ADMISSION OF STATEMENT OF EMPLOYEE AGAINST EMPLOYER (Hansard, 23 July 1968)

§ Mr. Alexander W. Lyon (York)
I beg to move, That the Clause be read a Second time.
This is an important Bill, coming on at an intolerable time. I hope that I shall not unduly weary the House with the first two Clauses. The first, in particular, is of some importance. It raises a point which is small in scope, but important in practice in many types of civil litigation. A great many of the cases heard in the civil courts are either actions in negligence against an employer, or actions in breach of statutory duty against an employer. Often the best evidence that there is of negligence or breach of statutory duty is some admission made by the employer's servant immediately after the accident.
I think of a case where some machinery should have been switched off and caused 440 an accident because it has not been switched off. The man who should have done this says immediately after the accident "I'm sorry. I forgot." This is the typical example which occurs frequently in the courts. Although the employer's servant is not a party to the action and anything that he says, therefore, is probably, technically, hearsay, one gets in it fairly frequently under theres gestae rule. On occasions, one is stifled from doing that by the rule that an agent is not allowed to make an admission on behalf of his principle unless he has been authorised to do so. This rule has been applied to a master-servant relationship where, in my judgment, it has very little relevance. It has been applied in such a way that many of these admissions, which are highly material and may very well point to the real truth of the situation are not accepted by the courts. I have had this happen to me on so many occasions that it is a matter of some importance, at any rate in the kind of litigation in which I am engaged.
Therefore, I look for some relief in this highly important Bill which attempts to allow, for the first time, a good deal of evidence consisting of out-of-court statements, which otherwise might be excluded by the hearsay rule. The point I am seeking to bring to the attention of the House is not covered by Clause 2, which says that … a statement made, whether orally or in a document or otherwise, by a person, whether called as a witness in those proceedings or not, shall, subject to this section and to 441 rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible. The difficulty about the point that I am raising is that if the servant were called by the plaintiff to say, if he was prepared, the words which he used immediately after the accident, the likelihood is that the evidence would be ruled out on the basis of the rule to which I have referred, namely, that an agent is not entitled to make an admission on behalf of his principle unless authorised to do so. It is ruled out, not on the basis that it is hearsay, but on the basis that it is not authorised. For this reason, it is necessary that there should be an addition to the Bill to cover the point.
It may seem to non-lawyers, and perhaps even to lawyers who are not involved in litigation of this kind, that the point is a trivial one. but I assure the House that on many occasions, particularly in factory cases, where the plaintiff may have difficulty in establishing his case, this crucial piece of evidence, which might turn the scales in his favour, is not admitted.
If we are to allow hearsay evidence to be used at the discretion of the court, in proper cases, I cannot see why the same provision should not be extended to this type of what is technically hearsay. I therefore hope that the Government will accede to my request, although at this hour of the night I have no desire to put the new Clause to a vote.

§ The Solicitor-General (Sir Arthur Irvine)
My hon. Friend the Member for York (Mr. Alexander W. Lyon) raises in his new Clause what is unquestionably an important point. His Clause would make an out-of-court statement by an employee admissible, but not conclusive evidence, in civil proceedings against his employer notwithstanding that the employee had no authority to make an admission. I assure my hon. Friend that we have gone carefully into this matter.
The point I would like to emphasise is that the Law Reform Committee was fully alive to the difficulties created by the rule to which my hon. Friend has drawn attention, and the Committee has referred to it in paragraph 31 of the Thirteenth Report. In the Government's view, the presence of Clause 2 in the Bill makes my hon. Friend's new Clause 442 unnecessary for the purpose which he has in mind of making admissible against an employer his servant's statement which is first-hand hearsay. As I see it, this is already achieved by Clause 2.
If I understood my hon. Friend aright, his anxiety seems to be founded on the belief that as a matter of law, quite apart from the rule against hearsay, a servant's unauthorised statement is not admissible. That is the difficulty which is felt by my hon. Friend. With great respect, however, I am not satisfied that it is a substantial difficulty. I would have thought that that rule is, broadly speaking, an aspect of the rule as to the non-admissibility under the existing law of hearsay evidence. Obviously, it follows from the view which I have just expressed, if I am right, that the matter is sufficiently covered by Clause 2 of the Bill. That is the answer which I must give to my hon. Friend, but I say again that it is an answer which is given only after careful thought and consideration.
12 m.
My hon. Friend's new Clause would confine its effect to employees and employers. The rule to which he refers applies equally to principals and agents, and if it were either necessary or desirable to have a new Clause I think my hon. Friend would agree that the principle of his new Clause should apply to both. But that is merely a passing comment upon the matter. It does not go to the substance of the issue.
On the main point, the Government's view is that this matter is met by Clause 2. As I said, it really comes down to the question whether the rule to which my hon. Friend refers is founded upon the principle hitherto applying that hearsay evidence is not admissible or whether it is founded upon something else. On the view that we take it is an aspect of the hearsay rule, and the mischief is avoided by Clause 2.

§ Mr. Alexander W. Lyon
I did not, for obvious reasons, at this stage of the evening, start quoting authority, but the authority I have is a decision of the Court of Appeal in 1889, when Baron Pollock gave the leading judgment, and there is no reference at all to the hearsay rule, in the course of the judgment, which excludes such evidence. It is based entirely on the basis of the rule that an 443 agent is not allowed to make an admission unless he is authorised to do so. On that basis, and that being the authority, surely no court would be able to say that such evidence was admissible, now that the Civil Evidence Act, as it will be, has admitted hearsay?

§ The Solicitor-General
I am much obliged. I have had that authority in mind, and I have also had in mind the authority of more recent day, the case of Burr v. Ware Urban District Council, the 1939 case, in which the Court of Appeal refused, in a fatal accident case, where the only survivor of the accident was the defendant's driver, to allow an interrogatory to be administered to the defendant's driver to elicit a statement made at the inquest held on the plaintiff's son who had been killed in the accident. That is another case I had in mind, and of more recent date.
I do not think that any hon. or right hon. Member of the House would wish this argument to proceed very much further. There might be argument in the Court of Appeal about this. These cases are all cases of hearsay, whether their root is in the hearsay principle or otherwise. As I say, I have given careful attention to this, and we are satisfied that Clause 2 meets the case.