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Dowsett Engineering (New Guinea) Pty Ltd v Edwards; re Jordan trading as Jordan Lighting [1979] PNGLR 426 (7 September 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 426 - Dowsett Engineering (New Guinea) Pty Ltd v Edwards and RE Jordan trading as Jordan Lighting

[1979] PNGLR 426

SC161

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DOWSETT ENGINEERING (NEW GUINEA) PTY. LIMITED

EDWARDS AND R. E. JORDAN TRADING AS JORDAN LIGHTING

Waigani

Raine DCJ Kearney Greville Smith JJ

31 May 1979

1 June 1979

7 September 1979

EVIDENCE - Admissibility - Hearsay - Res gestae - Admissible as part of res gestae subject to possibility of concoction or fabrication - Second hand hearsay - Interpretation - Hearsay on hearsay - Admissible if no doubt of accuracy.

On appeal against a finding, that evidence of conversations heard by a plaintiff injured in a fall from a ladder, shortly after the accident and as he lay injured on the ground, indicating that an employee of one of two defendants had let go of the ladder which he was holding in place, to retrieve a fallen pair of pliers, was admissible as evidence (as part of the res gestae) not only as to the fact of their having been said but as to the truth of the facts they purported to describe,

Held

(1) A first hand hearsay statement made by a bystander may be admitted as part of the res gestae subject to a consideration of the possibility of concoction of fabrication,

Ratten v. The Queen[1971] UKPC 23; , [1972] A.C. 378, applied; Edwards v. Jordan Lighting, [1978] P.N.G.L.R. 273, approved.

(2) A second hand hearsay statement being the interpretation of what someone else said at the scene may be admitted as part of the res gestate where there is no doubt as to the accuracy of the interpretation;

Gaio v. The Queen [1960] HCA 70; (1960), 104 C.L.R. 419; and Fande Balo v. The Queen, [1975] P.N.G.L.R. 378, referred to.

(3) A second hand hearsay statement being a reiteration of what someone else said at the scene (hearsay upon hearsay) may be admitted as part of the res gestae where on the particular facts there is no doubt as to its accuracy.

(4) Whether in the particular circumstances the evidence admitted was first hand or second hand hearsay it was properly admitted as part of the res gestae.

Appeal

This was an appeal against an award of damages for personal injuries arising out of an industrial accident, on the grounds inter alia:

(e) That his Honour erred in law in that he admitted into evidence certain conversations heard by the plaintiff shortly after the accident as he lay injured on the ground.

(f) That his Honour erred in law in that he admitted into evidence certain conversations or the effect of certain conversations or certain words spoken or the effect of certain words spoken with or by a Mr. Saunter.

Counsel

D. W. Kendall, for the appellant (second defendant).

J. S. Monahan, for the first respondent (plaintiff).

G. W. Crooke, for the second respondent (first defendant).

Cur. adv. vult.

7 September 1979

RAINE DCJ: The first named respondent is the plaintiff Glen Hamilton Edwards. The appellant was the second named defendant in the action successfully brought by Edwards last year[dl]¹. I will refer to the appellant and the first named and second named respondents as D.E. and J. respectively.

The facts out of which the action arose are set out in the clearest way by Andrew J., who was the trial judge. Some of them need not concern us now, in view of the way the appeal has been argued. I can do no better than set out what his Honour said[dli]²:

“Glen Hamilton Edwards, the plaintiff in this action, seeks to recover damages from Ronald Emmanuel Jordan trading as Jordan Lighting, and from Dowsett Engineering (New Guinea) Pty. Ltd. for personal injuries sustained on the 23rd February, 1970, in the course of his employment. The incorporation of the second defendant and the employment of the plaintiff as an electrician by the first defendant are admitted on the pleadings. It is also admitted that the plaintiff was employed to do electrical work on wharf facilities being built on a site at Kieta and that the second defendant was the principal contractor for the construction of this site. The first defendant was a sub-contractor of the second defendant with respect to electrical work and at all material times the second defendant was the occupier of the said site.

The following facts have been established to my satisfaction.

The plaintiff is a married man now aged thirty-four. Following an apprenticeship with an electrical firm in Geelong, Australia, he obtained an ‘A’ grade electrical tradesman’s certificate in January 1966. In March 1966 he came to Port Moresby and obtained employment with an electrical firm doing general electrical contracting work. In the same year he was transferred to Rabaul with the same employer. In mid 1968 he commenced employment with the first-named defendant in Rabaul. He was engaged to do general contracting work always in the electrical field. His duties included the supervision of labourers and other workers especially in places such as Kavieng and Kimbe. The work was mainly a mixture of private and public sub-contract work. He would normally be accompanied on these jobs with one or two other tradesmen with some experience.

His employer tendered successfully for certain electrical work at the site of the wharf at Kieta. This work included general lighting on buildings and streets and security lighting. The main site contractors were the second defendant Dowsett Engineering (New Guinea) Pty. Ltd. and the total work complex included the construction of two large warehouses, an office complex, a guard house, an open storage shed, stevedores’ messing quarters and an accommodation block. The chief foreman on the site for Dowsett Engineering was one Mr. Tom Saunter.

Prior to tendering for the electrical work the plaintiff’s employer, Mr. Jordan, had visited the site. After the plaintiff and Mr. Jordan had studied plans of the site he, Mr. Jordan, sent various equipment from Rabaul to Kieta. This included electrical equipment and two extension ladders and two pairs of steps. One ladder was capable of extension to some twenty-two feet and the other to twenty-eight feet or thirty feet. The plaintiff was the foreman for Jordan Lighting on this job. He first visited the site with another tradesman whose name was Michael. At this time the basic structure of both warehouses had been erected but there was no roof or sides or doors. He arranged enough work for the man Michael, to last two or three weeks and then returned to Rabaul. Whilst in Rabaul he was advised that Michael had departed and so he returned to the site with another tradesman. I should add that of the two warehouses one was larger than the other. He then carried out further work and both men returned to Rabaul. He made several trips to the site thereafter and installed the electrical equipment to the two warehouses. At this stage the roofs of both warehouses had not been installed. The lighting in the roof areas was installed by using the ladders. This could be done with safety as the roof, not being affixed, the ladder could extend through the roof space and be tied at the top to the girder. The ladder would be supported by various persons whilst being mounted so that the tie could be put on the top. On each visit to the site the plaintiff had only one fellow Jordan Lighting employee with him.

