Kasungu and 8 Others v Lever Brothers Limited (Civil Cause 115 of 1992) [1994] MWHC 6 (13 May 1994)

IN THE HIGH COURT OF I-1,lLi\WI LILONGWE DISTRICT REGISTRY CIVJL CAU3E NO. 115 OF 1992 HXilOLD IG\. S:,IiGU ( ViALE) I\iNESS KASANGU (MRS) ••••• ••••• •••••• • •••••••••••• , •• , • 2ND PLAINTIFF ,"11!1.~ . . JlI{A l~..:\SANGU a~ l ir1fant b~r ·~b.c lst ?\2.:i./r:.:i ·:~f ( his -father) and nex~~ friend •..••.....• 3RD PLAINTIFF THOKCzt,:H i'::/\St'\NGU ,m i:1f2mt by the 1st Plain ti ff (hj_s father) nnd ext friend • , •.••.•• llTH PLAIN'l :Z FF F'HANCIS i\..!\SANGU CHARLES Kl\SAJ\IGU " .•••• , ••••••.••.•••. 5TH PLP,INTI FF fl • • ,, • • • • • , • • • • • • • • • • 7TH PLAH JTIFY GERALD KN'-)S,U.,U Gn infant by the p la:L11.t5-:ff (his u 7v:l0) 0.1:1 .d 11ext f.rierv:J o o . , . , o o o ., o • • • GTE ? t1\ :~NT1::?F LENIA iG'iLEMBALEMBf, a ;, i c1ff1;·d:; by the 1st l?"i.niTrl:;:;_ff ( his 1.1ncl0) nnt? next fricn.d o " o o . . . o o 9TI-I PL1\ INTIFF' LirJER BROTHERS 1111. JITED o i) . . . . . . o , " " ,, o o " o • o ,, o .. fl o o " o ~ o ,. " • • o DEF'ENDAN~~ CORfLM: M'f£1MBO, .j For tho Pla:L;1_tiff. ~1sungains, Msw1~-:;ama s,. Co For the Defendant, Nkhono, Wilson & Morgan Official I n te r ·p rcte::-, Gomani Machine Operator, Mti.mc1uwathr-i. -JlJJJG}.;ENT c1s iTl:ctnufa.c turers of rm article ,,f fooc, n.:.1n1cl~ . .r 9 and claim damar_:;<:3S 2.1~is:1.ng therefrom in respect of p ePsonal inju:..~ic ,:_-;, pain and suffcrinr7," They also c::12.im costs of the r:1c·tion. Tb.~ defGn.dants deny neg ligence ·}-l---'!,,-' ..... .:. J~ \.1 that were to be so the nJ.aintiffs would still 10~; be Gntitled to judp;ment bec :J.us0 the neglig;::mce eJlegod d:i'.d not cause the injuries of which th:,J 2. the defenda'1t has breached a duty owed to him to take reasonable care to avoid injuring him and that by reason of, the breach he has suffered injury. That is the general principle of law. With reference to the instant case• a manufacturer of a product which he intends to reach the consumer in the form in which he sells it with no reasonable possibility of intermediate examin ation, and with the knowledge that the absence of reasonable car~ in the l)reparation or putting up of the product will result in an injury to the consumer's life• owes a duty to the consumer to talre :reasonable care: see Donoghue V. 562; (1932) All E. R.1. Stevenson - il-932) A. C. I think it is now necessary that I refer to, the facts .. The plaintiffs are members of a family. Tha :first .and second plaintiffs are the parents of the thirdi fourth, fifth, sixth and s eventh .pl;;u.nti.!TG and t.l;ie . ei2}lth and n:i..n,Q":th plaintiffs ar.e their ·. nephew and niece, respectively. They aver that the first plaintiff purchased four tubs of stork margarine from a shop where he was the supervisor; that on December 12, 1991, after .. their breakfast which comprised tea with milk and bread to which . i\i~rgar.:i.nP.· was ai;,plied, they bP.r.:alll. Q unwell , and suf':ferG!d f'r°'.om various ailments which included dizziness, heart palpitations, sweating, abdominal pains and vomiting; that the first and second plaintiffs ·ha.ii rtc>t:iced :fo;rgi.gn mAtter- .on. ~ aur:fa.ce of the margarine upon opening the third tub which had been sealoo with. .a lid and foil; that they had seen similar substance on the surface of the margarine in the first and second tubs; that like the first and the second tubs, they scraped off the foreign matter and applied the margarine to the bread which they ate and subsequently became unwel l, as they think the ailments were caused I have alr.eady said; that by the foreign matter on the margarine. They further aver that the product was manufactured and sealed by the d e fendants • which is not denied, and that it was their duty to ensure that their product was fr ee from contamination and that the failure to do so was a breach of the duty which they owed towards them, and pl e ad the doctrine of RES IPSf\ LOQUITUR in ,:,,id. 