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Jack v Mola [2008] PGNC 309; N3537 (3 December 2008)

N3537

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 819 of 2002

BETWEEN

JULIE JACK
Plaintiff

AND

DR. GLEN MOLA
First Defendant

AND

DR. CHRIS MARJEN as CHIEF EXECUTIVE OFFICER OF PORT MORESBY GENERAL HOSPITAL
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Sevua, J
2007: 20 March
2008: 3 December

MEDICAL PRACTITIONERS – Negligence – Pregnant wife – Blood test prior to delivery – Result of blood test HIV positive – Result communicated to plaintiff – Defendants' failure to conduct another blood test prior to delivery – Plaintiff delivered child – Plaintiff's child tested HIV negative – Damages – Assessment of.

MEDICAL PRACTITIONERS – Negligence by doctors and medical staff – Plaintiffs subsequent blood test after delivery – Result HIV negative – Plaintiff's new born child and husband submitted to blood tests – results HIV negative for plaintiff, child and husband – damages – assessment of
MEDICAL NEGLIGENCE – Negligence by doctors and medical staff – Failure by defendants to conduct further blood tests on plaintiff prior to delivery – Advices by defendants for plaintiff to undergo counselling without further blood tests – Advice to plaintiff to undertake tubal ligation without further tests – Negligent advice due to no further HIV test on plaintiff's blood sample – Tubal ligation based on negligence of defendants – Damages – Assessment of.

MEDICAL NEGLIGENCE – Damages – Assessment of – Plaintiff unable to conceive and bear children due to tubal ligation – Desire to have other children – Medically impossible due to sterilization – Plaintiff unable to have children – Opportunities existed for doctors and medical staff to have further blood tests but plaintiff not accorded the opportunity - Counselling and operation based on negligent acts and advices.

DAMAGES – Assessment of - General damages – Non-pecuniary losses past and future - Pain, suffering, loss of amenities, mental distress and/or anguish – Exemplary damages – Aggravated damages – Whether exemplary and aggravated damages should be awarded.

VICARIOUS LIABILITY – Severing the umbilical cord – A thought.

Counsel:

Ms. P. Sawanga/ Ms. A. Tagamasau, for Plaintiff

Held:

1. General damages for past and future non pecuniary losses such as pain and suffering, loss of amenities of life, mental anguish or distress is assessed at K100, 000.000 which is considered an appropriate and justified award.

2. Plaintiff became an innocent and unfortunate victim of the medical doctors' and staffs' negligence which was quite unreasonable and highly culpable. An award of K175, 000.00 for loss of fertility or inability to conceive and bear children is not unreasonable in the circumstances.

3. Plaintiff is entitled to exemplary damages because the conduct of the servants and agents of the second and third defendants was not only negligent, but outrageous, malicious and done without due regard to the plaintiff's rights. Legally and medically, the plaintiff was not infected with HIV virus as several tests after delivery of her child resulted in HIV negative results. Such conduct therefore merits punishment by an award of exemplary damages which is assessed at K50, 000.00.

4. The operation or surgery was aggravated by the negligent sampling of the plaintiff's blood sample which subsequent tests proved HIV negative. The facts and evidence justify an award for aggravated damages as the conduct of the defendants' servants and agents was an unjustified assault and an affront to the plaintiff's dignity and rights. Therefore an award for aggravated damages is warranted and is assessed at K50, 000.00.

5. The sum of K490.00 in medical expenses is awarded as special damages.

Cases cited:
Papua New Guinea Cases

Gima Oresi v Chris Marjen & The State (1988) N1784,
Jerry Goria v Sergeant Jeffery Simara & Ors, (2001) N2066
Abel Tomba v The Independent State of Papua New Guinea (1997) SC 518
Koimo v The State (1995) N1322
More v. Tokam (1997) N1645

Overseas Cases

Bullpit v. Gough, Judgment No. 2788, South Australian Supreme Court, 28th March 1991
Australian Consolidated Press Limited v. Thomas Uren [1969] 1 AC 590

3rd December, 2008

1. SEVUA, J: This is a trial on assessment of damages arising from a medical negligence claim where the plaintiff had undergone a surgical operation known as tubal ligation to prevent her from conceiving and having children.

