Tuilau v Tawatau [2019] FJHC 892; HBC384.2017 (18 September 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 384 of 2017

BETWEEN: MOSESE NAQOU TUILAU of Suvavou Village, Suvavou, Lami, Taxi Owner.

PLAINTIFF

AND: JIUJIUWA TAWATAU of Qauia Village, Qauia, Taxi Driver.

FIRST DEFENDANT

AND: VULI SIGANI TURAGABECI and MAATA LIGA TURAGEBECI of Qauia Village, Qauia, Taxi Proprietors.

SECOND DEFENDANTS

BEFORE: Justice Vishwa Datt Sharma

COUNSEL: Mr. Singh D. - for the Plaintiff

Ms. Singh K with Mr Nand R. - for the Defendants

DATE OF DECISION: 18^th September, 2019 @ 9.30 am

RULING

[Defence objection as to tendering into evidence of medical report as Plaintiff’s exhibit when author of the report not present in court as a witness in the proceedings]

INTRODUCTION

1. Counsel representing the Defendants in this matter raised an objection that the medical report written by Dr. Vueta Scott Vuadromo contained within the Plaintiff’s Bundle of Documents at annexure ‘6’ cannot be tendered into evidence as an exhibit through Plaintiff’s witness ‘PW3’ on the following grounds:
   
   • (i) This witness (PW3) cannot tender the medical report;
     
   • (ii) Questions will be put and not from this witness instead;
     
   • (iii) The author of the medical report is Dr. Scott and cannot be tendered through this witness.
     
   • (iv) Objected to the tendering of the report as the Plaintiff’s exhibit.
     
2. The Plaintiff’s counsel submitted otherwise and cited sections 5 and 11 of the Evidence Act. He further stated that there are case authorities to this effect. That this witness (PW3) has been in employment as a medical records officer at CWM hospital for the past 25 years. Therefore, he can tender the medical report.
   

THE LAW

3. Section 5 of the Civil Evidence Act 2002 provides as follows:
   

Power to call witness for cross-examination on hearsay statement

‘5. Rules of court may de that that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call the p as a witness, any other party to the proceedings may, with the leave of the court, call thll the person as a witness and cross-examine the person on the statement as if the person had been called by the first-mentioned party and as if the hearsay statement were evidence in chief.’

Section 11 of the Civil Evidence Act 2002 states as follows:

Proof records of business or public authority

‘11.-(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document is to be taken to form part of the records of a business or public authority if this is produced to the court with a certificate to that effect signed by an officer of the business or authority to which the records belong.

(3) For the purpose of subsection (2)-

(a) a dnt purporting to be a ce a certificate signed by an officer of a business or public authority is deemed to have been duly given by the officer and signed by him or her; and

(b)&# certificate is to be treattreated as signed by a person if it purports to bear a facsimile of the person's signature.

(4) The absence of an entry in the records of a business or public' authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which he records belong.

(5) In this section-

"records" means records in whatever form;

"business" includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;

"officer" includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and

"public authority" includes any public or statutory undertaking, any govern department and any person holing a public office.

(6) The court may, having regard to the circumstances of the case, direct that all any of the above provisions of this section do not apply in relation to a particular document, or record, or class or description of documents or records.’

Further Section 6 of the Civil Evidence Act 2002 provides as follows:

Considerations relevant to weighing of hearsay evidence

‘6. In estimating anght to be g be given to hearsay evidence in civil proceedings, the court must have regard to any circumstances from which any inference can reasonably be drawn the reliability or otherwise of the evidence, and in partiparticular to the following-

(a) whether it wouve been reen reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the originatement as a witness;

(b) whether the original ment went was made cone contemporaneously with the occurrence or existence of the matters stated;

(c) whether the nce involves mues multiple hearsay;

(d) er any pernvolved had had had any motive to conceal or misrepresent matters;

(e) whether tiginal statement nent n ediccount, or was maas made in collaboration with another or for a particular purpose;

>

(f) whether the circumstain whhch the evidence is adduced as hearsay are such as to s to suggest an attempt to prevent proper evaluation of its weight.’

ANALYSIS

4. Section 5 of the Evidence Act 2002 permits to make the rules of the court to adduce hearsay evidence of statements made by person without calling him as a witness. However, Section 6 of the Civil Evidence Act 2002 it provides at sub paragraph (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
   
5. Whereas Section 11 of the Evidence Act says that a document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof and so forth. This particular section does not include and/or mention anything about the Medical Reports. Therefore, this section does not assist the Plaintiff’s submissions to admit the said medical report as an exhibit into evidence.
   
6. Further, what is sought to be tendered into evidence as an exhibit by the Plaintiff is the medical report of the Plaintiff whose author is Dr. Vueta Scott Vuadromo.
   
7. The Plaintiff’s substantive claim in the matter is for injuries sustained by him as a result of a motor vehicle accident and further claims for Damages under various heads for pain and sufferings and future economic loss.
   
8. The Doctor says in his Medical Report that the Plaintiff ‘falls when walking on an uneven surfaces and he is unable to stand for long due to pain in his leg and ankle. The Doctor further stated in his Medical Report that ‘the surgery on him has left him with a scar deformity. The Doctor further stated the impairments percentages in his Medical Report.
   
9. If this court accepts this Medical Report intending to be tendered into evidence as an exhibit through PW3 without calling Dr. Vueta Scott Buadromo, then it will deprive the Defendants of their right to examine the Doctor on the questions to ascertain as to how and on what basis the Doctor had arrived at his findings. Since there is no other evidence in awarding damages, the court will have to rely totally on this report.
   
10. Further, the injury report&#r the medical reporreport given by a doctor is not substantive ece and is inadmissiblssible in ece unle is examined ined in a court of law accordingly.
    
11. This witness PW3 will not be in a position to explain to the court the basis on which the author of this medical report arrived at the medical findings that is contained within this medical report intended to be exhibited into evidence.
    
13. It will cause injustice to the Defendants if this court accepts this Medical Report into evidence as an exhibit of the Plaintiff without any further proof.
    
14. However, the Plaintiff will be at liberty to tender the Medical Report in question through the author of the report or through any other Doctor who is medically qualified to do so in the circumstances.
    
15. The court clearly enquired from the Plaintiff’s counsel whether he wanted to call Doctor Vueta Scott Buadromo who was the author of the Medical Report prepared on the Plaintiff’s medical condition. Instead he chose to await this court’s ruling on the objection raised and the submissions made therein.
    
    16. However, the Plaintiff’s Counsel has the conduct of the Plaintiff’s case and he is at liberty to make a decision in terms of any other alternatives that may be available to him in order to subpoena and call the author of the medical report which he is intending to tender into evidence on the medical condition of the Plaintiff as an exhibit.
        
17. For the aforesaid rational I uphold the objection raised by the Defence counsel and disallow the intended Medical Report written by Dr. Vueta Scott Buadromo within the Plaintiff’s Bundle of documents as annexure 6 to be tendered into evidence and marked as the Plaintiff’s exhibit at this stage of the proceedings.
    
18. I make the following orders on the objections raised hereinabove accordingly.
    

ORDERS

1. The Defence Counsel’s objection is upheld.
   
2. The Medical Report written by Dr. Vueta Scott Busdromo cannot be tendered into evidence as the Plaintiff’s Exhibit.
   

100. The Plaintiff is at liberty to exercise any alternatives available to him to call the author of the Medical Report instead to tender the Medical Report into evidence.
     

4. There will be no order as to costs at the discretion of this court.
   
5. Orders accordingly
   

Dated at Suva this 18^th Day of September, 2019

..............................................
Vishwa Datt Sharma
Judge