National Water Commission v VRL Operators Ltd and Others

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA,Morrison P
• Judgment Date: 22 April 2016
• Neutral Citation: JM 2016 CA 35,[2016] JMCA Civ 19
• Docket Number: CIVIL APPEAL NO 20/2015
• Court: Court of Appeal (Jamaica)
• Date: 22 April 2016

Between

National Water Commission

Appellant

and

VRL Operators Limited

1st Respondent

The Attorney General of Jamaica

2nd Respondent

The National Works Al

3rd Respondent

Stanley Consultants Inc

4th Respondent

Frederick Rodriques & Associates Limited

5th Respondent

[2016] JMCA Civ 19

Before:

The Hon Mr Justice Morrison P (AG)

The Hon Mrs Justice McDonald-Bishop JA

The Hon Mr Justice F Williams JA (AG)

CIVIL APPEAL NO 20/2015

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Kevin Williams and Colin Alcott instructed by Williams , Alcott & Associates for the appellant

Walter Scott QC , Dr Lloyd Barnett and Weiden Daley instructed by Hart Muirhead Fatta for the 1 ^st respondent

Miss Carlene Larmond and Andre Moulton instructed by the Director of State Proceedings for the 2 ^nd and — ^rd respondents

Mrs Denise Kitson QC and Mrs Trudy-Ann Dixon-Frith instructed by Grant Stewart Phillips & Co for the — ^th respondent

Charles Piper QC and Demar Kemar Hewitt instructed by Charles E Piper & Associates for the — ^th respondent

Morrison P (AG)

Introduction

1 This is an interlocutory appeal. It arises from a ruling made by Batts J on 13 February 2015, on an application for court orders in an action which is now part heard before him, that certain items of documentary evidence are admissible as exceptions to the rule against hearsay.

2 The claimant in the action is the 1 ^st respondent (VRL), in its capacity as the lessee and operator of a hotel formerly known as “Hedonism III” in Runaway Bay, St Ann (the hotel). VRL claims substantial damages against (i) the appellant (NWC), a body corporate established by the National Water Commission Act, with responsibility for the provision of potable water and other water related services throughout Jamaica; (ii) the 2 ^nd respondent, under and by virtue of the Crown Proceedings Act; (iii) the 3 ^rd respondent, an executive agency under the Executive Agencies Act; (iv) the 4 ^th respondent, an American firm, which is engaged in the business of providing consultancy services in construction management, contract administration and resident engineering; and (v) the 5 ^th respondent, a Jamaican company, which is engaged in the business of providing civil engineering services. 1 For the purposes of this judgment, I will refer to NWC and the 2 ^nd – 5 ^th respondents collectively as the defendants.

3 VRL's claim is based on the alleged negligence of one or more of the defendants. VRL alleges that, over a five day period in March 2005 (the relevant period), as a result of that negligence, NWC supplied turbid water and water considerably below normal pressure to the hotel, thus causing frequent interruptions to the supply of water to the hotel while efforts were being made to resolve the situation. VRL further alleges that the hotel had full occupancy over the relevant period and that, as a result of “the very turbid, very low pressure or non-existent water supply”, the hotel's guests suffered “severe inconvenience”, in consequence of which some guests checked out. By reason of these matters, VRL alleges that it has “suffered severe embarrassment, injury to its reputation, by among other things, much negative publicity on the internet by guests of the [hotel] [over the relevant period] and repeat guests, as well as inconvenience, direct loss and damage”. 2

4 Each of the defendants takes issue with VRL on its claim and puts VRL to proof on the issue of damages.

5 By notice filed on 24 October 2014, VRL notified the defendants of its intention, pursuant to sections 31E-31H of the Evidence Act (the Act), to tender in evidence at the trial a variety of hearsay statements made in documents. By notices of objection filed

shortly thereafter, the defendants all took objection to VRL tendering the said documents in evidence and required the presence, at the trial, of their makers for cross-examination. On 27 January 2015, Batts J made certain pre-trial orders in the matter, including an order that VRL's application to have the various documents admitted in evidence should be deferred for consideration at the trial. Following on from this, on 6 February 2015 VRL filed an amended notice of application for court orders (the application) giving formal notice of its intention to apply for the admission in evidence of the documents set out in the notice previously filed by it on 24 October 2014

6 It is against this background that the substantive matter came on for trial, as it happened, also before Batts J, on 9 February 2015. With the concurrence of the parties, the question of the admissibility of the various documents was dealt with as a preliminary matter and the application was heard, as the learned judge put it 3 , “as a trial within a trial”. The documents which it was sought to admit were categorised by the learned judge, again with the concurrence of the parties, as follows 4:

Category A: Monthly revenue analyses and occupancy statistics, and various statistics and reports relating to room revenues over the period 2002–2008, of the hotel and its sister hotel, Hedonism II. These documents were produced by VRL and are all said to have been computer-generated.