2. Liability is not in issue and the defendants are not represented even though Court records reveal that the Solicitor General did appear by consent on various dates on behalf of the defendants prior to the date of trial on assessment of damages. This is another case of neglect by the office of the Solicitor General thereby adding a judgment debt to the coffers of the State.

3. It is noted that on 8th April 2005, the plaintiff consented to a notice of discontinuance against the first defendant, Dr. Glen Mola. Therefore the proceedings continued against the second and third defendants only.
4. However from the evidence, the tubal ligation was undertaken on the basis of original advice given by the first defendant and there is evidence against him. In my view the proceedings should not have been discontinued against Dr Mola in the fist place.

5. The facts which are deposed to in the plaintiff's affidavit sworn on 26th February 2007 and filed on 27th February 2007 are these. These facts are undisputed.

6. The plaintiff was and still is employed as a Customs Officer with Customs Operations at Internal Revenue Commission and was 30 years at the time of assessment of damages on 20th March 2007. She was married to one Albert Kambar an Eastern Highlander who was employed as an Information Technology Manager with the Public Officers Superannuation Fund. They were married by custom and have been married for 7 years to the date of trial on assessment.

7. On or about 20th January 2000 the plaintiff, while in her fifth month of pregnancy, attended the ante-natal clinic at Port Moresby General Hospital where she underwent various checks and a sample of her blood was taken for tests. She was advised to return in a month's time. In about February 2000, she attended her second ante-natal clinic. While waiting outside a consulting room, she was given a red card which indicated her status as a special case. A nurse by the name of Julie showed her into a room where she saw the first defendant, Dr. Glen Mola.

8. The first defendant then disclosed to the plaintiff that her blood sample taken in January during her first ante-natal clinic had been tested and she had tested HIV positive. The plaintiff said she was "totally shocked" at the news and could not believe what she heard. The first defendant later asked her about her previous relationships and discussed living with HIV with her. She was advised by the first defendant that if she wanted to live longer, given her HIV status, she should seriously consider a tubal ligation surgery
after the birth of her first child. The operation would prevent her from conceiving further children and from passing the virus to any child she might have later.

9. The first defendant showed the plaintiff a Consent for Sterilization Form. At this juncture, it is relevant to note what the plaintiff said. She said she looked closely at the form and noticed that the first defendant had crossed out a name and written her name instead. The plaintiff said she also noticed that in the marital status space where the husband or wife's name should appear, the first defendant had written the word, "unmarried". He gave the form to the plaintiff to sign, but she did not sign and held onto it and was silent. The first defendant then told her to take the document home and think about it and bring it on her next visit.

10. The plaintiff was asked by the first defendant if she came with anyone and she replied and said she had come with her husband who was waiting outside. She was told to get the husband inside which she did. The first defendant informed the plaintiff's husband of the plaintiff's blood test result and recommended that they should seriously consider tubal ligation. The first defendant also advised the plaintiff's husband to have a blood test so he submitted to a blood test.

11. On 8th March 2000 the plaintiff and her husband returned to the hospital's ante-natal clinic. They were advised by a Dr Haywood that the husband had tested HIV negative.

12. On 13th May 2000, the plaintiff gave birth to her first child, a female. They were kept in the hospital for three days. On 16th May 2000, a Dr Ipai visited the plaintiff and counselled her about HIV status and further advised her to undergo the tubal ligation operation. After the doctor left, the plaintiff and her husband signed the consent form for sterilization. After that, a social worker by the name of Pauline visited the plaintiff and counselled her on HIV and AIDS. The plaintiff asked if she could have another test. The social worker seemed unsure on what to say and was only able to say that the
plaintiff should attend the counselling clinic offered by the Friends Foundation as soon as she is discharged from the hospital.