'l'hey also nver th2,t the thi:i~d tub, tho c0n-tonts of which werG ;:nrtly consumed, anc:. the fou:(' th tub were collecte<~ by the defenc!ants for l:1bora:tory i:wcstigatio;,.1::;. But when the two tubs were show:::i to the first plaintiff in cour1;, h,J said t hat they w 0r c not those which VJe!'C colls,cted from him. He said they were of :=i t1i:ffcrcnt desi::-:.n. He sc1.id thnt the ones tl:12.t were collcc·i;ed fy•, rn him we,:-e ·-K't shA.pc,:J. int a folds o:r bottom cir-cumforence - they were plain. ho said. The defendai.,:ts 1_,3d evidence frnm _ tv.,o wi tnosses. The firs t control tcchn i c ia:1, and p erhaps the kingpi, in th-::? cl;:i.borata acce>unt of the proccdur8 i nvo1vcd in the r:10.r-;.ufB.ctw.·e of stork mnrgarine. Ho said that the: :i.nz1•erlj_cmts ?.re :first thoroughly tested and thnt a snap sample is taken both :=1t tho be ~~inning a ncl. at the end cf tho production to ensure thnt the middle J .l'.'oducts a r.e free from contamination. In addi tL:m, six samples ::>.re taken nt ro.dom from every batch of 25 cartons fm:- laboratory tests a gainst all f'ood poi soni ns and food s-;-ioi.lase or<3r:misms r-md thnt the p~~oa.uct is tasted by a cross- section of people ~)efore it is releasod. B.c also sn.id that the tub would. have a lid eD.d ::.l. foil• to w:: e his worf.1.s 9 to bo double sure that nothing iB intt•octuced into tho product. 1.-Io said that after the plaintiffs' com-plaint, he f irst recei vod two tubs and J ater a carton of tubs from which it wns n lleged the t wo tubs had bee•1 taken. He saic1 th2t he was stm:-tled by the difference in the designs of the tutis -· tho two were differently designed from those in tho car·ton which as it later became known contained tubs of marg9.rine which wm.•e released in August 1991. ( I 4. ru1.d the ether 'r!FiS fttll :c Fie sale] -th:-1t h.e carried out labo::--2.tory tests :1L1.intiffs in their l ettcr 0f Jnnu2ry 27th, }.992, whosv :',:.:levant part reads as follows: H l\.11 the samples of r.10.r,-::s.:d.ne th:1t we r:;ot from you o.nd th0 onc1:1 W:?J kept L.1 ou:i;· Laboratory with the same date was no t::."o.::::e of tho mculd in the other samples with the S2.!"ne dr.i.te C-:)de P nnd I would stress i::hot the moul(; in the tub which y,)u re+;ur:,cd wcs m".cty on the surface; sam:Jle showed no trace of mould. Ot1r conclusion._ is ~that mould spor(:is were rAcei ved onto the mnr2a.:cine aft01:· the tub had been opened. The f8ct that it was n bread mould loads us to suspoc+, that th,':l s;Joros m:J.y have hoen int,~c1.ucocl. by QOn,,.s of a knife whi.ch had been L1 contcv::t with bread , but of this we ccmnot be certain", The letter was teric1e ,~ed in mri,1:::,ncG by the plaintit~fs al.'K: marked as Exl"1 ... P 4o designs :,f th0 tube, he said that the type; of the two tubs ha( been -;-:ihnned out in r.!arcn 1991 q,1d, th0,~ofo:re ,, t:1-iat -!::hey must have cc,.ritain~d mEtrgarir1e which '~1s.s :Jr·odu(';Cd o:.., rF-:-"...nufr-lct.t11"'ccl ea:r.·1.icr thar, that r;ionth, B:: e.lso said that ev0ry carton contains tubs of the same dcsie:n g He further said that t11c rnarg3.,~i:1e could not merely have bee n transferred i~to the two tc1bs b-cicnus8 it is not possible ~:o do so smoothly -- it woulo have been noticeabl0, he said. Finally, he said that stork marw1rine ha.s a shelf-life of up to nine mor1ths . if it is properly stored. Th~1 evidcncB of the second d,~f,2nce witness, Alf.red Samu Knsiya, was sfr1ply that he is the one who collected the two tubs and the cartcn from the first plaintiff at Mitu:1du in the district of Lilongwe. He, however, could not remember the designs of the tubs. Such is the ,;1aterial evidence which I must now evaluate and tl. Jcidc c;n b,2a1'in;:; in mind that the hurc'lcn of proof is en the prepondornnce of probability. I thi:ak I must first resolve the question relating to the two tubs 9 :1am,~ly 9 wheti1c:::· they arc t:1oss that wore col l 1i:!cted from the first plaintiff, which r.i.a disputes, It must be observed here that the first plaintiff did this even without examina.tio~ of the tubs. Mr Nthindwa on the other hand said that those were the tubs which he rocei vect from his GOlleac5ues in Lilon~;:we. I saw both witnesses and I w,)uld <.