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

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