N11425

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 743 OF 2021

BETWEEN:
CATHY KIA as a next of Kin to the deceased Philip Gene, in her capacity of the deceased
Plaintiff

AND:
SANDY MAIMA in her Capacity as an Officer at Koge Health Centre
First Defendant

AND:
JOE GENE The Officer in Charge of Koge Health Centre
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

LAE: DOWA J
5 DECEMBER 2023; 7 FEBRUARY 2024; 14 AUGUST 2025

CIVIL PROCEEDINGS-Claim for medical and professional negligence- failing to attend patient in labour and delivery-need for pleading cause of action in negligence -plaintiff has burden of proof -whether State is vicariously liable-failed to establish liability- proceeding dismissed.

Cases cited
Waranaka v Dusava (2009) SC940  
Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
Eton Pakui v The State (2006) N2977
Titus Banga v Madang Port Services Ltd (2011) N4302 
 Allen Anis v Dobon Taksey (2011) N4468 
 Kay Pure -v- Tonnesi Ewebi (2021) N9013
Tirima -v- Angau Memorial Hospital Board (2005) N2779 
 Kuima Security Services Ltd v Philip (2024) N11048
 Yooken Paklin v The State (2001) N2212
 Jonathan Mangope Paraia v The State (1995) N1343
 Samot v Yame (2020) N8266
Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694
Kopyoto Investment Ltd v National Housing Corporation (2022) SC2339
Paul Tohian v Tau Liu (1998) SC566
Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182
PNGBC v Jeff Tole (2002) SC694
William Mel v Coleman Pakalia (2005) SC790
Albert v Aine (2019) N7772

Counsel
W Kume for the plaintiff 
S Maliaki for the defendants

DECISION

1.	DOWA J: This is a decision on both issues of liability and damages, despite default judgment being entered for the Plaintiff.

2.	The Plaintiff instituted proceedings claiming damages for the death of her infant child alleging the death was caused by professional negligence of staff at the Koge Health Centre, Sina Sina District, Simbu Province. 

Facts

3.	The Plaintiff is the mother of the infant child, the late Philip Gene. On 10th November 2020, the Plaintiff was admitted to Koge Health Centre after she had labour pains. She was attended by the Doctor and noticing her water bag was broken, she remained under observation. The first Defendant, a qualified midwife, together with two nursing students, attended to her. In the early hours of the morning of 11th November 2020 she delivered a baby boy after a painful labour. The baby died a few hours later. According to the medical reports the child died from “Cerebral Hypoxia” a medical term meaning lack of oxygen to the brain.

4.	The Plaintiff alleges the first Defendant neglected her duty by not being present to attend to her during a critical moment when her baby was stuck in the birth canal. She alleges she was not given the proper and adequate professional attention by the first defendant resulting in the death of her child. 

5.	The Plaintiff instituted this proceeding against the first Defendant seeking damages for the loss of her child and for pain and suffering. It is alleged the third and fourth Defendants are vicariously liable for the actions of the first and second Defendants. 

6.	The Defendants denied liability and the matter proceeded to trial on both issues of liability and damages.

Trial

7.	It was a contested trial. The parties tendered their respective affidavits as well as oral examinations. They presented their submissions thereafter.  

Evidence-The Plaintiff

8.	The Plaintiff relies on her affidavit filed 21st July 2021 as well as oral evidence presented in Court. She was cross-examined. This is the summary of her evidence. The Plaintiff comes from in the Sinasina District, Simbu Province. She is a mother of three children and was pregnant with her fourth.  Plaintiff attended Koge Health Center around 7pm on 10th November 2020 after experiencing labour pains. On examination it was noted her water bag broke, and she was admitted around 10pm. She was under the immediate care of the first Defendant, a midwife and two trainee nursing students. The plaintiff was experiencing excruciating labour pains and expected the first Defendant to give all her attention. Instead, the first Defendant told her to sleep sideways and took off to her home. The first Defendant did not attend to her. Only the two trainees attended to her until birth. At the time of birth, the baby was stuck in the birth canal, and the first Defendant was not around to assist in the delivery. This resulted in the baby being stuck in the birth canal and sustained injury where oxygen did not reach the brain. By the time the first Defendant came to the scene she was not even prepared and took a while to assist with the delivery. The baby was finally delivered around 4.00am. As a result, the baby could not breath and attempts made to resuscitate the baby failed. The baby then then taken to Kundiawa Hospital by the Ambulance. The staff at Kundiawa Hospital tried to save the child but it was not successful. The child passed away around 6.00 am.

