Supreme Court of Canada
Ares v. Venner, [1970] S.C.R. 608
Date: 1970-04-28
Georges Armand Ares (Plaintiff) Appellant;
and
Albert Venner (Defendant) Respondent;
and
Seton Hospital, Jasper, and Sisters of Charity of St. Vincent de Paul (Defendants).
1970: February 18, 19; 1970: April 28.
Present: Abbott, Martland, Ritchie, Hall and Spence JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Evidence—Admissibility of notes made by nurses attending patient while in hospital—Exception to hearsay rule.
[Page 609]
In an action for negligence brought by the appellant against a doctor (respondent) and a hospital and the operators of the hospital, the trial judge found the doctor negligent and gave judgment against him for $29,407.13. The action against the hospital and its operators was dismissed. An appeal was taken to the Appellate Division of the Supreme Court of Alberta by the respondent. The appellant cross-appealed against the hospital. The Appellate Division allowed the appeal and set aside the trial judgment and directed a new trial as to the respondent. The cross-appeal against the hospital was dismissed. The appellant appealed to this Court against the order for the new trial. The respondent cross-appealed, claiming dismissal of the action rather than a new trial as ordered by the Appellate Division.
The main issue in the Appellate Division was as to the admissibility of notes made by the nurses who attended the appellant while he was in the hospital. These notes were tendered in evidence as part of the respondent’s discovery evidence which was being read into the record on behalf of the appellant at the trial. Counsel for the respondent objected to the notes being received in evidence, but they were admitted by the trial judge as being an exception to the hearsay rule. The Appellate Division held that the notes had been improperly admitted.
Held: The appeal should be allowed and the judgment at trial restored; the cross-appeal should be dismissed.
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses’ notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.
Minority view in Myers v. Director of Public Prosecutions, [1965] A.C. 1001, adopted and followed; Omand v. Alberta Milling Co. (1922), 18 A.L.R. 383; Ashdown Hardware Co. v. Singer (1951), 3 W.W.R. (N.S.) 145; Canada Atlantic Railway Co. v. Moxley (1889), 15 S.C.R. 145, referred to.
[Page 610]
APPEAL and CROSS-APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], allowing an appeal from a judgment of O’Byrne J. and directing a new trial. Appeal allowed and judgment at trial restored; cross-appeal dismissed.
H.W. Veale and H.M. Liknaitzky, for the plaintiff, appellant.
G.F. Henderson, Q.C., and J.C. Major, for the defendant, respondent.
The judgment of the Court was delivered by
HALL J.—The appellant who was 21 years of age at the time and a student in Arts at St. John’s College, Edmonton, was skiing in Jasper Park on the afternoon of February 21, 1965. At about 4:00 p.m. that afternoon he fell and sustained a severe comminuted fracture of both the tibia and fibula of his right leg some five or six inches below the knee. The Ski Patrol came to his assistance, and after applying a pneumatic splint took him to the Seton Hospital in Jasper. This hospital was being operated by the Sisters of Charity of St. Vincent de Paul.
On being admitted to the hospital, he came under the care of the respondent, Dr. Albert Venner, a specialist in internal medicine who was in general medical practice in Jasper at that time. The appellant was taken to an operating room and while under a general anesthetic the fracture was reduced by Dr. Venner and a plaster cast applied by him which extended from the toes to the upper thigh. This procedure was completed by about 6:00 p.m.
The learned trial judge summarized the events of the next four days as follows:
On Monday morning, the plaintiff was visited by Dr. Venner. The nurse’s record indicates that at 8:00 p.m. the cast was split approximately eight inches and that the plaintiff’s toes were numb, swollen and blue and that there was no movement in the toes. The plaintiff experienced the usual pain attributable to a fracture. He advised both the doctor and nurses on Monday evening that he had no feel-
[Page 611]
ing in his foot, he could not move his toes nor could he feel pinpricks or pinching. He said his leg was in pain and his toes were swollen and blue.
