N11007
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1361 OF 2015

BETWEEN
AISI TAU-IU
Plaintiff

AND
DR APISAI KEREK
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Alotau: Toliken J
2024: 	21st September

DAMAGES – assessment after default judgment - medical negligence – eye surgery – 100% loss of vision to left eye – plaintiff underwent second corrective surgery – injury irreparable – concealed from plaintiff – irreparable damage discovered much later after consultation with private doctor – gross negligence.

PRELIMINARY ISSUES – whether State can be heard on assessment of damages after default judgment on liability – whether defendants can properly seek dismissal of proceeding without setting aside default judgment first – whether proceedings were time-barred.   

Cases Cited:

Papua New Guinean Cases
Kewa v Mangipu [2004] PNGLR 42 
Limitopa v The State [1988-89] PNGLR 364
Aura v Papuan Airline Transport Ltd [1963] PNGLR 272 
Mamun Investment Limited v Nixon Koi (2015) SC1409
Oil Search Ltd v Mineral Resources Development Corporation (2010) SC1022
Motor Vehicles Insurance Limited v Kiangua (2015) SC1476
Tau Gumu v Papua New Guinea Banking Corporation (2001)  N2288  
Stanley v Kawa (2005) N2865 
Pias v Kodi (2006) N2972
Kol v The State (2006) N2978
Kalo v Akaya (2007) N3213
Tony v The State (2008) N3477
Mesa v The State (2009) N3681
Kandakasi v The State (2017) N6601

Overseas Cases
Cartledge v E Jopling & Sons Ltd [1963] AC 758

Counsel:	
T Ilaisa, for the Plaintiff
M Pepi and D Aisak, for Defendants

SUMMARY OF JUDGMENT

21st September 2024

1.	TOLIKEN J:	This is a trial on assessment of damages after default judgment on liability was entered against the Defendants on 25 October 2017.
Background Facts
2.	The background facts a succinctly summarised by Mr. Ilaisa in his submissions which I adopt.

3.	 On 15 October 2007, the Plaintiff attended the Alotau General Hospital Eye Clinic as he was experiencing vision problems in his right eye.  The First Defendant, a visiting eye doctor from Port Moresby attended to him at around 10.00a.m. The same day a surgical procedure was conducted on the Plaintiff’s right eye where an intralocular lens was inserted in the eye.  The Plaintiff returned the next day for review. A test was conducted, and the Plaintiff confirmed that he could see clearly. However, later that evening he realized that he completely lost his vision on the right eye.

4.	The next day 17 October 2007, he began experiencing inflammation in his right eye and reported to the First Defendant who administered a drug through a syringe on his right eye. The Plaintiff received repeated dose over the course of 10 days.  By then First Defendant had returned to Port Moresby. The Plaintiff continued repeat doses of prescription drugs up to January 2008 but soon realized that his vision was not improving.

5.	In or around January 2008, the Plaintiff travelled to Port Moresby to seek further medical assistance.  He visited the Port Moresby General Hospital where the First Defendant was based. 

6.	On the 16th January 2008 the Plaintiff was examined by the First Defendant at Port Moresby General Hospital and admitted there.  Then on the 17th January 2008, the Plaintiff was referred to one Dr. Baru who proceeded to conduct a surgery on the Plaintiff’s right eye.  Consequently, in the process of removing the lens, the contents of the Plaintiff's right eye were removed with the lens thereby causing irreparable damage.

7.	After the second operation, the First Defendant concealed from the Plaintiff the cause and effects of the first surgery and resultant consequences of the delayed second surgery resulting in the plaintiff’s permanent blindness.  The First Defendant instead advised the plaintiff to take his prescriptions for recovery at the world and to continue taking his prescriptions and eye ointments and attend Alotau General Hospital eye clinic whenever he experienced pains.

8.	Relying on the advice of the First Defendant the Plaintiff left Port Moresby and returned to Alotau satisfied that after continuous treatment per prescription by the first defendant, he would eventually see again through his right eye and continued taking his prescriptions.