13. Let me divert here to say that the social worker should have reported to either Dr Mola, Dr Haywood or Dr Ipai that the plaintiff wanted another test. But she was denied that opportunity for no good reason.

14. The plaintiff eventually underwent the tubal ligation surgery on 17th May 2000 and was discharged on 18th May 2000. She was told to attend the Consultation Clinic with Dr. Kiromat for regular checks.

15. On 21st May 2000 the plaintiff returned to the clinic with her daughter where blood samples were taken from both of them for further HIV tests. This was done because the daughter did not show any sign of HIV infection after birth. Then on the 26th May 2000 the plaintiff returned to see Dr. Kiromat who advised that the results of the recent tests were HIV negative for both the plaintiff and her daughter. Dr. Kiromat then requested the whole family to have a further test.

16. On 2nd August 2000, the plaintiff returned to the clinic with her daughter and husband, where blood samples were obtained from all of them.

17. On 23rd August 2000, they went back to the hospital and were informed that the results of the HIV blood tests were negative for all three, that is, the plaintiff, her daughter and husband. Although the plaintiff said she felt relieved after hearing that news, she also said, "...after it sunk in, I felt hurt deeply as my desire to have more children had been stopped permanently by the painful process of tubal ligation".

18. The plaintiff said that she, "truly believed that had the first defendant and all other servants and agents of the second and third defendants bothered to collect new or further blood samples or recommended that further blood samples be taken from me in January
2000, or at anytime thereafter, I would not have had to go through the emotional distress and pain which I suffered."

19. I accept this statement as a fact and I consider that it is quite relevant in so far as damages for negligence is concerned, particularly whether the Court should consider that there is any basis for exemplary or punitive damages. I will revert to the issue later when I discuss this head of damages.

The plaintiff also said she has personally lost the natural ability to conceive and bear children as a result of the tubal ligation surgery and she is not in a position to reverse the surgery so that she can conceive and bear children again. She says she sought medical opinion on a reversal process and had been advised that there is a 50 – 70% chance of reversal. Annexed to her affidavit and marked "B" is a medical report from Dr. Shyam Sirsan of Pacific International Hospital dated 26th May 2006. That consultation cost her K100.00.

20. However according to that opinion, the reversal of surgery is dependent on several matters – the patient, the procedures involved in the previous laparoscopy process, status of the tubes during the reversal operation, and the procedure of reversal operation. In any event, the plaintiff said that she was advised that such a reversal operation would be expensive thus she is not in a position to undergo another procedure. The plaintiff further consulted a psychologist, Aaron Hayes, the Director of PNG Counselling and Care on 6th September 2005 in relation to the impact of the tubal ligation on her life. Annexed to the plaintiff's affidavit is Mr. Hayes report which is Annexure "C". I will refer to the report again at a later stage when I discuss damages, however, it is important to note the opinion of the psychologist that ..."over the past 5 years in psychological terms, Ms. Jack has suffered considerably decreased enjoyment of both her personal life and her marital relationship as a result of being unable to conceive."

21. It is my opinion that this evidence which is not contested is relevant in assessing general damages on pain and suffering and loss of amenities of life, damages for mental anguish or distress and exemplary damages.

22. On 9th November, 2005, the plaintiff consulted Dr. Goiba Tienang, Chief Psychiatrist of the Department of Health for an assessment and expert opinion on the psychological damages suffered by her. Dr. Tienang's Neuropsychiatric Assessment and Report on the plaintiff is Annexure "D" to the plaintiff's affidavit.

23. For purpose of assessing damages I will refer to the report because I consider that it is quite relevant for that purpose and parts of it must be cited to emphasise the kind of suffering that the plaintiff had to endure from the sterilization procedure.

24. Some of the matters in the summary of Dr. Tienang's findings on the events leading up to the tubal ligation operation were that:

• Plaintiff had no past history of chronic physical illnesses, known psychiatric illnesses or any involvement in a serious incident.

