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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO.981 OF 2018
BETWEEN:
MENDAI LANYETA JOHNSON
Plaintiff
AND:
DR. TOROVA
First Defendant
AND:
PACIFIC INTERNATIONAL HOSPITAL LIMITED
Second Defendant
Waigani: David, J
2021: 7th July & 17th September
LIMITATION OF ACTIONS – application to dismiss entire proceedings - claim in tort of negligence – statutory defence that claim statute-barred pleaded in defence - clear case – Frauds and Limitations Act, Section 16(1)(a) – National Court Rules, Order 12 Rule 40.
Cases Cited:
Papua New Guinea Cases
Ereman Ragi and The State Services and Statutory Authorities Superannuation Fund Board [Public Officers Superannuation Fund Board
(POSFB)] v Joseph Maingu (1994) SC459
Tau Gumu v PNGBC (2001) N2288
Kerry Lerro v Philip Stagg (2006) N3050
Philip Takori v Simon Yagari (2008) SC905
Telikom PNG Limited v ICCC & Digicel (PNG) Limited (2008) SC906
Mt Hagen Urban Local Level Government v Sek No.15 (2009) SC1007
Anave Ona v National Housing Corporation (2009) SC995
Oil Search Ltd v Mineral Resources Development Corporation Ltd (2010) SC1022
Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107
Mathias Goma v Protect Security & Communication Ltd (2013) SC1300
Mamun Investment Ltd v Nixon Koi (2015) SC1409
Serowa v The State & Ors (2016) N8470
Derwent Ltd v Anton Pakena (2017) N7050
Memkitts Investments Ltd v Paul Depo Aikal (2019) N8053
Negliw No 57 Ltd v Tiare No 26 Ltd (2019) N8364
Nodepa Plantation Ltd v Balat (2020) SC1927
Overseas Cases
Hubbuck and Sons v Wilkinson [1899] 1 QB
Co-ownership Land Development Pty Ltd v Queensland Estate Pty Ltd (1973) 47 ALJR 519
Counsel
Tai Yai, for the Plaintiff
Priscilla Tamutai, for the Defendants
JUDGMENT
17th September, 2021
2. The motion is supported by the Affidavit in Support of the first defendant, Dr. Torova sworn on 28 May 202 and filed on 1 June 2021.
3. The plaintiff contests the application. She does not rely on any affidavit.
PLAINTIFF’S CLAIM
4. The plaintiff’s claim is averred in the statement of claim endorsed on the writ of summons filed on 16 August 2018. The claim is about the alleged negligence on the part of a medical practitioner or doctor and a private hospital at Korobosea in Port Moresby owned by the second defendant where the first defendant was employed. The plaintiff, experiencing abdominal pain, was admitted to the Pacific International Hospital (PIH) on 13 February 2012 for treatment. She was diagnosed with cholecystitis, an inflammation of the gallbladder caused by gall stones. On or about 16 February 2012, the first defendant performed surgery on her during which the common bile duct was cut.
5. After the surgery, the plaintiff experienced persistent severe pains in her liver and gall bladder region resulting from post-operative complications and therefore corrective surgery was necessary. On 22 February 2012, the first defendant performed a corrective surgery on the plaintiff.
6. On 27 February 2012, the plaintiff was discharged. A review was scheduled for 2 March 2012.
7. The alleged negligence against the first defendant essentially was that he, as doctor, breached the duty of care he owed to the plaintiff as patient when without due care and gross negligence during surgery, he cut the plaintiff’s common bile duct.
8. The alleged negligence against the second defendant essentially was that as the employer of the first defendant, it was grossly negligent in permitting the first defendant who was a non-specialist to perform surgery on the plaintiff during which the first defendant cut the plaintiff’s common bile duct.
9. For four consecutive years after the surgeries, the plaintiff continued to experience persistent severe abdominal pains after meals which greatly affected her appetite and led to weight loss and affected her normal, social and economic activities. She consulted one Dr. Arnold Waine, a specialist, at the Port Moresby General Hospital in early March 2016 about her medical predicament and on 10 March 2016, he performed a further corrective surgery. The corrective surgery revealed and exposed the negligence and mistakes of the first defendant’s performance of the first surgery and these were:
1. There was massive adhesion at the previous operative site. The omentum was wrapped around the right lower pole of the liver. Together, it was stitched unto the abdominal wall causing stretching, traction and tugging to the dynamic intra-abdominal organs. During movement of peristalsis (movement of intestinal content), it causes excruciating periodic pains and nausea.
