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Kerr v Motor Vehicles Insurance (PNG) Trust [1977] PGNC 21; [1977] PNGLR 461 (11 November 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 461 - Robert Younger Kerr v MVIT�

[1977] PNGLR 461

N114

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ROBERT YOUNGER KERR

V

MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

Waigani

Kearney J

11 November 1977

EVIDENCE - Admissibility - Admissibility under s. 30 of Evidence Act 1975 - Statement of only eye-witness (other than plaintiff) taken by defendant�s investigator - Whereabouts of eye-witness unknown - Lack of search - Motor vehicle accident - Statement obtained 25 days after event - Not taken �at or about the time of the occurrence of the event� - Statement not admitted - Evidence Act 1975 s. 30[cdxcviii]1.

WORDS AND PHRASES - �At or about the time of the ... occurrence of the ... event� - �Memorandum of record ... made in the regular course of a business� - �Source of information� - �Interests of justice� - �Source from which the writing is produced� - Evidence Act 1975 s. 30[cdxcix]2.

In an action seeking damages for injuries arising out of a motor vehicle accident, the defendant sought to have admitted under s. 30 of the Evidence Act 1975, in evidence a statement taken from the driver of the motor vehicle in which the plaintiff was a passenger. The statement was taken by a loss assessor and investigator of motor vehicle accidents, on behalf of the defendant and some 25 days after the accident. The text of the statement if admitted indicated that the plaintiff who suffered severe spinal injuries after being thrown out of the motor vehicle was not wearing a seatbelt. The whereabouts of the driver were unknown at the time of trial and it appeared that no efforts had been made to locate him;

Held

N1>(1)����� Section 30 of the Evidence Act 1975 constitutes an exception to the hearsay rule, but should receive a fair, large and liberal construction in terms of s. 109(4) of the Constitution.

N1>(2)����� For a document to be admissible under s. 30 of the Evidence Act 1975, s. 30(1) must be complied with, and the Court must inform itself of the matters referred to in s. 30(3), in the manner indicated by s. 30(4) to determine whether the interests of justice would not be served by its admission.

N1>(3)����� Giving the words in s. 30(1) (a) of the Evidence Act 1975 their fair, large and liberal construction, the 25 days which elapsed between accident and statement took the document outside the period encompassed by �at or about the time of the ... occurrence of the ... event,� and the document was accordingly inadmissible.

N1>(4)����� Semble, the onus of proving that a statement by a driver of a motor vehicle, (�the source of information� in s. 30(1)(b) of the Evidence Act 1975) and admittedly negligent, is one the source of which indicates its trustworthiness is upon the party seeking to rely upon it.

N1>(5)����� Semble, in order for a document to be admissible under s. 30 of the Evidence Act 1975, it is incumbent upon the party seeking to rely upon it to make reasonable searches to locate the maker of the statement, despite the lack of an explicit statutory requirement to do so.

N1>(6)����� Semble, neither the loss assessor, nor the driver of the motor vehicle as the �source from which the writing is produced� in s. 30(3)(a) of the Evidence Act 1975 in the circumstances, could be said to be �completely detached, judicial, impartial or independent,� and this would weigh against the admissibility of the document.

Alste v. Paramount Motors [1965] S.A.S.R. 228 at p. 232 and Evon & Evon v. Noble [1949] 1 K.B. 222 at p. 225 referred to.

Ruling on Admissibility of Document

This was a ruling made on the admissibility of a document, sought to be admitted in evidence pursuant to s. 30 of the Evidence Act 1975, during a hearing of an action for damages for personal injuries.

Counsel

A. B. Shand Q.C. and G. Cartledge, for the plaintiff.

J. Griffin, for the defendants.

Cur. adv. vult.

11 November 1977

KEARNEY J: By consent on Friday 4th November, the defendant interposed as a witness one of his employees, a Mr. Finnigan. His evidence was as follows.

