Motor Vehicles Insurance Limited v Alois Harry Ken as next friend for deceased infant Robert Alois Ken
| Jurisdiction | Papua New Guinea |
| Judge | Murray J,Shepherd J,Narokobi J |
| Judgment Date | 18 December 2023 |
| Neutral Citation | SC2522 |
| Citation | SC2522, 2023-12-18 |
| Counsel | Mr L. Manua, for the Appellant,No appearance for the Respondent |
| Docket Number | SCA NO. 193 OF 2022 |
| Hearing Date | 26 September 2023,18 December 2023 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 193 OF 2022
Motor Vehicles Insurance Limited
Appellant
v.
Alois Harry Ken as next friend for deceased infant Robert Alois Ken
Respondent
Waigani: Murray J, Shepherd J, Narokobi J
2023: 26th September and 18th December
EVIDENCE — Appeal — motor vehicle accident — civil claim in negligence for death of 5-year old infant — hearsay evidence — police and medical reports — inadmissibility of — res gestae — exception distinguished — error of law by trial judge in not exercising Court's discretion to exclude admission of hearsay documents into evidence — error of law by trial judge to make finding of negligence based on police road accident report wrongfully admitted into evidence against formal objection on notice — Evidence Act, s. 35(2) — statutory requirement for authors of police and medical reports to attend at hearing and give evidence on matters referred to in their reports when notice to attend for cross-examination is given — Evidence Act, ss.36(b), 37 — appeal against decision of trial judge upheld.
The appellant appeals against the whole of the decision of the National Court which found liability proven against the respondent in its capacity as the statutory insurer of a vehicle whose driver was alleged to have caused the death of a 5-year old infant, liability having been apportioned by the trial judge as to 70% to the driver and 30% to the parents of the deceased infant. The appellant seeks orders for the appeal to be allowed, the judgment on liability to be quashed and the proceedings in the National Court to be either dismissed or remitted back to the National Court for re-hearing. It was not disputed at the hearing of the appeal that the trial judge relied on hearsay evidence to make her findings.
Held:
(1) Medical reports and police road accident reports must be attached to affidavits of the authors of those reports, and if not done the reports are inadmissible if they are sought to be tendered into evidence by other persons in the absence of consent by the opposite party.
(2) If medical reports and police road accident reports are admitted into evidence despite non-authentication by their authors or despite valid objection by an opposite party, the Court should place no weight on those reports.
(3) The trial judge erred by exercising the Court's discretion to admit into evidence hearsay medical documentation and a hearsay police road accident report which were inadmissible under the normal rules of evidence because they had not been authenticated by the authors of those reports by affidavit or oral evidence and no explanation by affidavit evidence was given as to why those authors were not available to give evidence.
(4) After wrongly admitting into evidence hearsay documents, the trial judge placed undue weight on that inadmissible documentation to determine liability and to find that negligence had been proven.
(5) The appeal was allowed, the decision of the trial judge was quashed and the entire proceeding in the National Court was dismissed, each party to pay their own costs in the appeal and in the National Court.
Cases Cited:
Dowsett Engineering (New Guinea) Pty Ltd v Edwards; re Jordan trading as Jordan Lighting [1979] PNGLR 426
Kumbe v Motor Vehicles Insurance Ltd (2005) N2860
Moka v Motor Vehicle Insurance Ltd (2001) N2098
Nekiye v Motor Vehicles Insurance Ltd (2019) SC1846
Pokau v Wettie (2010) N4086
Simbuaken v Egari (2009) N3824
Statute Cited:
Evidence Act Chapter No. 48: ss. 35(2), 36(2), 37
Counsel:
Mr L. Manua, for the Appellant
No appearance for the Respondent
Rageau Manua & Kikira Lawyers: Lawyers for the Appellant
DECISION ON APPEAL
18th December 2023
1. BY THE COURT: The appellant is Motor Vehicle Insurance Limited (MVIL). The respondent Alois Henry Ken, the plaintiff at trial, is the father of the deceased infant Robert Alois Ken. The deceased infant was aged 5 years when it was reported to police that he had been struck and fatally injured by an Isuzu truck said to have been traveling at high speed along the 4-lane road near the former Port Moresby Showground close to 9-Mile Settlement, National Capital District. A claim under the provisions of the Motor Vehicle (Third Party) Insurance Act Chapter 295 and a dependency claim for the wrongful death of the infant under the Wrongs (Miscellaneous Provisions) Act Chapter 297 was pursued in the National Court by the respondent against the MVIL. The trial judge made a finding that the primary cause of the death of the plaintiff's son was the negligence of the driver of the truck. The trial judge apportioned liability at 70% against the MVIL as the statutory third-party insurer of the truck and its driver and 30% against the plaintiff and his wife because the infant was said to have crossed the busy road unaided by his parents. The infant had apparently left his father on one side of the road and crossed the road by himself to reach his mother on the other side of the road when he was struck by the oncoming truck.