On the day the plaintiff was injured the roofing in both warehouses was almost complete. This roofing was known as ‘Brownbuilt’ and was a flush fitting type. Being of this type it was impossible to make a tie between the ladder and the girder. During the morning the plaintiff had been working at ground level checking various lighting installations in both warehouses. During the afternoon, whilst in the smaller warehouse, he noticed that about six or seven electrical fittings were faulty. He had with him the smaller of the two ladders. At the same time his fellow tradesman was doing similar work in the larger warehouse and he had the larger ladder.

Inside the smaller warehouse were bags of copra and other crates. Some of these prevented access to the light fittings by ladder but were able to be used as a platform. Three fittings remained on the roof girders which could only be checked by use of the ladder. On the first two the plaintiff was able to use the extension ladder from ground level. As I have indicated already, he was unable to tie the ladder at its top. There was only six inches of girder that could be used as a support for the top of the ladder. The ladder had no safety shoes or other safety apparatus. It was now approximately 4.30 p.m. Inside the warehouse were some labourers employed by Dowsett Engineering and they were affixing doors to the warehouse. The plaintiff had, earlier that afternoon, approached the Dowsett Engineering foreman, Mr. T. Saunter, and requested the assistance of one of Dowsett Engineering’s labourers to hold the ladder. He demonstrated to the labourer how he wanted the ladder held.

I should mention at this stage that when the plaintiff was required to do heavier work, for say one or two hours, it had been agreed that Dowsett’s would loan some of their site workmen to assist. This was only for work of a temporary nature and no charge was made. This was the situation when the plaintiff requested the assistance of a labourer to hold the ladder. During the course of the trial I ruled that this labourer was, at the time of the accident, an employee of Dowsett Engineering. I shall advert to this ruling later in this judgment.

The plaintiff then approached the third and last roof girder with the faulty light fitting. The ladder was not of sufficient length. He obtained one of the cargo boxes. It was approximately four feet square and two feet deep. It was a wooden framed box and it was fairly heavy. With the assistance of the labourer he dragged it to a spot underneath the girder. He tested it for strength by standing on it and bounding on it. The ladder was then placed against the girder at the top. He gave the labourer instructions to hold the base of the ladder fast. Two or three rungs from the bottom he again tested the strength of the box by again bouncing on the ladder. He then proceeded to the top.

As he approached the top of the ladder a pair of pliers which he had in a pocket, slipped out and fell to the floor. He had no need of the pliers at this stage as the first job to be done was to test if the light tube was seated correctly and no tools would have been required for this. Then, if the tube was seated correctly and still not working, it would have to be brought to ground level as there was no ledge upon which to place it. He did not request the person holding the ladder to pick up the pliers. Upon reaching the top of the ladder his head was at the level of the roof. He steadied himself with one hand on the girder whilst proceeding to adjust the tube with the other. At this stage the ladder suddenly slipped from the girder and he fell to the ground. Whilst lying on the ground, injured and in a stunned conditioned, he heard a conversation between certain employees of Dowsett. I shall deal later with the contents and the admissibility of this conversation.”

Much of the argument on the hearing of the appeal concerns the admission by his Honour of the evidence of conversations heard by the plaintiff as he lay injured on the ground as a result of his fall. This involved an examination of the celebrated case of Ratten v. The Queen[dlii]³ inter alia. The conversations concerned an employee of D. letting go the ladder he had been told to hold to retrieve the pliers E. had inadvertently dropped. His Honour regarded the reception of this evidence as critical. I would respectfully agree. It would be hard, if not impossible, to establish liability against D., were the conversations inadmissible.

As to this matter the learned judge made a most important finding of fact. He said[dliii]⁴:

“In the present case the words used were in my view spontaneous. They were spoken before Mr. Saunter appeared at the scene within one to one and a half minutes of the accident. To my mind this discounts the possibility of concoction or fabrication ... The possibility of concoction is further discounted by the fact that the labourer upon being charged by his fellow employees with having let go the ladder proceeded to run away.”

The grounds of appeal now relied upon are as follows:

(e) That his Honour erred in law in that he admitted into evidence certain conversations heard by the plaintiff shortly after the accident as he lay injured on the ground.

(g) That his Honour in exercising his discretion against the appellant’s application for leave to amend its statement of claim to plead contributory negligence applied wrong principles or alternatively that his Honour’s exercise of his discretion against the appellant in the application for leave to amend aforesaid amounted to a non-exercise of that discretion.

I now turn to examine the arguments on the grounds of appeal (e) and (f).

When the evidence was sought to be led before his Honour it was strongly objected to, and much the same arguments were raised by Mr. Kendall before us.

I will deal firstly with the conversations that took place before Mr. Saunter came on the scene. The evidence was as follows:

“Going back to scene — Tell what Dowsett carpenter said to you. What conversation he had and what with you? ...

There was a group discussion between the labourer who had been holding the ladder and other Dowsett employees who had gathered around.

The discussion centred around the ladder falling.

Tell us as best you can the actual conversation ...

It was in English and Pidgin. Exact words I can’t recall. As best recall a number of people speaking but mainly the Dowset carpenter in discussion said, ‘The labourer left the ladder to retrieve the fallen pliers from the ground and upon him letting go it slipped.’