He has been engaged in the business of a loss assessor and investigator of motor vehicle accidents for the last 12 years. On or about 14th March, 1976, that is, some 25 days after the accident in which the plaintiff says he was injured, the witness went to Goroka, and there inspected a Range-Rover, which he understood was the vehicle involved in this accident.

Now the plaintiff�s case is that at the relevant time he was in the left hand front passenger seat of a Range-Rover, driven by a fellow employee of Plantation Supply and Service Co. Pty. Ltd., one Feasey. After Feasey had driven for a few minutes the vehicle struck the side of a bridge and tipped over finally resting on its side. The plaintiff lost consciousness, recovering to find himself on the ground, some 10-15 yards from the vehicle; he saw Feasey walking around after the accident. The plaintiff sustained injuries to his spinal cord, resulting in his becoming a paraplegic. Dr. Yeo agreed that the plaintiff�s symptoms were consistent with his having been thrown out of the vehicle. Dr. Yeo was cross-examined at length on the effects which the wearing of a seat belt might have on a passenger involved in a motor vehicle accident, and the likelihood of a passenger wearing a seat belt sustaining spinal cord injury, on various assumptions.

The plaintiff was cross-examined about the existence of seat belts in the Range-Rover, and whether he was aware that Feasey was wearing one.

Against this background Mr. Finnigan testified that the Range-Rover he inspected at Goroka was fitted with one intact lap-and-sash seat belt, on the passenger side; and on the driver�s side, with the lap part of a seat belt, and part of a seat belt protruding from the top of the squab.

Mr. Finnigan then stated that in the course of his investigation into the accident, he had taken a statement from Feasey. It is the admissibility into evidence of this statement which is the subject of this ruling.

Mr. Griffin argued as follows. The document is admissible under s. 30 of the Evidence Act 1975. The defendant concedes that the driver Feasey was negligent; the statement is tendered only on the issue of contributory negligence raised by the pleadings, that is, to establish that the plaintiff had failed to use and wear a seat belt installed in the front passenger�s seat of the vehicle. Feasey was thought to be in Ireland, but his present whereabouts are in fact unknown, and therefore he cannot be brought before the Court. On the question of the �interests of justice�, raised by s. 30(2) of the Act, the owner of the vehicle, presently before the Court pursuant to s. 55 of the Motor Vehicles (Third Party Insurance) Act 1974, would be prejudiced if the statement were not admitted; due to a misunderstanding of the extent of its insurance cover, it became aware only on 30th August this year of the possibility that it had a contingent liability.

It did not consider that Feasey�s presence before the Court could be obtained. The plaintiff and Feasey were the only witnesses to the accident. The statement in question was made �at or about the time of the ... occurrence of the ... event�, within s. 30(1)(a) of the Evidence Act 1975, though made 25 days after the accident. The statement is trustworthy, for the purposes of s. 30(1)(b), when considered in relation to the limited use sought to be made of it. For the purposes of s. 30(1)(a) the document was �made in the regular course� of the �business� (as defined in s. 1) of Mr. Finnigan, or of the Trust, in investigating accidents.

Mr. Shand contended that the Court had a discretion under s. 30, and that in the exercise of that discretion, the fact that a document was prepared in contemplation or anticipation of litigation, weighed against its being admitted, for thereby a party could get in evidence without it being subject to cross-examination. The statement went to matters of fundamental importance to the issues before the Court, because if it contained assertions about a passenger seat belt it went to the issue of contributory negligence of the plaintiff; and, if that were found, it went to the relative culpability of the driver and the plaintiff for the damage the plaintiff had sustained. The statement is not a �memorandum or record made in the regular course of a business�, within s. 30(1)(a), because that phrase connotes that the document be an internal record of a business made by a person in that business, with a duty to make such a record. No basis had been laid for excusing the failure of the defendant to call Feasey; the company had had 6 months to locate him, and had made no attempt to do so. The 25 day gap between accident and statement meant that it was not made �at or about the time of the ... occurrence of the ... event�, as required by s. 30(1)(a).

