Kagl v Baki, Secretary Department of Education [2008] PGNC 40; N3318 (17 April 2008)

N3318

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 403 OF 2005

BETWEEN

TITUS KAGL by his next friend BOI GABRIEL
Plaintiff

AND

PETER BAKI,
SECRETARY DEPARTMENT OF EDUCATION
First Defendant

AND:

DEPARTMENT OF EDUCATION
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kandakasi, J.
2007: 21 August
2008: 17 April

PRACTICE & PROCEDURE – Claim purportedly for and on behalf of disabled person – Consent of next friend and certificate of lawyer not given - Effect of – No proper authority in next friend to initiate and maintain proceedings – Default judgment entered without proper consent and certificate – Irregular judgment liable to be set aside - Default judgment no bar to the Court dismissing claim for failure to meet the requirements of the Rules and where case is not made out for damages – National Court Rules O 5 r 18.

DAMAGES – Personal injuries – Employee rendered mentally retarded – Malarial attack claimed as cause of – No medical evidence confirming cause of medical condition – No evidence of breaches of the employer’s duty of care – No steps taken by plaintiff to avoid malarial attack – Plaintiff not personally going into evidence but through a next friend – No prove of proceedings being initiated and pursing for and on behalf of a disabled person – Case not made on the required standard of prove – Claim dismissed.

Papua New Guinean Cases Cited:
Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (28/02/02) N2182.
Papua New Guinea Banking Corporation v. Jeff Tole (27/09/02) SC694.
Lowa v Akipe [1992] PNGLR 399.
Siaman Riri & Anor v. Simon Nusen & Ors (1995) N1375.
Rot Moip v. MVIT [1993] PNGLR 485.

Counsel:
J. Koi, for the Plaintiff.
V. Matau, for the Defendants.

17 April, 2008

1. KANDAKASI J: This matter came before me for assessment of damages following the signing of a default judgment against the defendants on 21 September 2005. According to the pleadings, the plaintiff, Mr. Titus Kagl, is mentally disabled and the proceedings have been issued and maintained purportedly for and on his behalf by one Boi Gabriel, without initially complying with the requirements for acting for a disabled person. It is alleged that, the plaintiff suffered from malarial attack when employed as a teacher in a remote part of the Central Province which eventually led to his mental disorder.

2. Three issues become apparent; (1) whether the proceedings are correctly on foot; (2) whether the signing of default judgment is a bar to considering the validity of the proceedings and defendant’s liability and (3), subject to a determination of the first two issues, what are the plaintiff’s damages? The first two issues can be dealt with together or one after the other and depending on a determination of those issues, the third issue can be dealt with on its own. I will thus, address each of these issues in that order.
   
3. I turn to a consideration of the first and second issues first. The 23rd of March 2005, saw the filing of the plaintiff’s writ of summons. That was done without first filing the following documents which are required by O 5 rr 21(6) and 22(3):
   
   • (a) Consent to act for the plaintiff by Boi Gabriel as next friend;
   • (b) A certificate by the plaintiff’s solicitor that the next friend has no interest in the proceedings adverse to that of the disabled person; and
   • (c) A certificate by the Solicitor as to whether the plaintiff being a mentally disordered person has a committee or curator and if he does not have a committee or a curator the basis for saying so.
     
4. Without rectifying the above defect, the plaintiff’s lawyers went ahead and successfully applied for default judgment against the defendants on 21 September 2005, with damages to be assessed. Subsequently on 27 March 2007, the plaintiff’s lawyers filed a certificate under O 5 r 21(6) as well as consent to act by Boi Gabriel. To date, no certificate has been filed under O 5 r 22 (3) given that the plaintiff is said to be a mentally retarded or disordered person.
   
5. The provisions of O 5 rr 21(6) and 22(3) are clear. These provisions stipulate that, no person purporting to be a next of friend can take any step in any proceedings until the required consent and certificates have first been filed. These requirements are in mandatory terms and are important and necessary to ensure that the proceedings or any steps that are taken for a disabled person is indeed for the benefit of the disabled person and not otherwise. By reason of his or her disability, a disabled person may not be able to fend for him or herself and hence, could easily be taken advantage of by other persons purporting to represent them. Thus, the need for the Court to ensure that, the next friend is indeed acting for and in the best interest of a disabled person. The consent of the next of friend and the lawyer’s certificate provides the necessary basis for the Court to be satisfied that the proceedings are indeed for the benefit of a disabled person. Accordingly, no proceedings can be issued and maintained purportedly for and on behalf of a disabled person, unless the requirements in question are met.
   
6. In the present case, the proceedings have been issued without first complying with the requirements for consent and certification. Obviously, therefore, the proceedings have been irregularly issued and pursued. The much belated attempt to rectify the defect well after the entry of the default judgment was incomplete since there was no certificate from the lawyer under O 5 r 22(3). Effectively therefore, this belated attempt at correcting the defect failed to fix the defect and the defect continued to exist, thus affecting the regularity of these proceedings.
   
7. The failure to provide the consent and the certificates at the first place and the failure to correctly fix the defects, goes into Mr Boi Gabriel’s ability to initially issue, then pursue and maintain these proceedings. It also goes into the jurisdiction of the Court in the matter. To the extent that the required consents and certificates have not been given prior to the issuance, the pursuance and the maintaining of these proceedings, the Court would have no jurisdiction to allow the matter to go any further. In my view, this is not a simple non compliance of the rules which can be cured under O 1 r 7. The non compliance is a fundamental one given the reasons for the requirements which I have briefly noted above.
   