9.	After his continuous attendance at Alotau General Hospital Eye Clinic and seeing no improvement in his vision, the plaintiff travelled to Port Moresby again to seek an independent professional opinion on cause and effects of the eye surgery.

10.	It was revealed to the plaintiff in or around August 2011 by a specialist eye doctor, Dr. Peter Korimbo in Port Moresby that the second operation was a failure, and such failure culminated as result of the negligent omission of the First Defendant in not arresting the complication earlier by removing the lens after the first operation when the plaintiff experienced complete blindness.

11.	It was at that point that the plaintiff learnt that he was permanently blind in his right eye and there was nothing else that could be done to remedy the blindness.
Issues
 Preliminary Issues
12.	At the hearing on assessment of damages the following preliminary issues were raised:

1.	Whether the State can be heard at trial for assessment of damages.
2.	Whether the defendants can properly seek to dismiss the proceedings first setting aside default Judgment.
3.	Whether the Plaintiff’s claim was Statute barred and the proceedings should therefore be dismissed.
Substantive Issue
13.	The primary issue is, what the Plaintiffs damages ought to be?
Deliberations on preliminary issues
Whether the Defendants can be heard at trial on assessment of damages.
14.	A party who has had a default judgment entered against him including one that has not filed a Defence is entitled to be heard at the trial for assessment on damages. He is entitled to natural justice which entails the right to be heard – as provided by the Constitution, s 59.  Despite the stipulation under Order 7 Rule 2 of National Court Rules that a party who had not filed a defence shall not take any further steps in the proceedings, except by leave of the court, the Constitutional right to natural justice must in my view take precedence, at least in so far as assessment of damages is concerned. It is a different situation on an application for default or summary judgment.

15.	 The Defendants can be heard on assessment on damages.
Whether the Defendants can seek to dismiss the proceedings
16.	No, the Defendants cannot seek to dismiss the proceedings without first setting aside the default judgment. Order 7 Rule 2 NCR applies in this situation.

17.	Authority for this is Kewa v Mangipu [2004] PNGLR 42 where the defendant sought to dismiss the proceeding against him. Default judgment was entered against the defendant but he did not apply to set aside that judgment. Instead, he sought to have the proceedings dismissed at the hearing on damages. Cannings J refused the application holding that the court cannot entertain an application aimed at dismissing a plaintiff’s case without having first after entry of default judgment without first setting aside the default judgment.

Is the Plaintiff’s Claim Statute barred?

18.	The Third Defendant sought to argue that the proceeding should be dismissed for being statute barred under Section 16 (1) of the Frauds and Limitations Act 1988. It argued that the time accrued on 15 October 2007 hence the Statute had run by the time the Plaintiff filed this proceeding in August 2011.
19.	The Plaintiff argued that the time to institute the course of action started in August 2011 when he was informed by Dr. Korimbo that his right eye was irreparably damaged. And he relied on the common law principle of latent damage - the damaged was suffered long before it was discovered by Dr. Korimbo.  In the case Cartledge v E Jopling & Sons Ltd [1963] AC 758, the House of Lords held that a person’s cause of action runs from the time the injury occurred not from the time it became known or manifest hence pretty much subjecting most cases to  statutes of limitation, such as own Frauds and Limitations Act, section 16 (1) of which provides that actions in simple contract and torts must commence within 6 years from the date the action accrued.

20.	The Plaintiff submitted that deliberate concealment of facts is an exception and can override statute. Counsel referred me to Gumu v PNGBC (2001) N2288. This case involved a workers compensation claim where the defendant was found to have breached its statutory duty to give notice within 7 days under the Workers Compensation Act, s 42 (1) of injury suffered by the plaintiff in the course of his employment. The plaintiff only became aware of this after a considerable time has passed – well beyond 6 years. The court there held the statute ran from the time the plaintiff first became aware of the defendant’s breach of statutory duty and from the time the injury occurred. It further held that the defendant’s conduct amounted to fraud and it would be unconscionable to allow it to benefit from such fraud.

