Lauren Cundari Joni Andrea Carisse Pettit Claimants/Respondents v Gerald Anthony Dwyer Astaphan Defendant/Applicant
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Ward, J. |
| Judgment Date | 12 April 2017 |
| Judgment citation (vLex) | [2017] ECSC J0412-1,[2017] ECSC (KNA) J0412-1,[2017] ECSC (MSR) J0412-1 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO. SKBHCV2011/0369 |
| Date | 12 April 2017 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
A.D. 2017
CLAIM NO. SKBHCV2011/0369
Mr. Sylvester Anthony and Ms. Angelina Gracy Sookoo instructed by Ms. Rénal Edwards for the Respondents;
Mr. Glenford Hamilton and Ms. Deidre Williams for the Applicant.
This is a contested probate claim involving the estate of Agnes Gwendoleyne Sahely.
At the date of her death she was survived solely by her sister Josephine who died testate. The applicant/defendant is a sibling of the respondents and executor and sole beneficiary of the pretended will of Agnes. The respondents/claimants are Josephine's children and the intended administrators of her estate. The respondents, as intended administrators of Josephine's estate, seek to be appointed administrators of Agnes' estate.
The respondents brought the underlying substantive claim seeking, inter alia, the revocation of the grant of probate of a copy of a will dated 26th October, 2006 of which the applicant obtained a grant of probate on 8th April, 2011, and for a pronouncement against the validity of the said will on the basis that Agnes lacked the requisite testamentary capacity at the time of the execution of the will.
To assist in resolving this issue, the Court, by order dated 15th February, 2013, gave leave to issue a number of witness summons to medical personnel or institutions that had administered medical care to Agnes to produce medical records.
On the return date, 28th June, 2013, the medical documents were produced by witnesses who were examined on oath as to the provenance of these documents.
By Order dated 1st July, 2016, Carter J directed that Karen Phipps, Head Matron of Brimstone Elderly Home, attend for examination on oath and to produce all documents in her possession necessary for the examination.
By Order dated 1st July, 2016, Carter, J also granted leave to call Forensic Psychiatrist Dr. Stephen Raffle as an expert witness and to provide a report, based on the said medical notes and the deposition of Mrs. Karen Phipps, as to whether the deceased, Agnes Gwendolyn Sahely, was non compos mentis when she executed the pretended will dated October 26th 2006 and a Power of Attorney filed on November 17th 2006 in favour of the applicant.
Dr. Raffle duly complied and filed his report on 25th July, 2016.
The applicant now seeks to have Dr. Raffle's report struck out on the basis that Dr. Raffle never medically attended on Agnes; the facts upon which he relies to support his opinion are not within his personal knowledge, neither were they independently proven at the time of making his report; the report seeks to reintroduce the contents of medical reports which the applicant had previously succeeded in having struck out.
Further, it is said that in so far as the report speaks to the issue of undue influence, that subject is outside Dr. Raffle's sphere of competence and involves issues of law and fact which are to be determined by the Court.
In reply, the respondents submit that the documents and records upon which Dr. Raffle based his opinions were established under oath by medical personnel to be contemporaneous records of the medical and mental care and treatment of the deceased Agnes.
The respondents deny that Dr. Raffle has relied on witness statements that were previously struck out. The documents and notes relied on by Dr. Raffle to influence his opinion consisted of the medical records adduced in evidence under oath and the deposition of Mrs. Phipps. It was further submitted that at the time of their production and the deposing of the witness, the applicant made no objections to either the admissibility of the documents nor did they raise any objection on the basis that Dr. Raffle had not personally attended on the deceased.
Finally, it is said that Dr. Raffle is a qualified forensic psychologist and thus competent to opine on the issue of undue influence by identifying the medical and non-medical indicia of undue influence while acknowledging that the ultimate issue of whether undue influence was in fact exerted was a question for the trier of fact.
As the Court sees it, the issues for resolution are:
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I. Whether Dr. Raffle's report should be struck out on the basis that it is constructed on inadmissible hearsay and unproven facts; or, if not
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II. Whether that part of the report, in so far as it relates to undue influence, should be struck out.
