Mari v Tahong [2015] PGNC 280; N6241 (4 December 2015)

N6241

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 144 of 2009

BETWEEN:

JACKSON MARI for himself and other Defendants of the late LYNETTE JACKSON
Plaintiffs

AND

DR. SANO TAHONG
Medical Officer, Mendi General Hospital
First Defendant

AND

DR. CLEMENT MALAU
SECRETARY FOR DEPARTMENT OF HEALTH
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kandakasi J.
2014:
2015: 4th December

TORTS – Wrongful death – Medical negligence – Primary tort feasor primarily liable and must be the first to pay – Failure to give timely and appropriate instructions to the State Lawyers attracts personal liability – Any failure to fully meet judgment by primary tort feasors obliges the State to meet the judgment – State entitled to recover directly against primary tort feasor the mount it pays in satisfaction of a judgment by applying against any of the tort feasors' savings, other benefits due to him or her in future, his properties and or asserts and even attach it to his salaries until the full amount is recovered.

DAMAGES – Assessment of – Loss of a hard working mother – Value of her loss put less than 100% in the absence of husband being completely useless and unproductive – Loss of mother and risk of orphan hood both factored in but risk of orphan hood only for unknown future years – Funeral expenses established by evidence and not contested allowed as both reasonable and proven.

Cases cited:

Collins v. Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580.

Jennifer Jean Scott v. Michael George Scott (2009) N3881.

Kembo Tirima v. Angau Memorial Hospital Board (2006) N3106.
Koko v. MVIT [1988] PNGLR 167

Nolnga v. MVIT [1991] PNGLR 436.

Counsel:
M. Saka, for the Plaintiffs.
L. Kaiyo, for the Defendants.

4th December, 2015

1. KANDAKASI J: Having lost through the medical negligence of the First Defendant, Dr. Sano Tahong, Jackson Mari, six (6) of his children and 2 of his in-laws (plaintiffs) are seeking to recover damages from the defendants for the death of one Lynette Jackson, their wife, mother and daughter respectively. By judgment in default of the defendant's defence, the Court on 20th December 2010, resolved the question of whether the defendants' are liable in favour of the plaintiffs, leaving only the question of damages to be resolved.
   

Background

2. The background to this claim is simple. Dr. Sano Tahong was the medical doctor who performed an operation on Mr. Mari's wife, now deceased on 3rd February 2006 at the Mendi General Hospital. That operation resulted in a cutting off of parts of the deceased intestine, which eventually on 21st February 2006, led to her death. Following the death the board and senior management of the Hospital accepted responsibility and paid on 2nd March 2006, K5, 000.00 for solatium.
   
3. The plaintiffs claim that, prior to her demise, the deceased was a very industrious woman. She supported her husband in raising their children, growing potatoes and vegetables and looking after pigs and selling them, which they have now lost. On top of that, the plaintiffs incurred expenses in terms of funeral and related expenses forced on by the deceased death. Additionally, they incurred further costs in travels, instructing lawyers and pursuing this proceeding.
   
4. On the defendants' lawyers' request, the plaintiffs' lawyers furnished a detailed settlement proposal in the form of a submission. That submission remains neither accepted nor contested, which meant no out of Court settlement. That forced a trial on the plaintiffs' damages.
   

Relevant Issues

5. The issues then for this Court to consider and come to a decision on are as follows:
   
   • (1) Whether the deceased had all of the plaintiffs namely, the 6 children, 2 parents, and her husband dependent on her prior to her demise?
     
   • (2) Did the deceased generate any income and provided support for each of the plaintiffs as claimed or at all?
     
   • (3) If the answer to question (2) is in the affirmative, what was the level or measure of such support?
     
   • (4) Have the plaintiffs suffered any special out of pocket expenses and if so how much?
     

Dependents - Liability

6. I deal firstly with the issue of whether each of the plaintiffs were dependent on the deceased prior to her demise. The uncontested evidence[1] before the Court supports the plaintiffs' submission and a finding that as at the time of the deceased death, she was married to Jackson Mari, who was then 38 years old. Out of that marriage, the 6 children plaintiffs were born. As at the time of the deceased's death, Israel M. Jackson was an infant, Collin M. Jackson was 2 years old, Jocelyn M. Jackson was 4 years, Oiki M. Jackson was 6 years old, Nimson M. Jackson was 10 years old and Gibson M. Jackson was 12 years old. Also as at the time of the death of the deceased her mother, Beres Masu, was 55 years old while her father Masu Pera was 58 years old. In the absence of any evidence to the contrary, I find these persons were dependent on the deceased.
   
