Tomalana v Rabaul Pharmacy [1991] PNGLR 65 (15 February 1991)

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EVIDENCE - Admissibility - Magistrate’s reasons for decision - Use in subsequent proceedings - Evidence Act (Ch No 48), s 44(a).

EVIDENCE - Admissibility - Examined copy - What constitutes - Evidence Act (Ch No 48), s 44(c).

EVIDENCE - Judicial notice - Published articles not within - Discussion of generally.

(i) a court of Papua New Guinea, the High Court or a Federal Court of Australia or a court of a State or Territory of Australia; or

(b) an affidavit, pleading or legal document filed or deposited in any such court,

may be given in a court by the production of a document purporting to be a copy of it, and:

(e) purporting to be certified as a true copy by a registrar or chief officer of the court.”

In proceedings claiming damages for negligence and breach of contract in relation to the consumption of what was thought to be methylated spirits, the plaintiffs sought to tender a copy of the reasons for decision of a District Court magistrate in prior criminal proceedings (in 1978) under the Poisons and Dangerous Substances Act 1952 (PNG). The reasons for decision so sought to be tendered were photocopies of the originals attached to an affidavit of the Chief Archivist.

(1) The reasons for decision of the District Court magistrate were not admissible:

(a) for the purposes of s 44(c) of the Evidence Act, a document photocopied from the original, supported by affidavit evidence of the person who did the photocopying that it is a true copy of the original may be regarded as an “examined copy”;

(b) for the purposes of s 44(a) of the Evidence Act, reasons for judgment of a magistrate are not a “judgment”:

(i) the word “judgment” in s 44(a) is to be interpreted ejusdem generis with the words “decree, rule, order” as applying to the result of proceedings;

(ii) the subsection should be construed narrowly so as to avoid any manifest injustice;

(2) An article copied from a published Medical Journal was not admissible either as a matter of which judicial notice might be taken or as a business record pursuant to s 61 of the Evidence Act.

These were proceedings in which the plaintiffs claimed damages for injuries said to have arisen from their consumption of a solution thought to be methylated spirits but which was alleged to have comprised 82 per cent methanol and 18 per cent isopropanol.

ELLIS J: By consent, these 10 matters were heard together in a hearing confined to the issue of liability.

The pleadings suggested that during late May 1978 each of the plaintiffs purchased what was thought to be methylated spirits from the first defendant pharmacy which was at all relevant times under the direction and supervision of the second defendant pharmacist. The substance actually supplied was alleged to have been a solution of 82 per cent methanol and 18 per cent isopropanol, said to have been supplied by the fourth defendant, a Singaporean company, to the third defendant which operated a local paint factory. The subject pharmacy not having any or any adequate stocks of methylated spirits, a container was allegedly obtained from the paint factory with the unintended consequences which gave rise to both significant human suffering and this litigation.

Proceedings were commenced against all four defendants alleging negligence against all defendants and, additionally, breach of contract against the first and second defendants.

The writs of summons were issued on 22 May 1984, barely within the limitation period, and were served shortly prior to the expiration of two years from that date of issue. Defences were filed a year later in the case of the first defendant and about two years afterwards in the case of the third defendant. Subsequently, the first defendant pharmacy cross-claimed against the third defendant paint factory and its suppliers, the fourth defendant. Soon afterwards the third defendant retaliated by cross-claiming against the first and fourth defendants.

In what may well be a record in this jurisdiction, 11½ years after the transactions in question, the Public Solicitor’s Office filed a notice to set down for trial on 22 November 1989. Thereafter the proceedings stagnated until a directions hearing was held on 31 August 1990. Despite advance notice there was no appearance for the plaintiffs on that occasion and orders were made with the view to getting the matters ready for hearing. A thorough search revealed that the present 10 matters are the remnants of 17 matters originally commenced, others having been either discontinued or dismissed. Prior to the hearing on 19 November 1990 it was confirmed by the lawyer for the plaintiffs that the remaining proceedings were not pursued against either the second or fourth defendants thereby leaving only the first and third defendants (that is, the pharmacy and the paint factory) against whom damages were being sought.