Dr. Venner in splitting the cast at eight o’clock did so for the purpose of examining the plaintiff’s foot. The plaintiff’s condition continued the same on Tuesday except that in addition to the other symptoms I have mentioned, his toes were cool.
On Wednesday, Dr. Venner split the cast to the knee and examined the plaintiff’s leg. The plaintiff’s condition was somewhat the same as previously, at best. On Wednesday evening, the cast was split its entire length. During the night, Dr. Venner visited the plaintiff on two occasions. He decided to send the plaintiff to Edmonton and this was done on Thursday, February 25th.
During the plaintiff’s time in hospital his condition, to say the least, had not improved from Monday.
After being taken to Edmonton, the appellant was examined by Dr. John C. Callaghan, a cardiovascular specialist, who had the leg X-rayed and arteriograms taken. He found evidence of spasm in the deep branches of the blood vessels in what is known as the fascial compartments. In his judgment the situation called for an orthopaedic specialist and he immediately turned the patient over to Dr. Donald C. Johnston. Dr. Johnston testified that he was called in consultation by Dr. Callaghan and his evidence as to what he found was as follows:
A. He arrived at the University Hospital and he was in a, wearing a cast from toes to mid-thigh which had been split up the front. Actually he had been sent down to Dr. John Callaghan and I had been asked to see him in consultation. At that time the toes were pale, they were insensitive. We immediately removed the cast, and one of Dr. Callaghan’s residents did an arteriogram. Following the arteriogram we took him immediately to the operating room and opened up the anterior department of his leg, so‑called fasciotomy. This was left open and a padded plaster of paris cast was re‑applied which was immediately bivalved.
[Page 612]
Q. What do you mean by bivalved?
A. Split on both sides and the top removed, or removable.
Q. Why did you do that?
A. To make sure that there was no further obstruction, that there could be no possible obstruction or pressure on the wound.
Q. Now, the cast that you removed, doctor, did you have an opportunity to see it, to examine it at all?
A. Yes.
Q. Was it a complete cast, what is known as a complete cast, did it go all the way around the leg?
A. It did.
Q. And from the toes to the groin. And what condition was the cast in? I believe you said it had been split, is that right?
A. Yes, split throughout its length down the front.
Q. Were there any encircling straps attached to the cast at that point?
A. I don’t think so.
Q. Now, what did the arteriogram that had been done by Dr. Callaghan show?
A. As I recall it showed a block at the fracture site.
Q. A block of the circulation?
A. Of the circulation, yes.
Dr. Johnston continued in charge of the appellant but the condition of the leg continued to deteriorate. Further arteriograms were taken and following consultations with a Dr. Rostrup the decision was made to amputate the leg below the knee. This was done on April 5, 1965.
Dr. Johnston’s evidence as to this crucial decision was as follows:
Q. Did you see Georges Ares on subsequent occasions?
A. Yes.
Q. Would that be on the 4th, 16th and 31st of March?
A. Well, he was seen every day, but these were the days I think we took him back to the operating room.
Q. And for what purpose?
A. It was obvious that he had muscle necrosis.
[Page 613]
Q. What is that?
A. Well, the muscle was dead from lack of blood supply, so then this muscle liquefies and then has to be removed, and it was on these occasions that we were removing parts of dead muscle.
Q. Were there any further casts applied?
A. A cast each time.
Q. And what was done to the cast each time it was applied?
A. It was bivalved.
Q. Would that be for the same reason that you gave earlier?
A. Yes.
Q. Now, as a result of your observations over this period, did you come to any conclusion?
A. Yes. Although circulation in the skin of the toes and the foot was quite encouraging it was felt that he had so much muscle damage in the leg and damage to the nerves, through again lack of blood supply or as we call it ischemia. He also had a comminuted fracture, that although it would be, it was probably, it would probably have been possible to save this leg with several more operations over a period of maybe two or three years that the decision was made in consultation with Dr. Rostrup in the operating room that in view of his age and what he would end up with, with the loss of muscle he’d end up in effect with a sort of a living insensitive peg, that we would be better advised that the correct course for him would be to amputate the leg below the knee and this was carried out. This was done, I think it was, was it the 5th of June when the amputation was carried out?