Did the same carpenter actually speak to you?

... Yes.

Is that in essence what he said to you?

... Yes.

Shortly after this did Mr. Saunter arrive?

... Yes.

Did the same carpenter in your presence have a conversation with Mr. Saunter?

... Yes.

Did he repeat in essence the same conversation to Mr. Saunter?

... Yes. There was also discussion between Mr. Saunter and other Dowsett employees which verified that story.

By the time Mr. Saunter arrived how long after accident?

... About one to two minutes.

How long did ambulance take?

... About fifteen minutes.

Was your Dowsett assistant still there then?

... No. He had run away.”

Prior to this the plaintiff E. gave evidence that some D. employees were in the vicinity of the ladder installing a door, and came to where he was lying.

Further, the plaintiff was asked, “Can you estimate how much time from when you dropped your pliers to when you felt ladder slipping?” He answered, “Thirty seconds”.

One of the nationals employed by D. had “an adequate command of English.” It seems pretty clear that this was D.’s carpenter. His Honour states in his judgment that this was so. Counsel for E. used the words “an adequate command of English.” And the question was answered in the affirmative by E., although I see no specific reference in the evidence to the carpenter being the English speaker. But his Honour found he was. Perhaps his Honour omitted to make a note, such an easy thing to do, as I well know, when, as in this case, the trial judge takes down the evidence in longhand. See The State v. Evertz[dliv]⁵. I have drawn attention to this because Mr. Kendall complains that there is no evidence that the carpenter actually saw what happened, he might just as well have heard what happened from an eye witness who was not called to give evidence. Thus Mr. Kendall says that what the carpenter said might well be hearsay on hearsay. It is all very well to say that the plaintiff has the onus, but neither of the counsel for the defendants at the trial raised the matter in cross-examination. But Mr. Wood, who appeared for D. at the trial, when taking his objection, saw the point. He said “Not clear if it is a statement of observation. The last answer takes it one stage further. If indeed it is interpretation of hearsay it is too tenuous by (far) to be admissible.” In reply Mr. Monahan of counsel for E. seems to me to have appreciated Mr. Wood’s argument very keenly by suggesting that the carpenter could have been playing the role of an interpreter. I will come back to this later. For the moment I will assume that the carpenter actually saw the fall, and the cause of it, the letting go of the ladder by the employee who was holding its legs.

On the basis that what E. overheard the carpenter say was hearsay, as opposed to hearsay on hearsay, was his Honour correct in admitting the evidence? In doing so he relied on Ratten’s case[dlv]⁶ and The State v. Willie Orki Briza[dlvi]⁷. As his Honour observed, the “res gestae” principle was restated in Ratten’s case.

His Honour recognized the danger of the possibility that there might be concoction or fabrication. He gave reasons why he believed this could be discounted. With respect, they were good reasons. I venture to add a further reason. It is this. In the carpenter’s account there is the clearest reference to the fallen pliers. He said the labourer left the ladder to retrieve them. The plaintiff did drop the pliers. He was on a ladder, which was being held. These are proved facts. Thus we have an apparently spontaneous statement which fits into the facts as we know them. Putting it as Prentice, Deputy C.J. did in The State v. Willie Orki Briza[dlvii]⁸, “I do think, however, the report of the screamed remarks here is reliable. They are in accord with inferences that can be drawn from what was seen to happen.”

The trial judge found there was spontaneity and he discounted concoction. I see no reason to doubt these findings. The plaintiff was right on the spot, it is the classic situation, one where hearsay may be received, and should be, not only as a matter of law, but as a matter of sound common sense.

But what of hearsay on hearsay, if this be the case, or if it is not established that it is not?

Unfortunately counsel at the trial did not probe the matter, and seek to establish whether the carpenter actually saw the accident, and the cause of it, or whether he was an interpreter only. When interpreters are used in taking down, for instance, a record of interview, then no objection can be taken to such a course and the rule against hearsay is not infringed. See Gaio v. The Queen[dlviii]⁹, and Fande Balo v. The Queen[dlix]¹⁰.

There are two answers to the hearsay on hearsay argument. Whilst it is true that the interpreter of a record of interview is always called to state from the witness box that he interpreted faithfully, which was not done here, nevertheless it seems crystal clear that the carpenter, if merely an interpreter, interpreted accurately, for reasons I have already given. Further to this, it is clear that the national eye witnesses were making some sort of accusations against the ladder holder, which is further support for what the carpenter related to E. And I would add to this the fairly significant fact that the ladder holder made no denials and ran away. I hasten to add that his flight cannot, in my opinion, be regarded as an admission against his principal. Holloway v. McFeeters[dlx]¹¹ and Nominal Defendant v. Hook[dlxi]¹².

So far as the other ground of appeal is concerned I have the misfortune to disagree with my brother Greville Smith J. in his conclusion that the learned trial judge was in error. I collected all or most of the leading authorities in Howard v. Bougainville Copper Ltd.[dlxii]¹³, and need not set them out again. I do agree that the facts there were stronger in the plaintiff’s favour than they are here. But the facts here are strong enough. Due to apparent dilatoriness on the part of the plaintiff’s first solicitor the action was not heard until mid-1978. This put the plaintiff in a hopeless position in searching for witnesses, the accident having occurred in February 1970. The pleadings closed on 9th June, 1976, and it was not until nearly two years later that the application for the amendment to plead contributory negligence was made, and this while the plaintiff was well into his evidence. Had I taken a different view I might well have adopted the reasoning of my brother Greville Smith.

For the above reasons I do not find it necessary to consider whether this is a “res ipsa loquitur” case but looking at the proved facts, the ladder, the dropping of the pliers, the ladder’s legs being held, and the fall from the ladder so soon after the ladder fell, it seems to me rather unreal to suggest there was any other reason for the accident other than the one espoused by the plaintiff and J.