• Plaintiff had no past history of any gynaecological or obstetrics problem.

• Subsequent blood sample of the plaintiff and husband tested HIV negative.

• Plaintiff was advised against having any more children due to the HIV status.

• Plaintiff was advised to have a tubal ligation after the birth of her child.

• Impact of the HIV positive advice was like a death sentence to plaintiff as she had to live with the fact that she was going to die.

• Plaintiff was very depressed and anxious and lost a lot of weight. She wept, most of the night and lost weight.

• Since informing her relatives of the HIV positive advice given her, she and her daughter had to live with the stigma.

• Delivery of her child at the labour ward was traumatic as her card had HIV positive written on it resulting in delays by nurses attending to her. She was not treated like other mothers and she suffered from the stigma of being HIV positive. She received sub-standard treatment from the nurses at the labour ward.

• After plaintiff delivered her child she consented to the tubal ligation surgery.

25. I have already alluded to the subsequent repeated blood tests which revealed the plaintiff was HIV negative. After the diagnosis of HIV positive and permanent sterilization operation (tubal ligation) Dr. Tienang noted that all these trauma caused Julie's mental and emotional distress. She developed anxiety and was constantly assaulted because she was now unable to conceive a child.

26. She related some of the problems she was facing in every day life and these are stated on page 2 of Dr. Tienang's report. Some of these matters have already been covered in her evidence but she repeated them to the psychiatrist who observed and noted them as follows:

"1. According to me, over the five years, my marriage has come under increasing strain due to my inability to conceive and deliver children.

2. I have assessed that my husband has become increasingly estranged from me and regularly assaults me due to his frustration with me being unable to conceive.

3. Due to my inability to conceive, I state that I feel less than complete as a woman and feel like a failure as a wife.

4. For five years, I have lived with my anxieties, distress and problems among my families, friends and work colleagues which were very difficult for me. That caused me to loose my appetite, have sleepless nights and took days off work thinking of the tubal ligation procedures every single days of my life.

5. At times when I am alone with my daughter, I turn to loose my confidence and weep at times when thinking of bearing children to provide company for my 5 year old daughter and my husband has high expectation for more children.

6. Over the past 5 years in psychological terms, I have suffered considerably decreased enjoyment of both my personal life and my marital relationship as a result of inability to conceive children.

7. This problem of increasingly estrange in the family has caused my child to have less confidence in class and she also suffered decrease (sic) relationship with her teachers, school mates and family members."

Dr. Tienang's stated under his Psychiatric Mental Status Examination in page 3 that he conducted a full Psychiatric Examinations of the plaintiff on 9th November, 2005 at the Port Moresby General Hospital. His examination revealed that the plaintiff was suffering from Symptoms of Moderate Depressions and Anxiety. Dr. Tienang further observed that his "diagnosis of Moderate Depression and Anxiety are a direct result of the psychological trauma of wrongly having a permanent sterilization procedure done after a wrong blood result of HIV" (my own emphasis).

27. Then Dr. Tienang expressed his professional opinion under three different subjects:

"1. Trauma, Distress, Anxiety, Emotional State as a result of being advised of HIV Positive Status.

Julie expressed this very clearly, she said; "It was like a death sentence" she would cry all night. She was depressed and suicidal, there was no hope for future and there was no use for life. There is also shame and anxiety of how other people are feeling towards you. This anxiety and shame continues for life.

Even after tests have come out negative, the impression is still there, there is still doubt in people's minds.

The stigma that comes with HIV Positive Blood Results is very bad especially in people who are not properly educated in HIV. Julie suffered stigmatization from hospital staff and also from her own family members and others who knew of her HIV status.

2. Trauma, Distress, Anxiety, Emotional State at being adhered (sic) of HIV Negative Status and Permanent Sterilization.

First, HIV Negative Status revealed after a mistake of a Blood Result being Positive can create anger, anxiety and doubt at first but slowly sets in after repeated blood samples come out Negative. After that we deal with the issue of permanent sterilization. In PNG culture and many other cultures, children are the centre of all the families. Females who produce many children are respected highly in our culture. She is unable to bear other children especially male children have been the main cause of her marriage conflicts.

