IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 335 OF 1998

Between:

JONA MOLI as administrator of the estate of
MERESEINI NAKALEVU
Plaintiff

And

THE PERMANENT SECRETARY FOR HEALTH

THE ATTORNEY GENERAL OF FIJI
Defendants

Mr. Eroni Veretawatini for the Plaintiff
Mr. S. Sharma for the Defendants

RULING

This is an application by the defendants by Summons dated 25 July 2001 for orders that the Court admit as evidence the signed written statements of the medical practitioners, namely, Dr. Manmohan Lal, Dr. Kamlesh Kumar, Dr.H.M. Calixto and Dr. P.K. Mitra who treated the deceased child Mereseini Nakalevu (the ‘deceased’) but who are now no longer available to appear before this Court to testify in the trial as they have left the country.

The statements of these doctors are contained as annexures to the affidavit of Dr. Solomoni Tuqa, the Medical Superintendent of the CWM Hospital, Suva in support of the application.

The circumstances in which these doctors, who were to have been called as witnesses, left the country are as stated in the said affidavit. They are now not available to testify. The defendants are left with just their statements. The deponent says that the plaintiff’s counsel is not consenting to these statements being introduced as evidence in the trial and states that the Court will be assisted in making a finding of fact with the admission of these statements of the doctors who attended to the deceased immediately prior to her death.

As directed, I have before me the written submissions of both counsel on the issue before me.

The application is made under the Civil Decree 2000 which allows the signed written statements to be admitted in evidence. In this regard section 3(1) of the Decree is relevant and provides that "in civil proceedings, evidence must not be excluded on the ground that it is hearsay"; and "hearsay" is defined as "a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated".

Although no Rules have been made under the Decree, Mr. Sharma for the defendants submits that under this section the issue of admissibility of the written statements is resolved and also under the inherent jurisdiction of the Court, and that they are admissible, subject to the exercise by the Court of its discretion.

The learned counsel says that since the deceased was only admitted to the hospital for less than 12 hours, the medical folder (which is already an exhibit) is very scanty and is not clear and legible to properly assist the Court in deciding the issue of negligence on the part of the hospital. He says that a number of matters have to be ascertained as facts with the assistance of these statements. Mr. Sharma intends to call an expert witness and this witness’s evidence will be based on the contents of these statements. The Court will thereby be assisted by the evidence of the expert witness for he will have a clear understanding of the factual circumstances surrounding the treatment of the deceased. Counsel submitted that it is vital for the Court to be aware of the events as they transpired in the matter from the perspective of the doctors who attended to the deceased.

The learned counsel for the plaintiff objects to the admissibility of these statements. His first objection is that these statements were not disclosed, but that has now been done. In answer to this Mr. Sharma said at one time they were to be called as witnesses but they have left the country since. The other objection by the plaintiff is that he will not be able to cross-examine the doctors. In answer to this Mr. Sharma submits that any prejudice caused to the plaintiff is outweighed by the importance of this evidence and the need to have it admitted. He says that the probative value of this evidence in assisting the Court in making a finding of fact (as to what transpired when the deceased was brought into the hospital) outweighs any prejudice caused to the plaintiff.

Mr. Sharma submits that when considering what weight and reliance is to be given to these statements, the Court can then consider various issues such as the prejudice caused by failure to cross-examine these doctors.

Consideration of the issue

I am grateful to counsel for their written submissions on the issue before me.

The defence counsel relies first of all on the Civil Evidence Decree 2000 (the "decree"). It is worth noting that the Civil Evidence Act 2000 was passed by both Houses of Parliament before the 19th May 2000 coup. It could not come into force because the former President (Ratu Sir Kamisese Mara) could not give his assent to the Act before his removal as President of the country. But it was an Act passed by both Houses but for the President’s assent. The provisions of the Decree are identical to the Civil Evidence Act 2000.

As far as this Court is concerned the simple answer in the circumstances of this case is that neither the ‘Act’ nor the ‘decree’ is of any assistance on the issue before me. There is no Act in force because of lack of assent to the Act by the then President.

Although Mr. Sharma argues that the decree is a valid decree because of the Court of Appeal’s decision in The Republic of Fiji & Attorney General v Chandrika Prasad Civ. Appeal No. ABU0078/2000S, 1.3.2000 the said section be applied in the present proceedings, I still have a lingering doubt as to the validity of the decree. No proper body or authority has specifically stated which Decrees are still valid and which are not. This matter, in my respectful view, is of such great importance that until the Legislature clears the air on the subject and for that matter on this Act, I do not intend to act on the decree or the Act as it is very risky to do so in the trial of an action when the witnesses cannot be cross-examined.

Be that as it may, I agree with Mr. Sharma that as an alternative in the present circumstances section 3 of the Evidence Act Cap.41 allows written statements of doctors to be admitted as evidence if certain conditions are satisfied. On the affidavit evidence before me these conditions have been fulfilled. The said section provides: 

3. - (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of the fact if the following conditions are satisfied, that it to say -

(a)	If the maker of the statement either - 

i.	had personal knowledge of the matters dealt with by the statement; or

ii.	where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and 

(b)	if the maker of the statement is called as a witness in the proceedings;

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. 

The learned counsel has also referred to case law on the subject of admissibility of written statements. There is one conclusion one can draw from these cases and that is that statements can be admitted as evidence of any fact.

For these reasons, in all the circumstances of this case, particularly in view of the absence of the doctors from the country for good, it is important that I admit their statements which are signed by them with the sole purpose of ascertaining the facts surrounding the case as far as the patient is concerned. These statements as stated by Mr. Sharma will enable the Court to ascertain: the condition of the deceased when she was brought to the CWM Hospital; who attended to her at CWM; her condition when attended by these doctors; treatment given to her at CWM; the pains and illness the deceased complained of; and what sort of diagnosis was made by doctors who attended to her.

These statements are therefore admitted in evidence in the special circumstances of this case. However whilst doing so, it is upto the Court to decide what weight ought to be given to these statements. Their admission in this way should not be regarded as a precedent to be followed in other cases for each case has to be considered on its own facts and circumstances and in the interests of justice. 

D. Pathik
Judge

At Suva 
19 September 2001