9.	Plaintiff deposed that the death of her infant child was the direct result of the first defendant’s wrong advice to sleep sideways and her failure to attend to her on during labour and delivery.

10.	In response to questions during cross-examination, the Plaintiff said the trainee nurses were always with her and attending to her while the first Defendant attended on her from time to time.

Defendants’ Evidence

11.	The Defendants rely on evidence from Joe Gende, the Officer in Charge of Koge Health Centre, and Sam Aron, the Human Resources Manager of Simbu Provincial Health Authority. 

12.	Mr. Gende deposed that Sandy Maima was roosted for duty on 10th November 2020. Ms.  Maima is a specialist midwife with seven years’ experience in that role delivering hundreds of babies. Sandy Maima attended to the Plaintiff when she was admitted around 10pm on the evening of 10th November 2020. Ms. Maima attended the Plaintiff and kept her under observation and supervision with the assistance of two trainee students all through the night. Ms. Maima did attend to the delivery of the infant child. Mr. Gende deposed he was alerted to the infant’s condition by the midwife around 3.45 am. When he noticed the poor progress of the infant, he referred the child immediately to Kundiawa General Hospital for further management.

13.	Mr. Gende denies the allegations of neglect of duty by him and the midwife. Mr. Gende said the midwife, Sandy Maima, was on night shift duty that night. She was the sole midwife attending to the Plaintiff and the two trainees were only observing and assisted when asked. Maima was with the Plaintiff all throughout the night and did not fail her duty and if she neglected her duty, she would have been disciplined. He said Maima is the most experienced and specialist midwife, and she never fails her duty and that she has always safely delivered hundreds of babies without disruption. He said delivery of babies also requires the corporation of the mothers by listening to instructions and taking initiatives in pushing.

14.	 Sam Aron deposed that the Certificate of Death relied on by the Plaintiff is fake. This is because the signature of the attending doctor, late Dr, Guapo Kiagi was forged. Being employed and working with the late Doctor for more than 11 years he can easily recognize that the signature appearing on the Certificate does not belong to the late Dr. Kiagi who passed away in August 2021.

Submissions

15.	The Plaintiff submitted that the Court proceeds to confirm liability against the Defendants as per the default judgment and assess damages against the Defendants.

16.	The Defendants on the other hand submitted that the issue of liability be revisited for the following reasons:

a.	No Notice of claim under Section 5 of the Claims by and Against the State Act was served on the State
b.	The Plaintiff failed to plead vicariously liability under Section 1 of the Wrongs (Miscellaneous Provisions) Act.
c.	The Plaintiff failed to plead death wrongfully caused under section 25 of the Wrongs (Miscellaneous Provisions) Act.
d.	The Plaintiff has failed to establish a cause of action 

Issues

17.	The issues for consideration are:

a)	Whether the issue of liability be revisited. 
b)	Whether the Plaintiff has proved her claim against the Defendants. 
c)	Whether the Plaintiff is   entitled to damages, if any.

a)	Whether the issue of liability be revisited. 

18.	The law on the effect of default judgment is settled in this jurisdiction.  A trial Judge must satisfy himself with the principles summarised in the cases; Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182, PNGBC v Jeff Tole (2002) SC 694, William Mel v. Coleman Pakalia (2005) SC790,  and Albert v Aine (2019) N7772.  In Albert v Aine, Kandakasi DCJ at paragraphs 7 & 8 of his judgment said:
 “7. 	Fourthly, the law on the effect of the entry of default judgment is clear. In Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182, I summarised the principles that govern an assessment of damages after the entry of default judgement in the following terms:
“A survey of the authorities on assessment of damages after entry of judgement on liability mainly in default of a defendant’s defence, clearly show the following:
1.	The judgement resolves all questions of liability in respect of the matters pleaded in the statement of claim.
2.	Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
3.	In the case of a claim for damages for breach of contract as in this case, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
4.	The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.
5.	A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”

8.The Supreme Court in PNGBC v. JeffTole (2002) SC694 adopted and applied this summation of the principles. Later, the decision of the Supreme Court in William Mel v. Coleman Pakalia (2005) SC790, did the same. Additionally, however, the Court in that case went further by noting several decisions of the National Court in which the principles were adopted and applied. It then added the following:

“Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:
the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;
only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.” 
19.     I adopt and apply the above principles to ensure that default judgment is in order in the light of the Defendants’ contentions.