Shortly prior to the hearing, the lawyer for the first defendant sought and was granted leave to withdraw. Hence, although the proceedings were pursued against two defendants, only one was represented.

The evidence upon which the plaintiffs relied comprised an agreed statement of facts and two affidavits. I set out in full the contents of the agreed statement of facts, originally dated 2 October 1990 but subsequently amended by agreement between the lawyers at a time when both the first and third defendants were legally represented:

“1. The plaintiffs will come from villages around Rabaul, East New Britain Province such as Rakunai, Vunalaiting, Rapitok No 4, Wairiki No 1, Malmaluan, Napapar No 4 and Vunapalading Settlement.

2. At all material times from 22/5/78 to 28/5/78 each of the plaintiffs and/or their agents purchased from the first defendant a 1 litre bottle containing a liquid solution described as methylated spirits.

3. At all material times the said bottles containing a liquid solution described as methylated spirits were sold by the first defendant and/or its agents over the counter to each of the plaintiffs and/or their agents.

4. The majority of the plaintiffs, apart from two (2) others had on previous occasions purchased from the first defendant either personally or through their agents similar 1 litre bottles containing methylated spirit and consumed it.

5. At the times specified in paragraph 2 hereof the plaintiffs or their agents purchased the 1 litre bottles each containing a liquid solution described as methylated spirits believing same to be methylated spirits, for consumption purposes.

6. At all material times the plaintiffs and/or their agents, whose ages ranged from 20 to 50 years, consumed the purported methylated spirits, sold to them and/or their agents by the first defendant, usually in groups of three (3) or more men at various social gatherings.

7. In all instances each of the plaintiffs believed that he [sic] was drinking methylated spirit. The liquid solution was in most cases mixed with water, coca cola or other soft drinks prior to being consumed.

8. Following a period ranging from eighteen (18) hours to three (3) days after consumption of the purported methylated spirit each of the plaintiffs experienced mainly visual problems from cloudy or blurry vision to total blindness, together with headaches, vomiting, diziness [sic], stomach ache and diarrhoea in one case and loss of consciousness.

9. The plaintiffs attended either Nonga Base Hospital or St Mary’s Hospital, Vunapope for medical attention following the appearance of the symptons [sic] described in paragraph 8 herein.

10. At each of the said hospitals the plaintiffs were diagnosed to have been suffering from `methonal poisoning’ [sic] together with other members of the public who had also consumed purported methylated spirit purchased from the first defendant.”

Beyond a possible case against the first defendant based upon the principle of res ipsa loquitur, this agreed statement of facts did nothing to advance the plaintiffs’ case on liability.

This deponent indicated that she served as a librarian in the Medical Faculty of the University of Papua New Guinea. It appears that, in that capacity, she conducted a search at the request of the Public Solicitor’s Office, who are the plaintiffs’ lawyers. This search caused her to locate an article in the (1980) 2 Medical Journal of Australia (at 36-38), a copy of which was annexed to her affidavit. The admissibility of that annexure was challenged.

In order to consider its admissibility it was necessary to peruse the publication in question. It appears to have been written by a physician who was serving with the Public Health Department in Rabaul at about the time of the incident the subject of these proceedings. The author obviously spoke with a number of those who consumed the substance in question (perhaps even with some of the present plaintiffs), perused various hospital records both at Nonga Base Hospital and St Mary’s Hospital, Vunapope and conducted personal investigations and research.