7. As to the extent of the plaintiffs' dependency on the deceased, I note there is no evidence suggesting that, Mr. Jackson Mari dependent entirely on the deceased and thus failed to discharge his duties as husband, father and son in law to the deceased parents and as a man. A man especially in the highlands of Papua New Guinea is required and has the duty and responsibility to be the main bread winner and provide for his wife, children and in some instances his parents and in-laws. In rural subsistence style dwellings, this would amongst others entail assisting in the making of gardens for food and any cash crop for the family's cash income, building and maintaining of the family's house or home, provide for the children's school fees and generally provide for all the needs of his family. In the absence of any evidence of the Mr. Mari failing in his duties I am of the view that he provided for these needs of his family and the deceased assist where she was able to.
   

The Remaining Issues - Damages

8. Having determined the question of dependency which is a question of liability in favor of the Plaintiffs in the way I have done above, it is now necessary to consider and resolve the remaining questions. The remaining questions all concern the issue of the Plaintiffs' damages. These issues are from the source and the level of income, to possible support and the period of loss from the date of the deceased's death. I will thus deal with the remaining questions as one.
   

(a) Income source

9. Consistent with PNG Highlands custom and practice, I find that the deceased was a hardworking and industrious woman who looked after pigs and basically worked very hard in the gardens. She used to plant potatoes, cabbages, carrots, broccolis, and other cash crops in large quantities and sold them frequently on monthly basis at the Mendi Vegetable Depot owned by one, Peter Suku earning between K300 to K400 a month[2] with some additional income from the sale of vegetables which brought the total monthly family income to around K833.00. Again in the absence of any evidence to the contrary, I find that generating this level of income would have been possible with Mr. Mari and the other plaintiffs' assistance, except for the very young children. Consequently, I find also in the absence of any evidence to the contrary that, the deceased would have contributed anywhere from 30% to up to a maximum of 50% of the family' income, upkeep and survival. Hence, I find the loss of the deceased represents up to 50% of the income the family generated. I accept submissions for the Plaintiffs that, after the deceased died Mr. Mari had been struggling to look after the children and attend to their gardens and raise pigs. I also accept that, the family's income dropped with their well-being also affected[3] but only up to the extent of the deceased contribution. That is the plaintiffs' loss and I will proceed to assess their damages on that basis. To find and do otherwise than that will have the effect of finding Mr. Mari and the others contributing nothing at all or far less and the deceased was the only person exclusively providing for her family, which finding is not supported by any evidence and contrary to subsistence style dwelling in the highlands of PNG and family life generally.
   

(b) Dependency

10. For the purposes of assessing the plaintiffs' loss of dependency, in so far as that is possible in estimated monetary terms, in line with case authorities,[4] I will start with a figure of K416.50 as the average monthly loss to the family's income, giving an average weekly loss of K104.13. This represents an average weekly loss of K10.00 for each of the 6 children (K60), K12.00 each for the parents (K24) and K20.13 for Mr. Mari. I will allow the now accepted period of dependency up to the age of 18 years for each of the children[5]in the absence of any evidence of special circumstances existing that warrants a dependency period beyond that.[6] I will thus calculate their loss as follows:
    

Dependent	Age at death	Relation	Dependency period	Dependency rate	Gross loss
Israel Jackson	Infant	Child	18 years	K10.00	K 9,360.00
Collin Jackson	2	Child	16 years	K10.00	K 8,320.00
Jocelyn Jackson	4	Child	14 years	K10.00	K 7,280.00
Oki Jackson	6	Child	12 years	K10.00	K 6,240,00
Nimson Jackson	10	Child	8 years	K10.00	K 4,160.00
Gibson Jackson	12	Child	6 years	K10.00	K 3,120.00
Jackson Mairi	38	H/band	17 years	K20.13	K17,794.49
Beres Masu	55	Mother	7 years	K12.00	K 4,368.00
Masu Pera	58	Father	7 years	K12.00	K 4,368.00

