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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO 598 OF 2009
BETWEEN
HELEN AISO
Plaintiff
AND
DR. AB AMEA
First Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
WEWAK & WAIGANI: MAKAIL J
13 JUNE, 7 AUGUST 2023;18 SEPTEMBER 2025
ASSESSMENT OF DAMAGES – Medical negligence – Foreign object left in patient’s womb after operation – Cause of pain and suffering – Removal of foreign object in second operation – Award of damages – General damages – Special damages – Exemplary damages – Proof of – Various awards made
Cases cited
Gima Oresi v Marjen & The State (1998) N1784
Jack v Mola (2008) N3537
Albert v Aine & The State (2019) N7772
Kunong v Paradise Private Hospital Ltd (2022) N9698
Kembo Tirima v Angau Memorial Hospital Board (2006) N3106
Counsel
Mr G Pipike, for plaintiff
Ms G Dusava, for defendants
JUDGMENT
1. MAKAIL J: This is a trial on assessment of damages on the papers.
2. The plaintiff tendered the following:
(a) her affidavit sworn on 20 October 2022 and filed on 11 April 2023 – exhibit “P1”;
(b) affidavit of Claire Efi sworn on 13 April 2023 and filed on 17 May 2023 – exhibit “P2”.
(c) affidavit of Theresia Kaekae sworn on 13 April 2023 and filed on 17 May 2023 – exhibit “P3”; and
(d) affidavit of Henry Ogao sworn on 13 April 2023 and filed on 17 May 2023– exhibit “P4”.
3. The defendants tendered no affidavits.
4. The plaintiff seeks general damages, special damages, interest and legal costs. The law places the onus of proof on the plaintiff to prove these damages by appropriate evidence. While the defendants did not tender any affidavit to contest the affidavits tendered by the plaintiff, it does not relieve the plaintiff from the burden to prove her losses.
5. I have read the above affidavits and find that on 23 August 1993 the plaintiff was in labour and brought to the Port Moresby General Hospital where she was operated and gave birth to her second child through caesarean section. During the operation, surgeon who is the first defendant and the nurses left a gauge inside her body and stitched her up.
6. For the next fourteens years following her surgery, the plaintiff suffered enormous pain and medical complications including bladder and urine retention, cramps, sores, fluid discharges, unconsciousness and vomiting. Noone was able to identify the cause of her illness until she attended the Pacific International Hospital, and the doctor performed a second operation on her womb on 16 May 2007. From this operation, the doctor found a foreign object in her womb and removed it. Following the surgery, she recovered.
7. For general damages, relying on past awards in Gima Oresi v Majen & The State (1998) N1784 (K20,000.00), Jack v Mola (2008) N3537 (K100,000.00) and Albert v Aine & The State (2019) N7772 (K200,000.00 where inflation of 100% was adopted) the counsel for the plaintiff submits that she should be awarded a sum between K500,000.00 and K600,000.00 to compensate the plaintiff for pain and suffering. This sum includes inflation over the years since 2019.
8. In addition, the counsel for the plaintiff submitted that a sum between K400,000.00 and K500,000.00 for a separate head of damages for loss of fertility and inability to conceive.
9. The defendants’ counsel countered the plaintiff’s counsel’s submissions on the ground that past awards in Oresi v Marjen (supra), Jack v Mola (supra) and Albert v Aine (supra) are distinguishable factually. Because of this, the appropriate sum to award should be no more than K20,000.00. As to the claim for loss of fertility or inability to conceive another child, it should be refused because there is no evidence to verify it.
10. I have considered these submissions. First, I note that the purpose of general damages is to compensate the injured party for the pain and suffering inflicted by the tortfeasor. Secondly, in the context of medical negligence arising from surgery of a female patient during labour and delivery of a child, it appears that the first reported case in this jurisdiction is Oresi v Marjen (supra). In that case the plaintiff was awarded a sum of K20,000.00 as general damages for not being treated properly when she had a first caesarean operation at Port Moresby General Hospital and foreign objects were removed following a second operation some eight months after when she experienced complications from the first caesarean procedure. The Court awarded general damages for the following:
(a) the pain, suffering, discomfort and trauma caused by the negligence in the surgical procedure;
(b) the trauma and pain of the necessary additional operation;
(c) the cosmetic disfigurement caused by the need to make a larger incision in the second operation, by its very nature cause a larger scar; and
(d) the reduced likelihood of further pregnancy.
11. In assessing the sum to award it is also wise to note the Court’s caution that “the above heads of damages are very difficult to quantify, there is no mathematical formulae appropriate.” However, it appears that in Kunong v Paradise Private Hospital Ltd (2022) N9698, Albert v Aine (supra) and Kembo Tirima v Angau Memorial Hospital Board (2006) N3106, in addition to peculiar the facts of each case, the reasons for the Court to increase the award are the change in time and economic circumstances because of inflation and awarded general damages up to K200,000.00 since the award of K200,000.00 in Oresi v Marjen (supra).