The first basis upon which it was submitted that this article was admissible was that it should be the subject of judicial notice. Judicial notice is a term used to describe a situation where a fact is so generally well-known and/or obviously correct that the court “notices” it, thereby removing the need for its proof. An obvious example is the proposition that the sun rises in the east or, as counsel for the third defendant suggested, that Christmas Day is celebrated on 25 December. What is judicially noticed will clearly vary from place to place. For example, a court in Rabaul might take judicial notice of the fact that Kokopo is more than 1 km from Rabaul yet a court in Goroka might not, with the consequence that evidence would need to be led on that point in the latter court. Hence, what will be judicially noticed depends upon such factors as the time and place as well as the nature of the topic in question. It is as if the proposition in question, if put to any reasonable person in that locality at that time, would bring an answer “of course” or “obviously that is correct”. However, judicial notice may be taken if the matter in question relates to people residing in a particular locality (for example, Malone v Smith (1945) 63 WN (NSW) 54) or to matters notorious within a particular trade or profession (for example, Re Rosher [1884] UKLawRpCh 141; (1884) 26 Ch D 801 and Brilliant Gold Mining Co v Craven (1898) 9 QLJ 144). The consequences of taking judicial notice of a matter is that evidence is not required to be led in order to prove that matter. Although the principles are easily explained, they can be difficult to apply as King AJ found in Ketsimur v Morerei [1987] PNGLR 325 at 328.

In the present case it cannot be said that the matters contained in the article are such as to warrant judicial notice. If those matters were sufficiently notorious then it would not be necessary for the plaintiff’s lawyer to seek to have the article admitted into evidence for, as I have earlier indicated, taking judicial notice of a matter avoids the need for proof: it does not operate to render admissible material which is otherwise inadmissible.

I should add that the category of situations which I have been considering thus far are those where the trial judge conducts no personal inquiries. It sometimes arises that a trial judge consults standard reference works or learned treatises and then makes use of such materials in reaching a decision. As the learned authors of Cross on Evidence (3rd Aust ed, 1986) note at p 108 (par 2.18), it is not clear whether such a situation arises as an exception to the rule against hearsay or via the judge “equipping himself to take judicial notice”.

I do not think that the present article falls within this category either: far from being a standard background reference on the matters addressed by its contents, the subject paper contains the findings and opinions of its author on topics which are central to the current dispute.

A second basis was advanced for the reception of the article, namely that it was admissible as a business record pursuant to the provisions of s 61 of the Evidence Act (Ch No 48). There are a number of reasons why I would reject this document as a “business record” within the meaning of that section. First, s 61(2)(a) requires that the article now in question “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”. Even if the mere fact that the author was, at the time of writing, employed by the Public Health Department in Rabaul is sufficient to establish that the article was written in “the regular course of a business” (and I doubt that is so), there is nothing to suggest that the article was written “at or about the time” of the methanol poisoning to which it refers: all that appears is that the poisoning occurred in May 1978 and the article was published in July 1980. Secondly, s 61(2)(b) requires that “the source of information, and the method and time of preparation of the memorandum or record, was such as to indicate its trustworthiness”. I am not satisfied that interviews with victims or even their doctors or an apparently subsequent inspection of hospital records is sufficient to meet that requirement.

Finally, and most significantly, I note that the court is given a right of discretionary rejection by s 61(3) which provides “sub-section (2) does not require a court to admit in evidence a writing if it appears to the court that the interests of justice would not be served by its admission”. To admit this article would be to permit the reception of evidence which would normally have to be given by the plaintiffs and/or their doctor(s) who would have been exposed to cross-examination and to allow indirect evidence of hospital records not produced to the court. Additionally, in reaching my decision to exercise my statutory discretion in favour of rejection, I have had regard to the provisions of s 37 of the Evidence Act which provides a means whereby this article or its contents could have been made admissible via an affidavit by its author instead of the librarian.

Even if this article were to be admitted into evidence it does not appear to further the plaintiffs’ case on liability which was the sole issue for determination in this hearing: it focuses upon the health effects which the incident caused to persons such as the present plaintiffs.

