Monthly Archive October 11, 2023

Intial medical treatment notes
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Initial medical treatment notes

A Plaintiff who brings a claim for damages based on injuries sustain must provide the relevant evidence to prove his case. As for injuries sustained, the Plaintiff has the onus to satisfy to the Court that he, indeed, sustained those injuries. In order to prove this allegation, the Plaintiff must provide medical records showing injuries sustained and treatment received. A medical report only is not sufficient. The Plaintiff must provide the initial admission and treatment notes, subsequent treatment notes and the medical report to dispense with the burden of proving his case. This position is taken by the cases as set out below.

The Court (Justice Woods) in the Moip v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 51; N1185 dismissed the procceedings on the basis there was insufficient evidence produced by the Plaintiff to prove the allegations by the Plaintiff. The Plaintiff claimed that he sustained serious injuries and was treat at the Mt Hagen General Hospital for some months. However, the Plaintiff did not produce as evidence of hospital records to support this allegation. His Honour stated that such medical records are elementary in such as situation and must be produced as evidence.

The same position was taken by Justice Kandakasi (as he then was) in Kagl v Baki, Secretary Department of Education [2008] PGNC 40; N3318 where the Plaintiff claimed that he sustained injuries that eventually led to him being mentally disordered. However, during trial, the Plaintiff did not adduce into evidence any medical report. Hence, there was 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. His Honour affirmed the position taken by Justice Wood in Moip v Motor Vehicles Insurance (PNG) Trust [supra] wherein 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. His Honour stated that 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.

This same position is taken by Justice David in Ziporo v Motor Vehicles Insurance Ltd [2008] PGNC 234; N3701, by Justice Sawong in Nikints v Independent State of Papua New Guinea [1998] PGNC 7; N1683 and by Justice Kandakasi (as he then was) in Wapi v Ialy [2013] PGNC 89; N5108.

This approach taken by the Court in relation to medical evidence is applicable in personal injuries cases arising from motor vehicle accidents, human rights case and employment related injuries. It applies to all claims where a person is seeking reliefs from a claim based on injuries sustained.

In conclusion, a Plaintiff must keep those records properly so that he can prove his allegation of injuries sustained. This aspect of the evidence is crucial to his case.

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Solatium
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Solatium

The Wrongs (Miscellaneous Provisions) Act (Chapter 297) provides two (2) actions that a person can claim on behalf of the Deceased. These actions for are:

  1. Dependency claim under Part IV (wrongful act or neglect causing death) of the Act;
  2. Estate claim under Part V (survival of causes of action);

If a child died because of the negligent act or omission of another person, then the parents can bring an action for damages under Part IV (wrongful act or neglect causing death) of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). In this action, a parent can claim as relief solatium.  What is solatium? Solatium is a form of compensation for the suffering caused to a parent by the death of the child.

Who is considered a child?

For the purposes of this action, who is considered a child? What is the age limit wherein a person can be considered a child? A child is under the age of 18 as set out in the cases of in Manduru v Motor Vehicles Insurance Ltd [2016] PGNC 308; N6509 and Hariwaja -v- PNG Power Limited [2014] N7488 and Mari v Tahong [2015] PGNC 280; N6241.

Who is considered a parent?

For the purposes of this action, who is considered a parent? The Act defines parent to mean:

  1. where the child has been adopted, the adopted father or mother of the child;
  2. where the child has not been adopted, the father or mother of a legitimate child; and
  3. where the child has not been adopted but is born out of wedlock, the mother of an illegitimate child.

How much is the award of solatium?

The award of solatium is set by the Act at a fixed sum of K600. This is considered too low in the current economic climate. However, it is the statutory amount. The only way to increase or lower is amount is by way of amendment of the Act.

The Court will award the amount of K600 equally to both parents if they brought the proceedings together. However, if both parents survive the child and only one parent brings such as action to claim solatium, then the Court will award only half as it is due. The Court will look at the conduct of the parent in relation to the deceased child and if it finds it unsatisfactory, it may refuse to grant solatium. Furthermore, if a parent dies, his right to this claim does not survive him for the benefit of his estate.

All in all, solatium is a relief awarded to the surviving parent of a child in compensation for the suffering he endured because of the death of the child. The award is set by statute at K600 to be shared equally by both parents.