She stated clearly, she feels less female and wife because she cannot conceive any more and the fact that the part of the body organ which makes her female has been made non functional by a surgical operation. By non functional in this case, we mean "being unable to Conceive".

3. Ongoing Trauma and Emotional State as a result of Sterilization.

It is also well documented in the literates (sic) that constant ongoing family conflicts lead to Depression and anxiety. This lady who has been wrongly sterilized and is abused emotionally and physically by her husband constantly has a very high risk of Depression, Anxiety and other Psychiatric Disorders.

These findings are consistent with Julie Jack's mental state on my examination.

28. Finally, the psychiatrist concluded that his findings are consistent with the plaintiff's mental state at the time of his examination. I have already alluded to her affidavit at Dr. Goiba Tienang's Clinic. The plaintiff said she has misplaced the receipts but recalled spending K200.00 and K70.00 respectively for the consultation and reports.

29. As I said the facts are undisputed. Since the defendants had failed to file a defence and therefore failed to defend this suit, there is no evidence to dispute all that the plaintiff has deposed to in her affidavit, which I accept.

I accept the psychiatric report by Dr. Goiba Tienang, psychiatrist and the psychologist report of Mr Aaron Hayes. These have not been refuted and I have no reason to not accept them. I need to emphasise that the emotional stress or the psychological effect of the whole traumatic experience and sufferings endured by the plaintiff were demonstrated in Court at the trial on assessment of damages on 20th March 2007. During the plaintiff's counsel's submissions, I observed that there was a woman sitting at the back of the Court weeping as Ms Sawanga was making her submissions and referring to the evidence and the reports of the psychiatrist and the psychologist. I later learnt that the woman was the plaintiff.

30. It must be stressed that the findings and conclusions of the psychiatrist and psychologist revealed the sufferings endured by the plaintiff and I have no reason to disbelieve them.
31. I find that the plaintiff had indeed suffered unnecessarily and will continue to suffer in future. Therefore I have no reservation in accepting these facts as undisputed and uncontroverted. All that is left is for the Court is to assess damages as best as possible.

32. The plaintiff claims damages for negligence and she specifically claimed general damages, special damages, exemplary damages, costs and interest. The plaintiff's counsel, Ms. Sawanga has referred the Court to a number of cases in support of her submissions on assessment. It is not necessary to discuss all those cases.

33. The heads of damages claimed by the plaintiff are difficult to assess because there is no mathematical formula fixed or determined by law for damages. However the Court would normally consider comparative verdicts and the awards in damages in other cases and make an assessment appropriate to each case as it considers reasonable. Therefore awards for damages are discretionary.

34. As a general principle a person who is injured by another person's wrong is entitled to general damages. Such damages can be for non-pecuniary losses such as pain and suffering and loss of amenities of life including mental distress or anguish and frustration etc., and past and future non-pecuniary losses. General damages are not capable of precise quantification, but is at the discretion of the Court as to what amounts it considers appropriate.

35. In the present case I consider that general damages should include award for past and future non-pecuniary losses such as pain and suffering; loss of amenities of life; mental distress and/or anguish etc.. It should also cover temporary or permanent disability sustained by the plaintiff.

36. There is no doubt in my mind that the plaintiff is entitled to general damages for the above mentioned losses. Whilst it is true that this Court is not determining liability, I consider that this is a very serious case of negligence, especially when the plaintiff who was not infected with HIV but was diagnosed as HIV positive thereby affecting her whole personal and married life.

37. To me it is a case of 'gross negligence' and I do not use that phrase as a mere addition of an 'imperative epithet!' It is my opinion that this is a serious case of negligence that amounts to the highest culpability (though not in the criminal law sense) which should attract substantial awards of damages that are claimed by the plaintiff.