21.	This position was, however, over-ruled in Mamun Investment Limited v Nixon Koi (2015) SC1409. The Supreme Court there traced or Statute to the Limitation Act 1939 of England, section 26 of which provides for exceptions for the 6 years limitation period to the effect that the period of limitation shall not begin to run until plaintiff has discovered the fraud or mistake. The court noted that our Frauds and Limitation Act has no similar provision Hence the Supreme Court overruled Gumu. It pertinently said at [22]:

“Given the above and that our Frauds and Limitations Act does not provide for the exceptions referred to and in particular in respect of a cause of action based on fraud, we are of the view that the decision in Tau Gumu v Papua New Guinea Banking Corporation (2001)  N2288  should not have been followed and that the trial judge erred in so doing and in findings as he did ... Consequently, as the respondents’ action is founded on simple contract and on tort and it was brought after the expiration of six years commencing on the date on which the cause of action accrued, it is caught by s. 16 (1) Frauds and Limitations Act.”

22.	Earlier in Oil Search Ltd v Mineral Resources Development Corporation (2010) SC1022, the Supreme Court held, among other, that to determine whether an action is time barred the court must satisfy itself of three things:

(1)	     Identify the cause of action.
(2)	     Identify the date on which the cause of action accrued.
(3)	     Categorize the cause of action.

23.	The court then said at [23] –
“If a claim is clearly time barred and provided the statutory defence is pleaded in defence, a motion for dismissal is warranted and it would-be quite appropriate for the National Court to hear and determine it. Where, however, the case for dismissal is not clear cut, the decision-making process of first identifying the cause of action, identifying the date on which the cause of action arose and deciding the question of whether the cause of action is founded on simple contract or is an action upon a speciality ...
24.	In the present case, I find that the Plaintiff did not know his eye had reached a state of irreparable damage when the First Defendant left for Port Moresby Leaving the lens in the Plaintiff’s eye longer then he should have. As a layman that knowledge was not known to him at that time coupled with advice from the First Defendant for him to continue to take prescription drugs. The damage was not discovered until he consulted Dr. Korimbo in 2011 soon after which he filed this proceeding on 06 October 2015.

25.	Despite all that his cause of action did not accrue from the time Dr. Korimbo discovered that his right eye was permanently damaged. Rather it accrued from the time in 2007 when he lost his vision after that first operation by the First Defendant. The Supreme Court authorities cited above do not support the submission advanced for him by Mr. Ilaisa.

26.	  It must be noted, however, that the Supreme Court pronouncement in Oil Search Ltd v Mineral Resources Development Corporation (supra.) will only apply where the defendant has filed a defence. If it did not, then it cannot rely on the statute.

27.	 And that is exactly what the Supreme Court held in Motor Vehicles Insurance Limited v Kiangua (2015) SC1476.  There the Supreme Court dismissed an appeal against the entry of default judgment on the basis that the claim was filed outside the three years limitation under Section 31 of the Wrongs (Miscellaneous Provisions) Act.  The Supreme Court held that the appellant did not file a defence raising time bar as they did not file a defence in the first place and therefore dismissed the appeal.

28.	The claim is obviously time-barred, but since the Defendants did not file a defence they are estopped or precluded from raising the defence at this stage.
Substantive Issue
What are the Plaintiffs Damages
29.	General Damages are intended to put the plaintiff to the position he was at immediately before he suffered injury. It is neither intended as a reward nor punishment. (Limitopa v The State [1988-89] PNGLR 364).

30.	The Plaintiff in this case suffered 100% loss of vision to his right eye through what can only be described as gross negligence of the First Defendant.  Having placed the intralocular lens on the Plaintiff’s right eye he did not care to remove it before he left for Port Moresby. The fact that the Plaintiff returned to the First Defendant a day after surgery and reported loss of vision to his eye did nothing to provoke concern or the alarm for the doctor to take corrective measures as was within his knowledge and skill to do. Instead, he simply put the Plaintiff on a long course of prescription drugs which did not assist him at all.   