Those are the arguments.

Apart from s. 30, the document is clearly inadmissible, as hearsay; that is a common law rule, and it has not been suggested that it is inapplicable or inappropriate to the circumstances of Papua New Guinea. It is the credit of the witness which founds any conclusion as to the truth of what he says, and his credit can properly be tested only upon cross-examination; hence the principle of orality, enshrined in O. 40 r. 1.

Section 30 constitutes an exception, but should receive a fair, large and liberal construction, in terms of Constitution s. 109(4). It is concerned with the proof of business records. For a document to be admissible thereunder, s. 30(1) must be complied with; even then, the Court must inform itself of the matters referred to in s. 30(3), in the manner indicated by s. 30(4), to determine whether the interests of justice would not be served by its admission � s. 30(2). The matters referred to in s. 30(1)(b), and also, I think, s. 30(3), which go to the trustworthiness of the statement, are safeguards for the lack of cross-examination.

In the present case, I am of opinion that giving the words in s. 30(1)(a) their fair, large and liberal construction, the 25 days which elapsed between accident and statement takes the document outside the period encompassed by �at or about the time of the ... occurrence of the ... event�.

For that reason I consider it is inadmissible. It is unnecessary to go further, but I have considered the other matters urged by Counsel.

There is the question whether s. 30 extends to documents of the present type. In Newton v. Pieper[d]³�the question was whether a statement by an eye-witness to a police constable, recorded in the constable�s notebook, was admissible. It was rejected on other grounds, but the Court of Appeal was of opinion that a statement of this type was not admissible under the N.S.W. provision[di]⁴. However, the wording of s. 30(1)(a) is substantially different to the N.S.W. provision, and while the matter is certainly not free from doubt, I consider that an entry in a policeman�s notebook of what he was told by an eye-witness, which meets the other requirements of s. 30, may well be admissible.

As regards s. 30(1)(b), the �source of information� is the driver Feasey. Despite the limited purpose for which his evidence is sought to be relied upon, I am not satisfied that a statement by a driver, admittedly negligent as far as the defendant is concerned, is one the source of which indicates its trustworthiness. I think the defendant bears an onus upon that issue, which it has failed to discharge. The matter is discussed further, below, in connection with s. 30(3).

Further as regards s. 30(1)(b), the �method and time of the preparation of the ... record� have been touched upon, very briefly, in the evidence of Mr. Finnigan. I would require more than was elicited, to satisfy me that it was trustworthy.

So far as concerns s. 30(2), there is a �balancing up� process to be undertaken. From the plaintiff�s point of view, he suffers great disability if Feasey is not available for cross-examination. I have examined the letters admitted upon the voir dire, but there is nothing there to explain the complete failure by the defendant, or the owner of the vehicle, to take any steps to try to locate Feasey. I think it is incumbent upon them to have made such an attempt, despite the lack of an explicit statutory requirement to do so. The lack of search balanced against the plaintiff�s detriment leads me to conclude that the interests of justice would not be served by the admission of the statement.

As to s. 30(3)(a) on one view the �source from which the writing is produced� is Mr. Finnigan, an employee of the defendant, who obtained it when investigating the accident for his employer. Mr. Finnigan cannot be regarded as having the same impartial disinterestedness as a police constable; his employer has an interest in winning the case.

On another view, the �source� is Feasey. As a driver, he owed a duty of care to his passenger. He may have had a potential liability under the Motor Vehicles (Third Party Insurance) Act 1974; he could be materially affected by the outcome of any action. I agree, with respect, with the view of Bright J. in Alste v. Paramount Motors[dii]⁵�on this aspect.

Neither Mr. Finnigan or Feasey can be said to be �completely detached, judicial, impartial, independent�, in the words of Birkett J. in Evon & Evon v. Noble[diii]⁶; and I think this lack in the �source�, militates against the admission of the statement.