Before going to the next issue I would note that the article had enormous forensic potential for the plaintiffs: it indicated the range of symptoms and disabilities which an affected plaintiff would be expected to exhibit and suggested the existence of hospital records which should have been located and perused after which letters should have been sent to ensure that such records were retained and available for this litigation. A subsequent subpoena would have brought such documents before the court. The section of the article headed “Discussion” sets out details of prior incidents of methanol poisoning which could have been used to prove that some or all of the defendants knew or ought to have known of the risk to which the plaintiffs would be exposed in the event of their negligence. It also provided guidance on the common practices amongst Melanesian males in relation to the consumption of methylated spirits which could well have been most relevant. In particular, the article included the following sentence:

“It was noted that the mixture dispensed in this outbreak was clear and did not have the usual blue colour that is produced by the addition of crystal violet, a legal requirement in Papua New Guinea.”

Evidence from customers such as the plaintiffs could well have established that, unlike previous supplies, the present sales were of a clear liquid. This could well have been the basis of an allegation of negligence. In short, it is unfortunate for the plaintiffs that the article was used as a destination rather than as a “springboard” to assist in the preparation of their case. Indeed, it is as if the author of the article wrote a thinly disguised “Advice on Evidence” for the plaintiffs, to no avail. Had the author or his sources been pursued then the plaintiffs’ case would have been considerably strengthened.

This deponent, Chief Archivist and Office-In-Charge of the National Archives and Public Records of Papua New Guinea, is responsible for the safe custody of the contents of documents which included the papers in relation to the proceedings in the Rabaul District Court which led, on 18 August 1978, to the acquittal of the present second defendant who had been charged with two offences under the Poisons and Dangerous Substances Act 1952. The first charge alleged that on 26 May 1978 the second defendant sold a plastic bottle of methanol to Albert ToLai without the word “poison” or “poisonous” appearing on the label and, secondly, that when he sold the said bottle of methanol he was not a registered pharmacist.

The annexure, in this instance, contained the usual administrative paperwork, the magistrate’s notes on a “no case” submission and his reasons for decision. Transcript was conspicuous by its absence. It is only that document, headed “Reasons for Decision”, that is of any potential use in the present proceedings.

Accordingly, it is necessary to consider the admissibility, in subsequent civil proceedings, of the reasons for decision whereby the second defendant pharmacist was acquitted of two criminal charges.

The plaintiffs’ lawyer sought to rely upon s 44 of the Evidence Act which provides:

(i) a court of Papua New Guinea, the High Court or a Federal Court of Australia or a court of a State or Territory of Australia; or

(b) an affidavit, pleading or legal document filed or deposited in any such court,

may be given in a court by the production of a document purporting to be a copy of it, and—

(e) purporting to be certified as a true copy by a registrar or chief officer of the court.”

The wording of this provision is obviously taken from similar wording in other such statutes: see, for example, s 21 of the Evidence Act 1898 (NSW).

Unfortunately, there are a few reported decisions on this section. In this country it has been held that depositions from prior court proceedings did not come within s 44(a): see Oscar Tugein v Michael Gotaha [1984] PNGLR 137. Judgments from jurisdictions not having a provision as broad as s 44 of the Evidence Act or which pre-date the enactment of such a provision are of little assistance to me in this case.

As the plaintiffs did not comply with the requirements of s 44(d) or s 44(e) it remains to consider whether there has been compliance with s 44(c). An examined copy is one which has been examined against the original. Evidence of such an examination is normally required. However, in the present case, the deponent is the officer-in-charge of the original and she has deposed to making a photocopy from the original which I consider sufficient in this day and age for the annexure to her affidavit to be regarded as an examined copy for the reason that, although s 44 was enacted in 1975, it was heavily based upon similar provisions which were first drafted well before the advent of the photocopier, in an era when legal documents were copied by hand and compared to the original so as to be able to be said to have been “examined”. I think a court can and should take notice that, apart from confirming that the copying process has reproduced the entire contents of the original document, a photocopy can be relied upon to reflect accurately the original document. The Chief Archivist having deposed that the pages in question “comprise true copies of original records” should, in my view, be regarded as sufficient compliance.

