caparo Industries pIc v Dickman [1990] 2 AC 605. That case set out a three stages test to decide the issue of duty. The first stage questions whether the injury or loss was foreseeable, the second asks whether there is a relationship of proximity between the parties and the third stage questions whether it is fair, just and reasonable for a duty to be imposed in respect of the particular damage.

22. Whether parents should, as a matter of principle, be permitted to recover damages for the costs of maintaining the child was a much more difficult question than the question of whether damages should be awarded for pain and suffering associated with childbirth and any loss of her earnings due to the pregnancy and birth. Logically the position may be the same by arguing that had the second plaintiff not conceived had it not been for the Board's negligence, there would have been no new member of the household to feed, raise and educate.

23. There could be no question that the second plaintiff did suffer damage that the law recognises. Damages can be assessed for the inconvenience and discomfort of pregnancy and the event of childbirth. As natural as the delivery may have been, the reality of the pain and discomfort of the experience cannot be ignored. There is no doubt that there is a causal connection between the defendant's negligence and the second defendant's pain and suffering. The causal link with the maintenance claim was far more doubtful. There are similar difficulties with the claim by the second plaintiff in respect of a loss of earnings following the birth of her baby in view of her having to give up work in order to care for the child. 

24. If the plaintiffs' claim for economic loss succeeded they would have the enjoyment of a child, unintended but now wanted, free of any cost to themselves and maintained at the expense of the defendant. While it was reasonable for the plaintiffs to have accepted the addition to their family, it was not reasonable that they should be relieved of the financial obligations of caring for the child. That the expense of child rearing would be wholly disproportionate to the doctor's culpability has been recognised as one factor supporting the rule of limited damages: Johnson v University Hospitals of Cleveland (1989) 540 NE 2d 1370.

25. Lord Millett considered that the issue in that case should not depend on whether the economic loss is characterised as pure or consequential. In principle any losses occasioned by the defendant's negligence are recoverable no matter how they are characterised. There is something distasteful, if not morally offensive, in treating the birth of a normal, healthy baby as a matter for compensation. The costs of bringing up the child are not compensable. The same reasoning for disallowing damages for the rearing of the child applied to the second plaintiff’s claim for damages for pain and suffering associated with pregnancy and childbirth. Normal pregnancy and delivery were as much an inescapable precondition of the infant’s birth as the expense of maintaining her afterwards. They are the price of parenthood. The fact that the mother alone experienced this pain and discomfort does not alter this.

26. In Melchior & Anor v Cattanach & Anor [2000] QSC 285, 23 August 2000, before Holmes J, the plaintiffs were awarded damages for the cost of raising their child, having established wrongful conception. The female plaintiff underwent a sterilization procedure which proved to be ineffective. The defendant medical practitioner negligently failed to warn her of the possibility that the operation may not be effective. That negligence was a material cause of the pregnancy.

27. The argument that the failure of the plaintiffs to adopt their child or terminate the pregnancy was either an interruption of the chain of causation or a failure to mitigate, failed. Rather than an interruption in the chain of causation, the failure to terminate the pregnancy or adopt the child was more of a failure to interrupt the chain of causation. According to Holmes J, one could not assume that resorting to abortion or adoption would be less catastrophic than the decision to keep the child. In that sense it could not be said that there was a failure to mitigate.

28. Rather, Holmes J found that it was just and reasonable to award damages for pure economic loss. The harm to the plaintiff’s was foreseeable, and the defendant medical practitioner was aware that the imposition of the financial burden of raising an additional child was a significant factor in the decision of the plaintiffs to undergo the sterilization procedure. There was nothing that the plaintiffs could do to protect themselves from the vulnerable position that the defendant had placed them in. Accordingly, the plaintiffs were awarded a total of $105,249.33 for the cost of raising their son, with $17,698.80, together with interest of $2,655 awarded for past costs and $84,895.53 awarded for future costs. Damages were also awarded to the female plaintiff for pain and suffering, loss of earnings and special damages. Her husband was awarded $3,000 for loss of consortium.