Q. No, 5th of April.
A. 5th of April rather.
Q. Yes. Now, I believe this decision was reached on March 31st, 1965 was it?
A. Yes.
* * *
Q. And did the patient remain in hospital?
A. Yes.
Q. Until what time?
A. I don’t recall exactly. I recall about a week later he had a secondary haemorrhage from his stump and we had to take him back to the operating room and open the stump up and tie off the bleeder, and following this his
[Page 614]
course in hospital was normal and he was discharged on crutches.
The appellant took action against Dr. Venner, Seton Hospital and the Sisters of Charity of St. Vincent de Paul claiming negligence on the part of Dr. Venner, the hospital and the Sisters of Charity as operators of the hospital. The action was tried by O’Byrne J. who found Dr. Venner negligent and gave judgment against him for $29,407.13. The action against the hospital and the Sisters of Charity was dismissed. An appeal was taken to the Appellate Division of the Supreme Court of Alberta[2] by Dr. Venner. The appellant cross-appealed against the hospital. The Appellate Division allowed the appeal and set aside the judgment of O’Byrne J. and directed a new trial as to Dr. Venner. The cross-appeal against the hospital was dismissed. The appellant has appealed to this Court against the order for the new trial. The respondent Venner has cross-appealed, claiming dismissal of the action rather than a new trial as ordered by the Appellate Division. Neither the hospital nor the Sisters of Charity are now parties to this appeal.
There was a considerable volume of expert medical testimony tendered on behalf of appellant and Dr. Venner. Having heard the evidence, the learned trial judge found as follows:
We have here a broken leg at a ski resort—albeit a severe break. These circumstances are not the unusual circumstances found in the Challand and Ostash cases which involved very difficult diagnosis of complications resulting from gas gangrene and carbon monoxide respectively. The complication found in this case was one of circulatory impairment.
The classic signs or symptoms of circulatory impairment manifested themselves clearly and early.
There has been established, to my satisfaction, that in such cases there is a usual and normal practice in the profession, regardless of specialty, namely
[Page 615]
to split or bivalve the cast. If no relief is then obtained, one should refer to a specialist or, if equipped, explore further to ascertain the cause of the problem.
The defendant did not follow such practice. He was, in my judgment, concerned more with maintaining the good fracture reduction he had obtained than with the maintenance of good circulation. This led to the irreparable damage. To use a legal expression, in these cases time becomes of the essence.
I am satisfied that the defendant’s decision was not the result of exercising the average standard and he is therefore liable for the resulting damage.
This was a finding made on contradictory evidence and upon evidence which the learned trial judge was entitled to rely. He also had the testimony of the appellant which of itself indicated a deteriorating condition through the decisive Monday to Wednesday period and which was corroborated by the findings of Dr. Johnston. The finding of negligence, supported as it is by the evidence, should not be disturbed.
The main issue in the Appellate Division was as to the admissibility of notes made by the nurses who attended the appellant while he was in Seton Hospital. These notes were tendered in evidence as part of Dr. Venner’s discovery evidence which was being read into the record on behalf of the appellant at the trial. Counsel for Dr. Venner objected to the notes being received in evidence, but they were admitted by O’Byrne J. as being an exception to the hearsay rule. In receiving the evidence, O’Byrne J. said:
Well, I understand now your (defendant’s counsel) objection but it strikes me at this time without having read the authorities that if you are not satisfied with the contents of this hospital record that it’s up to you to call such evidence as you may wish to call to correct, amplify or amplify as you determine. It seems to me that what Mr. Veale was seeking to do is clearly within the authorities that he has quoted to me and I admit the records as Exhibit 6.