2. A segment of the small intestine was attached to the inferior surface of the liver.
3. There was no gall bladder organ.
10. The plaintiff claims that the second defendant is vicariously liable for the negligence of the first defendant.
11. The plaintiff seeks general damages, special damages, exemplary damages, interest at 8% per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act and costs.
12. In their defence filed on 28 September 2018, the defendants deny that they were negligent.
13. They state, among other things, that:
1. The first defendant was a doctor and general surgeon employed by the second defendant.
2. The first defendant has worked as a general surgeon for over 28 years and as a general surgeon, he can perform any surgery.
3. The plaintiff was presented at the PIH on 13 February 2012 and was admitted for open cholecystectomy (operation to remove the gall bladder).
4. Surgery was performed on the plaintiff on 14 February 2012.
5. Prior to the surgery, full examination and ultrasound scan was done on the plaintiff which confirmed that the plaintiff had a chronic cholecystitis (long standing inflammation of the gall bladder since 2009) due to repeated infection with cholelithiasis (stones in the gall bladder).
6. After explaining and discussing the operation and its complications with the plaintiff and her husband and having understood, the plaintiff’s husband signed the consent form.
7. The operation revealed that there were adhesions, scarring and fibrosis (tissues stuck together due to prolonged infection of an organ in the body) in the area of the gall bladder.
8. The plaintiff’s gall bladder was successfully removed and proper care and treatment was administered on the plaintiff during and after the surgery.
9. The post-operative complications of reconnecting the duct which included anastomotic leakage of bile, obstruction of the connected duct, infection and post cholecystectomy syndrome pains which can persist for months to years after gall bladder removal were explained to the plaintiff and her husband and they understood and granted their consent.
10. It is common to experience abdominal pains after removal of the gall bladder.
11. The second surgery was performed on the plaintiff on 22 February 2012 after a repeat ultrasound scan showed obstruction to the normal flow of bile and the problem was rectified.
12. The action was statute-barred.
14. In the reply filed on 10 October 2018, the plaintiff averred, among other things, that the proceedings were not time-barred because her cause of action arose on 10 March 2016 or thereafter when she discovered the cause of the severe and persistent abdominal pains and other associated suffering she had endured for four consecutive years following corrective surgery performed by Dr. Arnold Waine at the Port Moresby General Hospital on 10 March 2016.
ISSUE
15. The main issue that arises from the motion for my decision is whether the proceedings are statute-barred pursuant to Section 16(1)(a) of the Frauds and Limitations Act and therefore should be dismissed in their entirety pursuant to Order 12 Rule 40 of the National Court Rules.
SUBMISSIONS
16. The defendants contend that the plaintiff has waited more than six years after her cause of action founded in the tort of negligence arose in February 2012 (either on 14 February 2012 after the first operation or on 22 February 2012 after the second operation), so the proceedings commenced on 16 August 2018 are statute-barred under Section 16(1)(a) of the Frauds and Limitations Act and should be dismissed in their entirety pursuant to Order 12 Rule 40 of the National Court Rules. The defendants rely on the decision of the Supreme Court in Mamun Investment Ltd v Nixon Koi (2015) SC1409 where it was held that a cause of action founded on simple contract and in tort accrues and time begins to run under Section 16(1) of the Frauds and Limitations Act irrespective of when the plaintiff had knowledge of that fact. They also rely on the decisions of the National Court in Serowa v The State & Ors (2016) N8470 and Memkitts Investments Ltd v Paul Depo Aikal (2019) N8053 which subscribe to the view in Mamun Investment Ltd v Nixon Koi (2015) SC1409.
17. The plaintiff argues that the proceedings should not be dismissed as the cause of action in the tort of negligence arose in March 2016 after a corrective surgery was performed on her by another doctor, Dr. Arnold Waine, a specialist, at the Port Moresby General Hospital when the negligence and mistakes of the defendants was discovered and therefore the action was not statute-barred under Section 16(1) of the Frauds and Limitations Act. The plaintiff relies on Tau Gumu v PNGBC (2001) N2288 and Anave Ona v NHC (2009) SC995 which, she states, stand for the proposition that a cause of action accrues and time begins to run on discovery of the act or omission or a combination of acts or omissions giving rise to a right of action.
