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Motor Vehicles Insurance Ltd v Ken [2023] PGSC 170; SC2522 (18 December 2023)

SC2522

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: 26^th September and 18^th 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

DECISION ON APPEAL

18^th 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 gives notice, not less than two clear days before the hearing, to the party or the person who gave notice under Subsection (1) that he objects to the use of the affidavit, he shall be taken to have consented to the use of the affidavit, and the affidavit may be used in the proceedings unless the tribunal otherwise orders.

13. Section 36 of the Evidence Act sets out the procedure to be observed by a party who requires the deponent of an affidavit to attend at Court for the purpose of cross-examination:
    

36. Cross-examination of deponents

When a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to cross-examine a person who has made an affidavit used or intended to be used in the proceedings:-

(a) he may serve on the other party or person using or intending to use the affidavit a notice requiring the production of the deponent for cross-examination at the hearing; and

(b) if the party or person served with the notice does not produce the deponent at the hearing, he is not entitled to use or to rely on the affidavit as evidence without leave of the tribunal; and

(c) a subpoena may be issued on the application of the party or person served with the notice for the purpose of summoning the deponent to attend for cross-examination.

14. Counsel for the MVIL submitted at this appeal that the abovementioned medical evidence was improperly admitted into evidence at trial as it was not tendered through the doctors and other personnel who prepared their respective medical and medico-related reports in connection with the fatal injuries of the deceased infant, and in particular there was no affidavit from the doctor who on 16 April 2018 had signed the medical certificate of death for the deceased infant, that doctor being Dr Joe Norrie. It was similarly submitted for the MVIL on appeal that the police road accident report was improperly admitted into evidence at trial as it was not tendered by the investigating officer and author of that report, Constable Paimo, but was tendered through the affidavit of his supervisor, Inspector Gabriel Kake.
15. It was argued for the MVIL at trial and again on appeal that all of the challenged documentary material should have been excluded from admission into evidence by the trial judge because it did not meet the “best evidence” rule and because the authors of the various reports were not called upon by counsel from the Public Solicitor’s Office to attach their reports to affidavits sworn by those authors or to make themselves available at trial so that their evidence and their reports could be tested by cross-examination. Nor, it was submitted, was there any attempt by counsel from the Public Solicitor’s Office to file affidavit material explaining why those authors were unable to be located or unable to swear on oath at trial as to the circumstances surrounding the preparation of their reports.
16. The transcript of the proceedings at trial establishes that the MVIL by its counsel Mr Biar vigorously objected at trial to the admission into evidence of the abovementioned medical documentation and the police road accident report. Mr Biar objected on two grounds. Firstly, the transcript shows that at trial Mr Biar objected to the subject documentation being admitted into evidence as it offended the Court’s rules of evidence regarding the inadmissibility of hearsay documents. It was this concern on the part of the MVIL which had prompted the pre-trial service on the Public Solicitor’s Office of the notice under s.35(2) of the Evidence Act. Secondly, the transcript shows that it was submitted by Mr Briar at trial that the police road accident report was inadmissible in evidence because Inspector Gabriel Kake, the deponent of the affidavit which had annexed the police road accident report prepared by Constable Paimo, had failed to present himself at trial for cross-examination despite service on the Public Solicitor’s Office of MVIL’s notice under s.36(a) of the Evidence Act.
17. The certified transcript of the proceedings at trial is reproduced at tab 18 of the Appeal Book. The transcript at p. 137 of the Appeal Book contains the following account of Mr Biar’s objection for the MVIL to the admission into evidence of the medical documentation which had been annexed to the affidavit of the plaintiff Alois Harry Ken filed on 22 April 2022:

MR BIAR: Your Honour, I will object to the plaintiff’s affidavit.

HER HONOUR: Yes, the specific paragraphs?

MR BIAR: Specifically paragraph 11 where he attached the medical death certificate. This medical certificate was done ... a month after alleged death and we object on the basis that it is scientific evidence that comes under section 37 of the Evidence Act and it should be tendered in through a medical doctor because that medical certificate of death comes as a result of a post-mortem that was alleged to be carried out. And where we do not have report of a post-mortem ... and the plaintiff did not give any explanation as to the unavailability of the medical doctor to swear to an affidavit in this regard.

