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:	03rd June, 2020 @ 9.30 am

JUDGMENT

[Personal Injuries claim for Damages]

INTRODUCTION

1.	The Plaintiff claims damages for personal injuries suffered by him in a motor vehicle accident near Fenton Street, Lami, Carpark on 9th March 2017. The taxi registration number LT7284 was driven by the First Defendant. The Plaintiff in his Statement of Claim states that he was a pedestrian near Fenton Street, Lami, Carpark when the First Defendant drove his taxi registration number LT7284 so negligently and unskilfully that the First Defendant caused or permitted it to collide with the Plaintiff and knocked him down. The Second Defendant was the registered owner of this taxi registration number LT7284. 

2.	The Plaintiff pleaded the following particulars of negligence:

(a)	Failing to keep any or any proper look-out or to have any or any proper regard for the Plaintiff standing in the car park;
(b)	Failing to stop, to slow down, to swerve or in any other way so to manage or to control his said vehicle as to avoid the said collision with the Plaintiff;
(c)	Failing to exercise such degree of care and control over his said vehicle as was warranted having regards to all the circumstances;
(d)	Failing to give precedence to the Plaintiff on a driveway entrance;
(e)	Failing to apply the brakes on the said motor vehicle in time or at all to avoid the said accident;
(f)	Failing to give any or any adequate warning of his approach;
(g)	Driving at excessive speed;
(h)	In the premises, failing to drive with due care and attention and driving below the standard of a careful and prudent driver.

3.	The Defendants in their Statement of Defence admitted-

(a)	That the First Defendant was driving along Fenton Street, Lami and there was an incident with the Plaintiff on 9th of March 2017.
(b)	That the Second Defendant is the registered owner of the said taxi registration number LT7284 and the vehicle was insured by New India Assurance at the material time.

4.	Above facts are also agreed upon within the parties pre-trial conference minutes.

5.	The admission hereof of the First Defendant that all material times he was the driver of the vehicle whose owner was the Second Defendant, tantamount to proof of vicarious liability to the Second Defendant if the First Defendant’s negligence is proved herein.  

6.	Further, the Defendant’s say in answer to each and every paragraph relied upon in the Plaintiff’s Claim that the injuries sustained to the Plaintiff, if any, was caused solely or alternatively was contributed by the negligence of the Plaintiff. Hence, the Defence of Contributory Negligence is raised by the Defendants.

7.	Both parties to these proceedings furnished court with simultaneous written submissions and case authorities.

THE DETERMINATION

8.	It is not disputed that the First Defendant was driving along Fenton Street, Lami and that there was an incident with the Plaintiff.

9.	However, the Defendant’s deny that the alleged incident was caused by or any negligence on the part of the Defendant’s as alleged of or at all. 

10.	The Defendant’s further raised the Defence of Contributory Negligence on the part of the Plaintiff.

11.	The Defendant’s were neither present in Court nor gave evidence in the matter when it came for Hearing before the Court.

12.	Further, the Plaintiff was not able to call Doctor Scott whom he had subpoenaed and hence no medical report could be tendered into evidence by the Plaintiff as intended.

13.	The evidence of all the witnesses before court has been carefully perused and analysed.

14.	The Plaintiff [PW1] in his evidence told Court that he had an accident by a taxi coming from Suva side on 9th March 2017 at 12.30pm at Fenton Street, Lami Town. He was coming from Vodafone booth and proceeded to cross the road to head to the butcher on the other side of the road. He took one step onto the road and left front side of the taxi hit him on his right side of his hip and he fell down in pain. The left side tyre of the vehicle ran over his foot. He further confirmed that the taxi was speeding and that the road was a busy road with a range of car parks therein.

15.	PW2 was an independent eye witness. He testified that he was 5 metres away from the scene of the accident. He saw the Plaintiff got bumped by the taxi when the Plaintiff was crossing Fenton Street. He added that the taxi was over speeding and not driven at a normal speed as it should have.

16.	The evidence hereinabove in my Judgment establishes that the first Defendant drove the said taxi registration number LT7284 on 9th March 2017 negligently. I am satisfied that the first Defendant was over speeding and failed to keep a proper look-out, slowdown and exercise care and control to avoid the accident.

17.	I find that the First Defendant was negligent and that his negligence caused the accident on        9th March 2017.

18.	It is admitted by the Defence and agreed upon within the pre-trial conference minutes that the First Defendant at all material times was the driver of the taxi registration number LT7284 and the Second Defendant was the Registered Owner of the said taxi registration number LT7284. Further, the taxi registration number LT7284 was insured at the material times in accordance with the Motor Vehicles (3rd Party Insurance) Act with New India Assurance. 