Whether the Plaintiff has served Section 5 Notice under the Claims by and Against the State Act.

20.     Counsel for the Defendants submitted that the Plaintiff failed to give notice of claim under Section 5 of the Claims by and Against the State Act within six months. In response, counsel for the Plaintiff submitted that notice under section 5 was served on the State before the commencement of the proceedings.

21.     The relevant law is Section 5, and it reads:

“NOTICE OF CLAIMS AGAINST THE STATE .
(1)  No action to enforce any claim  against the State  lies  against the State  unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to–
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.
(2) 	A notice under this section shall be given–
(a) 	within a period of six months after the occurrence out of which the claim arose; or
(b) 	where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c) 	within such further period as–
(i) the Principal Legal Adviser; or
(ii) the court before which the action is instituted,
on sufficient cause being shown, allows.....”
22.	The law on notice under section 5 is clear: No proceedings to enforce a claim based on tort, breach of contract and constitutional rights lie against the State or State entity unless notice of intention to make a claim is served within six (6) months of date of occurrence or breach. Refer:  Kopyoto Investment Ltd v National Housing Corporation (2022) SC 2339, Paul Tohian -v- Tau Liu (1998) SC566.

23.	The Plaintiff’s claim is based on negligence against State employees and servants. It is alleged that the first Defendant failed in her duty of care in safely delivering the Plaintiff’s child. Notice of action is required. The incident took place between 10th and 11th November 2020. The notice of claim under Section 5 ought to have been given on 11th May 2021.

24. The Plaintiff filed the proceedings on 14th October 2021. She has not pleaded that Notice under Section 5 was served on the State. She has not filed evidence of notice being served on the State. Does this then render the proceedings incompetent.

25. The Court is mindful that the issue is raised during submissions. Counsel for the Plaintiff did not raise any objection to the issue being raised belatedly but submitted that due notice was served. Although the issue was raised belatedly, it is an important point of law which the Court cannot ignore once it is raised. No action lies against the State unless notice of claim is first served on the State within six (6) months of the date of action. The duty is on the Plaintiff to establish that the mandatory requirement is met. In the present case, the Plaintiff failed to provide evidence of service of notice. The proceedings are therefore incompetent. 

b.	Whether the Plaintiff has proved her claim against the Defendants. 

26.	The burden of proving the claim rests on the Plaintiff and she must discharge the burden on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and hope to be awarded damages claimed. Refer: Yooken Paklin v The State (2001) N2212,  Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

27.	The Defendants submitted that the Plaintiff failed to plead sufficient facts disclosing a cause of action, supported by evidence. The Plaintiff’s cause of action is based on the tort of negligence. The burden of proving the elements of the tort of negligence is upon the party alleging it, not the party who denies it. Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Eton Pakui v The State (2006) N2977, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468 and Kay Pure -v- Tonnesi Ewebi (2021) N9013.

28.	The elements of the tort of negligence particularly set out in the case Anis -v- Taksey (Supra) are:

(1)	Tortfeasor or his principal owed a duty of care to the plaintiff and/or victim.
(2)	The tortfeasor breached that duty, i.e. by act or omission, the tortfeasor's conduct was negligent.
(3)	Tortfeasor's negligent conduct caused injury to the plaintiff and/or victim.
(4)	Plaintiff and/or victim’s injuries were not too remotely connected to the tortfeasor's conduct; and
(5)	Plaintiff and/or victim did not contribute to his own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.

29.	The Plaintiff pleaded that the third defendant is vicariously liable for the actions of the first and second Defendants under the Wrongs (Miscellaneous Provisions) Act. Vicarious liability is a common law principle by which one legal person is held liable for the acts or omissions of another person or group of people over whom the first person has control or responsibility.  Refer Tirima -v- Angau Memorial Hospital Board (2005) N2779 and Kuima Security Services Ltd v Philip (2024) N11048.

