The National, Tuesday July 16th, 2013
By CHARLES MOI
A JUDGE dismissed in its entirety the writ of summons and statement of claim from a couple who claimed negligence by the Mt Hagen General Hospital.
In the Waigani National Court last Friday, Justice Catherine Davani said the plaintiffs’ lawyer should not have filed a writ of summons and statement of claim based on a notice that was defective because and unless notice was given, no cause of action existed.
Plaintiffs Wendy Cathy Ako and Noel Ako, married with five children, agreed to have a tubal ligation to stop Wendy from having more children.
The couple were expecting their sixth child at that time.
The tubal ligation operation was performed on Wendy on Nov 14, 2006, by medical staff of the hospital but she became pregnant later and she claimed to be traumatised by that.
The couple sued the Mt Hagen General Hospital board and its servants for negligence.
An extension of time was given to the couple to give a notice to the state under Section 5 of the Claims by and Against the State Act.
The couple gave notice to the state within the extended period but the state refused to accept the letter giving notice because it did not contain sufficient particulars of the claim, in this case the name of the alleged person who performed the tubal ligation.
The couple failed to disclose the names and identities of the doctors or nurses of who allegedly gave advice for the tubal ligation operation.
The state was unable to verify the couple’s claim and obtain instructions.
The couple’s lawyer however ignored the state refusal of the notice under section 5 of the Claims by and Against the State Act and filed the writ of summons and the statement of claim on July 4, 2011.
There was no basis by the couple’s lawyer to file the writ of summons and the statement of claim considering section 5 is a precedent.