It follows that the Second Defendant is Vicariously Liable for the Negligence of the First Defendant. 

19.	Therefore, this entitles the Plaintiff to recover damages from the First and Second Defendants accordingly.

Contributory Negligence

20.	The Defence in its closing submissions contended that the Plaintiff was guilty of contributory negligence. The facts alleged herein in support of contributory negligence are also raised in the Defendants Statement of Defence.

21.	The Defence submitted that the investigating Officer [DW1] in his Investigation Report has concluded that both parties are at fault. If the court has to make a determination based on the evidence, then the following factors needed to be considered-

a.		Plaintiff’s standing position near Fenton Street:
b.		Manner in which the Plaintiff tried crossing the road that he could not avoid the incident; and
c.		Safety measures drawn up by the Plaintiff to ensure that he took adequate measures for his own safety like other pedestrians on a busy street.      

23.	The Plaintiff [PW1] confirmed in his evidence in cross-examination that there was no pedestrian crossing from where the Plaintiff was crossing the road. He did not see the taxi approaching him, that it is a very busy road and a lot of vehicles and people with pedestrians walking. Further, when the Defence Counsel put the question to the Plaintiff that “he was careless because he was crossing the road from where he was not supposed to cross”. The Plaintiff replied to this question in affirmative. 

24.	The findings of the Investigating Officer [DW1] in his Summary Report tendered into evidence as Exhibit D1 conducted investigations into full circumstances surrounding the accident involving insured vehicle registration number LT7284 driven by the insured driver Jiujiua Tawatatau       (First Defendant) on 9th March 2017 at 1230 hours at Fenton Street, Lami Town.

In his finding, DW1 stated that “there is no doubt that the Plaintiff Mosese Tuilau received serious injuries to his right leg as a result of the accident.  It is to be noted that there isn’t any pedestrian crossing at the scene of the accident and both the Plaintiff and the insured driver to take the blame.  The Defendant insured driver is denying that the accident was caused due to his Negligence as the Plaintiff bumped the vehicle on the left-hand side damaging the side mirror.  On the other hand, the Plaintiff is saying that the driver was not concentrating on his driving as he was looking for passengers watching on his right.  There isn’t any independent witness to clearly state Negligence on the part of the insured driver; however, the Plaintiff received injuries during this accident.  The scene of the accident is busy street with the shopping premises on the right-hand side of the road and since there is no pedestrian crossing, people cross with caution.  Police did not lay any charges on the insured driver as the police Docket is with Director of Public Prosecutions pending decision.”

25.	The Defence cited the following cases in support of the defence of Contributory Negligence-

26.	The Court of Appeal in Lautoka City Council v Ambarama Narsi Properties Limited [2014] FJCA 25 held that-

“[168] To succeed in the Defence of Contributory Negligence, a Defendant must prove that the Plaintiff did not in his own interest take reasonable care of himself and contributed, by his own want of care, to his own injury.

The High Court in Burfoot v Fiji Resort Ltd [2013] FJHC 256, held on the issue of Contributory Negligence-

“A person is guilty of Contributory Negligence if he ought reasonably to have foreseen that, if he did not act as reasonable, prudent man, he might be hurt himself.”

27.	Denning LJ in Jones v Livox Quarries [1952] 2 QB 608 described the way in which the presence of contributory negligence should be examined in the following passage;

“A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.” (emphasis added).
 
28.	It is also important to note that the First and Second Defendants were neither present in Court nor gave evidence to counter the substantive claim made by the Plaintiff for personal injuries in the current proceedings.

29.	The Plaintiff should have taken precaution and should have been more careful when he was crossing the road where there was no pedestrian crossing. The Plaintiff was well aware that the road stays busy with lots of pedestrians. He should not have put himself at a risk in the circumstances. As a reasonable person, the Plaintiff should have foreseen and realised the danger of crossing a busy road where there was no pedestrian crossing.

30.	I find that the evidence hereinabove establishes that there was contributory negligence on the part of the Plaintiff [PW1] which I assess at 20%.

PAIN and SUFFERING

31.	The Plaintiff [PW1] had undergone pain and suffering. He was admitted at the CWM hospital for a period of two (2) weeks. Upon his discharge from the hospital, he was confined to bed for a period of two (2) months.

32.	The Plaintiff [PW1] stated in his Evidence in Chief that after the accident he had to lie down since the injury sustained by him was very painful. He was conveyed to CWM Hospital where he underwent an operation and was admitted for a period of two (2) weeks. The ankle was cleaned up, cut and inserted with a piece of iron which according to him was very painful. He added the injury received by him was very serious and that the iron rod inserted into the ankle will remain intact until his demise.