~oP.fidently say that Mr Nthindwa emerged a better witness than the ether on this point. }Ie persuaded me qui t:e a great deal when he snid that the margarine could n0t have tieen transfer-rec~ as it would have bem2 noticeable, and by his description of the contents of the tub which thEl pfo.intiffs had partly us3d which kind of 8'.:;!'CCC with what the evidence of tho p.1::i.intif'f1:i showe;;d. ThG first plaintiff, I raust suy surprised me by the ·vcloctty with which !1.e d;;,niod that the tubs were tlv.:: onPs which wer,.':) c0lJected from him: he did no"t sun;gest: any 6., reason,_.nnd : cannot see ,:;nc, why the defendants fo.1_1oulct h:1.vr" wiched to rather remoto, nccordi,1.~ Jr;o the evidence. "?he cc,,,.~ lusion I :roB.ch, hns to show th~!t he ins he,c".l injured by the bre0.r:h of r--. c:uty ow,'"(l ·';o hit1 1)y the (.~efcn(~ant t0 ta'rn ;:--:)ns 11:1<'.hlc ,:'-".:'.'c to avo:i.d such injury. the protSuct in quest:i.on. ;o,nd the pl.a5.ntiffs as the uJ.tima-t~e consumers ns I tl-'1i1.1l< it h?i. B !Je=--~n cstnblis:"ln-:1 thr:t ·tl1e r:(c-oclt1c+_; wr:.~s relo~.scd rtnd sold in such n fonn ::,s to show thnt they ( ·the defendantn) intcmc1ed it; to renc:11 the consumer in the form in which it left tl.1(,rn with no l'(,asonAhlc ;)os::libili ty of intermed.ir ... te examination, and with the knowledf:,e ttmt the nhsence of reoso;_1;:,.ble c':\re in the prepn:ration or putt;L-1n u) of the product will i~esul t in .-,n injury to th.e cr_msumc-r ' s lifo. The question which :r must now r-,s 1,~ m_yseJ.f is wheth.::,r. negligence he.e b,~on provec1 .• Tho plnin'c.:i .. f'fs 3ver the,t after t:0.kin~; bre21:fnst cf t(, ;'l. wi t!'l miH~ 2.nd b1--e11cl to which storl-i: mnrenrine had been np;,lied, ·:hey suffzred from v:J.rious <'.'.ilmcmts ':Ind fY:\'l ths.t they t.:i.sto which thoy assccie:to w'~ th the for.eir.::;.i, matter which h:id er:1..rli. er i",nd. they scy no ffi()rc tho.:1 the.t., Thoy? thcroforo, ?letv~ tho doctrine of· RES IPSJ\ LOQUITUR in aid on .which t•::i;-"ic W . V .:·l. Rogers in Winfield c:nd Jolowiez on Tort (Twelfth Edition) at p~go \08 writes: spec :L fic ac"'.::::, o:c omissiorn., on the 0art ,,f 1-ho dBfcncbnt v1hicl1 will quc>,lify 2. S the clefencant without he r~rin~;; dctnilc( evidence of what 1'\nd the weip;ht of the the r::~efei.,d0.;1ts which v;oul d qunlify a s ;1r2,1li3 ent conouct. The of the proceC.u:~a involved in the ms.nufnc cm:-e of the product. J\D.c.1 they soy that they (!etectcc1 n.othL,.g dangex'oun in th8 samples which thoy rece '..ved from the first ,~,laLrt;iff. In tho c .i. rcumstnnces ,, fi nd it har:; to dr~ci.w the i.r;_fm'once of n0glisonce :c•.r;ainst the defendants. Even if ncr;ligonce \'lGI'O tc hnve beGn p:..~oveu, i t c2,•1.not stil1 be snid rn: the ovic10:.1cc the.t ·::;ho injuriHs of which thu pla:i.ntif:fs r.:om'.)lnin wo:re c2.m10c. by such ncgligeI~:cc fo r how can it be who,-: i-t appears t0 hnve been due -co th:=:.t ( the acgliccncc) of the fi:2Gt a~-:i.d scc,)nc; ;,J. D.intiffs who s2w the fore ign m':l.tt~,r on the surf::1ce of the mar;_;n.rine bu-t; still ~,te J_·,~ enc'. :;.nve j_t to the other :)lA.intiffs to cnt too , :,.ssumin:::, of courrrn, that that act for which th,:) clcfc D.clnnts ;nnnot be twlc1 1.inb:LG, I r1.11 sure, Tf ·r'es1.•.lt ,. f'' C. J. tr. the T with costs. PR NOUNCED in <ner:. cour·t th:i.s 13th day of i:I~y, 1994 at