31.	While a second surgery was done by Dr. Baru a year later when the Plaintiff consulted the First Defendant in early 2008, the extent and severity of his injury was not revealed to him, either by the First Defendant or until 2011 when Dr. Korimbo ascertained that the Plaintiff’s eye was irreparably damaged.

32.	Mr. Ilaisa helpfully cited a few comparable cases to me. These were:

•	Stanley v Kawa (2005) N2865: Plaintiff was shot in the eye by the police. She suffered 50% loss of vision. Award K25,000.00 for pain and suffering.
•	 Pias v Kodi (2006) N2972: Plaintiff was assaulted by policemen. Suffered 100 % vision loss in right eye. Award K60,000.00 for pain and suffering.
•	Kol v The State (2006) N2978: Plaintiff punched in the eye during arrest by policemen. Suffered 10% loss of vison. Award K5,000.00 for pain and suffering.
•	 Kalo v Akaya (2007) N3213: Plaintiff assaulted by police. Suffered 35% vision in both eyes. Awarded K50,000.00 for pain and suffering.
•	Tony v The State (2008) N3477: Plaintiff fell from a negligently constructed bridge. Suffered 100% loss of vision in left eye. Awarded K50,000.00.
•	Mesa v The State (2009) N3681: Plaintiff sustained blurred vision after being assaulted by a policeman. Award – K25,000.00 for pain and suffering.
•	Kandakasi v The State (2017) N6601: Plaintiff assaulted by police. Suffered 100% loss of vision in right eye.

33.	 The loss of vision is not something that is cosmetic in nature. Rather it seriously impacts on one’s quality of life. As Smithers J said in Aura v Papuan Airline Transport Ltd [1963] PNGLR 272 at [274]:
… It must never be forgotten that each eye is a precious possession - precious because of its capacity, and as one of man’s links with the outside world, an essential part of a man’s body. Some hint of its value may be gained by the revulsion that any man feels at the thought of losing the sight of one of his eyes.
…
I must remember that the bulk of mankind go to the grave with two eyes, both efficient to see with. On the other hand, many people suffer the loss of an eye by accident or by disease from external or internal causes. In addition, a man who has for practical purposes one good eye suffers continual anxiety in the apprehension of injury to the other and must make constant conscious efforts to avoid injury to it. 
34.	The loss of even just one eye is a debilitating and when the loss is through medical negligence the pain and suffering of the victim only exacerbates his suffering because patients put complete trust in doctors with their medical procedures, particular those that are not life threatening.

35.	I am of the view that the Plaintiff should get an award like that in Kandakasi who was awarded K85,000.00 for the permanent loss of vision to his right eye through police brutality.  The First Defendant’s negligence here was gross and a serious falling below the standard of acceptance medical practice both at surgery and after-patient care. I will award K90,000.00 to the Plaintiff for pain and suffering.

36.	The Plaintiff claimed K2,275.02 in Special Damages. Has he proven these by relevant evidence? He has not and I shall not award any sum for this head of damages.

37.	The total sum awarded is K90,000.00 for pain and suffering.

Interest
38.	Interest at 2% shall be awarded from the date of discovery of permanent damage to the left eye which is 2011 to the date of judgment. It shall be computed using the formula – Damages assessed x Interest rate x Number of years. Thus, K90,000.00 x 2% x 13 years = K23,400.00. The interest shall therefore be K23,400.00.

39.	The total award shall be K113,400.00 which shall be paid by the Second Defendant.
Costs
40.	Costs will follow the event on a party/party basis.

Orders
41.	I direct that judgment be entered in the following terms:

1.	The Second Defendant shall pay K90,000.00 to the Plaintiff for damages.
2.	The Second Defendant shall pay interest in the sum of K23,400.0.
3.	The Second Defendant shall pay the Plaintiff’s cost which if not agreed upon shall be taxed.

Ordered accordingly.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff	
Solicitor General: Lawyer for the Defendants