Continental Restaurant and Casino Limited v Arida Mercy Chulu (APPEAL NO. 77/99; SCZ JUDGMENT NO. 28/2000) [2000] ZMSC 163 (24 August 2000)

IN THE SUPREME COlJRT FOR ZAMBIA HOLDEN AT LUSAKA SCZ ,JUDGMENT NO. 28/2000 APPEAL NO. 77/99 (CIVIL JURISDICTION) (222) n E TWEEN: CONTINENTAL RESTAURANT AND CASINO Lll'11TED AND APPELLANT ARTDA MERCY CHULU RESPONDENT CORAM: Sakata, ADCJ., Muzyamba and Lewanika J. TS On 20th July and 24th August, 2000. For the Appellant: Mr. M. MUTEM\VA of Mutcmwa Chambers. For the Respondent: Mr. E. C. LUNGU of Andrea Masiye and Company . . TTJDGMENT SAK. ALA, Acting DCJ, delivered judgment of the court. Case referred to:- DONOGHUE V STEVENSON (1932) AC 562. This is an appeal against a judgment of the High Court awarding the Respondent, a sum of K85 million as damages for injury suffered after eating food which contained a foreign matter. For convenience, the Appellant will be referred to as the Defendant and the Respondent as the Plaintiff: the designations which they were at trial. The Plaintiff, who is a Magistrate, was on 22nd July, 1998, together with other Magistrates, invited for lunch by the Chief Administrator at . Poto Grill, a restaurant run and owned by the Defendant Company. While at the restaurant, the Plaintiff was served with some mushroom soup. This soup contained a cockroach. J2 - (223) The evidence of the Plaintiff was that while she was taking her soup, she foll something hard and rough in her mouth which she mistook for a piece of mushroom, but after she pulled it out from her mouth, she noticed that what she thought was a piece of mushroom, was in fact a cockroach with its legs and wings intact. The Plaintiff thereafter failed to continue with her lunch. She alerted one of the Defendant's waiters. The Plaintiff remained at the restaurant when her friends had left. One of the management staff apologised to her and offered her fresh food to cook at home, but she refused. The Plaintiff al~o testified that she has since continued to suffer from nausea. The Plaintiff subsequently sued the Defendant Company for damages. The learned trial Judge identified issues for determination as to whether the Defendant company owed any duty of care to the Plaintiff and if so, whether the duty was breached and whether the breach occasioned the Plaintiff any damage. After citing the provisions of Section 3(b) of the Food and Drugs Act, Cap J-03, the Court found that the Defendant company owed the Plaintiff duty of care. The court further found that this duty was breached. The Court had no difficulty to hold that the Plaintiff suffered damage or injury as a result of having been served with the soup containing a cockroach. In determining the amount of damages to be awarded, the court noted that a cockroach is an insect known to be one of the dirtiest insects. The Court pointed out that the damages to be awarded had to take this clement into account. The court also observed that the injury suffered by the Plaintiff was such that it could not be completely J3 - (224) forgotten hence entitling the Plaintiff to aggravated damages. Although the Plaintiff did not claim for exemplary damages in her statement of claim nor endorsed it in the writ, the ]earned Judge was stiJl satisfied that this was one of the cases where damages to be awarded had to take into account the element of exemplary damages. The Court awarded a sum ofK85 million as damages plus costs. Mr. LUNGU, on behalf of the Plaintiff: did not file heads of argument and indicated that he conceded to all the arguments on behalf of the Defendant Company except on quantum of damages awarded. On behalf of the Defendant, Mr. MUTEMW A filed written heads of argument. In his brief oral submissions, Mr. MUTEMWA pointed out lhat the actual damage suffered by the Plaintiff was that she felt nauseatic and had stomach pains that led her not to enjoy food for a week. He submitted that there was no evidence of medical attention and that the damage, if any, was merely nausea. Counsel also submitted that the condition suffered by the Plaintiff did not warrant an award of cohssal damages and that she should be entitled only to nominal damages of K500,000.00. Com1sel concluded his submissions by pointing out that in cases of this nature, medical evidence is necessary to justify the award. Alluding to the case of DONOGHUE VS ST~ /ENSON (1), he submitted that in that case the Plaintiff was actually hospitalised. In his brief submissions on behalf of the Plaintiff: Mr. LUNGU submitted that the evidence of the injury suffered by the Plaintiff was not chaJlenged. He pointed out however, that if the Court had to reduce the amount of K8~ million, which he conceded was on the higher side, a sum ofK50 million should be awarded. -.14- (225) The only issue for determination in this appeal is the amoun~ of damages. But we wish to point out that in including exemplary damages in the award, which damages were not pleaded, the learned Judge overlooked the many decisions of this court where we have said that exemplary damages should be specifically pleaded. This had always and is still the law on exemplary damages. These damages were not pleaded here. The important point to stress, ho1vvever, is that in cases of this nature, the basis of awarding damages is to vindicate the injury suffered by the Plaintiff The money was to be awarded in the instant case not because there was a cockroach in the soup, but on account of the harm or injury done to the health, mental or physical of the Plaintiff. Thus in the DONOGHUE case the Plaintiff was hospitalised. Mild condition is generaJly not enough a basis for awarding damages. The Plaintiff has, therefore, a duty to bring credible evidence of illness. The award in the instant case comes to us with a sense of shock as being wrong in principle and on the higher side. We want to take advantage of this case to point out that in foture, nothing will be awarded if no proper evidence of a medical nature is adduced. In this instant case, the learned trial Judge flew overboard in the a,, ·ard of damages. Accordingly, we set the award of K85 million aside. In its place, we award a sum ofK2 million. We make no order as to costs in this court .. E. L. SAKALA ACTING DEPUTY CHIEF JUSTICE - JS - (226) - W. M. MUZYAl\IBA SUPREME COURT JUDGR D. M. LEWANIKA -SUPREME COURT JUDGE