Arinuma v Likeman and The State [1976] PGNC 10; [1976] PNGLR 200 (17 May 1976)

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TRESPASS - Trespass to person - Surgical operation without consent - Nature of action - Tubaligation - Damages - Relevant consideration - Damages assessed at K400.

Following the birth of her seventh daughter at the Goroka hospital, there was performed upon the plaintiff without her consent or the consent of her husband an operation for tubaligation. In an action claiming damages for negligence or alternatively assault:

N1>(1) The performance of a surgical operation upon a person without that person’s consent amounts in law to an assault and battery or trespass to the person.

N1>(2) The nature of the remedy available to such a person depends on whether the injury inflicted is caused by an intended act, in which case the cause of action is trespass to the person, or whether the injury results from an unintentional act in which case the cause of action is in negligence. Letang v. Cooper[1964] EWCA Civ 5; , [1965] 1 Q.B. 232, and Marshall v. Curry, [1933] 3 D.L.R. 260 applied.

N1>(4) As a matter of law, a mistaken belief by the person performing the operation that consent had been given, affords no defence to him in an action for trespass to the person. Clerk and Lindsell on Torts 13th ed. para. 122. Fleming, The Law of Torts 4th ed. p. 74.

N1>(5) In assessing damages it was relevant to consider the plaintiff’s sense of grievance and disappointment at being now unable to produce a son, the possibilities that the plaintiff might never have produced a son, of accident to the plaintiff or her husband preventing achievement of such a desire, and the refusal of an offer made immediately after the operation to perform a further operation which would have given the plaintiff a fifty per cent chance of again conceiving.

This was an action in which the plaintiff claimed damages for negligence or, alternatively, for assault as a result of the performance upon her, allegedly without her consent of an operation for tubaligation by the first defendant, who was employed as a doctor at the Goroka hospital by the second defendant.

WILLIAMS J: The plaintiff late in the night of the 2nd July, 1973 was admitted to the Goroka General Hospital. At about 1 a.m. on the 3rd July a female child was born to the plaintiff. On the morning of the 5th July (while she was still an in-patient at the hospital) a tubaligation operation was carried out upon her by the first-named defendant, a medical officer employed at the hospital by the second-named defendant. The purpose and effect of the operation was to prevent the plaintiff from conceiving further children.

She sues for damages for negligence or, alternatively, for assault. Particulars of the alleged negligence are that no, or no proper, consent was obtained from the plaintiff to the performance of the operation and that there was a failure to ensure that the plaintiff fully understood the nature of the operation and the consequences of it. Particulars of the alleged assault are that an unauthorized operation was carried out on the plaintiff.

It will thus be seen that negligence in the sense that the operation was unskilfully or inefficiently performed is not alleged. The allegations are concerned only with the issues of whether or not the plaintiff was made aware of the consequences of the operation and consented to its performance.

At the outset it seems necessary to consider the nature of the claims made, that is, whether the plaintiff’s remedy, if any, lies in an action for negligence or an action for assault. No argument was addressed to me by counsel on this aspect of the matter.

It is, I think, a trite proposition of law that the performance of a surgical operation upon a person without that person’s consent amounts in law to an assault and battery. An assault is, of course, a trespass to the person in which the early common law imposed a strict responsibility. Liability was apparently not contingent on the presence of wrongful intent or negligence, even a faultless trespassory contact was actionable unless the defendant could show that the accident was inevitable. (Fleming “The Law of Torts”, 4th ed., p. 19). Under the early common law an action for personal injury could be brought either in trespass, which was the remedy for forcible direct or immediate injury brought about by conduct likely to cause a breach of the peace by provoking retaliation, or an action on the case which catered for cases in which injury was due to an omission or to an act not immediately but consequentially injurious. In these times it was necessary to plead the plaintiff’s claim with great particularity and a wrong choice of the cause of action alleged could prove fatal.

These principles of the common law were subjected to change over a period of time in order, no doubt, to meet changing conditions in society. I think that the present law applicable to the matter is to be found in the decision of the Court of Appeal in Letang v. Cooper [ccxxii]¹. In that case the plaintiff was lying sunbathing on land which was used as a car park when the defendant drove his car over her legs. She framed her claim in damages in negligence and in trespass to the person. In that case the court was primarily concerned with the question of time limitations but the court considered the nature of the remedy available to her. It was held by Lord Denning M.R. and Danckwerts L.J. that when an injury to a plaintiff is caused by the defendant’s intended act the cause of action is trespass to the person, and where the act is not intended a plaintiff’s only cause of action is in negligence. In the course of his judgment Lord Denning said this:

“The truth is that the distinction between trespass and case is obsolete. We have a different sub-division altogether. Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person ... If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care.”

Turning to the present case, it is not in contest that the operation was performed upon the plaintiff. Thus it seems to me that the act which brought about the alleged injury to the plaintiff was a deliberate and intentional act in contrast, for example, with a physical contact to a person caused by the negligent driving of a motor vehicle. In consequence, upon the reasoning in Letang v. Cooper[ccxxiii]² it seems that the plaintiff’s case here is properly framed in trespass to the person and not in negligence. In this respect reference might be made to the Canadian case of Marshall v. Curry [ccxxiv]³. That case was concerned with a claim by a patient who complained of the removal by a surgical operation of an organ without his consent. At p. 276 of the report of that case it is said:

“The action is not one of negligence or malpractice, but one of assault and battery. The operation, if unlawful, was technically a surgical battery for which the defendant is liable. ‘The distinction ordinarily between an unauthorized operation amounting to assault and battery on the one hand, and negligence such as would constitute malpractice, on the other, is that the former is intentional, while the latter is unintentional:’ Hershey v. Peake (1924) 115 Kan. 562.”