[Page 616]
and in his judgment he said:
I note that the nurses from the Seton Hospital were here during the three days of trial. No one called them. They were available to all. They were brought here at the plaintiff’s expense. This impresses me, and strengthens my reception of the notes as being “generally trustworthy” to use the term from Wigmore on Evidence, cited by plaintiff’s counsel on the first day of trial.
Johnson J.A., with whom McDermid and Allen JJ.A. concurred, in dealing with these records said:
In the present action where the crucial finding of the trial judge was
“The classic signs or symptoms of circulatory impairment manifested themselves clearly and early”
the accuracy of these records were of supreme importance.
These records, far from being a simple record of instrument readings or medical dosages, are the nurses’ assessment of phenomena. They involve the nurses’ ability to observe, and equally important, to record their observations accurately. Having inscribed their findings, there would still remain the degree to which an observed condition was present when such words as “blue”, “bluish pink”, “cool” and “cold’ were used. All of these could be fruitful areas for cross-examination. Untested by cross-examination, it cannot be said that the evidence meets the test of “Circumstantial Probability of Trustworthiness” and should not have been admitted without the nurses being called to verify it and be available for cross-examination. There is no question of the unavailability of these nurses. As the learned judge said in the passage from his judgment which I have quoted earlier, these nurses were subpoenaed by the plaintiff, were present throughout the trial and were not called.
and concluded:
Because of the improper admission of the nurses’ notes, the appeal will be allowed with costs and a new trial directed.
[Page 617]
O’Byrne J., in receiving the notes as evidence, relied on a passage from Wigmore, 3rd ed., vol. 6, para. 1707, which reads:
1707. Hospital Records. The medical records of patients at a hospital, organized on the usual modern plan, deserve to be placed under the present principle. They should be admissible, either on identification of the original by the keeper, or on offer of a certified or sworn copy. There is a Necessity (ante, 1421); the calling of all the individual attendant physicians and nurses who have cooperated to make the record even of a single patient would be a serious interference with convenience of hospital management. There is a Circumstantial Guarantee of Trustworthiness (ante, 1422); for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the Court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.
and on two Alberta cases Omand v. Alberta Milling Company[3] and Ashdown Hardware Co. v. Singer et al.[4], as well as on a case in this Court Canada Atlantic Railway Company v. Moxley[5].
In Omand the claim was for damages alleged to have been caused by a shipment of inferior flour resulting from an excess of moisture and being short in weight. A witness, Flavelle, was called who had been superintendant of the Flour Inspection Department for the Wheat Board and the Wheat Export Company and originally for the Canadian Government acting for the British
[Page 618]
Government having to do with the export of wheat to England. He proposed to refresh his memory of the events relevant to the litigation by the inspection reports which had been made for the express purpose of ascertaining and determining the quantity and quality of all flour purchased by the Government and requiring in its operation a large body of officials, among whom diverse particular duties were distributed and it was part of the system that the particular results should be regularly recorded. The learned trial judge refused to permit the witness to do this. The Appellate Division allowed an appeal from the judgment dismissing the action. Stuart J.A. dealt with the question of the admission of the reports as follows:
In my opinion the records were, under a proper exception to the heresay rule, admissible in evidence as proof of the facts stated therein.
There is first the necessity principle. No one but the officials at Montreal who were testing flour regularly for the Canadian or British government could possibly give any evidence on the points involved. Those officials did such an enormous amount of testing that they could not possibly remember the result of the test in each individual case. It is really absurd even to talk about their memory being refreshed. Everyone knows perfectly well that it could not be. So that the necessity arises not merely from death (as it did in Reid’s case) or from absence (as in Grant’s case) but from the sheer impossibility of memory even in the case of the witnesses produced, viz., Shutt and Flavelle.
Then there is the circumstantial guarantee of trustworthiness arising from (1) complete disinterestedness, (2) duty to test, (3) duty to record the test at the time, this duty being to superior authorities who would be liable to punish or reprimand for failure to perform it.