18. Mr Biar similarly objected at trial to the admission into evidence of Constable Paimo’s police road accident report. The transcript at pp. 141and 142 of the Appeal Book contains the following record of Mr Biar’s objection:

MR BIAR: ... We object to the affidavit of Inspector Gabriel Kake. We object firstly, on the basis that he attaches the road accident report [when] he is not the author of that report. Therefore it is hearsay, your Honour. The road accident report is alleged to [have been] prepared by an investigating officer by the name of Constable Neil Paimo some two months after the alleged accident. There is no explanation for the delay in Gabriel Kake’s affidavit.

There is also no explanation as to why [Constable] Neil Paimo could not depose to an affidavit and attach his report.

There is also no explanation in the affidavit as to why Constable Paimo could not depose to an affidavit and attach his report. There is also no explanation in the affidavit explaining the details of the findings of the investigation report. No explanation as to how many witnesses he interviewed and whether or not he interviewed the driver, whether or not the driver was charged and convicted, whether or not he [was] driving negligently, whether or not he conducted any search to ascertain registration status of the vehicle. Those questions will need to be put to the investigating officer so the court can determine whether or not the driver is responsible or not.

Your Honour, in the Supreme Court case of Nekiye v Motor Vehicles Insurance, that is a 2019 reported judgment. It is PGSC 76. The Supreme Court upheld the National Court decision for not allowing a police investigation report into evidence because the investigation officer did not turn up for cross-examination. ...

Further to that, your Honour, the annexure, the road accident report is hearsay in itself as it contains the phrase, “It is believed to be” in paragraph 2 of – under the police description of the accident. Your Honour according to the case of Gabi v Vanua, it is a 2022 decision by his Honour Acting Justice Linge. He found a road accident report to be hearsay as it contain[ed] the phrase, “The driver was believed to be drunk”. In coming up with that conclusion, his Honour relied on the case of Jack Gopave v Francis Kugame and the State. It is an unreported judgment of 2003. It is N2482. Where it was discussed that the hearsay rule is a common law creation which prohibit[s] witnesses in court repeating out of court statements made by others in order to establish the truth in those statements.

This statement is hearsay because it is made by somebody other than the witness and its admission will have a prejudicial effect on the [MVIL’s] case and would have a bearing on the ultimate result. ...

19. In answer to these objections, counsel for the plaintiff attempted to rely on the doctrine of ‘res gestae’ based on contemporaneity of statements made at an event as being sufficient cause for the trial judge to allow the hearsay documentation into evidence. This is what was argued by Ms Kamjua^[2] for the plaintiff at trial, as recorded in the transcript reproduced at pp. 137 and 138 of the Appeal Book:

MS KAMJOA: Your Honour, in response we say that we do agree that the medical certificate of death was not deposed to by the medical practitioner that confirmed the death of the deceased. However, your Honour, we submit that this court should take into consideration the doctrine of res gestae as it was discussed in the case of Dowsett Engineering v Edwards, PNG Law Report 42, reported judgment 1979 in that the evidence being adduced to is second hand hearsay statement being the interpretation of what someone else said at the scene may be admitted as part of the res gestae where there is no doubt as to the accuracy of the interpretation, your Honour. So we submit that the annexures in the plaintiff’s affidavit should be admitted.

...

Your Honour, basically, the defendants are objecting to all the affidavits that we filed on the basis that the annexures that are annexed to it are hearsay evidence and that is why we ask that this court take into consideration the doctrine of res gestae. It is on the fact that the evidence as it is point[s] towards the event that led to the accident. Even though they are not properly before the court we submit that there must be assessment of the weight of the evidence by the court when it comes to the doctrine of res gestae and the court should not be restricted to the rules of evidence under the Evidence Act because of the circumstances of this case where we could not – we were not able to look for the appropriate witnesses that would have deposed to the affidavits or would have deposed to the – would have authored the relevant affidavits attaching the documents pointed out by my learned friend.

20. After hearing from Mr Biar and Ms Kamjua, the trial judge then made an ex tempore ruling on the several objections made by Mr Biar. Her Honour’s ruling is set out in the transcript at p.139 of the Appeal Book:

HER HONOUR: Very well. I will come to a ruling in relation to this matter. So, what is at hand is an application by the defendants objecting to Annexures A to G in the affidavit of Mr Alois Harry Ken. The annexures contained in A to G of his affidavit sworn on 21 April 2022 filed on 22 April 2022 relate to, firstly, a medical certificate of death regarding the death of a 5 year old child. Secondly, it is a document. Annexure B is a document that is a record of death from Port Moresby General Hospital. Then there is a police history report as annexure C. Annexure D is a report of death to the coroner. Annexure E is an order of post mortem examination. And annexure “F” is a receipt from the mortuary services at the Port Moresby General Hospital.