8. I do appreciate that a default judgment has been signed in favour of the plaintiff. Going by the principles I set out in my judgment in the matter of Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority,[1] which the Supreme Court endorsed in Papua New Guinea Banking Corporation v. Jeff Tole,[2] it may not be open for me to revisit the issue of liability which has been resolved by the default judgment. However, those principles emanate from cases in which the proceedings were correctly and therefore regularly issued and pursed with default judgments properly entered, which is not the case here. The irregularity here is fundamental and goes into the competency of the proceedings and the Court’s jurisdiction to deal with the matter. The irregularity in the proceedings rendered, in my view, the default judgment irregular. That would form the foundation to have default judgment set aside without anything further.
   
9. It is now clear law that, the issue of competency of any proceedings before the Court is an open issue. As such, the issue can be raised at any stage of the proceedings even on the Court’s own initiative.[3] In the absence of a proper consent to act and certification from the plaintiff’s lawyer as required, the proceedings are not correctly before me. This alone forms the foundation for a dismissal of the proceedings.
   
10. There is however, an additional reason to dismiss these proceedings. As noted, the claim is by Titus Kagl purportedly through his next friend Boi Gabriel. At the trial, Titus Kagl did not show up and did not give any evidence in his behalf. The Court only has the testimony of Boi Gabriel. He is not supported by any other witness or other evidence as to his representation and basis for the claim.
    
11. Boi Gabriel’s testimony is that, the plaintiff was teaching at a remote part of the Goilala area of the Central Province. Whilst there, the plaintiff in the year 2000, contracted malaria which led to brain damage. He states that, the plaintiff walked for 4 days to get into Port Moresby for treatment. When the plaintiff finally got to Port Moresby, Mr. Gabriel says, he took the plaintiff to the Port Moresby General Hospital.
    
12. At the hospital, Mr. Gabriel says the doctors checked the plaintiff and found that his brain had already been damaged by malaria and they put the plaintiff on treatment. The medication did not help and the plaintiff became mentally disordered. By reason of his medical condition, the plaintiff was not able to return to his work as a teacher. That caused him to take the plaintiff back to his village in his home province of Simbu.
    
13. Once back in his village, Mr. Boi Gabriel says, given the plaintiff’s mental condition, the plaintiff was not and is now not able to care for himself and his family. The plaintiff’s family consists of 2 wives and 7 children. Two of the plaintiff’s children are married whilst the rest are attending school. Mr. Gabriel says he is caring for the children now.
    
14. At the time of the trial, Mr. Gabriel said the plaintiff is back in the Simbu Province, a mentally disordered and insane person. At the trial, the plaintiff did not adduce into evidence any medical report. Hence, there is no medical evidence of the plaintiff’s initial illness, initial and any subsequent hospital admission and treatment and the development of complications leading to the alleged mental disorder.
    
15. In Rot Moip v. MVIT,[4] the Court emphasized the need for the production of medical evidence, which is contemporaneous to the date of an accident to give credence to a claim against the defendant, in the case of a motor vehicle accident, in that case. In my view, the same applies to all other personal injury claims. Medical reports would be the only credible way of confirming or otherwise rebutting a person’s claim of sustaining personal injuries or loss. Without such evidence, no credibility could be attached to a claim of personal injuries.
    
16. Whilst I appreciate that the issue of liability was resolved by the signing of the default judgment which I have now found to be irregular, it was still necessary for the plaintiff to give a complete account of his employment with the State, when he commenced his employment, how long was he to remain in employment, what was his gross and net salaries, his dependants, his life expectancy, when and how he contracted malaria, what kinds of treatment he received, how did malaria led to his mental condition, what kind of duty of care the State owed him, how did the State breach its duty of care to him and what steps he took to avoid being attacked by malaria. These kinds of evidence is required and necessary because in an assessment of damages hearing, it is incumbent on a plaintiff to demonstrate to the Court the basis for his claim for damages and the kind of steps he took to mitigate his loss. There is no evidence of the type in question before the Court.
    
17. Further, there is also no direct and admissible evidence of what steps if any, the plaintiff took to minimize or avoid the risk of further malarial attacks. In this regard, it was necessary for the plaintiff to adduce evidence of him raising his health conditions with his employer the State through the relevant departmental personal say for example seeking a transfer away from where he contracted malaria. There is neither any evidence of any communication with the plaintiff and his alleged employer, nor is there any evidence of his record of employment with the State.
    
18. Mr. Boi Gabriel’s evidence in most respects is hearsay and the source of his information is not before the Court. It is hard to tell whether this is in fact a claim by the plaintiff through his next friend given the lack of proper certification and consent and in particular the absence of the most critical evidence which I noted as missing. In the circumstances, I find that, no case has been made out for this Court to assess any damages for the plaintiff. The Court is left with no option but to dismiss this claim. Accordingly, I order a dismissal of these proceedings claim with costs to the defendants.
    

Kelly Naru Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants

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^[1] (28/02/02) N2182.
^[2] (27/09/02) SC694.
^[3] See Lowa v Akipe [1992] PNGLR 399 and Siaman Riri & Anor v. Simon Nusen & Ors (1995) N1375 for examples of cases on point.
^[4] [1993] PNGLR 485.