The whole subject is fully discussed in Wigmore on Evidence, pars. 1420 and 1521 to 1532, and I think the principles, there suggested as sound, should be so treated and adopted by the Court.
In Ashdown which was an action for the price of goods sold and delivered, the defendant contended that the plaintiff had failed to prove
[Page 619]
that goods were delivered to the amount claimed. The plaintiff relief on its ledger accounts and the evidence of the credit manager of the plaintiff who had charge of and supervision of accounts with his customers. He was familiar with the system and method adopted by the company in the ordering and supplying of goods, the invoicing of such goods and the posting and entering in the ledger. The defendant contended that there was no proof of sale or delivery and that the plaintiff could not establish his case by production of the records. Clinton J. Ford J.A., delivering the judgment of the Court, said:
It is true that there was no direct proof of actual delivery to or receipt by the firm of the goods in question, nor evidence by any clerk or servant of the plaintiff who personally sent out the goods, in fulfilment of any specific order; but, in my opinion, proof in this way cannot be reasonably required in present-day business in a large commercial concern where clerks and servants are changed from time to time, whose evidence may be difficult and often impossible to obtain, and who, even if brought before the court, would have forgotten most of the particular transactions. Of course, the court must, as always, having in mind the circumstances, decide what is the best evidence available, and the kind or degree of proof required. This view is, I think, in accord with that outlined fully in Wigmore on Evidence, 3rd ed., vol. 5, sec. 1530. To emphasize the difficulty of proving each specific item of the account, I point out that we have here an example of goods sold and delivered over a period from April 26, 1948, to November 30, 1949, composed of items covering about 40 pages of the appeal book.
I think that this view of the kind of proof required to establish a prima-facie case here is supported by the reasoning in Omand v. Alta. Milling Co. [1922] 3 WWR 412, 18 Alta LR 383, where Beck J.A. refers to proof of a carefully devised and a carefully conducted system, although in that case it was a governmental system of inspection followed by the making of records, as leading to a high probability of the correctness of the ultimate results and, the system having been proved by the supervisor, who verified the copies or duplicates of the reports used in pursuance of the system, the contents of the
[Page 620]
reports were proved and held to be prima facie correct. Clark J.A. concurred with Beck, J.A. Stuart, J.A., at p. 412, says that such records were, under a proper exception to the hearsay rule admissible in evidence as proof of the facts stated therein. He refers to Wigmore on Evidence, secs. 1521 to 1532, and expresses the opinion that the principles there suggested as sound should be so treated and adopted by the court. Having read the sections, I respectfully agree with the opinion expressed by Stuart, J.A. and add that, in my opinion, the principles outlined there apply to the proof required in this case.
In Moxley the plaintiff brought action against the Canada Atlantic Railway Company claiming that owing to the defective condition of the railway’s locomotive sparks were thrown which ignited timber and wood on plaintiff’s land which fires spread rapidly and destroyed a quantity of wood timber on the land. To establish his case, the plaintiff put in evidence certain books of the railway company containing statements of repairs required on the engine which had passed the plaintiff’s farm at about the time the fires started. These records were objected to, and in dealing with the issue Gwynne J. said at p. 163:
Then, as to the entries in the defendants’ books as to the condition of engine No. 4, these entries, having been made in a book kept for the express purpose of calling the attention of the mechanical department to something required to be done and having been caused to be made in the book by the driver of the engine whose duty it was to make the entries or have them made, were admissible in evidence.
The issue as to the admissibility of the nurses’ notes in this appeal is not as decisive as it might be by virtue of the objection taken by counsel for Dr. Venner at the trial. The position taken was as follows:
MR. MAJOR: My Lord, our position briefly taken is that it’s difficult for Your Lordship, I think, not having the record in front of him, the nurse’s records understand perhaps what I’m trying to say. We don’t object to the records going in insofar as they
[Page 621]
show that nurses attended the patient, insofar as they show anything that is objective in its nature, insofar as being evidence in this case is concerned. But you will note in reading the record and in just picking something at random they say:
“Quiet evening, complained of discomfort, relieved by sedation, numbness in all toes, toes now swollen and blue.”