29. On appeal to the Qld Court of Appeal, Melchior & Anor v Cattanach & Anor [2001] QCA 245, the Court upheld the trial judge’s verdict. In considering the claim for pure economic loss the Court noted that based on the guidelines set out by the High Court in Perre v Apand (1999) Aust Torts Reports ¶81-516, an award of damages was appropriate in this case. At par [43] McMurdo P stated:

"It was reasonably foreseeable that if Dr Cattanach were negligent, the result would be a pregnancy, the very consequence sought to be avoided by the sterilisation. It was also reasonably foreseeable that the Melchiors would be likely to keep any child conceived and to incur expenses rearing the child. Not every unsuccessful sterilisation will result in damages, only those where negligence has caused the pregnancy; this will involve a relatively small and determinate class of people, and is a discrete determinate risk. Questions of ordinary business conduct do not seem to have relevance to this case…"

C.	Heads of damages to be awarded

30. Although default judgment has been entered, that does not relieve the plaintiff from proving her loss. See the case of Tabie Mathias Koim v. The State & Ors, N1737 Injia J (as he then was) 24 September 1997, 26 February 1998). The fact that the default judgment was entered against the Defendants does not mean that the Plaintiff is automatically entitled to what he is claiming. When the Court is assessing damages it must be satisfied that the Plaintiff has proved his damages. The above principle is well established in the case of Peter Wanis v. Fred Sheekiot & The State N1350, and in W.S. No. 76 of 1993 Eriave Lanyat v Henry James Tamarua & The State, and in Obed Lalip & 20 Ors v. Fred Sheekiot & The State N1457 and in Jonathan Mangope Paria v. The State N1343.

31. I will now categorize the heads of damages that will be awarded in a claim of this nature. Mr. Tingni, referred me to some Australian and English cases which may assist in determining the heads of damages that should be considered in claims of this nature. I set out these cases below;

a.	Thake and another v Maurice [1985] 2WLR 215 - this was an action by a married couple against their surgeon for breach of contract; breach of collateral warranty; misrepresentation and breach of his contractual duty of care; distress occasioned upon discovering that the second plaintiff was pregnant; the costs of the birth and of maintaining the child until her seventeenth birthday, damages for the pain and discomfort of labour and loss of earnings for the period from the birth of the child until she started school.

32. The facts briefly are that as a result of the immense financial strain on their budget because of a large family, the husband consulted their medical doctor and underwent a vasectomy. The plaintiffs were not advised that there was the likelihood that the husband would become fertile again. After performance of tests showing that the husband was sterile, the surgeon advised the plaintiffs that no further contraceptive precautions were required. However, the second plaintiff conceived soon after. Because she believed she could not become pregnant again because of the vasectomy, she ignored the signs of pregnancy until she was about four months pregnant. She gave birth to a healthy, normal child. 

33. On giving judgment for the plaintiffs, the court held the following;

•	That in the absence of a warning of the risk that the first plaintiff might again become fertile, the parties had entered into a contract not only that the defendants would perform the operation of vasectomy but that he would make the plaintiff irreversibly sterile; that, accordingly, there had been a breach of the contract when the first plaintiff became fertile again and damage suffered when the second plaintiff became pregnant.
•	That, alternatively, the defendant who had special knowledge and skill, had advised the plaintiffs as to the nature of the vasectomy so that they could decide whether the first plaintiff should undergo the operation; that in the absence of a warning as to the slight risk of the first plaintiff again becoming fertile the defendant’s statement of the facts amounted to a collateral warranty in that it had been crucial in inducing the plaintiffs to enter into the contract; and that, in the circumstances, the defendant was in breach of that warranty.
•	That it was not to be presumed as a matter of law that the birth of a healthy, normal child was always to be regarded as a blessing; that there was no rule of public policy that damages could not be recovered in respect of the expenses arising from the birth of such a child; that, in assessing damages, the distress occasioned upon discovering and during the pregnancy and the pain and discomfort of labour should be set off against the joy of the birth of a healthy child so as to cancel each other out, but that the costs of birth and of maintaining the child were fully recoverable; and that, accordingly, the plaintiffs were entitled to recover the agreed damages of £6,677, the cost of the layette and the child’s up-keep until her 17th birthday and the second plaintiff to recover the further sum of £2,000 in respect of her lost earnings.
•	The court held further that the defendants failure to give the necessary warning that the first plaintiff might become fertile again after the vasectomy had been performed, had been a breach of the defendants contractual duty of care; that, without that warning it must have been in the contemplation of the defendant, as a reasonable surgeon, that the second plaintiff, relying on the first plaintiff being irreversibly sterile, might not recognize the early stages of pregnancy; that, on the balance of probabilities, the second plaintiff could have had the pregnancy terminated if she had discovered it earlier; and that, accordingly it was reasonably foreseeable that the plaintiffs would suffer damage as a result of the breach.
•	The court also held per curiam, that generally, public policy had interfered with a claim for damages for breach of contract only were, but for the plaintiffs prior wrong, he would have suffered no damage from the defendant’s breach of contract. There remains some doubt whether the categories of public policy are now closed but a judge of first instance should hesitate long before attempting to ride the unruly horse of public policy in a new direction. This is because of the usual reaction where one would ask how could a child’s birth give rise to an action for damages. 	 In relation to the plaintiff’s wrong doing, if public policy were considered, the courts would hold that the damages would be refused on the ground that no man should be allowed to profit at another’s expense for his conscious and deliberate wrong (Gray v Varr [1970] 2 Q.B. 626). The matter must therefore be approached with caution.

