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Seupain v Doro [2009] PGNC 3; N3573 (27 January 2009)

N3573

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 455 OF 2006

ZITA SEUPAIN, INFANT
BY HER NEXT FRIEND, KABWAN MARUNG
Plaintiff

V

DONGO DORO
AID POST ORDERLY
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2008: 12 September
2009: 27 January

JUDGMENT

NEGLIGENCE – assessment of damages – infant plaintiff’s leg amputated due to negligent administration of medicine – general damages for pain and suffering, loss of enjoyment of life.

Facts:

The plaintiff was three months old when she was taken by her parents to an aid post for treatment of skin lesions. The aid post orderly negligently injected her with a drug, which resulted in severe neurovascular damage including gangrene. Her left leg had to be amputated below the knee. Her father commenced court proceedings on her behalf against the orderly who administered the drug and the State. Default judgment was entered and a trial has been held to assess damages. Two heads of damages are claimed: general damages and special damages.

Held:

(1) General damages were assessed to compensate the plaintiff for pain and suffering, permanent loss of functionality of her leg and loss of enjoyment of life. A global sum of K100, 000.00 was awarded.

(2) Special damages were assessed at 13,500.00.

(3) The total amount of damages awarded was K100, 000.00 + K13, 500.00 = K113, 500.00.

(4) In addition, interest of K14, 082.00 is payable, making the total judgment K127, 582.00.

Cases cited:

Barry Maurice Stamp v MVIT (1979) N179
Bogil Guma v The State (1980) N262
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
David Korrolly v MVIT [1991] PNGLR 415
Joyce Fugamarefa v Dr Alphonse Te (2008) N3409
Milia Yongole Kuri v Walter Kapty & NHC, WS No 1775 of 2004, 20.02.08
MVIT v Reading [1988] PNGLR 236
Ngants Topo v The State (2008) N3478
Pike Dambe v The State [1993] PNGLR 4
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Reading v MVIT [1988] PNGLR 266
Richard Tom Mandui v The Commissioner, Correctional Service [1996] PNGLR 187
Rom Tinpul v Moses Yere & Mt Hagen Golf Club [1998] PNGLR 582
Rose Terema v MVIT [1994] PNGLR 41
Susanna Undapmaina v Talair Pty Ltd [1981] PNGLR 559

Abbreviations

The following abbreviations appear in the judgment:

% – percent
& – and
AJ – Acting Judge
cm – centimetre
J – Justice
K – Kina
Ltd – Limited
MVIT – Motor Vehicles Insurance Trust
N – National Court judgment
NHC – National Housing Corporation
No – number
PNGLR – Papua New Guinea Law Reports
Pty – Proprietary
v – versus
WS – Writ of Summons

TRIAL

This is a trial on assessment of damages.

Counsel

R Uware for the plaintiff
No appearance for the defendants

27 January, 2009

1. CANNINGS J: The plaintiff, Zita Seupain, was three months old when she was taken by her parents to the Zizi Aid Post for treatment of skin lesions. The aid post orderly negligently injected her with a drug, benzathine penicillin, which resulted in severe neurovascular damage including gangrene. She was admitted to Modilon General Hospital a month later. The condition of her left leg had deteriorated to the extent that it had to be amputated, below the knee.

2. Her father commenced court proceedings on her behalf against the orderly who administered the drug, Mr Dongo Doro, and the State. Default judgment was entered and a trial has been held to assess damages. I am not satisfied that the first defendant, Mr Doro, has been given proper notice of these proceedings. So I will only assess damages against the second defendant, the State.

3. Two heads of damages are claimed: general damages and special damages.

GENERAL DAMAGES

4. This is intended to compensate the plaintiff for pain and suffering, permanent loss of functionality of her leg and loss of enjoyment of life. She is now eight years old.

5. The nature and effect of her disability are explained in a medical report by Dr John Mackerell dated 20 September 2006:

Zita requires a prosthesis. This must be reviewed periodically as she grows until she reaches adulthood. Even with the prosthesis Zita will be permanently disadvantaged by her disability. She will have difficulty performing the work required of girls and women in her village. She will have difficulty walking long distances, particularly to the school that she must start attending next year. Her marriage prospects will also be adversely affected.

On examination, Zita is a very pleasant, vivacious young girl. There is no developmental delay. There is a left below knee amputation. Her right lower leg is 31 cm long measured from the inferior pole of the patella; the left is 17 cm. Thus, there is a 45% physical loss of her lower left leg. Without a prosthesis, the functional loss is 100% of the effective use of her entire left leg.

6. In determining an appropriate amount of general damages I have looked at a number of previous National Court cases in which the plaintiff has had to have his or her leg amputated due to the defendant’s negligence. The cases are shown in the following table.

TABLE 1: ASSESSMENT OF GENERAL DAMAGES – AMPUTATED LEG

7. There is a clear trend of increasing awards of damages over time. This reflects the reduced buying power of the Kina. It is also relevant to take account of the amounts of damages that have been awarded for other less serious forms of leg injuries. Makail AJ recently reviewed those sorts of cases in Ngants Topo v The State (2008) N3478. The plaintiff suffered a 65% loss of function of a leg, following a bridge collapse. His Honour awarded him general damages of K30, 000.00. In a recent Madang case, in Milia Yongole Kuri v Walter Kapty & NHC, WS No 1775 of 2004, 20.02.08, I awarded K50, 000.00 general damages to a woman who suffered a 45% loss of function of a leg after it was broken when she fell through the floor of her rented house, the incident being due to the negligent failure of the landlord to repair the property.