Insofar as that type of description is used it’s an expression of opinion by the nurse on what she observed the time that she was there and I think it would be unfair to accept it as prima facie proof of that which is purported to have happened without the nurse who made those notes being present today to say that when she says blue she means what all of us understand by blue. Insofar as her expressions of opinion, the doctor, I don’t think, should be put in a position of having these admitted. He is prejudiced insofar as the authorities quoted by my learned friend, seems that the very exception stated in Wigmore, the bona fide dispute that Wigmore refers to is precisely the position that I think we are in in this particular matter insofar as the expressions of opinion may be concerned.
THE COURT: I don’t understand what you mean by that. What exception?
MR. MAJOR: If you will look at the last sentence, I suppose the second last is a better place to start:
“The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the Court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.”
And I simply say that insofar as expressions of opinion are contained in the record a bona fide dispute may exist, not perhaps a dispute as much as a need for clarification, amplification of what the nurses meant at the time they made the record.
THE COURT: Which, of course, you can do, notwithstanding the entry of that as an exhibit in this trial at this point.
MR. MAJOR: My Lord, if it’s Your Lordship’s ruling that—
[Page 622]
THE COURT: I haven’t yet ruled. I have to find out what your problem is.
MR. MAJOR: My problem is this, that I’m quite prepared to have these go in subject to that exception that I have made, that they are not taken as prima facie proof by the Court of what they purport to be insofar as they relate to opinion.
THE COURT: What you’re saying is that you want to reserve the right to call any evidence to vary or dispute or amplify the contents of the nurse’s record or chart or whatever it’s called?
MR. MAJOR: NO, I go a little further than that, My Lord. I say that it is the obligation of the plaintiff in discharging his burden of proof, that he calls evidence to clarify the matter which I would put in dispute insofar as these records purport to deal with them. I don’t think that he discharges his burden by entering these records which indicate that the leg may be blue or there may be numbness or there may be other generic terms used. I say that that burden of proof is not discharged against me by the entry of these records and I take objection to them being accepted as that. Otherwise, I have no objection to them going in.
Also during the examination in chief and cross-examination of Dr. Venner, the nurses’ notes were referred to and he admitted having had access to these notes and of being aware of them in determining his course of action on each occasion that he visited the appellant in the hospital in Jasper.
However, despite this, I think it desirable that the Court should deal with the issue as a matter of law and settle the practice in respect of hospital records and nurses’ notes as being either admissible and prima facie evidence of the truth of the statements made therein or not admissible as being excluded by the hearsay rule.
The question has not been free from doubt. The need for a restatement of the hearsay rule has long been acknowledged, but differences of opinion exist as to how the change should come about. There are two schools of thought and
[Page 623]
these are well illustrated in the recent decision in the House of Lords in Myers v. Director of Public Prosecutions[6]. In Myers, Lord Reid, with whom Lords Morris and Hodson agreed, presented the case for a legislative solution as follows:
I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of though, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of other parts of the existing law of heresay susceptible of similar treatment, and we shall probably have a series of appeals in cases where the existing technical limitations produce an unjust result. If we are to give a wide interpretation to our judicial functions questions of policy cannot be wholly excluded, and it seems to me to be against public policy to produce uncertainty. The only satisfactory solution is by legislation following on a wide survey of the whole field, and I think that such a survey is overdue. A policy of make do and mend is no longer adequate. The most powerful argument of those who support the strict doctrine of precedent is that if it is relaxed judges will be tempted to encroach on the proper field of the legislature, and this case to my mind offers a strong temptation to do that which ought to be resisted.
Lord Donovan presented the case for extension of the rule by judicial decision in these words:
I am aware that your Lordships view these consequences with uneasiness. Nevertheless it was urged
[Page 624]
on behalf of the appellant that this House is powerless to prevent them. The argument is that the records themselves are hearsay: that legislation would be required to make them admissible evidence: that the admission of this evidence would have to be hedged around with safeguards lest untrustworthy evidence comes in by the same door: and that all this is the province of Parliament.