The next issue to be determined is whether the document entitled “Reasons for Decision” falls within the meaning of the word “judgment”, the other alternatives being clearly inapplicable. I find some significance in the structure of s 44 in that s 44(a) deals with “a judgment, decree, rule, order or judicial proceeding” whereas s 44(b) deals with an “affidavit, pleading or legal document filed or deposited”. The latter category of documents are “non-final” in that they may provide a foundation for a decision but they do not contain or necessarily dictate a result in respect of prior judicial proceedings. In contrast, the documents specified in s 44(a) appear to be documents recording the result of judicial proceedings. A decree, a rule or an order all meet that test. In those circumstances I think that the word “judgment”, where it appears in s 44(a), should be interpreted on an ejusdem generis basis. This approach to statutory interpretation means that the word “judgment” in s 44(a) is interpreted only to apply to documents of the same kind as the other documents specified in s 44(a), namely “decree”, “rule” and “order”. This approach may seem restrictive. However, it is consistent with the only local reported decision, to which I have already referred. Furthermore, I think it preferable to read down rather than expand the wording of a statutory provision which would have the effect of rendering admissible documents which time-honoured principles relating to the admission of documents into evidence and numerous reported decisions would otherwise render inadmissible.

It appears that s 44(a) was intended to allow the results of prior proceedings to be put into evidence and that s 44(b) was intended to render admissible documents filed in prior proceedings. Common forensic motivations for seeking to tender such documents would be, in relation to s 44(a), a claim of res judicata and, in relation to s 44(b), questions such as issue estoppel so far as pleadings are concerned and prior inconsistent statements in relation to affidavits.

I take time to consider what would have occurred had I held the reasons for decision to be admissible pursuant to s 44 of the Evidence Act. It would have been necessary to consider the third defendant’s submission that the document was not relevant. I think that submission fails in that the contents of the document are clearly relevant to the subject proceedings: they deal, inter alia, with issues such as how the substance in question came to be sold to persons such as these plaintiffs and from whence it was obtained. However, the fact that a document is considered relevant and is admitted into evidence does not mean that it necessarily proves its contents: there is the question of weight which must be considered. Perhaps the distinction is more clearly seen in the environment of jury trials where admissibility is a question of law for the trial judge and weight is a matter left to the jury.

What then do the magistrate’s reasons for decision prove? Unfortunately, very little. This arises from the structure of the 12 pages comprising the reasons for decision. Having recited, in the first paragraph, the charges against the second defendant pharmacist and the defence upon which he relied, the learned magistrate prefaced his numbered paragraphs with the words “I made [sic] the following findings of fact many of which are not disputed”. That sentence taints what follows by rendering it impossible to know which findings of fact were not disputed and which were. In any event, findings of fact which were not disputed were clearly facts as between the State and the second defendant and, presumably, they were not disputed for the purposes of the criminal charges which the magistrate was hearing. Following the 15 numbered paragraphs there appears a section entitled “Honest & Reasonable Mistake of Fact”. It deals with the subjective position of the second defendant pharmacist. The reasons for decision continue thereafter with paragraphs numbered 16 through 20 which contain the learned magistrates’ views on what a reasonable young pharmacist would know and do in those particular circumstances. Following the first 10 pages of the reasons for decision there is a two-page addendum headed “The Law on Methylated Spirits”. I do not see how these reasons for decision can prove, even on the balance of probabilities, a case against either the first or third defendant. It is impossible to know whether the magistrate’s reasons were well founded in the absence of documents recording the evidence upon which those reasons and the ultimate decision were based.