8. An amputated leg must be regarded as the most serious form of leg injury. So, having regard to the trend towards increased amounts of damages in table 1, and also to the amounts of damages being awarded for leg injuries other than amputations, it is necessary in this case to award significantly more than in the cases cited in table 1. I also take into account that the plaintiff had this disability thrust upon her at an age when almost her entire life was ahead of her.

9. I award the sum of K100, 000.00 for general damages.

SPECIAL DAMAGES

10. The plaintiff’s grandfather, Nick Mare, has given evidence of payment of out-of-pocket expenses incurred on medical treatment, transport (going to and from Madang town on numerous occasions) and accommodation, all relating to the family’s attempts to ensure that the plaintiff was properly treated and cared for. Mr Uware submits that K27, 106.05 should be awarded, but there is insufficient evidence to warrant an award of this amount. I will allow K13, 500.00.

SUMMARY OF DAMAGES AWARDED

General damages = K100, 000.00
Special damages = K13, 500.00

Total damages = K113, 500.00

INTEREST

Discretion

11. It is normal practice in a case in which damages are awarded to also award interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1(1) is the relevant provision. It states:

... in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

12. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

Exercise of discretion

13. I exercise that discretion in the following way:

1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. Interest will be included in the sum for which judgment is given.

2 The standard rate of interest being used these days by the courts is 8%. It has been decided in some cases that awards of special damages should attract interest at only half of the standard rate (e.g. Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, National Court, Bredmeyer J; approved on appeal in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Supreme Court, Pratt J, Amet J, Woods J). I will follow that approach.

3 Interest should be payable on the total of the pre-judgment components, if any, of the various categories of damages that have been assessed. The governing principle is that interest is not intended to be compensation but an award of money paid to the plaintiff for being kept out of money that ought to have been paid. In Pinzger the Supreme Court acknowledged the sound arguments in favour of dividing up damages for pain and suffering and loss of amenities of life into components for past and future and confining interest awards to the component for past pain and suffering and loss of amenities. It follows that if a head of damage is compensation for future losses, e.g. damages for loss of future earnings, it will not attract any interest. I identify the pre-judgment and post-judgment components of the various categories of damages in the following table.

TABLE 2: PRE-JUDGMENT AND POST-JUDGMENT COMPONENTS OF CATEGORIES OF DAMAGES

4 The appropriate period for which interest is to run is also the subject of Supreme Court guidelines in Pinzger. It varies according to the category of damages. For general damages it is from the date of service of the writ to the date of trial. For special damages it is from the date of the incident to the date of trial. In other cases the date of judgment has been substituted for the date of trial (e.g. Reading v MVIT [1988] PNGLR 266, National Court, Woods J; affirmed on appeal in MVIT v Reading [1988] PNGLR 236, Supreme Court, Kidu CJ, Amet J, Cory J). I consider that the date of judgment is a fairer end-mark for the period. As that lies within the boundaries of my discretion, I set it at that. In the present case the date of the incident is 20 October 2000. The date of service of the writ is 22 August 2006. The date of this judgment is 27 January 2009. Interest will run on general damages (at 8%) from 22 August 2006 to 27 January 2009, a period of 2.4 years. Interest will run on special damages (at 4%) from 20 October 2000 to 27 January 2009, a period of 8.3 years.

Calculation

14. I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
  
• I is the rate of interest per annum;
  
• N is the appropriate period in numbers of years;
  
• A is the amount of interest.
  

Therefore:

• interest on general damages = K50,000.00 x 0.08 x 2.4 = K9,600.00;
  
• interest on special damages = K13, 500.00 x 0.04 x 8.3 = K4, 482.00.
  

15. I will order that there be included in the sum for which judgment is given, interest of K14, 082.00.

PROCEEDS OF JUDGMENT

16. As the plaintiff is only eight years old, I will order that the general damages she is being awarded (K100, 000.00) be paid to the Registrar of the National Court. The Registrar will be obliged to invest and manage the funds on her behalf, on trust, until the date she attains the age of 18 years, which I determine as 17 July 2018. This is consistent with the approach often taken in child plaintiff cases. See, for example, Bogil Guma v The State (1980) N262, Susanna Undapmaina v Talair Pty Ltd [1981] PNGLR 559, Pike Dambe v The State [1993] PNGLR 4, Joyce Fugamarefa v Dr Alphonse Te (2008) N3409.

17. As for special damages (K13, 500.00) and interest (K14, 082.00), I will order that those sums, totalling K27, 582.00, plus costs, be paid to the plaintiff’s next friend, her father, Kabwan Marung.

JUDGMENT

18. I direct entry of judgment, all of which is subject to order No (5), in the following terms:

1. damages, payable by the second defendant to the plaintiff, of K113,500.00;
   
2. interest payable by the second defendant to the plaintiff, of K14,082.00;
   
3. being a total judgment lump sum of K127,582.00;
   
4. costs of the proceedings shall be paid by the second defendant to the plaintiff on a party-party basis, to be taxed if not agreed;
   
5. the proceeds of the judgment and costs shall be applied as follows:
   
   • (a) general damages of K100,000.00 shall be paid to the Registrar of the National Court, who is obliged to invest and manage the funds on the plaintiff’s behalf, on trust, until 17 July 2018, when the funds, inclusive of interest, shall be paid by the Registrar to the plaintiff;
     
   • (b) special damages (K13, 500.00) plus interest (K14, 082.00) plus costs (to be taxed if not agreed) shall be paid to Kabwan Marung.
     

Judgment accordingly.

_____________________________

Public Solicitor: Lawyer for the plaintiff
Solicitor-General: Lawyer for the defendants