My Lords, I feel the force of the argument but I remain unconvinced. The common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds. Particularly is this so in the field of procedural law. Here the question posed is—“Shall the courts admit as evidence of a particular fact authentic and reliable records by which alone the fact may be satisfactorily proved?” I think the courts themselves are able to give an affirmative answer to that question.
He was supported by Lord Pearce who said:
I find it impossible to accept that there is any “dangerous uncertainty” caused by obvious and sensible improvements in the means by which the court arrives at the truth. One is entitled to choose between the individual conflicting obiter dicta of two great judges and I prefer that of Jessel M.R. His dictum was as follows, 1 P.D. 154, 241: “Now I take it the principle which underlies all these exceptions is the same. In the first place, the case must be one in which it is difficult to obtain other evidence, for no doubt the ground for admitting the exceptions was that very difficulty. In the next place the declarant must be disinterested; that is, disinterested in the sense that the declaration was not made in favour of his interest. And, thirdly, the declaration must be made before dispute or litigation, so that it was made without bias on account of the existence of a dispute or litigation which the declarant might be supposed to favour. Lastly, and this appears to me one of the strongest reasons for admitting it, the declarant must have had peculiar means of knowledge not possessed in ordinary cases.” On that ex-expression of principle he admitted the extension which has been acted on ever since in the Probate Division.
[Page 625]
That, I respectfully think, is the correct method of approach, particularly to a problem that deals with the court’s method of ascertaining truth. As new situations arise it adapts its practice to deal with the situation in accordance with the basic and established principles which lie beneath the practice. To exalt the practice above the principle would be a surrender to formalism. Since this branch of the law is so untidy, there is but little appeal in “the demon of formalism which tempts the intellect with the lure of scientific order.”
While I give weight to the general explicit or implicit disapproval of further extension, expressed obiter in Woodward v. Goulstone, 11 App. Cas. 469, I cannot accept that from 1886 no further evolution was possible in particular circumstances or sets of circumstances on the general principles expressed by Jessel M.R. Since that date life has greatly changed in various respects. With the necessity created by death the courts were familiar and they had evolved exceptions which dealt reasonably adequately with that phenomenon. With the necessity created by insanity Lord Aldon and Lord Cottenham had dealt and I cannot find that they have been overruled. The necessity created by mass production and modern business they could not then foresee. They did not provide for the anonymity of modern industrial records and the difficulty of tracing those who made them. The individuality of persons in a large factory or business may be difficult or impossible to discover. They do many repetitive and almost automatic tasks concerning which no memory exists. Yet their composite efforts make machines and records whose complexity, efficiency, and accuracy are beyond anything imaginable in 1886. In my view the anonymity of the recorder or the impossibility of tracing him create as valid a necessity as does his death for allowing his business records to be admitted. The principles on which the court sets out to discover the truth about these things remain unchanged, but the way in which those principles are applied must change if the principles are to be honoured and observed.
Although the views of Lords Donovan and Pearce are those of the minority in Myers, I am of opinion that this Court should adopt and
[Page 626]
follow the minority view rather than resort to saying in effect: “This judge-made law needs to be restated to meet modern conditions, but we must leave it to Parliament and the ten legislatures to do the job.”
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses’ notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.
I would, accordingly, allow the appeal and restore the judgment of O’Byrne J. with costs here and in the Appellate Division. The cross-appeal should be dismissed with costs.
Appeal allowed with costs; cross-appeal dismissed with costs.
Solicitors for the plaintiff, appellant: Brower, Johnson, Liknaitzky, Robertson, Shamchuk & Veale, Edmonton.
Solicitors for the defendant, respondent: Saucier, Jones, Peacock, Black, Gain, Stratton & Laycraft, Calgary.