12. In the present case, I am of the view that the facts are like the case of Oresi v Marjen (supra) because it is common in each case that the plaintiff underwent an operation to deliver her child. Then there was a second operation which was done because of complaint by the plaintiff of illness, pain and discomfort and foreign object was removed from the plaintiff’s womb.
13. While it is noted in Oresi v Marjen (supra) that a sum of K20,000.00 was awarded to the plaintiff and noting that it was quite difficult for the presiding judge to work out an appropriate sum to award for the type of injury suffered by the plaintiff, because that was an award made by the National Court, it is not binding on this Court and it does not necessarily preclude a presiding judge to assess an appropriate sum to award based on the given facts of each case.
14. I am of the further view and agree with the reasons given in the cases of Kunong v Paradise Private Hospital Ltd (supra), Albert v Aine (supra) and Kembo Tirima v Angau Memorial Hospital Board (supra) that it is also relevant to take into account the change in time and economic circumstances of the country due to inflation when assessing an appropriate sum to award for general damages. In this respect, I note in Kunong v Paradise Private Hospital Ltd (supra) the plaintiff was awarded K250,000.00 and in Albert v Aine (supra) a sum of K200,000.00.
15. Further, I note that the present case is also like Albert v Aine (supra) and Kunong v Paradise Private Hospital Ltd (supra) because they were medical negligence cases while Kembo Tirima v Angau Memorial Hospital Board (supra) was a dependency claim by the widow and children of a deceased.
16. Finally, I adopt the criteria used in Oresi v Marjen (supra). In this case, I will increase the sum of K20,000.00 awarded in Oresi v Marjen (supra) because of the pain, suffering, discomfort and trauma caused by the negligence in the surgical procedure and the trauma and pain of the necessary additional operation suffered by the plaintiff. However, there is no evidence of cosmetic disfigurement caused by the need to have a second operation resulting in a larger scar. Taking all these factors into account including the change in time and economic circumstances because of inflation, I award a sum of K200,000.00 for pain and suffering.
17. As to the claim for loss of fertility or inability to conceive a child, unlike the case of Albert v Aine (supra) where the plaintiff suffered total loss of fertility and was awarded a sum of K350,000.00 in addition to damages for pain and suffering of K200,000.00 because of a ruptured uterus with foetal death and the uterus was removed, that did not happen in this case.
18. In addition, I uphold the defendants’ counsel’s submissions that there is no evidence to verify it. In that respect, I note that Dr Onne Regeau’s Medical Report dated 2 March 2008 marked as annexure “A” to exhibit “P1” does not state that the plaintiff suffered total loss of fertility or is likely not to conceive a child in future. As the Court held in Kunong v Paradise Private Hospital Ltd (supra) at [15] “In the present case, there is no medical evidence to suggest that the plaintiff was rendered infertile by the caesarean section performed on her or that she was sustained any long term inability to conceive or bear further children as a result of the pain and suffering she experienced at PPHL” For these reasons, a claim for this head of damages is refused.
19. For special damages, the plaintiff’s counsel submits that a total sum of K9,355.00 should be awarded. I have read the copies of receipts of payments comprising of consultation and surgery fees at annexures “B1” to “B15” to the affidavit of the plaintiff (exhibit “P1”) and I am satisfied that this head of damages has been proven. I award a sum of K9,355.00.
20. In addition, the plaintiff’s counsel submits while conceding that there are no receipts of payment to verify this head of damages, a sum between K5,000.00 to K10,000.00 should be award for costs of transportation between the plaintiff’s village and Port Moresby to seek medical treatment over the period of time because it is generally accepted that local PMV owners and operators do not issue receipts. Also, there is no contest that that the plaintiff had visited the hospital in Port Moresby to seek medical treatment and assistance. I uphold the plaintiff’s counsel’s submissions that an award for costs of transportation should be made for the reasons given above and I award a sum of K5,000.00.
21. For exemplary damages, the plaintiff’s counsel relies on the case of Jack v Mola (supra) and Albert v Aine (supra) and submits that an award between K100,000.00 and K200,000.00 should be awarded to prevent further professional negligence cases by doctors and nurses when dealing with people’s lives. As far as the records show, there are not many reported cases of medical negligence in this jurisdiction except for those cited in this judgment and such cases are not a common occurrence to call for a higher award of exemplary damages proposed by the plaintiff’s counsel to act as strong deterrent against any future cases. For these reasons, I award a sum of K10,000.00.
22. The total sum awarded is K224,355.00.
23. As to interest, it is awarded at the rate of 2% per annum on the total judgment sum of K224,355,00 from the date of issue of writ of summons to date of final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
24. Finally, as the successful party, I order the defendants to pay the plaintiff’s costs of the proceedings, to be taxed, if not agreed.
25. The final terms of the order are:
________________________________________________________________
Lawyers for plaintiff: GP Lawyers
Lawyer for defendants: Solicitor General
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URL: http://www.paclii.org/pg/cases/PGNC/2025/337.html