Dismissal Of Mouse-In- Beer Charge Upheld

Press, Volume CV, Issue 31023, 31 March 1966, Page 11

Dismissal Of Mouse-In-Beer Charge Upheld

The case of a mouse found in a bottle of beer occupied some time in the Supreme Court yesterday.

Before Mr Justice Wilson it was argued whether the brewery company had taken all reasonable steps to ensure that the presence of the mouse—described as “an extraneous thing, which was offensive”—should have been detected. His Honour was hearing an appeal, by way of case stated, by the Department of Health against a Magistrate’s decision dismissing two charges against New Zealand Breweries, Ltd., laid under the Food and Drugs Act, 1947. The appeal was dismissed.

The brewery had been charged with selling on July 29 a food (“to wit, a bottle of Ward’s pale ale”) containing extraneous matter, a mouse—and with selling on July 20 another food (“to whit, a bottle of Bavarian bitter beer”) containing extraneous matter in the form of a cigarette packet. The Magistrate, after hearing evidence and inspecting the brewery, had held the company to have taken all reasonable steps to ensure that contaminated products were not sold— a defence under the act.

For the Department of Health, Mr N. R. Morgan submitted that the evidence comprehended in the Magistrate’s decision showed that further steps “within practicable limits” could reasonably have been taken by the brewery to ensure that the sale of its beer would not constitute an offence.

In particular, there was evidence that an additional “sighter” (the man inspecting the beer bottles passing along a conveyer belt) could have been employed. And even if the Magistrate had held that the inspection system was up to a standard prescribed by

law. the brewery was still liable for acts and omissions by its servants. His Honour: Surely there must be some safeguard for human error?

Mr Morgan: The company must show that its inspection system is reasonably foolproof.

His Honour: I would have thought its system was reasonably foolproof. Five million bottles pass through a year, and these are the only two of which there has been a complaint. “That’s not a bad proportion for human error,” his Honour said. Mr B. McClelland, for New Zealand Breweries, submitted that the appeal was on a question of law—and the only such question could be that there had been no evidence to support the Magistrate’s conclusion that the inspection system was reasonable. But there had been ample evidence that it was reasonable, said Mr McClelland. It was the system that had to be “looked at,” not the negligence of employees. His Honour upheld this submission, and dismissed the appeal. “If it were for me to say whether the Magistrate had taken a correct view of the facts, I would unhesitatingly agree that he had,” his Honour said.