30.	In this jurisdiction, the Wrongs (Miscellaneous Provisions) Act makes provision for vicarious liability in respect of claims against the State and State entities for torts committed by its servants. Section 1 subsections (1) and (4) of the Act are relevant and they read: 

“1 GENERAL LIABILITY OF THE STATE IN TORT.
(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject–
(a) in respect of torts committed by its servants and agents; and
(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.
..........
(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.”
31.	Generally, the State is subject to all liabilities in respect of torts committed by its employees and servants pursuant to Section 1 (1) and (4) of the Act. In the present case the Plaintiff has generally pleaded vicarious liability against the third Defendant for the actions of the first and Defendants in that the tortfeasors committed the tort whilst performing or acting in the course of their duties as required by Section 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act.

32.	As against the first Defendant, the Plaintiff pleaded that she failed in her duty of care to the Plaintiff by: 

a.	 Advising the Plaintiff to sleep sideways.
b.	Failing to closely monitor and assist her during labour and delivery.

33.	It is my considered view that where proceedings are based on professional negligence like provision of medical care, it is incumbent on the Plaintiff to plead the facts setting out the specific duty of care owed to the Plaintiff and the ensuing breach of that duty so the health workers can accurately respond to the allegations and for the Court to appreciate the cause of action.

34.	In the present case, the Plaintiff did not plead any duty of care, setting out particulars and how that duty was breached. The pleadings do not point to any specific duty of care. The pleadings contain general complaints of lack of attention.  Further, the pleadings are a mixture of facts and evidence which offend Order 8 Rule 8 of the National Court Rules. 

35.	As to the Plaintiff’s evidence, again it is lacks weight. The evidence does not point to a specific breach of duty of care. The evidence shows the Plaintiff came to Koge Health Centre around 7.00pm after experiencing labour pains. She was admitted at 10.00pm. She was received and attended to by the first Defendant, a midwife of seven (7) years’ experience assisted by two trainee or student health workers. The Plaintiff was under the care and observation of the first Defendant for five (5) hours before the delivery of the baby around 3.45am. The first Defendant, an experienced midwife and the two trainees were present when the baby was delivered. The delivery was normal except that the child was born flat meaning the umbilical code was wrapped around the neck resulting in birth asphyxia, i.e., lack of oxygen. This resulted in the infant having difficulty in breathing. Resuscitation was done by the first Defendant and staff immediately to get the infant to breath normally in the discharge of their duty of care, but the condition did not improve. The baby was then taken to Kundiawa General Hospital within a space of 30 minutes which was arranged by the second Defendant in the discharge of his professional duty. The infant was attended to by the medical staff at Kundiawa General Hospital but died on arrival. 

36.	The Medical Certificate of Death shows the cause of death was birth asphyxia, that is lack of oxygen. This was due to the umbilical code being wrapped around the neck. The medical explanation was that the nuchal code may have interrupted the flow of oxygen causing difficulty in the breathing. This appears to be a natural phenomenon. No expert evidence or of scientific explanation has been provided to the Court why the umbilical code was wrapped around the neck. The death cannot be attributed to any negligence on the part of the staff of Koge Health Centre, especially the first Defendant. The first and second Defendants and the staff of Koge Health Centre were observant and did what they were required to do to save the child. There is no evidence that the health workers failed in their duty of care. On the contrary, the first and second Defendants   discharged their duty of care with due diligence. The Plaintiff was a mother of three and this was her fourth child. She was in labour and under observation for five hours since admission. She was always under the care and attention of three health workers. This was a normal or natural delivery except for the nuchal code entanglement.

37.	In the circumstances, there is insufficient evidence to find breach of duty of care owed to the Plaintiff and her infant child by the first and second Defendants. The Defendants cannot be held liable.

 Conclusion

38.	 Having arrived at this conclusion, I will revisit liability and set aside the default judgment entered on 3rd July 2023 and dismiss the proceedings. This is an appropriate case where the Court can safely revisit liability.

          Cost

39. Cost is a matter of discretion. The Defendants have succeeded in their defence and would ordinarily be entitled to the costs of the proceedings. However, the Defendants defaulted in filing their Defence resulting in the default judgment. The Defendants have also raised pertinent legal issues late in the proceedings. In my considered view it is not just to award costs in their favour. I will order that the parties bear their own costs.

Orders

40.      The Court orders:

a)	The Plaintiff’s proceeding is dismissed. 
b)	The parties bear their own costs. 
c)	Time be abridged.
______________________________________________________
Lawyers for the plaintiff: George Kaore Lawyers
Lawyer for the defendants: Solicitor General