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Namuesh v Kisom [2024] PGNC 340; N11017 (30 September 2024)

N11017

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1293 OF 2000

BETWEEN
CLIVE NAMUESH BY HIS NEXT FRIEND ANTON NAMUESH
Plaintiff

AND
DR KISOM
First Defendant

AND
LUCY WABISU
Second Defendant

AND
SISTER NABOAM
Third Defendant

AND
CHIEF EXECUTIVE OFFICER, BORAM GENERAL HOSPITAL
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Wewak: Makail, J
2024: 15^th April, 20^th May & 30^th September

NEGLIGENCE – LIABILITY – Medical negligence – Breach of duty of care – Amputation of left hand following serious injury – Proof of – Evidence of – Lack of – Liability not proved – Action dismissed

Cases cited:
Nil

Counsel:
Mr A Kana, for Plaintiff
Mr E Manihambu, for Defendants

JUDGMENT

30^th September 2024

1. MAKAIL, J: This is a trial on liability and assessment of damages on the papers. Before the question of how much to award as damages to the plaintiff is determine, it is necessary to decide the question of liability because the defendants denied they were negligent.

2. The action is based on the tort of negligence, commonly referred to as medical negligence.

3. The parties were directed to file and serve written submissions on liability and if any, assessment of damages. The Court received submissions from the plaintiff and none from the defendants.

4. At [8] of the amended statement of claim filed on 29^th June 2004 it is alleged that on 5^th February 2000 the plaintiff was taken to the hospital at about 1:00 am after sustaining serious knife wound severing his left hand.

5. It is further alleged that there was a delay in a doctor performing surgery to the left hand to restore it despite a request from the plaintiff’s aunt for the corrective surgery to be done. At [12] of the amended statement of claim it is alleged that the plaintiff was finally seen by Dr Josephs at 5:00 pm on 5^th February 2000. By then the plaintiff’s condition had worsen to the extent that amputation was necessary.

6. At [14] of the amended statement of claim it is alleged that Dr Josephs finally amputated the plaintiff’s left hand on or about 5:00 pm on 5^th February 2000. There is no allegation in relation to the extent of the injury except the allegation at [8] of the amended statement of claim that the plaintiff sustained “serious knife wound severing his left hand”. The reference to the word “severing” refers to breaking or separating by cutting. It connotes a separation of the left hand from the body of the plaintiff. This is the allegation.

7. The plaintiff filed one affidavit. His affidavit was sworn on 16^th March 2005 and filed on 20^th September 2010. I have read it. It has seven paragraphs and is very brief. At [2], the plaintiff says that “I had both of my hands slashed with one arm almost severed on the 4^th February 2000”. However, the plaintiff does not say that the left hand was severed from the whole body and where exactly was the hand severed.

8. Against this is the defence pleaded in the amended defence that it was necessary to preserve the plaintiff’s life by amputating his left hand. As the defendants denied being negligent, it is necessary for the plaintiff to describe in clear terms the injury and the extent of the injury to assist the Court to determine the question of whether amputation of his left hand was unnecessary. Furthermore, he does not say that because of the delay, the wound was beyond repair and the only option was to amputate the left hand. For these reasons, his evidence fell short of establishing that the injury did not require amputation of his left hand.

9. The plaintiff relied on the lapse of time between when he arrived at the hospital and when Dr Joseph attended to him and performed the surgery to establish that had the doctor performed surgery immediately following his arrival, the condition of his left hand would not have worsened, and that amputation would not have been necessary.

10. To support his assertion, the plaintiff relied on three separate cases of knife wound injuries sustained by persons following a fight to illustrate that it was unnecessary to amputate his left hand. Edward Apain, Benny Kema and Ludwig Kali filed affidavits. Edward Apain’s affidavit was sworn on 28^th June 2010 and filed on 13^th September 2010, Benny Kema’s was sworn on 28^th June 2010 and filed on 13^th September 2010 and Ludwig Kali’s sown on 9^th July 2010 and filed 13^th September 2010. I have read their respective affidavits.

11. Except for a description of the location and extent of the injury, each witness’s account is unreliable because it is his personal opinion of the decision not to have his hand amputated. The Court will rely on a doctor’s opinion as the expert in the field of medicine and surgery to establish the allegation that amputation of the left hand was unnecessary had the surgery was performed immediately after the plaintiff arrived at the hospital.

12. The plaintiff relied on an affidavit by Dr Moses Manwau sworn on 27^th July 2006 and filed on 20^th September 2010. I have read it. It contained four paragraphs and is very brief. Dr Manwau reviewed the plaintiff and produced a medical report dated 2^nd May 2005. Dr Manwau does not express an opinion on the question of whether amputation of the plaintiff’s left hand was unnecessary. To be precise, Dr Manwau does not say that if the doctor had performed surgery immediately after the plaintiff arrived at the hospital, it would have restored his injured left hand and amputation would not have been necessary.

13. It is trite law that to prove negligence, the onus is on the plaintiff to prove that the defendants owed a duty of care to him, that they breached the duty of care and the breach of duty of care caused damage to him.

14. There is no contest that the defendants owed a duty of care to the plaintiff. But based on the evidence adduced by the plaintiff, I am not satisfied that the defendants breached the duty of care. Furthermore, I am not satisfied that the amputation of the plaintiff’s left hand is a result of the defendant’s breach of the duty of care.

15. It follows that the plaintiff has failed to establish liability in negligence against the defendants and the action must fail. Given this, it is not necessary to consider the question of damages.

16. The action is dismissed, and the plaintiff shall pay the defendants’ costs of the proceedings, to be taxed, if not agreed.

17. The final terms of the order are:

1. Liability is not established.
2. The within proceedings is dismissed forthwith.
3. The plaintiff shall pay the defendants’ costs of the proceedings, to be taxed, if not agreed.
4. Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place, forthwith.

________________________________________________________________
Public Solicitor: Lawyers for Plaintiff
Solicitor-General: Lawyers for Defendants