I would dismiss the appeal.

I would order that D. and J. pay E.’s costs below; and that D. pay E. and J.’s costs of the appeal.

I would certify for southern counsel. In Mr. Monahan’s case, this being an appeal, where he would not need conferences in Melbourne, I would treat him as if he were a member of the Brisbane Bar like Mr. Crooke. This will have an effect on air fares.

Solicitors for the plaintiff and J. should send their counsels’ briefs to my chambers so that we can settle an order for the actual costs.

KEARNEY J: This is an appeal from a judgment of the National Court for the first respondent in an action for damages for negligence which he had brought against both the appellant and the second respondent. For convenience I refer to these parties as “Edwards”, “Dowsett” and “Jordan Lighting” respectively.

The facts have been fully set out in the judgment of my brother Raine; I summarise them briefly. The action arose out of an industrial accident on 25th February, 1970, in a warehouse being constructed at Kieta. Dowsett was the principal contractor for the works; Jordan Lighting was a sub-contractor with respect to electrical work; and Edwards, employed by Jordan Lighting as a tradesman electrician, was working on this job.

As part of his work Edwards was required to affix lighting to a roof girder in the warehouse. To do so he had to climb a ladder. The ladder supplied was of insufficient length to reach the girder. To carry out the work, Edwards placed the ladder on a crate, resting the top against the girder. He climbed it, the ladder being held steady towards the bottom by a labourer employed by Dowsett, who had been “lent” to Jordan Lighting to assist Edwards in his work.

Edward climbed to the girder, and on the way some pliers dropped from his pocket to the floor. Shortly afterwards he fell, suffering the injuries of which he complains. He contends that the labourer, suddently and without warning to him, had let go the ladder to pick up the pliers; the ladder then moved away under Edwards’ weight, fell, and so did he.

Dowsett relies upon three grounds of appeal. They are set out in my brothers’ judgments which I have had the benefit of reading. I deal first with the third ground, concerning the refusal of leave to amend the defence, so as to allow a plea of contributory negligence.

The writ was issued on 21st July, 1971. The appellant entered an appearance on 5th August. Edwards took out a summons for directions on 10th September, and the usual order was made on 16th September, 1971. Thereafter no steps are recorded on the court file until 10th March, 1975; Edwards notified a change of solicitors on 20th September, 1975, and thereafter matters proceeded with greater expedition. However it was only at the hearing on 26th July, 1978, after Edwards’ evidence in chief, that Dowsett and Jordan Lighting sought leave to amend their respective defences, by alleging contributory negligence. The application was opposed, Edwards contending that such an amendment would prejudice him, in that he could no longer secure witnesses, or have them interrogated.

The learned trial judge refused the application; his reasons for so ruling are set out by my brother Greville Smith.

Mr. Kendall for Dowsett contended that an appeal lies of right to this court against this ruling. No leave to appeal has been sought. Section 14(3)(b) of the Supreme Court Act 1975 provides that, with certain exceptions, no appeal lies to this court without its leave from an interlocutory judgment of a judge of the National Court. In my opinion a ruling upon an application for leave to amend a defence, is properly characterized as an interloctutory judgment, and there can be no appeal from it without leave first obtained. The distinction between “interlocutory” and “final” judgments or orders is, I think, to be found in the nature of the application to the court: is it such as to finally dispose of the rights of the parties irrespective of the order made? See Salter Rex & Co. v. Ghosh[dlxiii]¹⁴. Applying this test, the ruling here was clearly interloctutory in nature. If, however, the test lies in the nature of the order actually made — whether it finally disposed of the rights of the parties — the answer is the same.

I consider therefore that leave is required, and without it this ground of appeal does not lie; that is sufficient to dispose of the question.

However, in deference to the arguments advanced, I will deal briefly with them. Mr. Kendall contended, citing James v. McCarthy[dlxiv]¹⁵ that it is unnecessary for a defendant to plead contributory negligence — because a court, if satisfied upon the facts proved that the plaintiff is partly responsible for his own damage, is bound by s. 22 of the Law Reform (Miscellaneous Provisions) Act 1962 to apportion that damage. I think that contention is correct, for the reasons expressed by Wanstall J. (as he then was) in the case cited. However, I have difficulty in seeing how this assists the appellant upon this ground. It would appear that the question of contributory negligence was not in fact agitated again; it was not the subject of any submissions. His Honour’s judgment refusing the application was discretionary in nature; I can see no error in the principles applied and, with respect, I consider his Honour was correct.

The other two grounds of appeal, involving the boundaries of oral res gestae, have been discussed by my brothers, so I will be brief.

It appears quite possible that Edwards’ testimony was first-hand hearsay; that characterization is I think fairly open on the evidence as set out by my brother Greville Smith, and it cannot be said that his Honour did not take that view. Upon that basis, I consider the retailing of the bystander’s statement of what he saw had the necessary quality and degree of spontaneity and involvement as to time, place and circumstance; and that it was admissible as a matter of discretion, as evidence of how the accident happened. I think that the stricter requirements for admissibility laid down by Dixon J. (as he then was) in Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle[dlxv]¹⁶ are not in accord with the approach of the Privy Council in Ratten v. The Queen[dlxvi]¹⁷ and it is the latter which should be applied here, under the Constitution, Sch. 2.2. I add that I am unable to reconcile the views of the High Court of Australia in Vocisano v. Vocisano[dlxvii]¹⁸ with the approach in Ratten.

As a matter of commonsense the statement in question was clearly relevant to the major issue and had a high probability of truth in the circumstances, there being no practical possibility of concoction or distortion. Exclusion of the statement would serve no rational purpose.