2. The MVIL has appealed against the whole of the decision of the National Court. The MVIL seeks orders for the appeal to be allowed, for the judgment on liability to be quashed and for the proceedings in the National Court to be either dismissed or remitted back to the National Court for re-hearing.
3. The MVIL relies on 7 grounds of appeal. In essence the appeal questions the manner in which the trial judge overruled the MVIL's objections to certain hearsay documents being admitted into evidence, which documentation had formed the basis for the trial judge's determination that negligence had been proven on the balance of probabilities. The MVIL contends that the evidence was seriously prejudicial and was admitted contrary to well established rules of evidence and the Evidence Act, especially s.36(b) and s.37. The MVIL also contends that the trial judge could not have been satisfied on the balance of probabilities to determine liability, given the defective nature of the documentary evidence that was tendered for the plaintiff at trial.
4. The plaintiff was represented at trial in the National Court by counsel Ms Nicole Kamjua of the Public Solicitor's Office. The MVIL was represented by its in-house counsel Mr Jessy Biar.
5. At the hearing of this appeal the MVIL was represented by counsel Mr Lionel Manua of Rageau, Manua Kikira, Lawyers. The Public Solicitor filed a notice of appearance for the respondent early on in the appeal but made no appearance at the hearing of the appeal itself despite counsel from the Public Solicitor's Office, Ms Emeteria Waeda, having attended the last directions hearing for this appeal conducted by his Honour Justice Anis on 19 September 2023. Mr Manua and Ms Waeda were both present on that occasion when his Honour confirmed that this appeal was set down for hearing on 26 September 2023 at 1.30 pm and the parties were granted an extension of time to 21 September 2023 to file their respective submissions. The Public Solicitor and his counsel were therefore on full notice of the date for the hearing of this appeal. Mr Manua filed submissions. Counsel for the Public Solicitor did not.
6. In our view, the central issue in this appeal is whether the trial judge erred when, in the exercise of the National Court's discretion, documentary hearsay evidence on critical factual issues was admitted into evidence and which, once admitted, formed the basis for the trial judge to make a finding that the cause of death of the infant was negligence on the part of the driver of the Isuzu truck and that this negligence, contributed to by the conduct of the parents of the infant, was proven on the civil standard of balance of probabilities.
7. The evidence which was objected to at trial by the MVIL comprised the following documents:
(1) a series of medical-related documents in connection with the death of the infant, including:
(a) a Record of Death dated 28 March 2018 signed by Dr Aika of Port Moresby General Hospital;1
(b) a Medical Certificate of Death dated 16 April 2018 signed by Dr Joe Norrie, Pathology Registrar of Port Moresby General Hospital;
(c) an unsigned Police Report of Death to Coroner dated 26 April 2018; and
(d) an Order of Post-Mortem Examination dated 3 April 2018 signed by an unnamed Coroner at District Court, Boroko, NCD.
(2) a Police Road Accident Report dated 28 May 2018 prepared and signed by Constable Neil Paimo.
8. Copies of the medical documentation relating to the death of the infant were referred to by the plaintiff in paragraph 11 of his affidavit filed on 22 April 2022 and were attached as annexures “A” to “G” to his affidavit.
9. A copy of the police road accident report prepared by Constable Paimo was attached as annexure “A” to the affidavit of Police Inspector Gabriel Kake filed on 13 April 2022.
10. Prior to trial on 18 July 2022 the MVIL had served on the Public Solicitor's Office two notices under the Evidence Act Chapter 48 filed on 2 June 2022, that is to say:
(1) a notice under s.35(2) of the Act objecting to the plaintiff's use of, among others, the affidavit of the plaintiff Alois Harry Ken filed on 22 April 2022 and the affidavit of Police Inspector Gabriel Kake filed 13 April 2022; and
(2) a notice under s.36(a) of the Act which notified that the MVIL intended to cross-examine the plaintiff Alois Harry Ken and Police Inspector Gabriel Kake on their respective affidavits.
11. Where a party intends to rely on an affidavit at trial, Section 35(1) of the Evidence Act provides that a party may give not less than 5 clear days' notice to an opposing party of the first party's intention to use that affidavit in the proceeding.
12. The procedure for giving notice of objection by a party to the use of an affidavit by another party to proceedings is provided for by Section 35(2) of the Evidence Act:
35(2) Unless a party to or a person interested in the proceedings...
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