§ For the purposes of any defence put forward under section eighty-three of the principal Act a person carrying on business as a wholesaler or retailer who purchased in good faith any food or drug pre-packed for re-sale in a container and resold it in that container shall not be required to prove that he made any examination of the contents of that container other than such as was reasonable in the ordinary course of his business.—[Mr. Pitman.]
§ Brought up, and read the First time.
§ Mr. PitmanI beg to move, "That the Clause be read a Second time."
The purpose of this new Clause is to give protection to the retailer and wholesaler by removing some of the onus of proof which is imposed by Section 83 of the principal Act upon the retailer or wholesaler in his relation to the prosecuting local authority and to the manufacturer when the retailer's goods are the cause of any prosecution which is contemplated, or, actual. The principal Act gives protection only if the original defendant proves he has used all due diligence to secure, etc. I would ask the Committee to recognise, that these words "all due diligence" are rather severe and that they differ fundamentally from not being negligent. In other words, the retailer requires omni-diligence, and only if he brings such omni-diligence, can he be protected by this Section of the principal Act.
By this Clause, the onus of proof in a small and precise field of such omni-diligence will no longer be imposed on the retailer. Only if the goods are pre-packed, can the protection of the new Clause apply, and then, only if the pre-packing is of a certain character.
I want to make it clear that retailers and wholesalers do not seek to be exonerated from the obligation to examine everything they sell and they take full responsibility for everything they desire to sell. They ask, however, that the legislation under which they are to be prosecuted should descriminate between cases where they are able to examine the particular goods and cases where, on the other hand, there are good reasons why they cannot so examine those goods, except by the very drastic course of destroying that which they are trying to sell.
463 7.30 p.m.
There are three kinds of goods which can be sold, and three different degrees of reasonableness about assuming responsibility for them. First, the retailer buys certain goods in bulk and afterwards dispenses them. He may buy a drum of olive oil and dispense it. In such a case the proposed new Clause will not protect him. Then there are goods which he buys packed in transparent glass bottles and sealed by the manufacturers. In such cases the proposed new Clause will not protect him if he fails visually to examine the goods through the transparent glass container, but he will be protected if he does not go to the extent of breaking the seal and carrying out a chemical analysis. Finally, and most difficult of all, are goods which are so packed that the contents cannot be examined at all except by breaking the seal. In such a case the retailer cannot even examine them visually. If he breaks the seal he destroys the sales value of the commodity.
If, under the principal Act, he has to use all due diligence, it could reasonably be held that he should adopt the modern method of systematic sampling, by opening say 5 per cent. of all such pre-packed goods which cannot be examined visually and submitting them also to a chemical analysis. I am sure that that is not what the Committee desires, and the manufacturers have expressed their readiness to be regarded as the original and only defendants in cases concerning goods which are so pre-packed and sold with their seals unbroken.
I think the Committee will agree that retailers and wholesalers should not be subjected to prosecution in such cases. Similarly, it would probably also agree that the courts should not be used to catch the wrong person first, as a means of bringing to book a manufacturer who has sealed faulty goods so completely in a package. If the Minister cannot accept the proposed words I hope that he will be able to accept the principle underlying them and so afford some protection in cases where goods are pre-packed, and where any form of inspection or examination is impossible except by breaking the seal and rendering the goods unsaleable.
Dr. HillThe nub of my hon. Friend's point is that in the case of pre-packed 464 goods we should dispense with the requirement of due diligence and substitute one of reasonable care. I am advised that the words "due diligence" appear frequently in our statutes and that the word "due," in particular, is sensibly interpreted by the courts. The essence of the question is the degree of diligence which is appropriate to the circumstances of the case, and I do urge my hon. Friend not to press this point.
There was one case in which it was sought to prosecute a man because he had not examined such goods in sufficient detail, but that case failed. There has been no trouble in this field, and I ask my hon. Friend to leave the matter as it stands at present, with the courts determining what is the appropriate degree of diligence to be applied by a wholesaler or retailer in the particular circumstances of the case.
§ Mr. PitmanIn view of what the Minister has said, I beg to ask leave to withdraw the Motion.
Motion and Clause, by leave, withdrawn.