Upon the assumption that it involves first hand hearsay, I would respectfully agree with the view of the learned trial judge, and those of my brothers.

It is possible, however, that Edwards’ testimony on the point was second-hand hearsay.

One view is that this took the form of the carpenter merely interpreting what an eye witness related to him. As to this, I agree with the opinion of my brother Raine that he interpreted accurately, for the reasons given.

If however, it was not mere interpretation but simply second-hand hearsay, then in the particular circumstances of this case, I would agree with my brother Greville Smith that the additional link thereby involved does not weaken the strength of the chain and the evidence is admissible. The principle applicable is that laid down in Ratten v. The Queen[dlxviii]¹⁹:

“... hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”

There is no reason to limit the application of that principle to first hand hearsay, though multiple oral hearsay would often in fact be unreliable. It is precisely in circumstances such as obtained here that a liberal interpretation of the res gestae rule is most warranted; in the search for truth, the rules of evidence should be guides, and not road-blocks. Of course assessment of the weight of evidence thus admitted involves particularly careful scrutiny. I agree with the observations of my brother Greville Smith that this conclusion is appropriate to the conditions of this country. I suggest, with respect, that the Law Reform Commission might consider the abolition of the rule against hearsay, with the judge being left to assess the cogency of hearsay received; or, alternatively, that the principles be rationalized in a statute.

In the result, whichever view is taken, I consider that no error of law occurred. It is unnecessary therefore to deal with the “res ipsa loquitur” argument.

I would dismiss the appeal.

I concur in the order proposed by the Deputy Chief Justice.

GREVILLE SMITH J: In this matter damages were awarded the first-named respondent against the appellant and the second-named respondent. The crux of the decision as to the liability of the appellant was a finding by the learned trial judge that a labourer, an employee of the appellant, who was in the course of his employment holding firm a ladder resting on a box, upon which ladder the first-named respondent was standing for the purpose of inspecting or working on overhead electrical fittings, released the ladder, which thereupon slipped, causing the first-named respondent to fall and receive the injuries for which damages were sought.

The appellant in the ultimate relied upon three grounds of appeal which were stated in the notice of appeal as follows:

(e) That his Honour erred in law in that he admitted into evidence certain conversations heard by the plaintiff shortly after the accident as he lay injured on the ground.

(g) That his Honour in exercising his discretion against the appellant’s application for leave to amend its statement of defence to plead contributory negligence applied wrong principles or alternatively that his Honour’s exercise of his discretion against the appellant in the application for leave to amend aforesaid amounted to a non-exercise of that discretion.

I shall deal first with grounds (e) and (f).

The plaintiff had given evidence that whilst he was standing on the ladder a pair of pliers fell from his overalls to the ground, that not needing the pliers at that time he went on with his work, that he then felt the ladder slipping at its base, and that the ladder then fell, and so did he. After the plaintiff had given that evidence counsel for the plaintiff sought to adduce evidence as to certain things said to the plaintiff and certain things which the plaintiff overhead said whilst he was lying injured on the ground. Objection was taken, and the learned trial judge said in effect that as he did not know at that stage whether what it was proposed the plaintiff give in evidence was something he heard said by the labourer who had been holding the ladder, or by some other person, and whether or not it related to something that the speaker had himself seen, he would hear the evidence and then allow further argument as to its admissibility. The transcript of his Honour’s notes relating to the evidence in question is as follows:

“Whilst you lying on the ground and after coming to your senses were there other Dowsett employees in the vicinity?

... Yes. They were installing a door and had come to where I was lying.

And was one of them with an adequate command of English?

... Yes. I —

Did you hear any conversation he had?

The person who came to the area, is he someone you know to be one of Dowsett’s workers?

... Yes. One of Dowsett’s carpenters.

Did he have a conversation with person holding the ladder?

... Yes. As far as I know there were a number of people talking together and this carpenter was conveying to me what was being said.

And what did he tell you? ...

Going back to scene — Tell what Dowsett carpenter said to you.

What conversation he had and what with you?

... There was a group discussion between the labourer who had been holding the ladder and other Dowsett employees who had gathered around. The discussion centred around the ladder falling.

Tell us as best you can the actual conversation.

... It was in English and Pidgin. Exact words I can’t recall. As best recall a number of people speaking but mainly the Dowsett carpenter in discussion said, ‘The labourer left the ladder to retrieve the fallen pliers from the ground and upon him letting go it slipped.’

Did that same carpenter actually speak to you?

... Yes.

Is that in essence what he said to you?

... Yes.

Shortly after this did Mr. Saunter arrive?

... Yes.

Did the same carpenter in your presence have a conversation with Mr. Saunter?

... Yes.

Did he repeat in essence the same conversation to Mr. Saunter?

... Yes. There was also discussion between Mr. Saunter and other Dowsett employees which verified that story.

By the time Mr. Saunter arrived how long after accident?

... About one to two minutes.

How long did ambulance take?

... About fifteen minutes.

Was your Dowsett assistant still there then?

... No. He had run away.”

There is no indication in the transcript that his Honour at the end of this evidence ruled there and then upon the admissibility of the evidence objected to and no indication that a ruling there and then was sought. The ruling was given in the final judgment in which appears the following passage[dlxix]²⁰:

“The plaintiff deposed to hearing the following conversation as he was lying injured on the ground. There was a group discussion between the labourer who had been holding the ladder and other employees of Dowsett’s who had been working nearby at the time affixing doors to the warehouse. The conversation involved the falling of the ladder and was in English and Pidgin-English. The labourers were remonstrating with the ladder holder for having let go the ladder. There were a number of people speaking but mainly a Dowsett carpenter who had a good command of English. He said to the plaintiff ‘The labourer left the ladder to retrieve the fallen pliers from the ground and upon him letting go it slipped.’ Following this conversation and the heated conversation between these employees and the labourer who had been holding the ladder, he, the labourer, ran away and has not been located since. Within one or two minutes of these events Mr. Saunter, the foreman, arrived on the scene. The carpenter told Mr. Saunter that the labourer had let go the ladder to retrieve the pliers and the other employees told Mr. Saunter the same story. The plaintiff submits that this evidence is admissible as part of the res gestae.”

