MARK ANDREW COLLETT v the GRANT HOTEL PTY LTD No. SCGRG 94/856 Judgment No. 4715 Number of Pages - 5 Liquor - Entry and Inspection of Premises

[1994] SASC 4715

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MILLHOUSE J

CWDS
Liquor - entry and inspection of premises - appeal by prosecution against dismissal of six charges of selling short measures of double whiskey. HELD - Respondent had proved bona fide mistake or accident and that it had taken all reasonable precautions to prevent short measures - Defence under s41 Trade Measurements Act (SA) 1971 made out - Appeal dismissed. Trade Measurements Act (SA) s34(1). Tesco Supermarkets Ltd v Nattrass (1972) AC 153 and Naish v Gore
(1971) 3 All ER 737, applied.

HRNG ADELAIDE, 19 July 1994 #DATE 2:8:1994

Counsel for appellant:     Mr A Moss

Solicitors for appellant:    Crown Solicitor (SA)

Counsel for respondent:     Mr J Sulan QC

Solicitors for respondent: Phillips Fox

ORDER
Appeal dismissed.

JUDGE1 MILLHOUSE J This has been a hard-fought appeal, well and thoroughly argued by Mr Alan Moss for the appellant and by Mr John Sulan QC with Mr John Firth for the respondent.

2. It arises out of the prosecution of the respondent for short measures in six double scotches served to some government inspectors in the Horizons Cocktail Lounge at the Ramada Grand Hotel one evening in March 1993. At the time the place was busy but not overcrowded.

3. In fact the inspectors ordered 10 whiskies but four of them were over measure and we have heard nothing more of them: the respondent faced six counts.

4. There was no evidence that this had ever happened before: indeed denial of it from the witnesses for the respondent. The problem was with the measures used. They were called "posi-pourers": two of them were exhibited but to adopt Mr Moss's description a posi-pourer really is "a simple little mechanical valve." The undisputed evidence is that posi-pourers were then one of the best measures on the market and widely used in the trade. They were not fool-proof as this case shews but there were none better. They have now been superseded by electronic devices.

5. The problem with posi-pourers was in the way they were used. Somehow which I can't quite follow - but that doesn't matter in deciding the appeal - they had to be held for an interval - one barman said he counted up to four - at an angle of 45 degrees (but to what I'm not sure). If not poured in this way there was either an under measure or an over measure of whiskey. An inaccurate pouring with a posi-pourer was through human error.

6. Section 34(1) of the Trade Measurements Act (now repealed) makes selling short an absolute offence with a fine up to $2 000 for a first offence and up to $5 000 for second or subsequent offence. It is a significant breach of the law but certainly not the most serious in the criminal calender. What makes it so important to the respondent, an international hotel, I guess, is that convictions for this will reflect very badly on its reputation.

7. If there were no more in the Act than s34 then that would have been the end of the matter: the respondent acknowledged the six short measures, ranging between 2.7% and 23.3%. However s41 provided a defence:-
    "41. It shall be a sufficient defence in any proceedings
    under this Act if the defendant proves to the satisfaction
    of the court that the offence was due to a bona fide
    mistake or an accident or to any other cause beyond his
    control and in spite of all reasonable precautions being
    taken and all due diligence exercised by him to prevent the
    occurrence of the offence or was due to the action of a
    person over whom the defendant had no control."

8. Mr Richard Brown SM found the respondent not guilty on all six counts.

9. Before I go to his Reasons I should mention that the respondent, upon which of course rested the onus of proof of the defence on the balance of probabilities, called several witnesses, among whom were Mr Bill Sparr the general manager of the Hotel, Mr John William Colligan, a merchant selling hotel equipment and three of the barmen working that night in the Horizon's Lounge.

10. The relevant parts of Mr Brown's Reasons are:-
    " Mr William Sparr was clearly most concerned that short
    measures had been detected. The problem had arisen despite
    his best endeavours to ensure that his staff were
    adequately selected, trained and supervised. Allowing for
    the high volume of trade that was experienced on the
    relevant date, and noting the inherent deficiencies with
    posi pourers if not used correctly, it is my finding that
    the individual barmen unwittingly misused the posi pourers
    to a varying, albeit marginal, degree, resulting in the
    deficiencies referred to above. That result was contrary
    to the expectations of Mr William Sparr. Within the
    parameters of the abovementioned, the result noted was not
    reasonably within the contemplation of hotel management and
    certainly contrary to hotel policy ...

Similarly, the efficiency of each of the barpersons cannot
    be challenged. They were working according to direction,
    but in busy circumstances and, although each of them was
    aware of the potential problem with posi pourers, I find
    that each of them conscientiously endeavoured to use that
    equipment according to the manufacturer's direction. The
    fact that errors were made in those circumstances
    illustrates a fact of life. I find no evidence of
    irresponsible and/or careless misuse of the posi pourer by
    those barpersons. Quite to the contrary, each of those
    persons impressed me as being mature and reliable, and I am
    confident that on the night in question each of them was
    endeavouring to follow his employer's policy and directions
    efficiently. ...