Upon his discharge from the hospital, he remained confined to bed at home for a period of two (2) months where all along he was assisted by his son. The Plaintiff stated that he was 62 years old at the time of the accident and now 64 years old. The Plaintiff was a taxi drier before the accident and used to do farming of root crops and attended to family meetings, and after this accident he is unable to do so due to pain. He stated further that in terms of his mobility, it is not like before the accident expanding that he can’t make his leg straight or bend when he sits down, he needs assistance.

In cross-examination it was put to the Plaintiff [PW1] that he came to Court without crutches and that he can walk without assistance. To this he replied that he came without crutches to Court but is trying to avoid anyone assisting him rather needs son’s help whilst standing up so that he can lean on him. The Plaintiff further confirmed to questions from the Defence Counsel that he received the ankle injury as a result of the accident and the fall after the accident on his side of his body.
 
33.	Doctor Emosi Taloga [DW2] Specialist Orthopaedic Surgeon at CWM Hospital testified that two or three months ago he carried out the Medical Examination of the Plaintiff. He was not the initial treating doctor but examined the Plaintiff two (2) years later. He took into account Doctor Vueta Scott Buadromo’s Medical Examination Report. He stated that the Plaintiff sustained an open fracture of the right ankle. The treatment done involved intravenous antibiotics, wound debridement, and internal fixation of the fracture. The Examination showed a slight limp. The operation was carried out on the right ankle fracture in order to lay the bone in proper position and fix the bone with metal plate and screws. This was an internal stabilisation from inside. X-rays were taken before and after the fixation and follow-up thereafter. 

The Plaintiff complained of pain and swelling of his right ankle in cold weather conditions. However, he does not take any pain medications or seek medical treatment for this. Antalgic Limp with shortened stance phase and documented moderate to advanced arthritic changes of hip, knee, or ankle. The whole person impairment was assessed at 8%.

In cross-examination, the Doctor stated that he doesn’t know how Doctor Scott arrived at his whole person impairment disability but he knew what he did. 

34.	The Medical Examination Report was marked and tendered into evidence as Exhibit D2 issued by Doctor E. D. Taloga [DW2] confirms that the Plaintiff had a total potential impairment of 8% as stated hereinabove. 

Potential Impairments

Gait Derangement (Table 17-5)			     - 	7% Whole Person
Scar (TEMSKI)				     - 	1%
Ankle joint arthritis 2mm joint space (Table 17-31)    - 	6% 

35.	The Plaintiff referred Court to the following cases authorities in his written submissions wherein it reflected the nature of the injuries suffered and the damages awarded-

Chand v Nair [2011] FJHC 393; HBC 382 of 2006- a minor was runover by a bus and its tyre went over her ankle suffering 14% whole person impairment. General Damages awarded was $65,000.

Nasese Bus Company Ltd v Chand FJCA 9; ABU 40 of 2011; 8 February 2013- Damages awarded in the sum of $81,301.50, $1,145 for Special Damages, $90,000 for Pain and Suffering and loss of Amenities and $25,000 for Loss of Future Earnings with interest.

Niranjans Autoport Ltd v Karan [2001] FJCA 38; ABU0005.2001 (18 October 2001) - the Plaintiff had left ankle fracture and a broken nose with hip injuries having 5% disability awarded a total damaged of $195,807.

36.	Personal Injuries are classified as pecuniary (Economic) and non-pecuniary (Non-Economic) on the Loss being capable of assessment in terms of money, such laws would necessarily include Loss of Earnings and actual prospective (Future) in the nature of Non-Pecuniary Loss including Loss of Amenities and/or Enjoyment of Life.

There is no relationship between pain and money. Hence, the Court must award some amount arbitrarily but reasonable in nature. The Plaintiff suffered whole person impairment of 8%. 

37.	Taking into consideration above and the principle applicable to Assessment of Damages, I assess General Damages for Pain and Suffering in the current circumstances and grant a sum of $90,000. 

From this amount, since this court has found that the evidence before court has established contributory Negligence on the part of the Plaintiff and an assessment of 20% has been made, it follows that I make a 20% deduction from the above award of $90,000 to arrive at $72,000. The total General Damages for pain and suffering now stands at $72,000.