His Honour then referred to the judgment of the Privy Council in Ratten v. The Queen[dlxx]²¹, and stated[dlxxi]²²:

“A study of Ratten’s case makes it clear that a ‘hearsay’ statement made by a bystander may be admissible subject to a consideration of the possibility of concoction or fabrication.”

His Honour then set out the following excerpt from the judgment in that case[dlxxii]²³ [Ratten v. The Queen[dlxxiii]²⁴]:

“A hearsay statement is made either by the victim of an attack or by a bystander — indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae. A classical instance of this is the much debated case of R. v. Bedingfield[dlxxiv]²⁵ and there are other instances of its application in reported cases. These tend to apply different standards, and some of them carry less than conviction. The reason, why this is so, is that concentration tends to be focused upon the opaque or at least imprecise Latin phrase rather than upon the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been victims of assault or accident. The first matter goes to weight. The person testifying to the words used is liable to cross-examination: the accused person (as he could not at the time when earlier reported cases were decided) can give his own account if different. There is no such difference in kind or substance between evidence of what was said and evidence of what was done (for example between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.

The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.”

His Honour then continued as follows[dlxxv]²⁶:

“In the present case the words used were in my view spontaneous. They were spoken before Mr. Saunter appeared at the scene within one to one and a half minutes of the accident. To my mind this discounts the possibility of concoction or fabrication. I regard the words used as admissible. In accordance with Ratten’s case[dlxxvi]²⁷ the words used, though hearsay, are admissible not only as to the fact of their having been said but as to the truth of the facts they purport to describe. The possibility of concoction is further discounted by the fact that the labourer upon being charged by his fellow employees with having let go the ladder proceeded to run away. Further, the same description of what happened was then related to Mr. Saunter, a person in a position of authority and this to my mind gives added weight to its truth.”

The appellant argues that none of what the plaintiff related as being heard by him should have been admitted, and he advances two reasons.

In connection with the first of these reasons the appellant seizes upon the word “discussion” where it twice appears in the foregoing excerpt of the plaintiff’s evidence and submits that the word “discussion” imports a calm and reasoned exchange, the antithesis of the sort of thing required for the admission in evidence of hearsay under the “res gestae” principle, and something inconsistent with a description of what was said therein or thereafter as spontaneous.

In my opinion the learned trial judge was entitled to take the view that the plaintiff, in using the word “discussion” used an inapt word, as most people do from time to time. The facts of the matter were that the plaintiff had just fallen off the ladder and was lying injured on the ground nearby and those working close by had gathered near him. That a “discussion”, in the sense that the appellant would have it, occurred, is to my mind most unlikely. That his Honour did take the view that what occurred was not a “discussion” is indicated by his Honour’s finding that: “The labourers were remonstrating with the ladder holder for having let go the ladder”[dlxxvii]²⁸. I have no doubt that his Honour was even closer to the mark, as a matter of expression, when he later referred to the labourer being “charged” by his fellow employees with having let go of the ladder. The labourer, it will be recalled, then ran away.

In considering this aspect of the matter it must be remembered that the transcript being relied upon is not a full transcript of the evidence, but a transcript of his Honour’s notes. In my view a judge’s notes of the evidence and his finding of fact should be read as supplementary to one another in determining the whole evidence given rather than in derogation of each other.

It was also submitted that the time lapse between the fall and the various relevant statements was such as to deprive these statemens of the requisite spontaneity. The spontaneity required, as the foregoing judgment in Ratten’s case[dlxxviii]²⁹ indicates, is such a spontaneity that, as a matter of common sense the “possibility of concoction can be disregarded.” Instantaneity is not an essential ingredient of spontaneity, and in this case there was, as the learned trial judge found, a lapse of time of not more than a minute and a half from the fall. The permissible time lapse must no doubt vary with all the circumstances including whether the words in question are self serving in nature so far as the person heard to say them or the ultimate source is concerned.

In my judgment the appellant’s first line of reasoning fails, but before leaving it I think it would be useful to set out part of the judgment of Burnside J., with which Northmore J. agreed, in Heron v. Baird [dlxxix]³⁰, which is as follows:

“Other judges have endeavoured to determine with greater accuracy or precision the rule which should guide a tribunal determining the admissibility of this evidence, and the learned authors of Lord Halsbury’s work on the Laws of England have tried to reduce it into concrete form, in a passage which, however, still leaves the door open for discretion. The passage which has been read to us is contained in Mr. Justice Barton’s decision and is this: ‘There are many incidents, however, which, though not strictly constituting the facts in issue, may yet be regarded as forming a part of it, in the sense that they closely accompany and explain that fact ... These constituent or accompanying incidents are in law said to be admissible as forming part of the res gestae or main facts; and when they consist of declarations accompanying a fact [sic] are subject to three important qualifications: (1) They must not be made at such an interval as to allow a fabrication, or to reduce them to the mere narrative of a past event ...’ I stop there because immediately the flood gates are opened for variation of opinion as to what time is necessary in order to enable a person to fabricate a story, and what period of time is required to allow a person to fabricate a story depends entirely upon the ingenuity of the individual who is trying to fabricate it. It does not take an inventive genius long to think out a story, but a dull mind plodding along would probably be unable to do so except after long consideration. Therefore, if the rule is to be applied, it depends entirely on the discretion of the tribunal in determining whether there was an interval of time sufficiently long to allow fabrication, and whether that interval of time was such as to reduce the statements to the narrative of a past event. These two circumstances appear to me to show a wide field for the exercise of discretion. The magistrate here found that the man had been assaulted by someone, and that that someone, whoever it was, had disappeared and gone. The present event complained of had ceased to form any part of the surroundings. The assailant had gone, and it certainly was not a statement of a present event. Under those circumstances, the magistrate, in the exercise of his discretion, said he thought the evidence was not admissible, and I am not prepared to say he was wrong. It is one of those questions which always lie on the border line between one view or the other, and although the exercising of his discretion is subject to review, still I think wherever a discretion is to be reviewed it can only be reviewed on the ground that it is based on an erroneous principle.”

