Facts: In 2007 the Carnival Spirit’s starboard propeller contacted with a concrete camel fender while docking at a terminal managed by the defendant. The plaintiff owner of the cruise ship sued the defendant alleging failure to provide a safe berth. In 2015 the master of the cruise ship was examined for discovery but died in November 2019. In this application, the plaintiff sought to include the transcript of the masters’ evidence given at examination for discovery into evidence at trial to fill the evidentiary gap arising from his death. The plaintiff did so under a provision of the rules of court which permits the court to make an order “it considers will further the object of [the rules of court]”. The defendant opposed the application on the basis that the rules of court do not permit the plaintiff to use its discovery evidence for its own purposes and litigation strategy, and argued the plaintiff failed to pursue the action diligently and secure the master’s evidence after it became aware he was ill and died.
Decision: Application granted; plaintiff granted leave to tender portions of discovery evidence at trial.
Held: The rules of court state a party cannot tender in evidence at trial discovery evidence given by its own witness. The master’s evidence on discovery is hearsay and can only be admitted if doing so is consistent with the principles of necessity and circumstantial assurances of procedural reliability, which falls on the plaintiff to prove. However, if a witness is dead the court may permit that witnesses’ transcript of evidence taken under oath to be put in as evidence provided reasonable notice of intention to give that evidence is made. The parties agreed that necessity was satisfied as there was no witness who could fill the evidentiary gap left by the master’s death, and this was accepted by the Court. With regard to procedural reliability, the Court noted the captain was discovered under oath, cross examined by three lawyers for the named defendants, that there was two other crew members on the bridge at the time who could be crossed on the master’s actions, and video evidence of the Carnival Spirit’s approach on which the master’s testimony could be reliability tested against the matters in issue in the litigation. The Court further found that the questions put to the master in discovery were not suggestive of a particular litigation strategy and all the evidence of the master’s actions leading up to the allision was addressed in his discovery. While the Court found the plaintiff was responsible for the lack of the master’s evidence at trial, it was in the interests of justice to admit the transcript into evidence at trial and the trial process would be fair. The application was granted to admit the transcript evidence and the plaintiff was given a week to identify those portions of the transcript that would be entered at trial.