The applicant contends that at common law, the opinion of an expert must be based on facts that are independently proved. It was further submitted that Section 55 of the Evidence Act, 2011 codifies the common law position.
Accordingly, the makers of the documents relied upon by Dr. Raffle in compiling his report ought to have been called to give evidence, or, at the least, given witness statements. Because of this failure, the factual basis underpinning his report has not been independently proved.
Additionally, the Applicant submits that the provisions of Section 163 of the Evidence Act have not been complied with. In particular, it is said that Dr. Raffle's report contains no declaration by him, or any other person, declaring that the facts set out therein are true to the best of his knowledge and belief.
The documents relied on by Dr. Raffle are listed in his report. They consist of the following:
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(i) Medical Records from JNF Hospital;
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(ii) Notes and records from the Grange Health Care Facility;
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(iii) Medical Records from Dr. B. Sahely;
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(iv) Report of Dr. Sharon Halliday ;
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(v) Ambulance call report;
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(vi) Caribbean CT Scan Centre;
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(vii) Records of Dr. M. F. Laws;
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(viii) Massage Therapist Notes;
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(ix) Notes of Law Offices of Sylvester Anthony of the deposition of Karen Phipps.
The question therefore is whether these documents constitute inadmissible hearsay.
R v Abadom (1983) 1 AER p. 364, the Court of Appeal of England had to determine whether statistics compiled by the Home Office Central Research Establishment which the expert had consulted in arriving at his conclusion was hearsay evidence. In ruling that the evidence was admissible Kerr LJ. said at p. 368:
"First where an expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion that fact must be proved by admissible evidence."
While it is accepted that an expert's report must be based on admissible evidence, or matters within his personal knowledge, subject to these limitations, it is settled that the evidence of experts is not subject to the rules against hearsay in the same way as that of witnesses of fact. Once the primary facts on which their opinion is based is proved by admissible evidence, they are entitled to draw on the works of others in arriving at their conclusions: Abadom.
In this regard, the first observation to be made is that the documents relied on by Dr. Raffle represent the contemporaneous notes or work product generated during the relevant period of hospitalization covered by the Court Order. They are documents forming part of the medical record of the testatrix Agnes. They were produced pursuant to a Court order dated 15th February 2013 which, although striking out the witness statements of a number of medical doctors, ordered them to produce these medical records.
Likewise, with specific reference to the medical records of the testatrix held at the JNF hospital, Ramdhani, J, in a ruling dated 23rd December, 2013 opined:
"[I] t is reasonable to believe that these documents are relevant and their production would assist in the fair disposal of this matter." 1
Section 55 of the Evidence Act, 2011 makes admissible statements contained in a document where the maker of the statement had personal knowledge of the matters dealt with by the statement or where the document is or forms part of a record purporting to be a continuous record, and the maker of the statement made the statement (where the matters dealt with in the statement are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be presumed to have had, personal knowledge of those matters and the maker of the statement is called as a witness in the proceedings.
As the Court of Appeal explained in East Caribbean Flour Mills v Ormiston Ken Boyea, CV. App. No. 12 of 2006:
"We note, however, that section 55 applies not to a deposition taken pursuant to the Civil Procedure Rules 2000 ("CPR"), but to a statement of a person made in a document, i.e., to a typical hearsay statement contained in a document. Such a document is rendered admissible by the section only if the maker has personal knowledge of the matters dealt with in the statement, where the document forms part of a record made in the performance of a duty to record the information in question, and where the maker of the statement is called as a witness in the proceedings." 2
In my view, the documents relied upon by Dr. Raffle represent statements made in a document within the meaning of Section 55 and constitute a record in the sense contemplated within the Evidence Act.
It has not been suggested that the information contained therein was not supplied by persons who may reasonably be expected to have personal knowledge of the matters contained therein.
Further, Section 55 (3) gives the Court a discretion to permit such documents/statements to be admissible as evidence where the maker of the statement is available but not called as a witness provided that a certified true copy of the document is produced.
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