The second reason advanced by the appellant may be stated as follows. The statements made by the Dowsett carpenter and by whatever labourer or labourers the plaintiff heard accusing the person who had been holding the ladder may on the evidence have been statements of what the speaker himself saw or he may equally well have been repeating an admission by the holder of the ladder or a statement by one of the others present, or what he said may have represented a conclusion or opinion either of his own or one voiced by another, and that in the event of their or its being either “hearsay upon hearsay”, or the statement of a conclusion or opinion, then they or it could not fall within the “res gestae” principle of admissibility.

The first thing to be said is that as against the other alternatives, the possibility of conclusion or opinion only is a remote one on the evidence and may be dismissed. In my opinion it is much more probable that someone, either the Dowsett carpenter or someone else, witnessed the labourer leave the ladder to retrieve the pliers or that the labourer admitted having done so. However it seems to me plain on the evidence that a finding is not open that the Dowsett carpenter was more probably stating what he himself saw rather than what he had been told or had heard someone else say. The learned trial judge appears to have left the matter open. The question must therefore be answered whether if the Dowsett carpenter were only stating what he had been told or had heard someone else say his own statement would be admissible as related by the plaintiff.

No authority in point has been cited, and I have been unable to find any. There is, however, a statement in an American publication Wharton’s Criminal Evidence (13th ed., 1972), vol. II, s. 302, at p. 93, which is as follows:

“Although the declarant need not be a person who would have been competent if called as a witness to the event ... his declaration will be rejected as a conclusion or opinion or the reiteration of what someone else told him.”

The decisions referred to in the footnote, all American, are not available here but from such footnote it appears that one of the cases involved an attempt to adduce as part of the “res gestae” a statement of a victim of a bombing which was plainly surmise as to who had “done this”.

The words “as a conclusion” ‘et cetera’ obviously mean “if it be a conclusion” et cetera.

It also appears from the footnote that the “res gestae” statement may be a conclusion to the extent that a witness in court would be permitted to state such a conclusion. This indicates that the statement in the text is a general statement subject to exceptions established or to be established.

The question here as already indicated is whether the “res gestae” statement may be a reiteration of what someone else has told the declarant. In my view it may be, and will be if what was told the declarant was of such a nature that the declarant himself would be permitted as a witness to give it in court as part of the “res gestae”.

That would, plainly, be the situation here. What was heard by the carpenter, assuming that what the carpenter said was not what he himself perceived but was something he heard from someone else, would have been receivable in evidence from the carpenter as a witness, as part of the “res gestae”. This follows, I think from the learned trial judge’s finding that what the carpenter said was part of the “res gestae”, as anything the carpenter heard must have been said earlier in point of time.

To permit such a statement to be given per medium of the plaintiff would be adding an additional link to the chain, but the very circumstances which assure the veracity of the carpenter would ensure the veracity of the person whose statement he was reiterating, if such was the case.

Such a chain of evidence has no weak link. It may be argued that the additional link could increase the uncertainty as to the exact words used. But as appears from the judgment in Ratten’s case[dlxxx]³¹ this is a matter which goes to weight, not admissibility, and really I cannot see in this case that it is a matter of the exact words being important. The general import is what mattered and I can see no room for error in that.

In my opinion any other conclusion than that the plaintiff’s evidence of what was said by the carpenter first to the plaintiff, and then to Mr. Saunter, or of what the other persons who came to the scene said to the person who had been holding the ladder, would be artificial in the extreme, repugnant to common sense, and inimical to the doing of justice. Who could doubt in the circumstances that what the carpenter said was the truth of the matter. Furthermore, in my view any other conclusion would be inappropriate to the circumstances of Papua New Guinea which is a country in which it very frequently occurs that there are conversations in which the import of what is said in one language is immediately translated for the benefit of others by another person into another language.

I should add that it does not appear explicitly from his judgment that his Honour the trial judge considered and resolved in favour of the plaintiff the “hearsay upon hearsay” aspect of the matter which I have discussed at length, but the terms of his judgment are not inconsistent with his having done so, and as the various possibilities were present to his Honour’s mind, as appears above, when he decided to hear the evidence and then give his ruling as to admissibility later, I am not prepared to decide, insofar as it may be of moment, that his Honour did not have that aspect of the matter in mind when giving judgment and in determining admissibility.

I come now to the final ground of appeal relied upon, which relates to the refusal of the learned trial judge to allow the appellant to amend his pleadings to allege contributory negligence. The application, made after the plaintiff had given evidence and before he had been cross-examined was for an order under the provisions of O. 32, r. 1, which provides as follows:

“The Court or a Judge may, in any cause or matter, at any stage of the proceedings, allow or direct either party to alter or amend the writ of summons, or any indorsement thereon, or any pleadings or other proceedings, in such manner and on such terms as may be just.”

Counsel for the plaintiff opposed the amendment, the learned trial judge reserved his decision on the point, and the defendants each then cross-examined the plaintiff, such cross-examination proceeding as though the proposed allegation of contributory negligence were actually in issue.