It seems to me that the question whether the action is properly brought in trespass or in negligence is more than of academic interest when it comes to considering the question of the liability of the first defendant. I shall advert to this matter further later.

It appears from the evidence that in or about the year 1966 the Public Health Department formulated a policy of family planning. In pursuance of this policy the Department provided intra-uterine devices, oral contraceptives and injections. According to the evidence of Dr. Campbell, the specialist medical officer in obstetrics and gynaecology at the Goroka Hospital, women in the Goroka area have shown a trend away from the methods of contraception earlier provided towards tubaligation operations. In the case of women with five or more children who considered that they had completed their families the Department advised the operation. With mothers with seven, eight or more children the Department recommended it. It was said that the principal reason underlying the policy was that the greater the number of pregnancies undergone by a woman the greater the risk to the woman’s life and health in subsequent confinements.

The evidence also shows that it was the practice at the Goroka Hospital to obtain the written consent of both the woman and her husband to the performance of a tubaligation operation.

It should here be observed that it was not contended on behalf of the defendants, nor does the evidence support the proposition, that the operation performed on the plaintiff was an emergency one done for the preservation of her life or health. It is also common ground that the practice of obtaining the written consent of the woman and her husband was not observed in this case. The case which the defendants seek to make is that the plaintiff consented orally to the operation and that her conduct prior to the operation was such that her consent to it should properly be implied.

Upon consideration of the evidence I am not satisfied that the plaintiff in fact consented to the operation....

For the foregoing reasons I am of the opinion that it has been established that there was an assault upon the plaintiff. I should, however, state that I have formed the clear view that this was not a case where the first defendant sought to perform the operation upon her without her consent or with indifference as to whether she had consented or not. I think he believed, mistakenly, that the hospital system had been adhered to, in which event there would have been a signed form of consent to the operation. I also accept the evidence which was given by the first defendant and by Dr. Campbell that it is general medical practice that a surgeon does not take it upon himself to obtain the consent of a patient to an operation but that the responsibility for so doing lies with the ward sister and the anaesthetist. However, for reasons which remain unexplained, the system as it applied to this case broke down. Whilst I consider that the first defendant performed the operation in the mistaken belief that the usual procedures had been carried out and consent given, it seems clear that as a matter of law that such a mistake affords no defence to him in an action for trespass to the person. (See Clerk and Lindsell on Torts, 13th ed., para. 122 and Fleming, The Law of Torts, 4th ed., p. 74.)

I should also state that it was not contended on behalf of the second defendant that it would not be vicariously responsible in law for the actions of the first defendant or of other members of the hospital staff.

It remains to consider the question of damages. Counsel were unable to refer me to any authority which would serve as a guide in the unusual circumstances of this case, nor have my own researches revealed any. The case of the plaintiff is that she had had seven daughters but that she and her husband were anxious to have a son. The performance of the operation has denied her this prospect. Some suggestion was made by counsel for the plaintiff that failure to have a son may produce some consequence relating to the inheritance of land rights, but there is no evidence at all to support this. I do not think that the matter can be put much higher than that the plaintiff has suffered a sense of disappointment and grievance at being now unable to produce a son.

On the other hand, I must take into account the possibility that had the operation never been performed that the plaintiff may still have failed to produce a son. Neither the plaintiff nor her husband knew her age but from my observation of her I would say she is a woman in her early to mid thirties so that it may be that her most productive child bearing years are behind her. I must also take into account the possibility of some accident to her or her husband which may have prevented her achieving her desire to have a son. Another matter for consideration is the fact that, immediately after the operation Dr. Campbell made an offer to the plaintiff’s husband to perform a further operation which would have given the plaintiff a fifty per cent chance of again conceiving. This offer was, however, refused.

On the matter of disappointment and grievance I must say that I formed the clear impression that the person mainly concerned was the plaintiff’s husband rather than the plaintiff herself. He, of course, is not a party to this action. It appeared from his evidence given before me that he had at some time worked in a hospital and was aware that in operations of this nature it was the practice to obtain the consent of both husband and wife. I think he felt angry and hurt because the hospital authorities did not consult him in the matter and that this was probably the prime reason for the bringing of this action.

Doing the best I can in all the circumstances of this case, I assess her damages at K400.00.

I accordingly give judgment for the plaintiff against the defendants in the sum of K400.00. I reserve liberty to apply on the question of costs.

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[ccxxii][1965] 1 Q.B. 232.

[ccxxiii][1965] 1 Q.B. 232.

[ccxxiv] [1933] 3 D.L.R. 260.

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National Court of Papua New Guinea

Arinuma v Likeman and The State [1976] PGNC 10; [1976] PNGLR 200 (17 May 1976)

Papua New Guinea Law Reports - 1976