Dowsett Engineering (New Guinea) Pty Ltd v Edwards and RE Jordan trading as Jordan Lighting [1979] PNGLR 426

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1979] PNGLR 426
• Date: 07 September 1979
• Year: 1979

Full Title: Dowsett Engineering (New Guinea) Pty Ltd v Edwards and RE Jordan trading as Jordan Lighting [1979] PNGLR 426

Supreme Court: Raine DCJ, Kearney J, Greville–Smith J

Judgment Delivered: 7 September 1979

1 Evidence—admission of hearsay under res gestae principle

2 Practice and procedure—pleadings—amendment sought to plead contributory negligence—National Court Rules O32 r1—principles discussed

3 EVIDENCE—Admissibility—Hearsay—Res gestae—Admissible as part of res gestae subject to possibility of concoction or fabrication—Second hand hearsay—Interpretation—Hearsay on hearsay—Admissible if no doubt of accuracy.

On appeal against a finding, that evidence of conversations heard by a plaintiff injured in a fall from a ladder, shortly after the accident and as he lay injured on the ground, indicating that an employee of one of two defendants had let go of the ladder which he was holding in place, to retrieve a fallen pair of pliers, was admissible as evidence (as part of the res gestae) not only as to the fact of their having been said but as to the truth of the facts they purported to describe,

Held:

(1) A first hand hearsay statement made by a bystander may be admitted as part of the res gestae subject to a consideration of the possibility of concoction of fabrication,

Ratten v R [1972] AC 378, applied; Edwards v Jordan Lighting [1978] PNGLR 273, approved.

(2) A second hand hearsay statement being the interpretation of what someone else said at the scene may be admitted as part of the res gestate where there is no doubt as to the accuracy of the interpretation;

Gaio v R (1960) 104 CLR 419; and Fande Balo v R [1975] PNGLR 378, referred to.

(3) A second hand hearsay statement being a reiteration of what someone else said at the scene (hearsay upon hearsay) may be admitted as part of the res gestae where on the particular facts there is no doubt as to its accuracy.

(4) Whether in the particular circumstances the evidence admitted was first hand or second hand hearsay it was properly admitted as part of the res gestae.

Appeal.

This was an appeal against an award of damages for personal injuries arising out of an industrial accident, on the grounds inter alia:

(e) That his Honour erred in law in that he admitted into evidence certain conversations heard by the plaintiff shortly after the accident as he lay injured on the ground.

(f) That his Honour erred in law in that he admitted into evidence certain conversations or the effect of certain conversations or certain words spoken or the effect of certain words spoken with or by a Mr Saunter.

___________________________

Raine DCJ:

The first named respondent is the plaintiff Glen Hamilton Edwards. The appellant was the second named defendant in the action successfully brought by Edwards last year (Edwards v Jordan Lighting [1978] PNGLR 273). I will refer to the appellant and the first named and second named respondents as DE and J respectively.

The facts out of which the action arose are set out in the clearest way by Andrew J, who was the trial judge. Some of them need not concern us now, in view of the way the appeal has been argued. I can do no better than set out what his Honour said (Edwards v Jordan Lighting [1978] PNGLR 273 at 275–278):

"Glen Hamilton Edwards, the plaintiff in this action, seeks to recover damages from Ronald Emmanuel Jordan trading as Jordan Lighting, and from Dowsett Engineering (New Guinea) Pty Ltd for personal injuries sustained on the 23 February 1970, in the course of his employment. The incorporation of the second defendant and the employment of the plaintiff as an electrician by the first defendant are admitted on the pleadings. It is also admitted that the plaintiff was employed to do electrical work on wharf facilities being built on a site at Kieta and that the second defendant was the principal contractor for the construction of this site. The first defendant was a subcontractor of the second defendant with respect to electrical work and at all material times the second defendant was the occupier of the said site.

The following facts have been established to my satisfaction.

The plaintiff is a married man now aged thirty–four. Following an apprenticeship with an electrical firm in Geelong, Australia, he obtained an 'A' grade electrical tradesman's certificate in January 1966. In March 1966 he came to Port Moresby and obtained employment with an electrical firm doing general electrical contracting work. In the same year he was transferred to Rabaul with the same employer. In mid 1968 he commenced employment with the first–named defendant in Rabaul. He was engaged to do general contracting work always in the electrical field. His duties included the supervision of labourers and other workers especially in places such as Kavieng and Kimbe. The work was mainly a mixture of private and public sub–contract work. He would normally be accompanied on these jobs with one or two other tradesmen with some experience.

His employer tendered successfully for certain electrical work at the site of the wharf at Kieta. This work included general lighting on buildings and streets and security lighting. The main site contractors were the second defendant Dowsett Engineering (New Guinea) Pty Ltd and the total work complex included the construction of two large warehouses, an office complex, a guard house, an open storage shed, stevedores' messing quarters and an accommodation block. The chief foreman on the site for Dowsett Engineering was one Mr Tom Saunter.

Prior to tendering for the electrical work the plaintiff's employer, Mr Jordan, had visited the site. After the plaintiff and Mr Jordan had studied plans of the site he, Mr Jordan, sent various equipment from Rabaul to Kieta. This included electrical equipment and two extension ladders and two pairs of steps. One ladder was capable of extension to some twenty–two feet and the other to twenty–eight feet or thirty feet. The plaintiff was the foreman for Jordan Lighting on this job. He first visited the site with another tradesman whose name was Michael. At this time the basic structure of both warehouses had been erected but there was no roof or sides or doors. He arranged enough work for the man Michael, to last two or three weeks and then returned to Rabaul. Whilst in Rabaul he was advised that Michael had departed and so he returned to the site with another tradesman. I should add that of the two warehouses one was larger than the other. He then carried out further work and both men returned to Rabaul. He made several trips to the site thereafter and installed the electrical equipment to the two warehouses. At this stage the roofs of both warehouses had not been installed. The lighting in the roof areas was installed by using the ladders. This could be done with safety as the roof, not being affixed, the ladder could extend through the roof space and be tied at the top to the girder. The ladder would be supported by various persons whilst being mounted so that the tie could be put on the top. On each visit to the site the plaintiff had only one fellow Jordan Lighting employee with him.

On the day the plaintiff was injured the roofing in both warehouses was almost complete. This roofing was known as 'Brownbuilt' and was a flush fitting type. Being of this type it was impossible to make a tie between the ladder and the girder. During the morning the plaintiff had been working at ground level checking various lighting installations in both warehouses. During the afternoon, whilst in the smaller warehouse, he noticed that about six or seven electrical fittings were faulty. He had with him the smaller of the two ladders. At the same time his fellow tradesman was doing similar work in the larger warehouse and he had the larger ladder.

Inside the smaller warehouse were bags of copra and other crates. Some of these prevented access to the light fittings by ladder but were able to be used as a platform. Three fittings remained on the roof girders which could only be checked by use of the ladder. On the first two the plaintiff was able to use the extension ladder from ground level. As I have indicated already, he was unable to tie the ladder at its top. There was only six inches of girder that could be used as a support for the top of the ladder. The ladder had no safety shoes or other safety apparatus. It was now approximately 4.30 pm. Inside the warehouse were some labourers employed by Dowsett Engineering and they were affixing doors to the warehouse. The plaintiff had, earlier that afternoon, approached the Dowsett Engineering foreman, Mr T...