The evidence of Mr Colligan is of considerable relevance.
    He was well aware of the measure known as a posi pourer.
    His evidence is that, until recent times, they were in
    fairly common usage in licensed premises in South
    Australia. Such pourers have been in use for some years;
    depending on type, from between seven and 20 years. ...

Mr Colligan expressed the view that, as a general rule,
    posi pourers were found to be reasonably reliable. His
    evidence is that that type of pourer, generally, has been
    found to be accurate and quick. ...

Undoubtedly what occurred in respect of the drinks under
    consideration is that, given the heavy demands of the
    barpersons, errors were made. Presumably bottles were not
    held in accordance with the manufacturer's directions.
    This clearly was contrary to hotel policy and management
    direction. Nevertheless, in the circumstances human error
    occurred. Given the findings that I have made in respect
    of hotel policy and direction by management to its staff,
    and given the genuine and favourable assessment I have made
    of each of the barpersons, I find that it is beyond doubt
    that a bona fide mistake was made in respect of each of the
    samples provided on this night."

11. Those were strong findings in favour of the respondent. Although Mr Moss made some attack on them, in my view the findings were all justified and I accept them.

12. It is a matter therefore of considering whether, pursuant to s41, they are sufficient to provide a defence.

13. To succeed in the circumstances the respondent had to shew either a "bona fide mistake or an accident" and that it happened "in spite of all reasonable precautions being taken and all due diligence ...".

14. Mr Sulan asked what more could the respondent have done? Its policy was to give full value for money, not to serve short: it had measures amongst the most reliable on the market and widely used: the measures were adequately maintained: the staff was trained in the correct use of the posi-pourers. The hotel could do no more: no-one can guard absolutely against human error.

15. Mr Moss on the other hand argued that the management before the fateful evening that mistakes could happen: it could have changed the system to avoid the mistakes and it did after the detection of these short measures (but I think the changes may have been rather because of a change in the legal requirements for measures).

16. I was referred to several authorities, many of them common to the list of each side. They shew one thing - that different judges use different dictionaries] I shall use the Macquarie. The two words at stake are "mistake" and "accident":-
    "mistake - an error in action, opinion or judgment."
    "accident - an undesirable or unfortunate happening .....
    anything that happens unexpectedly, without design, or by
    chance."

17. I hope I have already said enough, aided by the passages from the learned magistrate's Reasons, to shew that what happened was a "mistake" - it was an error of judgment in pouring. It was also an accident - it was something that happened "unexpectedly, without design" and "by chance".

18. In my view the respondent had amply proved the first leg of the defence.

19. What about the second leg - "all reasonable precautions" and "all due diligence"? I think the respondent proved these two as well. The problem was human error, something impossible ever to avoid altogether in any activity. The respondent had directed its staff not to serve short. It had trained the barmen to know how to use the posi-pourer, the barmen accepted that they should give full measure. I echo Mr Sulan's question: what more could the respondent do? Despite Mr Moss's suggestions, nothing that I can think of. It would not have mattered how often the posi-pourers were checked (Mr Sparr said they were washed and left to soak - he was not sure how often they were checked): no check of the equipment would have avoided the human error.

20. In my view the respondent succeeded on the second leg of the defence. It took "all reasonable precautions" and shewed "all due diligence".

21. Whether I have to go as far as I have to dismiss the appeal I am not sure. Mr Sulan argued that all this was a matter of fact: the magistrate had found the facts in his favour and that was that. He gave me authority for the proposition. First Naish v Gore ((1971) 3 All ER 737 at 742 per Lord Widgery CJ:-
    " Accordingly it seems to me that the proper disposal of
    this case is to observe that the justices, with some
    evidence of reasonable precautions and due diligence before
    them, were satisfied that that was sufficient to satisfy
    the terms of (the section). In the end, if the justices
    properly directed themselves as to the law and appreciated
    the onus that rests on the respondent, the question whether
    the precautions taken were all reasonable precautions is a
    matter for them and on the facts of this case I am not
    disposed to say that they reached other than a conclusion
    which was open to them."

22. Then Tesco Supermarkets Ltd v Nattrass ((1972) Appeal Cases 153 at 197 - 198 per Lord Diplock):-
    "What amounts to the taking of all reasonable precautions
    and the exercise of all due diligence by a principal in
    order to satisfy the requirements of (the Act) depends upon
    all the circumstances of the business carried on by the
    principal. It is a question of fact for the magistrates in
    summary proceedings or for the jury in proceedings on
    indictment.

23. In any case I think that the learned magistrate made no mistake of fact or of Law.

24. The appeal is dismissed.