Banai v Lunn [2012] PGNC 125; N4839 (27 July 2012)

N4839

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1597 OF 2011

BETWEEN:

KIA BANAI by his next friend BANAI NUABO
Plaintiff

AND:

DR LISTER LUNN & DR NOAH TAPAUA in their capacities as State employed Doctors or Surgeons of Port Moresby General Hospital
First Defendants

AND:

MR SAM VEGOGO in his capacity as Chief Executive Officer of Port Moresby General Hospital
Second Defendant

AND:

PORT MORESBY GENERAL HOSPITAL INC.
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Kariko, J
2012: 13th April & 27th July

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Default judgement – Principles
PRACTICE & PROCEDURE – CIVIL JURISDICTION – Summary judgement – Not permitted where claim for damages arising from a death

Facts:

The plaintiff sued the doctors who were performing surgery on his 16 months old daughter when the child died. The plaintiff claimed damages for the death of his child alleging medical negligence by the doctors. The plaintiff applied for both default judgement and summary judgement on the basis that the defendants had failed to file their Defence within the prescribed time.

Held:

(1) Default judgement refused as there was no default as claimed.

(2) Summary judgement refused as it is not permitted in cases involving a claim for damages arising in respect of the death of any person.

Cases cited:

Urban Giru v Luke Muta (2005) N2877

Counsel:

Mr W Kume, for the plaintiff
Mr T Tingnni, for the defendants

27th July, 2012

1. KARIKO J: Banai Nuabo filed this proceeding claiming his 16 month old daughter Kia Banai died through medical negligence on the part of the first defendants Drs Lunn and Tapaua while they were performing surgery on the child.

2. Mr Nuabo appears to allege vicarious liability on the part of the second, third and fourth defendants for the alleged negligence of Drs Lunn and Tapaua. These other defendants are Sam Vegogo the CEO of the Port Moresby General Hospital, the Board of the Hospital and the State.

Default judgement

3. The plaintiff has applied for default judgement to be entered against the defendants claiming they failed to file their notice of intention to defend and defence within the prescribed time under the National Court Rules.

4. The preconditions for the entry of default judgement are that:

• The notice of motion is in the proper form with supporting affidavits
• These documents have been properly served on the defendant
• The writ of summons has been properly served on the defendant
• The defendant is in default
• The default has been proved by evidence
• Defendant has been forewarned

(Urban Giru v Luke Muta (2005) N2877)

5. Having read the affidavit of service of the plaintiff in respect of service of the Writ of Summons, I am not satisfied that the Writ was properly served on Dr Tapaua, Mr Vegogo and the Board of the Port Moresby General Hospital. The evidence is that Dr Tapaua and Mr Vegogo were not served personally as required by the National Court Rules. It has also not been shown that the Board was served through an authorised person.

6. In any case, a notice of intention to defend and a defence were filed on 18th January 2012. Discounting the period 20th December 2011 to 18th January 2012 (as the court was then on vacation), the defendants clearly filed these documents well within the prescribed time limits. Therefore there was no default as alleged by the plaintiff.

Summary judgement

7. Mr Nuabo also applied for summary judgement but this order cannot be granted as summary judgement is not permitted in cases involving a claim for damages arising in respect of the death of any person; O12 r37(c) of the National Court Rules.

Orders

8. In the circumstances, I order as follows:

1. The plaintiffs' applications for default judgement and summary judgement are refused.
   
2. Costs shall be in the cause.
   
3. The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.
   

___________________________________________________

George Kaore Lawyers: Lawyer for the plaintiff
Kimbu & Associates: Lawyer for the defendants