I take the objections made by Mr Biar that these documents are not properly tendered through the plaintiff Mr Alois Harry Ken, that they should be properly tendered through the police officers or through the doctors involved in the matter. I have heard the reply from Ms Kamjoa in regard to the principle of res gestae. To my mind, these documents are relevant to the claim by the plaintiff, and it is on the issue of relevance that will I allow the evidence to be admitted. However, in the exercise of giving how much weight to this evidence I will take those into account but I will allow those attachments to be included as evidence before the court.

21. The trial judge, having allowed all of the documentary material objected to by the MVIL to be admitted into evidence, then gave full weight to that hearsay documentation to come to the following conclusion at para. 13 in her reserved decision delivered on 4 November 2022, as set out at p.122 of the Appeal Book:

“ 13. Whilst this case does not contain statements or remarks in order to invoke the res gestae doctrine, I am satisfied that the evidence is in the form of documents by the police investigating officer as to the Police Traffic Report, Medical Report, and other documents from expert witnesses, I am satisfied that these documents are not concocted or fabricated, there is no doubt to my mind as to its accuracy and that the Plaintiff was given these documents in the process of his efforts to seek justice for his son by the Police and the Hospital where he brought his son. To disregard this evidence is contrary to the interest of justice in this case. ”

22. We observe that in a claim against the MVIL for personal injuries or the death of a person which is made under the Motor Vehicle Insurance (Third Party Insurance) Act there must be proof on the civil standard of balance of probabilities of two essential matters. Firstly, there must be a proper medical report setting out the nature of the personal injuries suffered by the claimant, or, in the case of a claim for the wrongful death of a person, there must be a medical report as to the cause of death. Secondly, there must be cogent evidence as to how the accident occurred, and this invariably requires a police road accident report.
    
23. With reference to the nature of the medical evidence that is admissible in evidence to prove personal injuries or death, the law is clear. Section 37 of the Evidence Act states:

37. Evidence of Scientific Examination

(1) An affidavit made by a medical practitioner who has made a medical, pathological or other scientific examination of a thing setting out –

(a) his qualification; and

(b) that he has made the examination; and

(c) the facts that he has ascertained and the conclusions at which he has arrived as a result of the examination,

is admissible in evidence in any legal proceedings in a court.

(2) Without affecting the admissibility of an affidavit made under Subsection (1), that subsection does not prevent before a court, where it is satisfied, on application, that the justice of the case warrants its doing so, from –

(a) requiring the medical practitioner who made the affidavit to attend and give evidence before the court if he is in the country and can be brought before the court without depriving the community or any part of the community of any essential service; or

(b) arranging for the taking of his evidence orally by way of commission or in any other manner.

24. In Simbuaken v Egari (2009) N3824 (Davani J) the plaintiff sued for damages for personal injuries sustained in a motor vehicle accident. The Court in its decision made specific reference to s.37 of the Evidence Act. It was held, in relation to the admissibility of medical evidence, that a medical report must be attached to the affidavit of the medical practitioner who prepared the report. If this is not done, the affidavit of some other person attaching a medical report not prepared by the deponent will be declared inadmissible. Further, that in the event that such an affidavit is tendered into evidence, the Court should not place any weight on it.
25. In support of this ruling the Court referred to the distinction that exists between original evidence and hearsay evidence, whether oral or documentary, and cited the following statement by Professor Cross:^[3]

“ Express or implied assertions of persons other than the witness who is testifying, and assertions in documents produced to the court when no witness is testifying, are inadmissible as evidence of the truth of that which was asserted.”