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Estate Claim
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Estate Claim

Jurisdictional basis of the Action of Estate Claim

The Wrongs (Miscellaneous Provisions) Act (Chapter 297) (herein referred to as the Act) provides two (2) actions that a person can claim on behalf of the Deceased. These actions for are:

  1. Dependency claim under Part IV (wrongful act or neglect causing death) of the Act;
  2. Estate claim under Part V (survival of causes of action).

The action of estate claim has its basis on section 34 (1) of the Act. What then is this action? It is a claim by the estate of the deceased for loss of expectation of life of the deceased.

Award of Estate claim

For a long the time, the conventional amount awarded for this head of relief was the sum of K3, 000.00. The Supreme Court awarded this amount in Wallbank and Minifie v The State [1994] PGLawRp 601; [1994] PNGLR 78 (Los, Brown, Sakora JJ).

Justice Canning, 12 years after Wallbank and Minifie v The State [supra], then increased this conventional amount to K6, 000.00 in Tirima v Angau Memorial Hospital Board [2006] PGNC 127; N3106. Although the decision to award the amount of K3, 000.00 in Wallbank and Minifie v The State [supra] was a decision of the Supreme Court, Justice Cannings justified this departure by stating that the sum of K3, 000.00 was only a guideline set by the Supreme Court. From this guideline, the National Court must take into consideration the circumstance of the case such as inflation to make the award.

Justice Canning, 9 years after Tirima v Angau Memorial Hospital Board [supra], then increased this amount of K8, 000.00 in Wandokun v Leeman [2015] PGNC 85; N5950 and applied the same in Manduru v Motor Vehicles Insurance Ltd [2016] PGNC 308; N6509.

Justice Kandakasi (as he then was) affirmed the decisions of Justice Cannings in those cases and awarded the sum of K8, 000.00 as estate claim in Hariwaja -v- PNG Power Limited [2014] N7488 and Mari v Tahong [2015] PGNC 280; N6241.

In awarding this amount as estate claim, the judges considered inflation and the improved standard of living that people in Papua New Guinea now have as opposed to their forefathers. Many people are now moved into a cash-based economy rather than living on subsistence farming. This, therefore, increases the value in estate of a person. Hence, it would only be fair and it would be in the interest of justice that this award be increased.

Who is entitled to estate claim?

If the deceased is married, then the surviving spouse would be entitled to the relief of estate claim. Even if the deceased had children with the surviving spouse, the children are not entitled to this relief.

If the deceased is a child, then who would be entitled to this relief if the deceases is a child? Is this relief even available to claim?  Yes, this relief is available. The parents of the child are entitled to this relief. See Manduru v Motor Vehicles Insurance Ltd [supra].

All in all, when making a claim on behalf of a decease, the Plaintiff must ensure to include this action and heard of relief.

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Notice of Appeal

How do you institute an appeal proceeding in the Supreme Court if you are aggrieved by the decision of the National Court? You can file the appeal proceedings by way of a notice of appeal.

Notice of Appeal

A notice of appeal is the first court document that you can file in an appeal proceeding. The party who instituted the appeal proceeding is referred to as the appellant and the other party is referred to as the respondent. The notice of appeal must:

  1. state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal.
  2. state whether the whole or part only and what part of the judgment is appealed from.
  3. state briefly but specifically the grounds relied upon in support of the appeal.
  4. state what judgment the appellant seeks in lieu of that appealed from.
  5. be in accordance with form 8.
  6. be signed by the appellant or his lawyer.
  7. be filed in the Supreme Court Registry.

Appeal lies without leave

A party affected by the decision of the National Court in a civil or criminal proceedings has a statutory right to appeal the judgement to the Supreme Court. This statutory right is provided to the party in Section 4 of the Supreme Court Act (Chapter 37). A party who is wants to appeal a decision of the National Court would not need to apply to the Supreme Court to seek its leave to appeal if the grounds of appeal that he would like to raise involve:

  1. a question of law.
  2. A question of mixed fact and law.

Appeal lies with leave

A party who is wants to appeal a decision of the National Court a civil or criminal proceedings would need to apply to the Supreme Court to seek its leave to appeal if the grounds of appeal that he would like to raise involve a question of facts.

In such instances, before the party files a notice of appeal, he would first file an application to the Supreme Court wherein he will seek leave of the Court to appeal. The appellant will only file the notice of appeal, once leave is granted.