My excursion into what possible weight might be given to the reasons for decision only serves to highlight the difficulties revealed by the reported decisions and referred to by the learned authors of such works as Cross on Evidence and S L Phipson, The Law of Evidence (13th ed, 1984). Hence the consequences of a broad interpretation being given to the words “judgment” fortify me in the view that it should be construed narrowly. This is a valid approach to the interpretation of legislation: if one construction would result in manifest injustice and the other avoid it, the latter construction should be adopted: see Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 at 349-350; [1975] HCA 28; 6 ALR 271 at 282, per Gibbs J (as he then was); Commissioner of Taxation (Cth) v Smorgon [1979] HCA 67; (1977) 143 CLR 499; 16 ALR 721, per Stephen J; Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327, per Windeyer J; Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees’ Federation [1917] HCA 64; (1917) 24 CLR 85, per Isaacs J and Rich J; Bowtell v Goldsbrough Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, per Barton J and Brunton v Acting Commissioner of Stamp Duties (NSW) [1913] UKLawRpAC 22; [1913] AC 747 at 759 (PC). The injustice which would arise in the present case is clear since both the first and third defendants were strangers to the prior proceedings (between the State and the second defendant), the issues were different, the standard of proof was different and since the admission of the document would deprive the first and third defendants of any opportunity to cross-examine any of the witnesses called in the prior proceedings. Finally, and most significantly, the reasons for decision are but opinion evidence, being the opinion of the magistrate who heard the evidence. Obviously, opinion evidence can be and often is received as evidence. However, such evidence is allowed in circumstances where the facts upon which the opinion is based are disclosed and the person whose opinion is in issue is available for cross-examination.

For the sake of completeness I would add that the plaintiff also sought to tender the magistrate’s reasons for decision as a business record pursuant to s 61. That provision, as I have earlier indicated, gives me discretion as to admissibility. Had it become necessary to decide this issue I would have rejected the tender pursuant to s 61: so far as the first and third defendants are concerned, I consider it would be most unjust to exercise a discretion in favour of admission for the reasons which I have just given. Accordingly, I consider that the discretion afforded me by s 61(3) should be used to reject the tender of such a document pursuant to s 61.

It follows that the plaintiffs are left, on the issue of liability, with nothing more than the agreed statement of facts. A perusal of the contents of the agreed statement of facts reveals that there is not one mention of the third defendant. Accordingly, there is no alternative but to dismiss the plaintiffs’ actions against the third defendant with costs.

The possible bases upon which the plaintiff might succeed against the first defendant, merely on the basis of the agreed statement of facts, are negligence and the breach of a condition of the contract between the plaintiff and the first defendant implied by the Goods Act (Ch No 251). The agreed statement of facts shows no specific matter of negligence and the plaintiff is thereby forced to rely upon the principle of res ipsa loquitur (that is, the matter speaks for itself).

However, it is not necessary to consider either of those potential causes of action for the simple reason that the agreed statement of facts does not make any allegation as to what, in fact, the 1 litre bottles sold to persons such as these plaintiffs contained. True it is that the original document contained a description of the solution actually within the said bottles. However, the original document was altered throughout to replace the words “a liquid solution of 15.6% isopropyl and 84.4% methanol” with the words “a liquid solution described as methylated spirits”. In those circumstances, the plaintiffs are not only left with just the agreed statement of facts but are left without any evidence whatsoever to establish that the contents of the bottles in question were other than methylated spirits.

This is a sorry state of affairs because, despite the fact that the plaintiffs obviously suffered some injuries as a result of consuming the substance which they were sold by the first defendant, I have no alternative but to dismiss the action against the first defendant, with costs.

I cannot help but wonder whether the outcome of these cases would have been different had they been given prompt and appropriate attention either shortly after the incidents in question occurred in 1978 or soon after the proceedings were commenced in 1984.

As Shakespeare warned many years ago (in Henry VI): “Delays have dangerous ends.”

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Papua New Guinea Law Reports

Tomalana v Rabaul Pharmacy [1991] PNGLR 65 (15 February 1991)

Papua New Guinea Law Reports - 1991