38.	In the instant case, the medical evidence before Court provides that the Plaintiff received the treatment involving intravenous antibiotics, wound debridement and internal fixation of the fracture. The Plaintiff had a slight limp, does not use any support except an elasticised ankle support. The right ankle was wider than the left with medial and lateral hyperpigmented scars. The x-ray showed evidence of the internal fixation devices. The fracture was transfixed with using a tension bend technique. The cerclage wire was broken. The lateral malleolus showed fixation with metal plate and screws. The Plaintiff also had a scar.

39.	The Doctor further confirmed to Court that the Plaintiff will not require a Second operation unless he complained of pain as a result of cerclage wire breaking. The Plaintiff informed Court that he cannot straighten up his leg after sitting down, cannot do any farming and cannot do things as he was able to do before the accident. 

40.	The Plaintiff [PW1] stated in his evidence that he was currently 64 years old. He was driving his son’s taxi before the accident and earning $300 per week. There is no evidence before this Court to substantiate that the Plaintiff [PW1] will not be able to drive the taxi again and will be in a position to earn himself an income.

41.	The Medical Report tendered into evidence as Exhibit D2 quite categorically states the nature of the injury sustained by the Plaintiff [PW1]. Although the fracture was transfixed with using a tension band technique and had metal plate and screws inserted, the fracture showed consolidation. 

42.	Further, I noted that the Plaintiff walked in and out of the witness box without any difficulties except for the fact that a slight limp was noticeable.

43.	Therefore, I decline the claim for past and Future Economic Loss as claimed by the Plaintiff herein.

SPECIAL DAMAGES

44.	The Plaintiff [PW1] claimed a sum of $300 per month and a total of $1,600 for medical expenses and $300 for travelling expenses. 
45.	He failed to produce any receipts in order to substantiate the claim for Special Damages. 

46.	I make reference to the case of Narendra Kumar v Sairusi Drawe, Minister for Home Affairs and Auxillary Army Services and the AG [1990] 36 FLR 90 at page 95, Palmer J stated:

“Not withstanding that not a single receipt had been produced in evidence, I am satisfied from the Plaintiff’s evidence that he paid those amounts.”

47.	It will be noted from the evidence before Court that the Plaintiff [PW1] was admitted for two (2) weeks at the CWM Hospital and upon discharge was confined to bed for a period of two (2) months.

Therefore, any award for special damages needs to be calculated is as follows-
@ 2 weeks + 2 months [the period spent in hospital and confined to bed = 2½ months in total = 2½ months x $300 = $750

To this amount of $750, I will add a sum of $300 for travelling expenses
= $1,050.

48.	Therefore, I will grant a sum of $1050 in Special Damages. 
					
GRATUITOUS CARE

49.	The Plaintiff [PW1] testified that he was taken care of by his son and confined to bed for a period of two (2) months after being discharged from the hospital. Therefore, he was claiming a sum of $29,120 for 140 weeks for a period of 4 years.

During the trial, the Court noticed that the Plaintiff [PW1] slightly limped (as per Doctor’s Report tendered as Exhibit D2) and walked into and out of the Witness Box without any crutches. The Plaintiff did not call the son (Caregiver) to testify in Court in this proceeding and substantiate that he continuously took care of his father (Plaintiff PW1) for a period of 140 weeks and therefore qualified for this sum as claimed hereinabove.

50.	Therefore, in the circumstances the Plaintiff should only be entitled to the care extended to him by his son for a period of 2 months, the time period within which the Plaintiff was confined to bed after his discharge from the hospital-

2 months x 4 weeks = 8 weeks x $20 per day = 8 weeks x 7 days (56 days) x $20 per day = $1,120

51.	The above sum is granted to the Plaintiff for Gratuitous Care since the Plaintiff [PW 1] does not need any further care extended to him as he is able to walk around all by himself without difficulties with the exception of a slight limp.

COSTS OF FUTURE CARE

52.	During the trial, the Court noticed that the Plaintiff [PW1] slightly limped (as per Doctor’s Report tendered as Exhibit D2) and walked into and out of the Witness Box without any crutches nor did he require his son’s assistance. The Doctor [DW2] also confirmed to court that the Plaintiff had a slight limp, does not use any support except an elasticised ankle support. There is no evidence before this court that the Plaintiff [PW1] will need any future care that will come at a cost.           In light of above, I decline the claim for costs for future care.

Costs 

53.	This matter proceeded to hearings. It took almost one and a half (1½) days for the matter to be heard and completed since an objection was also raised in the midst of the hearing by the Defence with regards to the admissibility of Doctor Scott’s Medical evidence into evidence and therefore an Interlocutory Ruling had to be delivered accordingly.

54.	In light of the above, the Plaintiff is entitled to costs and it is only appropriate that I grant the sum of $3,000 as summarily assessed costs to the Plaintiff.