After the conclusion of this cross-examination the other defendant called two witnesses, the appellant called no evidence, and then the learned trial judge gave his ruling on the question of amendment which was in the following terms:

“Both defendants sought leave to amend their defence to include a defence of contributory negligence. This was opposed by the plaintiff.

On the question of amendment generally speaking all such amendments ought to be made for the purpose of determining the real question in controversy between the parties. An amendment will be allowed if it does no injustice to the other party or in other words does not prejudice.

In this case what concerns me is that these events took place some eight years ago. The plaintiff says that if the amendment is allowed he would be prejudiced by the fact that witnesses would or may not now be available. In my view to allow the amendment at this very late stage would raise new issues which in my view could prejudice the plaintiff. It is not a matter which could be compensated for by costs. In the exercise of my discretion I do not allow the amendment sought. As I indicated earlier I shall give fuller reasons in my final judgment.”

The learned trial judge did not in fact give fuller reasons in his final judgment but simply said of the application: “I ruled against this in the exercise of my discretion.”

The amendment to his defence that the appellant sought was an amendment by addition in the following terms, namely:

“If the accident referred to in the statement of claim was caused by the negligence of the second defendant (which is denied) it was contributed to by the negligence of the plaintiff.

PARTICULARS

(a) Failing to take reasonable care for his own safety;

(b) Using a ladder which was too short for the task;

(d) Placing a ladder on a box which was not safe enough or strong enough to take the weight of the plaintiff and the ladder and thereafter mounting the ladder.”

His Honour’s notes on the supporting submissions of appellants counsel at the trial are as follows:

“Amendment asserts contributory negligence and particulars. Can’t give any reason not pleaded before but circumstances not clearly apparent until plaintiff gave evidence. It involved an inherent risk — what he was doing. Clear in last day of work — prior to this he had fixed the ladder to the girder. Could be placed securely before this. The last step in last day — ladder was unsuitable. He was skilled and competent and should have known. Instead of using ladder which was long enough. A matter purely within discretion of court. Principle is party should be enabled to try issues between parties — for discretion.

Question of terms. Plaintiff has lost no time, incurred no loss or not prejudiced at all — it ventilates an issue only.”

The terms of the proposed amendment showed, and this is confirmed both by what the appellant’s counsel said in support of his application, and by the cross-examination of the plaintiff by the appellant’s counsel directed to the issues of contributory negligence, that what the appellant proposed to do essentially was to take the plaintiff’s own evidence that he had placed the ladder on a box, got the labourer to hold it steady, and then mounted it, to add to that any facts adverse to the plaintiff (because going to show that such an operation was dangerous) that could be extracted from the plaintiff under cross-examination, and to argue on that basis that the plaintiff had failed to take proper care for his own safety.

It does not appear from the transcript nor has it been alleged that the appellant proposed, additionally, to call any evidence himself to help establish the contributory negligence which he wished to allege by amendment of his defence.

If there had been any doubt about the ambit of the proposed amendment the learned trial judge could have effectively confined it.

In opposing the amendment counsel for the plaintiff’s main argument was that the appellant would be irreparably disadvantaged because he had been placed by a combination of the effluxion of time and other events in a position where he could no longer discover the identity of, or call, witnesses on the question of contributory negligence who otherwise would or might have been available to him.

This argument, which found favour with the learned trial judge, in my view, because of the limited nature of the contributory negligence allegation which the appellant sought to introduce, and the evidence to be relied upon, which was all the plaintiff’s own, had no relation to the realities of the situation.

It is significant that the other defendant, now the first named respondent, had also made an application for leave to amend his defence to allege contributory negligence but on a quite different basis. The learned trial judge, who rejected that application also, does not seem to have adequately kept these two applications separate and in my view failed to deal with each on its own merits.

I am therefore of opinion that at the point that the learned trial judge exercised his discretion there was as a matter of law no factual basis upon which he might have exercised it against the appellant and that he was in error in so doing.

What was the consequence of such error? It was not that the appellant was prevented from placing before the court additional evidence, but that he was deprived of the opportunity of arguing that the evidence actually before the court established contributory negligence, and from relying upon any contributory negligence so established in abatement of damages awarded against him.

I do not think that it is necessary to remit this matter to the learned trial judge for a determination on the question of contributory negligence. The placing of the ladder by the plaintiff upon the box, his getting the labourer to hold it firm, and his mounting it, was in itself a neutral proceeding and no fact or feature emerged in the case to lend to it as a matter of probability a hazardous nature. The falling of the pliers and the consequent releasing of the ladder by the labourer holding it were clearly not reasonably foreseeable as a probable event, nor, equally clearly, was it reasonably forseeable as a probable event that the labourer would release the ladder to retrieve them.

In consequence, in my view, there was as a matter of law no evidence upon which contributory negligence on the part of the plaintiff might be found.

It follows that in my view the appellant suffered no injustice as a result of the learned trial judge’s refusal to allow the amendment.

I would dismiss the appeal.

As to costs, I agree with his Honour the Deputy Chief Justice.

Appeal dismissed. Order for costs of trial confirmed. Appellant to pay the costs of the respondents on the appeal. Fees of overseas counsel certified for.

Solicitors for the appellant: McCubbery Train Love & Thomas.

Solicitors for the first respondent: Craig Kirke & Wright.

Solicitors for the second respondent: Gadens.

[dl] [1978] P.N.G.L.R. 273.

[dli] [1978] P.N.G.L.R. 273, at pp. 275-278.

[dlii] [1972] A.C. 378.

[dliii] [1978] P.N.G.L.R. 273, at p. 289.

[dliv] Unreported. (Unnumbered judgment, November 1977, Raine J.)

[dlv] [1972] A.C. 378.

[dlvi] [1976] P.N.G.L.R. 517.

[dlvii] [1976] P.N.G.L.R. 517, at p. 521.

[dlviii] (1960) 104 C.L.R. 419.