(c) Loss of extra services as a mother

11. To this, again in line with established case law and practice,[7] I will make some allowance for the children's loss of extra services as a mother upon their loss of their mother. In the case of Koko v. MVIT,[8] the Court awarded K3.50 per week while the Court in Kembo Tirima v. Angau Memorial Hospital Board[9] awarded K10.00 each week for each child until they each reached 18 years old. The award in Kembo Tirima is the latest and the learned Plaintiffs' counsel argues that award to apply here. There is neither any argument to the contrary, nor is there any reason to reject that submission. I therefore accept that submission. Accordingly, I will allow for a weekly loss of K10.00 each week for each of the children until each reaches the age of 20 years. This comes to about K520 each for each of the children per year.

(d) Increased risk of orphan hood

12. Further, learned counsel for the Plaintiffs submits and I accept that there is an additional head of damages, namely increased risk of orphan-hood for the children Plaintiffs following the loss of their mother. The commencement of this risk would have to be for future periods from the date of this judgment until their respective ages of majority for each of the children. This takes into account the fact that, since the loss of their mother, there is no evidence of that risk having occurred in the 9 years that have passed since the death of the deceased. Hence, we can only allow for such risks for the unknown future until each of the children have reached their respective ages of majority.

13. My brother Cannings J. in the Kembo Tirima case referred to and considered all previous authorities on point and held that there should be an age limited for the purposes of calculating this kind of damages. His Honour also took into account the rise in inflation since the awards in the earlier cases and decided to allow a sum of K1, 000 for each year of loss until the children reached age 18. Learned counsel for the Plaintiffs submits and I accept that, I should allow myself to be guided by His Honour's decision as that is the one of the latest case authorities on point.

(e) Estate claim

14. Finally, learned counsel for the Plaintiff submits and I accept that there is an additional heading of loss that must be factored, which is estate claim. Again counsel refers to the decision of His Honour Cannings J in Kembo Tirima's case and submits that I should be guided by the decision in that case and I accept that submission in the absence of any submission to the contrary. Cannings J in that case, also reviewed the relevant case law on point such as the Supreme Court decision in Richard Dennis Wallbank and Jeanette Minifie v. The State [1994] PNGLR 78, where the Court awarded a sum of K3, 000 for the loss of the deceased estate. As Cannings J observed, the award by the Supreme Court was more than 10 years old. Costs of living and inflation has since substantially increased, which warranted a corresponding increase in the various damages areas to do justice. Taking these matters into account his Honour decided to increase the award by 100% to bring it up to K6, 000.

15. Counsel for the Plaintiff submits and I accept that, the award in Kembo Tirima's case was in 2006. That is now more than 12 years old. I note that the same factors that influenced His Honour Cannings J exists here. I point out initially that people in PNG have generally advanced into some level of improved living standards compared to their fore fathers and those living the period immediately before and after independence, with a large number of people advancing into the cash based economy. That necessarily in my view increases the value in the estate of a person. For these reasons, accept that the award of K6, 000 by Cannings J needs to be reviewed and increased upwards to reflect these changes. A figure of K8, 000 has been suggested by Plaintiffs through their learned counsel as a reasonable amount. I consider it is reasonable and agree that should be the amount I should award for the estate claim to the surviving spouse of the deceased, her husband. I will thus make the necessary adjustment on to the damages arrived at in the first table falling under paragraph 10 above to factor in the additional items as follows:

Dependent	Mother's extra services yearly	Orphan hood yearly	Sub-total	Add loss of dependency	Total gross loss for children
Israel Jackson	K9,360	K9,000	K18,360	K 9,360	K27,720
Collin Jackson	K8,320	K7,000	K15,320	K 8,320	K23,640
Jocelyn Jackson	K7,280	K5,000	K12,280	K 7,280	K19,560
Oki Jackson	K6,240	K3,000	K9,240	K 6,240	K15,480
Nimson Jackson	K4,160		K4,160	K 4,160	K8,320
Gibson Jackson	K3,120		K3,120	K 3,120	K6,240