Interest 

55.	The Plaintiff has claimed interest under the Law Reform (Miscellaneous Provision) (Death and Interest) Act 27.

56.	In the exercise of my discretion, I award interest at 6% per annum on General Damages awarded from the date of Service of the Writ (22nd January 2018) on the Defendants to the date of trial (18th September 2019) and 3% per annum from the date of the accident (9th March 2017) on Special Damages accordingly.

57.	Orders

The total sum awarded to the Plaintiff as damages is $81,398.37 made up as follows:

a.	General Damages	$72,000	
b.	Interest on General Damages 	$7,148.71	
c.	Special Damages	$1,050	
d.	Interest on Special Damages	$79.66	
e.	Gratuitous Care	$1,120	
			
	           Total	$81,398.37	

58.	Hence, there will be judgment for the Plaintiff against the First and Second Defendants in the sum of $81,398.37 together with a sum of $3,000 summarily assessed costs payable by the Defendants to the Plaintiff accordingly.  

Dated at Suva this    03rd Day of June, 2020

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

CC: Daniel Singh Solicitors, Suva
     Patel Sharma Lawyers, Suva

22.	The Plaintiff [PW1] in his evidence told the Court that he had an accident by a taxi on 9th of March 2017 at 12.30pm at Fenton Street in Lami Town. He was on his way to cross the road to go to the butcher on the other side. He crossed the road where there was no pedestrian crossing. The road is very busy with lots of vehicles and people crossing. When he was just one step onto the road, the left front side of the car heading from Suva bumped his right side of the hip and he fell down. The left front tyre of the vehicle ran over his foot, he was in a lot of pain and had to lie down until a man came and took him to the hospital. He admitted in cross examination that he did not see the car coming. He was shocked that he was bumped by a car. At the hospital, he underwent an operation of his ankle wherein iron rods were inserted into his leg which was very painful and will remain therein until his demise. According to him, it was a very serious injury and admitted in hospital for 2 weeks. After discharge from hospital, he was confined to the bed for 2 months and looked after by his son. During change of weather, he feels the pain and his mobility is not like before and is unable to make his leg straight or bend when he sits down. He’s not driving taxi after accident where he was able to earn $300 per week. He confirmed that he came without crutches to Court and the only injury sustained was at the ankle and side of his body when he fell down after the accident. The Plaintiff called 3 further witnesses. 

59.	The Plaintiff [PW1] was 62 years of age at the time of the accident and at the current time he has attained 64 years of age.

60.	The Plaintiff had undergone pain and suffering. He was admitted at the CWM Hospital for a period of two (2) weeks consequent to his discharge, he remained confined to bed for a period of two (2) months and was assisted by his son. At the time of the accident, the Plaintiff was employed in his capacity as a taxi driver earning $300 per week. He has not been driving and/or earning income since the accident to the current time.

61.	Frank Shaw [PW2] 

62.	Zakir Hussein [PW3]

63.	PC3377 Vinesh Prasad [PW4]

64.	The defence called 2 witnesses. It is noted that the Defendants at the Hearing chose not to call the Firstand SecondDefendants as witnesses.

65.	Anirudh Kumar [DW1]

66.	Emosi Taloga [PW2]

67.	The evidence of all the witnesses before Court have been carefully perused and analysed.

68.	The evidence establishes that the FirstDefendant drove the taxi registration number LT7284 negligently.

69.	

70.	

71.	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.

72.	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

73.	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 provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call the person as a witness, any other party to the proceedings may, with the leave of the court, call 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 document purporting to be 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) a certificate is to be treated 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 any weight to be given to hearsay evidence in civil proceedings, the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular to the following-

(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;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.’

ANALYSIS

74.	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;

75.	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.

76.	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. 

77.	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.

78.	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.

79.	 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.  

80.	Further, the injury report or the medical report given by a doctor is not substantive evidence and is inadmissible in evidence unless he is examined in a court of law accordingly.

81.	The Medical Records officer PW3 through whom the Plaintiff is seeking to tender Dr. Vueta Scott Buadromo’s Medical Report is not a medically qualified doctor rather is a medical records officer.  

82.	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.

83.	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.  

84.	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.

85.	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.

86.	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.

87.	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.

88.	I make the following orders on the objections raised hereinabove accordingly.

ORDERS

A.	The Defence Counsel’s objection is upheld.

B.	The Medical Report written by Dr. Vueta Scott Busdromo cannot be tendered into evidence as the Plaintiff’s Exhibit.

C.	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.

D.	There will be no order as to costs at the discretion of this court.

E.	Orders accordingly