b.	Emeh v Kensington and Chelsea and Westminster Area Health Authority and Others [1985] 2 WLR 233. In that case, the plaintiff had three normal children, then underwent a sterilization operation at the defendants hospital. A year later, she discovered she was about 20 weeks pregnant but refused to have an abortion. She later gave birth to a child with congenital abnormalities who required constant medical and parental supervision. The plaintiff claimed against the defendant’s damages for the pregnancy and the birth and upkeep of the child. The court at first instance held that the operation was negligently performed and that the plaintiff was entitled to damages accrued before she discovered the pregnancy but that she was not, by reason of her failure to have an abortion, entitled to the damages accruing thereafter, apart from the cost of her undergoing a second sterilisation operation.

34. The plaintiff appealed and in upholding the appeal, the three men bench of Waller, Slade and Purchas L.JJ. held that since the avoidance of a further pregnancy and birth was the object of the sterilization operation it was unreasonable after the period of pregnancy had elapsed, to expect the plaintiff to undergo an abortion and, therefore, the plaintiffs failure to do was not so unreasonable as to eclipse the defendants wrong doing; that it was not contrary to public policy to recover damages for the birth of a child; and that, accordingly, the plaintiff was entitled to recover damages for her financial loss caused by the negligent performance of the sterilization operation.

35. The appeal was upheld and the following awards of damages were made;

v.	loss of future earnings;
	£7,000	
vi.	cost of maintaining the child up to the trial; 
	£1,736	
vii.	cost of maintaining the child @ £507 per annum after taking into account child allowance. A multiplier of 8 at the date of trial when the child was 5 ½ years old, to be applied to that figure. 
		
viii.	Plaintiffs pain and suffering; 
	£3,000	
ix.	Cost of the layette; 
	£248	
x.	Pain, suffering and loss of amenity including the extra care to be given to the child over the years – £3,000 for pain and suffering up to the time of trial and £10,000 for the future loss of amenity and pain and suffering which is going to occur in the life of the child, who may require attention for many, many years perhaps until the time she grew into adult hood.

36. Therefore, the heads of damages under which the plaintiffs in this case, should be claiming, are as follows;

•	Cost of maintaining the child up to the trial;
•	Future costs of maintaining the child at K100.00 per week;
•	Plaintiffs pain and suffering;
•	Costs of the layette.

37. I would deal firstly with the particulars of negligence on which liability was entered by default. These will form the basis of the damage claim. This is found or pleaded at paragraph 10 (1-4) of the statement of claim. It reads: 

" particulars of negligence by the first and second defendants by their serving agents and employers.

1.	the defendant’s doctor failed to inform the plaintiff that she could possibly become pregnant again despite tubul ligation surgery.
2.	advised and recommended to plaintiff that tubul ligation is a permanent procedure to stop pregnancy.
3.	failure to advise or inform the plaintiff of the likelihood or risks associated with failure of tubul ligation surgery.
4.	failure to recommend to plaintiff to attend for follow up checks or tests to determine success of tubul ligation surgery."

38. The claim for damages, more particularly the claim of pain and suffering and loss of amenities should be centred around the above pleading. The evidence to be adduced on this is in relation to what occurred between the plaintiff and the defendants before admission to hospital and after. I discuss these later below.

39. The plaintiffs claim for economic losses are those as pleaded in pars 5 and 7 of the Statement of claim, set out above.

40. I now discuss the various heads of claims beginning with pain and suffering and loss of amenities.

i)	pain and suffering – The plaintiff claims K15,000.00 for pain and suffering. Her evidence on this is as contained in her affidavits. In the plaintiff’s affidavit sworn on 29th February, 2008 ("29th February 2008 affidavit"), the plaintiff deposes that the doctors who performed the tubul ligation upon her on 8th August 2002, were a Doctor Arthur Elijah, the obsteterics and gynaecology doctor; Mr. Henry Hapau, Senior Anaesthetic Technical Officer and theatre nurse Ms Kandi. This was revealed in a report prepared by a Doctor Mathias Sapuri, a consultant obstetrician and gynaecologist at the Port Moresby Private Specialist Medical Centre.