Apart from the above, in civil proceedings in the National Court, an aggrieved party can also apply to the Supreme Court for leave to appeal from judgements and orders in the following circumstances:

  1. from an order allowing an extension of time for appealing or applying for leave to appeal.
  2. from an interlocutory judgement made or given by the National Court.
  3. from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

Grounds of the Appeal

The grounds of the appeal must meet the followings requirement as set out under Order 7 Rules 9 (c) and 10 of the Supreme Court Rules:

  1. The grounds of appeal must be brief but specific. It must make grammatical and legal sense. It must also be intelligible.
  2. If the appellant alleged that the primary learned judge erred in law, then the grounds of appeal must clearly show such error. Furthermore, it must clearly show the reasons why the judgment is wrong in law.
  3. If the appellant alleges that the learned primary judge erred in law, then the grounds of appeal must clearly specify with particularity the ground he relies on to say the such an error of law was made. It is not sufficient for a ground of appeal to be drafted in those terms only.

The Supreme Court cases that explains further on these requirement are: Lama v NDB Investments Ltd [2015] PGSC 15; SC1423 (Cannings J, Collier & Geita JJ), Ipili Porgera investments Ltd v. Bank South Pacific Ltd (2007) SC1322 (Injia DCJ, Cannings J) and Haiveta v. Wingti & Ors (No. 2) [1994] PNGLR 189 (Amet CJ Kapi DCJ Los Salika Jalina JJ).

Grounds of Appeal
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Grounds of Appeal

A notice of appeal is the first court document that you can file in an appeal proceeding. The party who instituted the appeal proceeding is referred to as the appellant and the other party is referred to as the respondent. The notice of appeal must:

  1. state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and
  2. state whether the whole or part only and what part of the judgment is appealed from; and
  3. state briefly but specifically the grounds relied upon in support of the appeal; and
  4. state what judgment the appellant seeks in lieu of that appealed from;
  5. be in accordance with form 8; and
  6. be signed by the appellant or his lawyer; and
  7. be filed in the registry.

Requirements for the grounds of the Appeal

The grounds of the appeal must meet the followings requirement as set out under Order 7 Rules 9 (c) and 10 of the Supreme Court Rules:

  1. The grounds of appeal must be brief but specific. It must make grammatical and legal sense. It must also be intelligible.
  2. If the appellant alleged that the primary learned judge erred in law, then the grounds of appeal must clearly show such error. Furthermore, it must clearly show the reasons why the judgment is wrong in law.
  3. If the appellant alleges that the learned primary judge erred in law, then the grounds of appeal must clearly specify with particularity the ground he relies on to say the such an error of law was made. It is not sufficient for a ground of appeal to be drafted in those terms only.

The Supreme Court cases that explains further on these requirement are: Lama v NDB Investments Ltd [2015] PGSC 15; SC1423 (Cannings J, Collier & Geita JJ), Ipili Porgera investments Ltd v. Bank South Pacific Ltd (2007) SC1322 (Injia DCJ, Cannings J) and Haiveta v. Wingti & Ors (No. 2) [1994] PNGLR 189 (Amet CJ Kapi DCJ Los Salika Jalina JJ).

Reasons for the requirements

The Supreme Court in Haiveta v. Wingti & Ors (supra) sets out the two reasons why the grounds of appeal must meet the above requirements. These reasons are as follows:

  1. The respondent, when reading the grounds of appeal, must be able to know the basis of the appeal so he can prepare his arguments.
  2. The court, when reading the grounds of appeal, must be able to know the issues to be determined.

Failure to meet the requirements

The requirements are mandatory. If an appellant fails to comply with these requirements, the Court could find the appeal incompetent. See the judgement in Kou v Kaupa [2010] PGSC 18; SC1021 (David, Gabi & Kariko, JJ. If the appellant does not set out clearly the grounds of appeal in accordance with the requirements above, the Supreme Court has the discretion to strike out the grounds of appeal that offends the requirements. If, on the other hand, all the grounds of appeal offend these requirements, the Court can dismiss the entire appeal on the basis that the appeal is incompetent.

Examples of cases in Papua New Guinea

There are several cases in this jurisdiction that the Supreme Court struck out the grounds of appeal on the basis that these grounds do not meet the requirements.  These Haiveta v. Wingti & Ors (No. 2) [supra], Henao v Coyle (2000) SC655 and NCD Water and Sewerage Ltd v Tasion (2002) SC696.

In conclusion, the requirements are mandatory. Hence, an appellant must ensure that his grounds of appeal meet these requirements.

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