38. I have already adverted to a series of facts which are largely uncontested and therefore those facts will form the basis for the Court's assessment of the various heads of damages claimed by the plaintiff.

39. The Court must emphasise that through no fault of the plaintiff, she had to undergo an operation which was totally uncalled for and unwarranted, which operation had left her emotionally shattered, for want of a better description, that she will no longer conceive and bear any more children despite her desire to have more children.

40. It must be reiterated that, the initial diagnosis of the plaintiff as HIV positive was conducted under highly unprofessional manner and in circumstances where little or no regard for professional care and attention was given to the plaintiff especially in a situation where the defendants' servants and agents were dealing with a very dangerous and volatile disease, namely, HIV and AIDS. More proper care should have been given to the plaintiff in this case.

41. The fact that the plaintiff was eventually diagnosed as HIV negative confirmed the fact that she was never infected with the HIV virus, and was never a HIV patient in the first place. The result of the test which originally found the plaintiff HIV positive, but later turned out that the plaintiff, her new born daughter and even the husband were all tested HIV negative speaks of high level of negligence which I find to be negligence of the worst kind.

42. In my view, the different results and the final results of those tests were due to negligent procedures, negligent attitude, negligent doctors and negligent medical staff. To start of with, the consent to sterilization form given to the plaintiff to complete and sign had a name crossed out on it and the plaintiff's name inserted instead. It also had the marital status of the plaintiff as unmarried when the plaintiff was married. This, in my view, is highly suspicious and irregular. A completely new form should have been used.

43. As it were, the result of the plaintiff's first test which tested HIV positive could have been the blood samples of the person whose name and marital status were crossed off on the form given to the plaintiff. That was a careless and reckless attitude by the defendants' servants and/or agents. There can be no doubt about that.

44. In my view, from the date of the first blood test which diagnosed the plaintiff as HIV positive to the date of delivery of her child, there were more than ample time and opportunity for the doctors especially, to advise the plaintiff or even suggest to her that she should have another blood test to confirm or negate the initial result of the first test. This was never done and while I maintain that this is not a determination of liability, I am of the view that all the doctors and other medical staff involved in this case were careless, reckless and negligent in the highest order.

45. I consider that the tubal ligation surgery which has rendered the plaintiff unable to conceive and bear any more children is a permanent physical and mental injury to the plaintiff. I do not think that any amount of money would compensate the wrong and permanent damages that have rendered the plaintiff steriled and emotionally and/or psychologically affected. She also bears a permanent physical scar from that operation.
46. Therefore we are not dealing with interim or temporary damages done to the plaintiff. For the purpose of this assessment, the damages done to the plaintiff are permanent and I accept the evidence contained in the reports of the psychologist and the psychiatrist.

47. The Court in some of the cases cited by Ms. Sawanga have awarded general damages at K20, 000.00. In Gima Oresi v. Chris Marjen & The State (1988) N1784; the Court awarded K10,000.00 as general damages. That is a medical negligence case which after, an operation, two surgical instruments were left inside the plaintiff resulting in a permanent disability and the inability to have any full term pregnancy. But that case was decided 10 years ago and besides the facts are not the same as the facts in the present case.
Some of the cases referred to are not relevant to the present case as they deal with damages relating to contracts and motor vehicle accidents. I will assess damages under different heads.

1. General Damages – Pain, Suffering, Loss of amenities, Mental Anguish/Distress etc.

48. In assessing damages under this head, it is undisputed that the plaintiff had suffered unnecessarily. After the operation, she suffered the stigma of a person who was diagnosed with HIV. She withdrew herself from her friends and family including fellow work colleagues. She lived under pressure from her husband's family because she was unable to bear any more children, which led to arguments between her and her husband and her and her husband's family and physical assaults by the husband.

49. According to Aaron Hayes of PNG Counselling Service, "over the past 5 years, in psychological terms, Julie has suffered considerable decreased enjoyment of both her personal life and her marital relationship as a result of being unable to conceive." The plaintiff was subject to regular assaults from her husband due to frustration of her being unable to conceive after the marriage had come under increasing strain due to her inability to conceive and bear children.