CONSIDERATION
18. The starting point in the present case is Section 16(1)(a) of the Frauds and Limitations Act and it states:
“Subject to Sections 17 and 18, an action
(a) that is founded on simple contract or on tort...
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.”
19. Sections 17 and 18 of the Frauds and Limitations Act are not relevant in the present case.
20. In determining whether an action is statute-barred, I have taken into account the decision of the Supreme Court in Oil Search Ltd v Mineral Resources Development Corporation Ltd (2010) SC1022 where the court suggested that it necessarily entails a finding on three matters and these are; first, identifying the cause of action; second, identifying the date on which the cause of action accrued; and third, the category under which the cause of action falls.
21. In Oil Search Limited v Mineral Resources Development Corporation Limited (2010) SC1022, the Supreme Court also made some useful observations as to when an application to dismiss proceedings for being statute-barred should be made. It held that except in the clearest of cases, such applications are best left for thorough determination at trial. At [23], the court held:
“If a claim is clearly time-barred and provided the statutory defence is pleaded in the defence, a motion for dismissal is warranted and it would be quite appropriate for the National Court to hear and determine it. Where, however, the case for dismissal is not clear-cut, the decision-making process of first, identifying the cause of action, secondly, identifying the date on which the cause of action arose and then, deciding the question of whether the cause of action is founded on a simple contract or is an action upon a speciality, can only efficaciously be carried out at a trial.”
22. In the present case, the statutory defence that the action is statute-barred is pleaded in the defence.
23. This is a clear case that warrants a hearing of an application for dismissal at this interlocutory stage before trial.
24. What is the cause of action? It is not disputed that the cause of action is in the tort of negligence.
25. What is the date on which the cause of action accrued? It is the date when the cause of action accrued (negligent act committed) and not from the date that the alleged negligent act is discovered. That is the view advocated in Mamum Investment Ltd v Koim (2015) SC1409 at [22] where the Supreme Court approved of the view propounded in English cases mentioned there that a cause of action accrues and time begins to run irrespective of the plaintiff’s lack of knowledge: Some of the cases that support that view are; Serowa v The Independent State of Papua New Guinea (2016) N8470; Derwent Ltd v Anton Pakena (2017) N7050; Memkitts Investments Ltd v Paul Depo Aikal (2019) N8053; Negliw No 57 Ltd v Tiare No 26 Ltd (2019) N8364; Nodepa Plantation Ltd v Balat (2020) SC1927. The Supreme Court disapproved of the National Court decision in Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288 where the National Court observed that a cause of action does not accrue until the aggrieved party becomes aware of the cause of action. In the present case, the first defendant performed the first surgery on the plaintiff on 14 February 2012 and the second surgery on 22 February 2012. The alleged cause of action in the tort of negligence accrued at the latest from the date when the second surgery was performed on 22 February 2012.
26. I have considered the decisions of the Supreme Court in Anave Ona v NHC (2009) SC995 and Mathias Goma v Protect Security & Communication Ltd (2013) SC1300.
27. In Anave Ona v National Housing Corporation (2009) SC995, the matter concerned an action for unpaid superannuation entitlements which the employer, National Housing Corporation was required under the Public Officers Superannuation Fund Act 1990 to remit to the Nambawan Supa Limited each pay period. The National Court dismissed the action for being statute-barred as it found that the cause of action arose when the employer failed to deduct and pay the plaintiff’s superannuation contributions to Nambawan Supa Limited when the plaintiff became a permanent officer after commencing employment in 1989 and that the plaintiff had raised the issue unsuccessfully with his employer when he became aware. The Supreme Court found that the plaintiff’s right of private action in tort to recover superannuation contributions not remitted by his former employer contrary to statutory obligations accrued when he ceased from employment in the public service and ultimately ceasing as a contributor pursuant to the provisions of the Public Officers Superannuation Fund Act 1990. In that case, the Supreme Court considered the decision in Ereman Ragi and The State Services and Statutory Authorities Superannuation Fund Board [Public Officers Superannuation Fund Board (POSFB)] v Joseph Maingu (1994) SC459 where observations were made in relation to the distinction between what was public law as against private law. In Anave Ona v National Housing Corporation (2009) SC995 at [19] and [20], the Supreme Court observed:
“19. On the other hand, a contributor, while still in employment, could not take action for recovery and payment of superannuation contributions to himself. He is not entitled to collect his superannuation contributions unless he ceases to be a contributor. A recovery action would be available to a contributor only when he ceases to be a contributor. His private law right to sue in tort to recover superannuation contributions or entitlements accrues only when he ceases employment in the public service.
