CITY MILK SUPPLY

Dominion, Volume 11, Issue 262, 24 July 1918, Page 8

CITY MILK SUPPLY

VENDORS' LIABILITY

QUESTION OF REASONABLE STEPS . A [Incision of enmo importance respecting Iho iniik supply of the city w.is (Iβtverod in the Supremo Court yestcrdav hi- .His Honour .Mr. Justice Hosting, 'f h« case was that of Henry Bodley and Son, milk vendors appellants, and Frederick \tilliniu liawlinson, inspector under tho Sale 01 , IVod and Drugs .Act, respondent. I lie appeal was on a point of law from a conviction under the &ilo of Food and "rugs Act for having sold milk to which Wilier had been added. His Honour in the course of his iudjfmpiit referred to tho complete' and up. Uwlatci testing plant at the appellant's premises, but noted tbo contention that the quantity of milk to bo handled and the late arrivals at times of trains made it impracticable, for him to test every dairyman's milk and at tho same tinin enler upon the regular morning delivery of the milk to customers. On the occasion in question, when a train had avnved some hours late, no test had been made of th» milk which had come from it farmer always previously found to be reliable. Some change in the mnungpnient of the farm had. token place, and investigation at the hearing of the. information revealed that water had, in fact, been added to the milk by the supplier to the appellant. Continuing, His Honour said: "Morally the appellant was innocent, but that circumstance does not exonerate from liability under the Act, although it would, of course, have a bearing upon tho quantum of tho penalty to be imposed." His Honour quoted Section ]:j of the Act, providing that itshall be no defence that a defendant did not ast .wilfully unless he also proved that he took all reasonable steps to ascertain that the sale of the article would not constitute an offence against the Act. "The construction placed on the provision," observed His Honour, "isIliiU Die liability of Hie seller k absolute unless he proves that he took the steps specified. The question on the liresent appeal is whether the determination of Ihe .Magistrate was erroneous in point of iiuv. The argument for tho appellant was very forcibly put. It was submitted that there were two views or' what hiking all reiisoiifibln steps.meant, either the extreme view that the distributor must constantly assume- that each of his suppliers is fraudulent, and therefore must lest on every occasion every can of milk that comes in at the risk of being lined if he does not, or that ho must assume that somo of his suppliers will possibly, or perhaps probably, be fraudulent, he will sufficiently take all reasonable steps, if constant or frequent testing is made of this or that supply. If the former view is adopted it will, it is urged, render the distributor praclically an absolute insurer mid leave no scope for application of the fxeiniiiuig provision. Jt will, moreover, it is said, be unreasonable because the result will be delay in delivering when trains are late, great difliculty in carrying on Ihe business, a,nd an increase of cost to the consumer. I sun nimble to iissuine as a fact such a result cannot bo miiigaied, if not over-, com?, for there is no finding of tho Magistrate of facts, .-.ml there are no facia before me. tu enabio me to draw such n conclusion.

"Tho appellant, urge a grievance in I hat tin) Courts have laid down no rule defining 'all reasonable sieps,' and distributors iiro iherc-l'iire exposed to pen.ilties unless the extreme standard or caru of te-sling everything tin' all occasions is followed. 1 mn unable lo discover any authority or basis i'or laying down a rule wilh regard to what must always be a i|inMtion of i«ct in each particular case, provided all reasonable steps were taken. If any more precise rule is to be laid down it: must bn done by an amending statute or a regulation, and not by the Courts."

Proceed in};, His Honour referred lo the provisions of the Act as or a stringent character designed to cm'iira pure food at the risk of the purveyor. 'J'ho proviso for immunity, if it In , , shown that all reasonable stops have been taken, was not found in the English Act, and in New Zealand might bo regarded us <m attempt in grant somu concision to Urn honest ami diligent vendor, but in many cases it might be found, as the nppellnnt had discovered, lobe a provision ufl'ording no substantial relief. Having dealt with the definition of "food" as contained in this Act, His Honour said that in regard to inillc tho iiuestion was considerably siinjiliiied because the titandard of finality was by tlifi regulation la.id down with absolute precision, and could bo tested by apparatus specially designed for the purpose. It would, ho imagined, go hard with a distributor if he had not provided himself with generally-adopted means of testing. His Honour, continuing, said: "Now the appellant in this ease practically asks whether, as a matter of law, he must use such means—the only menus of accurately testing for quality—on any or every occasion with regard to every can of milk delivered' to him, or whether, if ho lias a sufficient plant ami a system of testing each supply constantly and fretjuentiy, now testing this, now that, lie is free iron: liability if he faithfully slid diligently carries out (he system. It appears to me lo be impossible for the Court to lay down a rule either way in face of tho legislation. All 1 can say in reply is that unless the distributor lays down Mine such rule tor himself he will have to take the risk of convincing the Magistrate that an omission to test a particular supply was consistent with all reasonable irteps having been taken. Exigencies may prevent the testing on occasions, but whether they suffice lo excuse him if tile milk is beloiv MJie standard is a question that cim only be decided as a mutter of fact upon Hie evidence present in the particular case/

"it also appears to me that to lay down any rule lo the effect that the alternative proposed would, with respect to milk, lead to laxity and tend to defeat the object of lho Act and the precise, requirements of Ihe regulation, especially when it ir> remembered how in the past, in the absence of checks, water eo ireqiientjy found it.-; w;iy into milk, and sometimes with intervention of human ugency. "In the present case," remarked His Honour, "no test was made, lho general system being relaxed in the case of the jiiirticulur supplier because he Imd always been found to be honest." The system, however, appeared to have a loophole, in it. At the hearing lie had asked why distributors did not seel; such protection ;i.h a warranty under Section 14 afforded, but the reply wits that the suppliers will not give .such a warranty. If that w;-.s the position taken up by the suppliers, it appeared to him 'hut it was it material element lo be cousidcrad in determining' as a matter of fact whether .Ihe system referred lo was the equivalent of taking all reasonable steps to ascertain the quality of tho milk. In his opinion, the Jihigisi rule, iipun I lie evidence, might properly come, to Ihe conclusion he did. and that hi* conclusion was nut erroneous in point; of law. The appeal would b« dismissed, and in the special circumstances without cost*. At His hearing Mr. T. .\eave appeared for tho appellanti.'ind Mr. .). Prendeville for Ihe respondent.