Category B: Certificates of competence and professional training in respect of Mr Anthony Cheng, the witness whom VRL proposed to call to speak to its computer system.

Category C: The Annual Travel Statistics (ATS) published by the Jamaica Tourist Board (JTB) for 2005 and 2008.

Category D: Auditors' reports on the statutory financial statements and supplementary information for VRL and International Hotels (Jamaica) Ltd (IHL), 2004–2009; and for VRL Management Ltd (VRML) for the year ending 31 May 2009.

7 For the purposes of this judgment, I will gratefully adopt this very helpful categorisation. The defendants did not pursue their objections to the Category B documents and they were accordingly admitted as Exhibits 2(a)-(i). In due course, after hearing evidence from various witnesses and submissions by counsel on behalf of VRL and the defendants, Batts J made the ruling which is the subject of this appeal. Put shortly, the learned judge admitted the Category A documents, as business documents under section 31F, and as computer-generated documents under section 31G; the Category C documents, as public documents, under a common law exception to the rule against hearsay rule; and the Category D documents, on the basis, the learned judge said 5, that he "did not understand the Defendants to be pursuing seriously the objection

to this category of documents". I will return to the learned judge's detailed reasons for his ruling in respect of each category later in this judgment

8 The principal issue which arises on this appeal is therefore whether the learned judge was correct in his decision to admit the Category A, C and D documents on the stated bases. But a further issue arose when the appeal was called on for hearing on 30 September 2015. At that time, Dr Barnett for VRL brought to the court's attention the fact that the Act had very recently been amended, in respects that were directly relevant to the issues to be canvassed before us, by the Evidence (Amendment) Act 2015 (the 2015 Act). VRL's application was that the court should determine the applicability and significance of the 2015 Act, which came into effect on 11 August 2015, as a preliminary matter, and, if necessary, dismiss the appeal without any further hearing. However, after hearing submissions from all counsel in the case, the court decided that it would hear the appeal in the usual way and take the effect of the 2015 Act into account in coming to its decision in due course.

The legal context

9 As is well known, evidence of a statement made by someone not called as a witness may or may not be admissible. If what it is intended to prove by the evidence is the fact that the statement was made, then it will, generally speaking, subject to considerations of relevance and any other exclusionary factor, be admissible for that purpose. However, if the evidence is tendered to establish the truth of what is contained in the statement, it is hearsay evidence and as such generally inadmissible 6.

10 The rationale for the rule against hearsay has often been explained by reference to, among other things, the potential unreliability of such evidence, given the difficulty of testing its accuracy 7. But, as the well-known decision of the House of Lords in Myers v Director of Public Prosecutions 8 demonstrates, the rule has come to have a life of its own. In that case, the defendant and another were charged with conspiracy to receive stolen cars. The conspiracy which the prosecution alleged against him involved (i) the purchase of wrecked cars and their log books; (ii) the theft of cars nearly identical to the wrecked cars; (iii) the disguising of the stolen cars to make them conform as nearly as possible to the details contained in the log books of the wrecked cars; and (iv) the sale of the stolen cars as the repaired and renovated wrecked cars. In order to prove that the cars which were sold were in fact the stolen cars, the prosecution called as a witness an employee of the manufacturer of the wrecked and stolen cars. He produced microfilm records of cards completed by other employees which showed that the numbers stamped on the cylinder blocks of the cars which had been sold were the same as the numbers on the cylinder blocks of the stolen cars.

11 The majority of the House of Lords held that the records were inadmissible hearsay: as Lord Reid put it 9 , “…the entries on the cards were assertions by the unidentifiable men who made them that they had entered numbers which they had seen on the cars”. In an obviously reluctant concurrence, Lord Morris of Borth-y-Gest explained the basis of the decision in this way 10:

“The sole purpose in...