26. Medical reports, clinical notes and police road accident reports that are not authenticated by their authors by affidavit or by direct oral evidence at trial should only be allowed to be tendered into evidence by consent of all parties and are otherwise inadmissible, especially if objection to their admissibility is raised.
27. For cases where medical reports and police accident reports were admitted into evidence by consent of the defendant or were not questioned or objected to by the defendant see Moka v Motor Vehicle Insurance Ltd (2001) N2098 (Kandakasi J, as he then was); Kumbe v Motor Vehicles Insurance Ltd (2005) N2860 (Cannings J).
28. There is ample case authority that the courts will not allow medical reports prepared months or years after an incident describing injuries received at the time of the incident to be admitted into evidence; see for instance Simbuaken v Egari (supra); Pokau v Wettie (2010) N4086 (Davani J).
29. In Nekiye v Motor Vehicles Insurance Ltd (2019) SC1846 (Hartshorn, Kariko, Berrigan JJ) the Supreme Court dismissed an appeal which had challenged the National Court’s dismissal of an action for damages for personal injuries allegedly sustained in a motor vehicle accident. The appellant in that appeal had argued that the trial judge had erred in fact and law by excluding certain medical reports and medical records as hearsay together with two road accident reports one of which was also hearsay, all of which were attached to an affidavit of the appellant. The exclusion of this documentary evidence, objected to by the MVIL at trial, had resulted in the trial judge’s finding that the appellant’s claim for damages had not been proven. On appeal the Supreme Court said this at para. 6 of its decision:

“6. In admitting the affidavit, the trial judge correctly excluded annexures B, D and E as hearsay. Annexures D and E are medical reports for which the makers were not called. Annexure B is a copy of the appellant’s health clinic book. Objection was taken to the latter on two bases, namely that it was hearsay and that the original was not produced. Whilst a further affidavit from the appellant may have explained why the original was unavailable, it could not and did not cure the fundamental objection. The learned trial judge was correct to exclude all three annexures as hearsay. The other annexures, namely correspondence between the disputing parties, a photograph of the appellant, and two road accident reports, one of which was hearsay and the other dealt with below, took the appellant’s case on liability and quantum no further.”

30. In the present instance, the trial judge relied on the affidavit of Inspector Kake, which annexed the police road accident report prepared by Constable Paimo, to find that the MVIL as third party insurer of the Isuzu truck and its driver were liable for negligence. The trial judge ruled that Inspector Kake was privy to the preparation of the report. The police road accident report indicated that it was Constable Paimo’s belief that the driver of the truck came at high speed and could not avoid a pedestrian who was crossing the road in front of him (Appeal Book, pp 122 and 123).
    
31. The question of the negligence of the driver of the vehicle that caused the accident was contested. The MVIL disputed negligence in the parties’ statement of agreed and disputed facts and legal issues (Appeal Book, p. 88). In item 2 of that statement, the MVIL expressly drew the plaintiff’s attention to the fact that at that juncture of the case there was no affidavit from the police officer who had prepared the police road accident report. Elsewhere in the parties’ statement the MVIL stressed to the effect that allegations pleaded in the plaintiff’s amended statement of claim were disputed and would need to be the subject of proof by evidence at trial. The MVIL then filed and served a notice objecting to the use of the affidavit of Inspector Kake (Appeal Book, p. 87) as well as a notice to cross-examine Inspector Kake (Appeal Book, p. 84). The objection was pressed at the trial, but was overruled and the affidavit of Inspector Kake was admitted into evidence. Inspector Kake was not made available for cross-examination on his affidavit at trial and no affidavit material was filed by the Public Solicitor’s Office to explain why Inspector Kake and Constable Paimo were unavailable to attend at trial for the purpose of their cross-examination.
32. In our view, the primary judge fell into error when her Honour gave undue weight to the content of the police road accident report appended to Inspector Kake’s affidavit. It was not disputed that the report attached to Inspector Kake’ s affidavit was hearsay. However, the trial judge applied the case of Dowsett Engineering (New Guinea) Pty Ltd v Edwards; re Jordan trading as Jordan Lighting [1979] PNGLR 426, and found that the police road accident report was not concocted or fabricated because her Honour said that Inspector Kake had attended the scene of the accident with Constable Paimo and that Inspector Kake had reviewed the latter’s report. We note that the trial judge was mistaken when her Honour said that Inspector Kake was “present at the time of the accident”. There was no evidence at all to that effect at trial.
33. The trial judge nevertheless correctly concluded that this was not a case relating to statements or remarks (Appeal Book, p 122) such that the principle of res gestae could be relied on as an exception to the inadmissibility of hearsay evidence (as was the case in Dowsett Engineering (New Guinea) Pty Ltd v Edwards).
34. But when the trial judge accepted that the hearsay police road accident report was admissible as evidence on the purported ground of relevance, we are satisfied that this was a serious error of law. The police road accident report reflected the subjective views of its author, Constable Paimo, as to the cause of the subject accident. For there to be a just and fair trial it was necessary that the police road accident report be tendered through evidence given by Constable Paimo either by having him summonsed to attend at trial or by affidavit filed and served in advance, and if by affidavit then for Constable Paimo to attend at trial and be available for cross-examination. This was essential so that Constable Paimo’s investigations and the content of his police road accident report could, as Mr Biar rightly pointed out in his submissions to the trial judge, be properly tested.
35. The MVIL was entitled at trial to test the matters referred to in Constable Paimo’s police road accident report by cross-examination of him as a competent witness to elicit evidence as to how he obtained the information contained in his report and the basis on which he formed his belief that the driver of the Isuzu truck had been speeding. Crucial questions needed to have been put to Constable Paimo at trial such as who were the witnesses to the accident, other than the parents of the deceased infant, that he spoke to in the course of his investigation? Did he obtain statements from those independent witnesses? If so, where are those statements? Did he conduct a search at the Motor Vehicle Registry to ascertain the registration status of the Isuzu truck? If so where is the proof of the result of that search? Was the driver of the Isuzu truck actually convicted of any criminal charge for dangerous driving. If so, where is the proof of that by way of certificate of criminal conviction? None of this evidence was adduced at trial because the trial judge clearly erred in accepting a hearsay police accident report simply because it appeared to be relevant, just as the trial judge erred in accepting for the same reason the disputed medical reports and medical related documents which were unauthenticated by their authors and who were not available at trial to be cross-examined on matters referred to in their documentation as to the cause of death of the plaintiff’s infant son.
36. Instead the trial judge, when determining liability for negligence, relied on hearsay reports which were inadmissible according to long established rules of evidence. When those hearsay reports were admitted into evidence at trial against valid objection and without the authors of those reports being made available for cross-examination at trial, the MVIL was thereby denied any opportunity to challenge the probative value of those reports. As cross-examination of the authors of those hearsay reports did not take place, it was, in our considered opinion, an improper exercise of judicial discretion for the trial judge to have then placed any weight at all on that disputed hearsay documentation to arrive at a finding that negligence was proven on the balance of probabilities.
37. We accordingly uphold the appeal. The appeal is allowed and the order made by the National Court in proceeding WS No. 202 of 2020, Alois Harry Ken as next friend for deceased infant Robert Alois Ken v Motor Vehicle Insurance Limited is quashed. We further order that the entire National Court proceeding is dismissed. In the exercise of our discretion, we order that each party is to bear their own costs in the National Court and in this appeal in the Supreme Court.