50. Whilst the plaintiff continued to be employed, the aftermath of her diagnosis of being HIV positive had enormously affected her and I find that she suffered extensively. For example, she said, "for five years I lived with my anxieties, distress and problems amongst my families, friends and work colleagues... That caused me to lose my appetite, have sleepless nights and took days off work thinking of the tubal ligation procedure every single day of my life."

51. In the five years prior to the commencement of this suit, the plaintiff suffered considerable decreased enjoyment of both personal life and her marital relationship because she was unable to conceive and bear children.
As Ms. Sawanga submitted, the circumstances surrounding the sterilization operation was due to a wrong diagnosis that the plaintiff had tested HIV positive, when in fact, she was not HIV positive. She unnecessarily underwent pain, suffering and trauma of a sterilization procedure for which there was no medical need. She is now left with a permanent scar on the abdomen.

52. Counsel submitted that general damages for pain and suffering should be assessed at K50, 000.00. This Court notes that in Jerry Goria v. Sergeant Jeffery Simara & Ors (2001) N2066; the Court, in assessing general damages at K50, 000.00 said it was appropriate and justified. That case was decided seven years ago. In my view, the amount should increase due to the rising costs of inflation. I consider that a sum greater than that amount is appropriate and justified in the light of the facts of this case.

53. Accordingly, I am of the view that general damages should be assessed at K100, 000.00 because I consider it appropriate and justified under the circumstances. That award takes into account all the above matters and include past and future non-pecuniary losses.

2. Damages for Loss of Fertility/Inability to Conceive.

54. I have noted that the plaintiff's counsel had separated the loss of fertility or inability to conceive from general damages. I quite agree and accept that this should be so because of the peculiar nature of this case.

55. Ms. Sawanga referred to Bulpitt v. Gough, Judgment No. 2788 of 28th March 1991, a decision of the Full Court of the South Australian Supreme Court in Adelaide, which was an appeal against an assessment of damages relating to personal injuries sustained in a motor vehicle accident. Unfortunately, I have been unable to locate that case in the 1991 SASR and other South Australian case law reports. But one of the findings of the trial Judge was that continuing problems resulting from the initial injuries was reduction in fertility.

56. On page 2 of the judgment, the Court said:

"7. The damage to the appellant's hypothalamus has led to a serious reduction in fertility as well as to a loss of libido...........It is quite clear that, given intensive fertility treatment she may well have great difficulty in conceiving."

57. Having established that the defendants are liable for negligence, damages are assessed in the following:

1. General damages for past and future non pecuniary losses such as pain and suffering, loss of amenities of life, mental anguish or distress is assessed at K100, 000.000 which is considered an appropriate and justified award.
   

2. Plaintiff became an innocent and unfortunate victim of the medical doctors' and staffs' negligence which was quite unreasonable and highly culpable. An award of K175, 000.00 for loss of fertility or inability to conceive and bear children is not unreasonable in the circumstances.

3. Plaintiff is entitled to exemplary damages because the conduct of the servants and agents of the second and third defendants was not only negligent, but outrageous, malicious and done without due regard to the plaintiff's rights. Legally and medically, the plaintiff was not infected with HIV virus as several tests after delivery of her child resulted in HIV negative results. Such conduct therefore merits punishment by an award of exemplary damages which is assessed at K50, 000.00.

4. The operation or surgery was aggravated by the negligent sampling of the plaintiff's blood sample which subsequent tests proved HIV negative. The facts and evidence justify an award for aggravated damages as the conduct of the defendants' servants and agents was an unjustified assault and an affront to the plaintiff's dignity and rights. Therefore an award for aggravated damages is warranted and is assessed at K50, 000.00.

5. The sum of K490.00 in medical expenses is awarded as special damages.

Orders accordingly.
___________________________________________________________
Ms. P. Sawanga/ Ms. A. Tagamasau: Lawyers for the Plaintiff