Day 190 - 23 Nov 95 - Page 22
1 safeguards in that respect are, first, that the
2 evidence should be given in open Court;
3 secondly, that it should be on oath; and,
4 thirdly, that it should be subject to
5 cross-examination. This report, if it is to be
6 put in, is not tested in any of these ways. It
7 is not made on oath, and there is no direct
8 statutory duty on the part of the pilot to make
9 it; he is not cross-examined on it; and he does
10 not appear before me. Primarily, therefore, the
11 evidence is objectionable on those grounds.
12 Mr. Willmer, however, has argued that the
13 report ought to be received on the ground that
14 it is an admission by a man who is the servant
15 of the defendants. But the authorities all
16 point out two things, conveniently set out in
17 Taylor on Evidence, in a statement as to the
18 admissibility of the declarations of agents
19 against their principals, where he says
20 that 'the principle constitutes the agent as his
21 representative in the transaction of certain
22 business .... and, as Story J. observes, "where
23 the acts of the agent will bind the principal,
24 there his representations, declarations and
25 admissions, respecting the subject matter, will
26 also bind him, if made at the same time, and
27 constituting part of the res gestae"'. They are
28 original evidence and not hearsay, and being
29 regarded as verbal acts they are receivable in
30 evidence without calling the agent himself to
31 prove them.
32 I do not think that the pilot here was a
33 agent of the shipowners for the purpose of
34 making any admissions of this kind."
35
36 Then the case goes on to another point. The next
37 case -----
38
39 MR. JUSTICE BELL: I have it in mind -- it will not matter if
40 I have plenty of authority anyway, one way or the other --
41 years and years ago, doing a personal injury case, where I
42 was quoted a case; it was the question of whether the
43 employee driver of a company -- is that -----
44
45 MR. RAMPTON: It is the next one, my Lord: Burr v. Ware Rural
46 District Council.
47
48 MR. JUSTICE BELL: Yes.
49
50 MR. RAMPTON: That, again, to the untrained mind ---
51
52 MR. JUSTICE BELL: That is it.
53
54 MR. RAMPTON: -- both this decision, Burr, and the one about the
55 company secretary might, at first glance, seem somewhat
56 surprising. But they do, we submit, plainly show how
57 careful and cautious the court will be before it infers
58 authority to make statements on behalf of the company; and
59 that is what your Lordship is concerned with here.
60