For these reasons I consider that the statement of Feasey taken by Mr. Finnigan is inadmissible in evidence.

Ruled accordingly.

Solicitor for the plaintiff: McCubbery, Train, Love and Thomas.

Solicitor for the defendant: Williams & Williams.

Solicitor for the owner, appearing pursuant to s. 55 of the Motor Vehicles (Third Party Insurance) Act 1974: L. Keith Young & Associates.

[cdxcviii]Section 30 of the Evidence Act 1975 provides:

N2>30. Proof of Certain Business Records.

N2>(1)������� Subject to Subsection (2), a writing purporting to be a memorandum or record of an act, matter, or event is admissible in evidence as proof of the facts stated therein if it appears to the court that--

(a)������� the memorandum or record was made in the regular course of a business at or about the time of the doing or occurrence of the act, matter or event; and

(b)������� the source of information, and the method and time of the preparation of the memorandum or record, were such as to indicate its trustworthiness.

N2>(2)������� Subsection (1) does not require a court to admit a writing in evidence if it appears to the court that the interests of justice would not be served by the admission of the writing.

N2>(3)������� For the purposes of this section, a court, in considering whether a writing should be admitted in evidence, shall have regard to all relevant circumstances, including (but without prejudice to the generality of this subsection) --

(a)������� the source from which the writing is produced; and

(b)������� the circumstances of its receipt and custody by the person producing it or by any person from whom it has been obtained for the purpose of producing it in evidence.�2 Section 30 of the Evidence Act 1975 provides:

N2>30. Proof of Certain Business Records.

N2>(1)������� Subject to Subsection (2), a writing purporting to be a memorandum or record of an act, matter, or event is admissible in evidence as proof of the facts stated therein if it appears to the court that--

(a)������� the memorandum or record was made in the regular course of a business at or about the time of the doing or occurrence of the act, matter or event; and

(b)������� the source of information, and the method and time of the preparation of the memorandum or record, were such as to indicate its trustworthiness.

N2>(2)������� Subsection (1) does not require a court to admit a writing in evidence if it appears to the court that the interests of justice would not be served by the admission of the writing.

N2>(3)������� For the purposes of this section, a court, in considering whether a writing should be admitted in evidence, shall have regard to all relevant circumstances, including (but without prejudice to the generality of this subsection) --

(a)������� the source from which the writing is produced; and

(b)������� the circumstances of its receipt and custody by the person producing it or by any person from whom it has been obtained for the purpose of producing it in evidence.

[cdxcix]Section 30 of the Evidence Act 1975 provides:

N2>30. Proof of Certain Business Records.

N2>(1)������� Subject to Subsection (2), a writing purporting to be a memorandum or record of an act, matter, or event is admissible in evidence as proof of the facts stated therein if it appears to the court that--

(a)������� the memorandum or record was made in the regular course of a business at or about the time of the doing or occurrence of the act, matter or event; and

(b)������� the source of information, and the method and time of the preparation of the memorandum or record, were such as to indicate its trustworthiness.

N2>(2)������� Subsection (1) does not require a court to admit a writing in evidence if it appears to the court that the interests of justice would not be served by the admission of the writing.

N2>(3)������� For the purposes of this section, a court, in considering whether a writing should be admitted in evidence, shall have regard to all relevant circumstances, including (but without prejudice to the generality of this subsection) --

(a)������� the source from which the writing is produced; and

(b)������� the circumstances of its receipt and custody by the person producing it or by any person from whom it has been obtained for the purpose of producing it in evidence.

[d][1968] 1 N.S.W.R. 42.

[di]Section 14b(1)(i)(b) of the Evidence Act 1898, as amended.

[dii] [1965] S.A.S.R. 228 at p. 232.

[diii] [1949] 1 K.B. 222 at p. 225.