20. In this case, the cause of action in the National Court was a claim in tort, which action was not available to Mr. Ona at the time of failure between 1989 and 1993 when he was still in the employ of the corporation. He was only entitled to a public law remedy which he opted not to take. But his failure did not preclude him from exercising his right to sue in tort which became available to him upon cessation of employment.“
28. In endorsing the decision in Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288, the Supreme Court at [22] said:
“It would be unconscionable for an employer and the Board, having failed to comply with their statutory duties, to wear the cloak of Frauds and Limitations Act and deny an employee and a contributor of an entitlement provided for by law. On this note, we endorse the decision of Kandakasi J in the case of Tau Gumu v PNGBC (2001) N2288 where his Honour ruled against an employer who attempted to rely on the Frauds and Limitations Act after it failed to give the required notice under the Workers Compensation Act 1988 resulting in lapse of time beyond 6 years.”
29. In Mathias Goma v Protect Security & Communication Ltd (2013) SC1300, the Supreme Court was divided about the decision in Anave Ona v National Housing Corporation (2009) SC995, i.e., the creation of a private right of action on the part of employees or former employees for breach of statutory obligations. The majority (Injia CJ and Cannings J) held that the decision was not obiter dictum and therefore legally binding as a precedent on the National Court while Davani J dissenting held that the decision was obiter dictum and therefore not legally binding on the National Court. No specific reference was made to the decision in Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288 and about the principle it advocated. It was, in my view, in the context correctly identified by their Honours Injia, CJ and Cannings J in Mathias Goma v Protect Security & Communication Ltd (2013) SC1300 that the Supreme Court in Anave Ona v National Housing Corporation (2009) SC995 endorsed the decision in Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288.
30. The decision in Mamum Investment Ltd v Koim (2015) SC1409 is legally binding on this Court.
31. In what category does the cause of action fall? It is a tort.
32. An action that is founded on tort must be brought within six years from the date that the cause of action accrues pursuant to Section 16(1)(a) of the Frauds and Limitations Act. These proceedings were commenced on 16 August 2018. They ought to have been commenced by 22 February 2018. I am satisfied that the proceedings are statute-barred by about six months pursuant to Section 16(1)(a) of the Frauds and Limitations Act.
33. The legal principles that apply in relation to applications to dismiss proceedings under Order 12 Rule 40(1) of the National Court Rules are well settled and have been the subject of many decisions in both the Supreme Court and the National Court such as; Philip Takori v Simon Yagari (2008) SC905; Telikom PNG Limited v ICCC & Digicel (PNG) Limited (2008) SC906; Mt Hagen Urban Local Level Government v Sek No. 15 (2009) SC1007; Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107; and Kerry Lerro v Philip Stagg (2006) N3050. The relevant principles are found in those cases. The Supreme Court in Mount Hagen Urban Local Level Government v Sek No. 15 (2009) SC1007 at [27] to [30] said:
“27. The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori& The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.
28. The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra).
29. The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:
(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.
(ii) The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.
(iii) The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.
(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.
(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.
30. In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”
34. In Hubbuck and Sons v Wilkinson [1898] UKLawRpKQB 176; [1899] 1 QB 86 at 87, Lindley MR delivering the judgment of the court said that the “procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands, is insufficient, even if proved, to entitle the plaintiff what he asks.”
35. The remedy under Order 12 Rule 40(1) of the National Court Rules is an extreme one so a defendant who seeks an order under the rule undertakes a heavy burden: Co-ownership Land Development Pty Ltd v Queensland Estate Pty Ltd (1973) 47 ALJR 519. I am satisfied that the defendants have discharged that burden in the present case.
36. It is plain and obvious that these proceedings are statute-barred and in the exercise of my discretion, they will be dismissed in their entirety for failing to disclose any reasonable cause of action and are frivolous or vexatious and are an abuse of the process of the Court.
COSTS
37. Costs will follow the event, i.e., the plaintiff shall pay the defendants’ costs on a party-party basis, which shall, if not agreed, be taxed.
ORDERS
38. The formal orders of the Court are:
Ruling and orders accordingly
___________________________________________________________
Bristle: Lawyers for the Plaintiff
Tamutai Lawyers: Lawyers for the Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2021/282.html