41. However the report did not state the procedures and processes involved and whether the tubul ligation was properly conducted, as directed by His Honour Justice Kandakasi on 23rd August, 2007. That day, the matter went before His Honour who decided not to deal with the trial as there was no medical evidence on the procedures of tubul ligation. In the directions issued by his Honour that day, his Honour directed Dr. Mathias Sapuri to be an independent medical expert, to review the tubul ligation operation and to determine whether or not this operation was legally proper.

42. The plaintiff then sought the assistance of a Dr. Onne Rageau of the Pacific International Hospital who examined her and reported that there is a small risk of tubul ligation failure at 0.1 %. He also stated that she had developed severe psychological trauma and other social economic problems after learning of her pregnancy, despite the tubul ligation.

43. She also deposes in her affidavit of the 21st August, 2007 that after learning of her pregnancy and upon enquiries with the hospital for her medical records, she was advised on numerous occasions by the hospital staff that they could not locate her medical records. This only added to her psychological trauma.

44. Further, in her affidavit sworn on 13th March, 2007, she deposes that she did consent to the operation being performed upon her. She said although they signed the consent form for sterilization, neither her nor her husband were advised of the possibility of failure of that operation. They were only advised that the effect of the operation was permanent, that she would never conceive again and that there was no failure rate.

45. She said that both her husband and her had agreed to the tubul ligation because they were both mission workers and do not earn a regular salary. It was after the birth of their third child that they agreed to have the tubul ligation because they are only given about K20.00 to K50.00 a month by members of their congregation to assist them with their expenses which meant that they would not have any money to care for an additional child. Apart from that they receive an income of K200.00 per month. It was because of these economic reasons that they agreed to the tubul ligation.

46. Also, in her affidavit, she deposes to the process leading up to the operation. She said when the operation was performed on her, she was fully awake and alert. She heard the doctors talking, heard one of them say that they had located one fallopian tube and were looking for the other. She said it was at that time that she felt excruciating pain from the area on her abdomen that had been cut and which of course caused her to move. She was advised by the doctors to relax and lay still but because she was in great pain, she could not hold still. They asked if she was in pain and she told them she was. This was when a doctor walked over to her left side and injected more drugs into the tube attached to her body. That was the last thing she remembered until she was back in her bed in the ward. She was discharged on 9th August, 2003 without a summary discharge report.

47. Six months after the operation, she began to experience pain from the wound in the stomach area which had been operated upon. As a result, she could not do any strenuous physical work or carry heavy loads. From September 2002 to December 2003 she did not get her regular monthly period. She visited the hospital and sought advise from a nursing sister, who advised her that after tubul ligation operations, a woman’s menstrual cycle is sometimes disrupted.

48. She said about April 2004, she began to feel "flutters" inside her womb similar to sensations she had experienced in her previous pregnancies. In May 2004, these flutters became more pronounced. She became extremely concerned, so attended at the Port Moresby General Hospital for a scan. The scan was carried out in June 2004. The results were that she was four months pregnant. She was very upset and informed her husband about it.

49. On attendance at the antenatal clinic in Port Moresby in June 2004, she spoke to a Dr. Elijah and asked him what went wrong with the operation and whether her pregnancy would be affected. This doctor did not answer any of her questions.

50. This Court has reviewed the evidence on the pain undergone by the plaintiff, firstly at the operation table, secondly, after the operation and lastly, the psychological trauma undergone by the plaintiff as a result of her experience. These are immeasurable but can only be measured on and compared with past awards. The award of £3,000 in Emeh v Kensington A.H.A (supra) is based on the background from which the plaintiffs came i.e. being residents of England and residing in an urban setting far different from ours. However Papua New Guinea is a developing country. City and town dwellers have to face the everyday trials that residents in a western developed country often face.

51. In Gima Oresi v. The State (supra), the Court awarded K20,000.00 for pain and suffering. Her fact situation is not similar to this, the only similarity being, the claim arises as a result of gynaecological issues and that the issue before me or complications that now arise are not as serious as Gima Oresi (supra).