16. From the above figures, I will then in line with case authorities and established practice in our jurisdiction, allow for a 10% reduction on account of contingencies in life such as early death for all plaintiffs, remarriage for the husband[10] and such other factors in life. This will be applied as against the deceased husband and the children who have not yet reached their age of majority. The adjustments and the final figures should be as follows:

Plaintiffs name	Total loss	Less 10% contingencies	Add Estate Claim	Grand total
Israel Jackson	K27,720.00	K2,772.00			K24,948.00
Collin Jackson	K23,640.00	K2,364.00			K21,276.00
Jocelyn Jackson	K19,560.00	K1,956.00			K17,604.00
Oki Jackson	K15,480.00	K1,548.00			K13,932.00
Nimson Jackson	K08,320.00	Nil			K08,320.00
Gibson Jackson	K06,240.00	Nil			K06,240.00
Jackson Mairi	K17,794.49	K1,779.45	K8,000		K23,970.05
Beres Masu	K04,368.00	Nil			K04,368.00
Masu Pera	K04,368.00	Nil			K04,368.00

TOTAL

K125,026.05

17. I award the same of K125, 026.05 in general damages. This leaves special damages, interest and costs yet to be sorted out.

(f) Special damages

18. The only head of special damages, the Plaintiffs claim is funeral related expenses, namely costs of transporting the deceased grieving relatives to Mendi from Mt. Hagen, costs of food and drinks during the period of mourning until burial and the final resting place for the deceased, her gravel and related works. Such damages are well known and accepted in our country. A large number of cases like that of Inabari and Another v. Sapat and the State [1991] PNGLR 427, (per Salika J as he then was) which Cannings J referred to in His Honour's decision in the Kembo Tirima case bears witness to this position of the law. Varying amounts of damages have been awarded in these large numbers of cases dependent on evidence and the reasonableness of the amount claimed.

19. In the present case, the affidavit evidence of Jackson Mari, Kevin Sapul, Pastor Pora Kora and Michael Papol clearly support the Plaintiffs claim for funeral expenses totaling up to K17, 100.00. This is made up of K2,000.00 for vehicle hire to transport the deceased body and her grieving relatives from Mt. Hagen to Mendi; K10,000 for food, drinks and other necessities during and at the end of the mourning and K5,100.00 for the total costs of the deceased grave. In the absence of any evidence to the contrary, I accept the claim of K17, 000 for funeral [11]expenses as I am persuaded the amount claimed is both established and reasonable.

20. Finally, I turn to the question of costs and interest. These are usually awarded as a matter of course in these kinds of cases, especially when there is no special reason not to award interests and costs. The accepted interest rate is 8% for all general damages from the date of the issue of the writ to the date of their final settlement. For special damages, the usual rate is 4% from the date of the issue of the writ until final settlement. Accordingly, I order an award of 8% and 4% interest respectively for general damages and special damages from the date of the issuance of the Writ in this case, until final settlement. I also award costs to the Plaintiffs and such costs shall be agreed if not taxed.

21. In the end I order judgment for the Plaintiffs in the sum of K125, 026.05 in general damages and K17, 000.00 for special damages. I also order interest at 8% for general and 4% for special damages from the date of the issue of the Writ until full satisfaction of the judgment. Finally, I order costs in favour of the Plaintiffs and such cost shall be agreed if not taxed.

Who should satisfy the judgment?

21. There is then a finally matter I turn to. It is the question of which of the defendants should pay? I have commented on a number of occasions before that the State should not continue to bear responsibilities for medical doctors and other servants or agents who have been plainly careless or reckless in the discharge of their duties and responsibilities. This carelessness on the part of State servants and agents is often carried into court proceedings. Despite being named and served with Court proceedings, the offenders often fail to take appropriate steps to defend the proceedings. By adopting this kind of attitude they simply do not care about what they do or fail to do and the consequence that has against the people through the State. It is about time that the State should take firm steps against these kinds of people who are primary tortfeasors and a primarily response to meet any judgment consequential on their tortuous actions. The State can do this easily by making them meet the judgment personally and directly from their own resources. If however, despite best efforts, the offenders fail to pay either in whole or in part any judgment against them, the State should pay. Should or where the State pays, the amounts it so pays should be a debt automatically recoverable by the State against the responsible servant or agent. This can be done by forfeiting and savings or any benefit due to the servant. This could be savings with the superannuation fund, bank account or other forms of saving. If such do not prove sufficient, any property or asset the offenders have should be forfeited to the State up to the value of the judgment. If that proves still not enough, the judgment could be attached as a debt to the offender's salary or other future benefits due to him.