CONCLUDING REMARKS

38. We are mindful that the outcome of this appeal means that the respondent will be unable to pursue redress in the National Court for himself and his wife for the death of their infant son based on the matters pleaded in the plaintiff’s amended statement of claim. However, it is open to the respondent to pursue other avenues of redress.
39. We state for the record that we are critical of the manner in which counsel for the Public Solicitor allowed this matter to go to trial at first instance. We consider that there was inadequate preparation for trial in terms of amended pleadings as well as preparation of affidavit material for the plaintiff. There should at the very least have been an affidavit from Constable Paimo attaching a copy of his police road accident report and an affidavit from Dr Norrie attaching a copy of his medical certificate of death in respect of the plaintiff’s deceased son. This lack of preparation was repeated by different counsel from the Office of the Public Solicitor in connection with this appeal. Counsel having the carriage of this appeal for the plaintiff/respondent in the appeal failed to file submissions despite having been granted an extension of time to do so. Counsel then failed to appear before us at the hearing of the appeal despite being on notice as to the date and time fixed for the hearing of the appeal. The combination of these factors reflects adversely on the competence of each counsel and the lack of supervision they each received at the Public Solicitor’s Office.

ORDER

40. The formal terms of the Order of the Court are these:

(1) The appeal is allowed.

(2) The order of the National Court of 4 November 2022 in WS No. 202 of 2020 is quashed.

(3) The proceeding in WS No. 202 of 2020 is entirely dismissed.

(4) The parties are to each bear their own costs of the appeal and National Court proceeding WS No. 202 of 2020.

Judgment accordingly

________________________________________________________________

Rageau Manua & Kikira Lawyers: Lawyers for the Appellant

^[1] The copy of the Record of Death, Annexure “B” to the plaintiff’s affidavit filed on 22 April 2022, does not state the forename of Dr Aika.

^[2] Ms Kamjua is referred to in the transcript as Ms Kamjoa, a phonetic rendering of counsel’s surname.
^[3] Cross on Evidence (6^th Australian Edition) 2004 Butterworths at para.31030, p.979.