Phiri v Carlsberg Malawi Breweries Limited (Civil Cause 747 of 2016) [2018] MWHC 1340 (30 April 2018)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 747 OF 2016 BETWEEN: ee eer vicocperec rit ener pene SERRE meey gage PLAINTIFF -AND CARLSBERG MALAWI BREWERIES LIMITED..............scsscessrecsreussereneenees DEFENDANT Coram: Hon Justice Dr. C. J. Kachale, Judge Namasala, of Counsel for the Plaintiff Kalua, of Counsel for the Defendant Namagonya (Mrs.), Court Reporter Choso (Mrs.), Court Clerk and Interpreter JUDGMENT Kondwani Beni Phiri is suing Castel Malawi Limited (formerly Carlsberg Malawi Ltd) for negligence in that he claims that a bottle of Sprite which he consumed on 12 March 2016 at Mandonda in Area 23 was contaminated with foreign bodies which led to a case of food poisoning on his part. He has thus invoked the doctrine of res ipsa loquitur to advance his claim: in other words, he has argued in court that unless there had been negligence on the part of the manufacturer, a drink of Sprite should not ordinarily cause food poisoning. According to his testimony having consumed the drink on 12‘. March, the claimant only went to hospital on the 14 March for treatment. Besides, he presented the bottle at Malawi Bureau of Standards on 15 March; but no analysis of any sort was conducted (and the date on the MBS form is actually 16 March 2014). A clinical officer (Chikondi Kaminga) who treated Kondwani Beni Phiri as well as a friend (Mtisunge Kansale) who was with him at Mandonda on 12" March 2014 also testified for the claimant. According to the clinical officer he established that the diarrhea which Kondwani Beni Phiri was manifesting at the time of treatment was attributable to something he must have consumed within 3 days of presenting before the hospital; this witness explained that though the patient did not produce the bottle of contaminated Sprite he reached the conclusion that it was the cause of the condition purely based on the history narrated by the patient. Mtisunge, on the other hand, confirmed that the bottle of Sprite was well sealed at the point of purchase. For the defendant two witnesses gave evidence: namely Asante Maggie Banaba (Receptionist) and Peter Chimungu (Quality Assurance Manager). Ms. Banaba explained that when the claimant lodged his complaint with her, he demanded that the bottle be taken for analysis at MBS; she filled out the relevant form and gave it the customer. However no results of such analysis by MBS were ever submitted back to the defendant. Mr. Chimungu, explained in evidence the quality control measures in place at Carlsberg to ensure that their products are not harmful to customers. In the case of Levious Dauda Mataka-v-Chibuku Products Ltd [2006] MLR 243 it was reaffirmed that a manufacturer of products such as bottled drinks who produces them with the expectation that they will be consumed in the state they leave his production unit owes a duty of care to the end users of such products. In other words, in the absence of any intervening opportunity for tampering, then the manufacturer would be liable for negligence if he fails to exercise reasonable care in the preparations or packaging of the products which results in injury to the consumer. In that particular case the plaintiff had purchased a bottle of Chibuku opaque beer popularly known as Scud at Limbe Market Tavern; while consuming the beer he found a foreign substance believed to be a condom; he suffered nervous shock and experienced nausea and high blood pressure. In finding for the plaintiff Justice Chimasula Phiri (as he then was) observed at page 253 that ‘even if the defendant gives evidence that the quality control system of his factory complies with approved practice, there is still the possibility that one of his servants was careless and prevented that system operating correctly...’ In that case it is important to note that the defective product was surrendered to the agents of the defendant who presented the product to Chibuku for further examination and analysis. There were eye witnesses called to confirm the discovery of the foreign bodies at the time of the incident. Likewise in the case of Kunje-v-Sobo [1996] 154 the plaintiff bought a bottle of Sprite somewhere in Zomba. When he took a few sips he found the taste to be unusual; upon checking he found a mucous-like substance stuck at the bottom of the bottle. According to him the substance looked like sputum. He beckoned to the barman who sold him the drink and together they took the bottle to the defendant’s depot in Zomba where plaintiff lodged a formal complaint with the depot supervisor. Eventually Sobo wrote back to Mr. Kunje suggesting that their analysis showed that the noxious substance had entered the bottle after production since their factory is operated under very stringent quality control systems. Thus since the incident occurred outside the factory of Sobo, the company could not be liable. In finding for the plaintiff learned Justice Nyirenda (as he then was) held (at pages 158 and 159) that: “Sprite is meant to be drunk immediately upon purchase and in the state it is. It is not the case that the defendant expects consumers to check the contents of the bottle before they drink it. Sprite is meant to be a social drink, which consumers drink momentarily without any consideration that it might be contaminated.....lIn matters like the present one where the plaintiff alleges negligence based on transactions undertaken away from him and entirely under the control of the defendant....the injury itself is sufficient prima facie proof of negligence.... All the defendants have put forward in defence....is to describe and demonstrate the bottle cleaning system and the filling of drinks into bottles. The cleaning and inspection process of the bottles is, no doubt, rigorous. What is true, however, is that at the end of the line there are still some bottles which come out unclean. For this reason, and machines being what they are, the defendant still finds it necessary that after the machine process there should be visual checks by people. As a matter of fact, the brief moment | had at the visual check point in the factory, | observed several bottles removed from the rail. The visual inspectors will do their part but human nature, being what it is, it cannot be said that their check can never be faulted...” My court is quite keen to reiterate the wise counsel of the justices who decided the two cases of Kunje (above) as well as Mataka (above): a rigorous quality control system alone cannot eliminate the possibility of defective products. Everything becomes a factual issue subject to the evidence available. What is significant in both those cases is that the contaminated product was available for examination and analysis after the consumer lodged the formal complaint. It was therefore objectively possible to assess the legal validity of the claim for 3 negligence by the manufacturer. In addition, other eye witnesses besides the claimant were summoned in order to corroborate the story as regards the time of purchase and state of the product when the consumer first had access to the affected product. All such evidence helped to build a narrative that made it more probable than not that the alleged breach of duty of care had indeed taken place. However, in the present case, Kondwani Beni Phiri simply asserts that drink caused his food poisoning. He admits having presented himself for treatment two days after the alleged consumption. He went to lodge a formal complaint even later; no report of any form of analysis from MBS has been presented to substantiate the claim that the product was indeed contaminated. Given the considerable intervening period between the time he claims to have taken the Sprite and the time he presented himself for medical treatment, it would not be legitimate to invoke res ipsa loquitur doctrine in aid of his action: he could probably have eaten or taken something else besides the drink which caused whatever condition was treated on 14 March 2018. Even more crucially, the absence of any scientific analysis of the alleged drink makes it even more tenuous to accept the assertion of the claimant in these proceedings. In the recent case of Chipiliro Banda-v-Southern Bottlers Ltd [2014] MLR 72 the Malawi Supreme Court of Appeal (MSCA) emphasized the need to establish some nexus by means of scientific analysis between the alleged contaminants and the claimed illness arising from drinking the defective product. The MSCA further emphasized the principle that in civil proceedings the burden of proof rests upon the party asserting the affirmative of a given fact: in that light, this court reaches the conclusion that the plaintiff has failed to discharge his burden of proof to establish a very critical aspect of his claim: whether indeed the bottle was contaminated as claimed. Accordingly the present action must fail and is hereby dismissed with costs to the defendant. Made in open court this 30" day of April 2018 at Lilongwe. C\. Kachale, PhD JUDGE