22. Taking the kind action of mentioned above will bring about at least three important developments into the way public servants and agents behave and carry out their powers and functions. Firstly, professionals like the doctors, lawyers, accounts and all other servants and agents of the State who are careless or reckless in the discharge of their duties and responsibilities will be forced to carry out their duties and obligations with much care, skill and attention, when it becomes clearer to them that they are personally liable for their actions and not the State. Secondly, this will help reduce the large number of negligence cases that are mounted each year against the State and thereby save the people from spending millions of Kina unnecessarily on consequences of negligence or carelessness of State servants and agents. Thirdly, it will force the State servants and agents to become smart professionals who will function with much care and attention to detail and doing their jobs properly in timely manners as professionals in whatever capacity they are called to serve the people of PNG and others. This will in turn raise the level of the type and quality of service to much better levels than the bad and untrustworthy ones we see in most State departments and agencies nowadays.

23. What this means for this case is simple. The First Defendant, Dr. Sano Tahong is primarily responsible to meet the full judgment; provided he was the doctor that was responsible for the Plaintiffs' loss and or that he failed to give timely and appropriate instructions to the State lawyers from the Solicitor General's Office who was handling this case in the State and his defence. If he is not the one, the doctor that was primarily response for the deceased death is obliged first up. The Secretary for the Department of Health at the relevant time would also have to contribute to meeting the judgment say up to 50% for failure to take head of judgments against doctors and ensuring that the first defendant and others carry out their duties and responsibilities with much care and attention. Then unless the first two defendants are able to meet the judgment in full with the usual 14 days from the date of this judgment, the State should pay and recover what it pays as a debt against the first two defendants of the doctor directly responsible by having their savings, retirement pensions, any other savings or property and assets forfeited to the State up to the value of the judgment plus the costs and interest it is forced to meet.

------------------________________________________________________________
Moses Saka Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants

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^[1] See paragraph 11 of the Statement of Claim & paragraph 2 of Affidavit of Jackson Mari sworn on 20^th November 2009 and filed on 02^nd December 2009.
^[2] See paragraphs 11 & 12 of the Statement of Claim, and Affidavit of Peter Suku sworn on 20^th September 2009 and filed on 02^nd December 2009; Paragraphs 3 – 5 & 10 of the Affidavit of Kevin Sapul sworn on 23^rd September 3009 and filed on 02^nd December 2009; Paragraph 3 – 6 of Pr. Pora Kora’s affidavit and also paragraphs 6, 7 and 8 of Affidavit of Michael Papol sworn on 20^th November 2009 and filed on 2^nd December 2009.
^[3] See paragraph 22 of the Affidavit of Jackson Mari sworn on 20^th November and filed on 2^nd December 2009.
^[4] Koko v. MVIT [1988] PNGLR 167
^[5]For authorities see: Kembo Tirima v. Angau Memorial Hospital Board (2006), N3106 and Collins v. Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580.
^[6] For discussion of special circumstance principle see: Jennifer Jean Scott v. Micheal George Scott (2009) N3881
^[7] See for example: Kembo Tirima v. Angau Memorial Hospital Board (2006) N3106; Koko v MVIT [1988] PNGLR 167 and Nolnga v MVIT [1991] PNGLR 436.
^[8] See note 7 for the reference.
^[9] See note 5 for reference.
^[10] See for examples of cases on point Rom Tinpul v Moses Yere and Mt Hagen Golf Club [1998] PNGLR 582 (25% contingency); Mantz Wango v Pot Andakundi and The Independent State of Papua New Guinea [1992] PNGLR 45 (10% contingency); Maria Sam v Motor Vehicles Insurance (PNG) Trust (1991) N1022 (10% contingency); Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580 (20 and 10 % for contingencies).
^[11] See Nagi Yuak Kwi v. Francis Tande and The State (2011) N4910; Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102 for example of cases on point.