52. I find the following head of damages from Gima Oresi (supra) to have relevance here, being;

-	pain, suffering, discomfort and trauma caused by the negligence in the surgical procedure.
Other than that, the others have no relevance. I find also that the plaintiff may have undergone some psychological trauma. Without the benefit of a report from a psychiatrist or psychologist, I am unable to accurately assess. Therefore this component should rightly be included in the above head as ‘trauma’.

i)	Loss of amenities - Windeyar .J in Teubner v Humble (1963) 108 CLR 491 said that loss of amenities is the name commonly conveniently given to the non – economic consequences of the destruction or diminution permanent or temporary, of a faculty, which deprives the injured person of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer. Damage of this sort is also sometimes called loss of enjoyment of life.

53. Obviously the plaintiff is unable to enjoy life and what it has to offer in terms of entertainment, shopping, going out etc with four young children. I award a sum of K5,000.00 for loss of amenities. 

ii)	Special Damages – The plaintiff makes a claim for K178.00 at par. 7 of her statement of claim. I note her reasons for the non-provision of receipts as provided in pars. 17,18 and 19 of her 13th March, 2007 affidavits and accept that. I will award K178.00

iii)	Cost of the Layette – These are expenses associated with the purchase of items for the baby immediately after he was born i.e. nappies, blankets, baby clothes and other items. The plaintiffs affidavit sworn on 13th March, 2007, deposes at paragraph 20 that they spent approximately K269.20 for nappies, baby clothes, towels, toiletries, blankets etc. Although those receipts are not before me, I can safely assume that plaintiffs did spend monies on the layette. I will award a sum of K250.00.

iv.	Cost of maintaining the child up to trial (23/5/08) – In Emeh v Kensington A.H.A (supra), the court awarded £1736. The plaintiff pleads in her statement of claim that they will incur about K100-00 per week for looking after the child. The plaintiffs have not provided evidence on the expenses normally incurred on each of their children. Presently, the child is a toddler. A toddler’s consumption of food is not as high as an adult. Also, the toddler is not attending school. Therefore, no costs should be put aside for bus fares, lunch money, lunch orders, school uniforms etc. The child is presently aged approximately 5 years. As at the date of trial, the child was aged 5 years, 8 months, 3 weeks and 2 days. I find K50.00 per week to be sufficient for this child. Calculated at 52 weeks over a period of 5 years, 8 months, 3 weeks and 2 days, is K15,861.87.

v.	Future costs of maintaining the child – this can be assessed at K100.00 per week, taking into account, costs associated with school fees, school uniforms, transportation etc and which documentary evidence is attached to the plaintiff’s affidavits. The cost of maintaining the child will be to when he is 18 and which monies will be held in trust and invested by the Registrar of the National and Supreme Courts until he reaches 18 which shall occur on or about 1st November, 2021. Therefore, K100.00 per week x 52 weeks = K5200.00 for 1 year x 13 years = K67,600.00.

54. These funds for the child’s needs for school fees and very serious medical needs will be released upon application to the court.

vi.	Exemplary damages - The Court will not make any award under this part.

Conclusion

55. The following heads of damages are awarded, being; 

1. Plaintiffs pain and suffering	- K15,000.00	
2. Plaintiffs loss of amenities	- K 5,000.00	
3. Cost of the Layette	- K 250.00	
4. Special damages	- K 178.00	
5. Cost of maintaining the child up to trial	- K15,861.87	
6. Future costs of maintaining the child	K67,600.00	
	- K103,889.87	

56. These are the Courts formal orders:

1.	An award of K103,889.87, is made, to be paid by the second defendant, the break up of which is as follows;

i.	K36, 289.87 made payable to Joyce Fugamarefa.
ii.	K67,600.00 shall be made payable to the National Court to be invested by the Registrar of the National and Supreme Courts, for and on behalf of the infant Joshua Fugamarefa until he attains the age of 18 which shall occur on or about 1st November, 2021. (‘invested funds’)

2.	Prior to the infant attaining maturity, where the need arises, application shall be made to the Court by the plaintiff for release of funds for school fees and serious medical needs for the infant Joshua, supported by appropriate evidence, if and when the need arises, and which application shall be considered on its merits;

3.	Interest is awarded at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chap. 52, from when the cause of action accrued on 8th August, 2002, to date of judgment, being 17th June, 2008, an amount of K7,472.38.

4.	The second defendant shall pay the plaintiffs costs of the proceedings, to be taxed if not agreed.

_________________________

Rageau, Manua & Kikira Lawyers: Lawyer for the Plaintiff 
Solicitor Generals Office: Lawyer for the first and second Defendant