Musiyiwa v Delta Corporation Ltd t/a United Bottlers (HH 64 of 2004) [2004] ZWHHC 64 (6 April 2004)

HH 64-2004 HC 3597/03 SELIPHIAS MUSIYIWA versus DELTA CORPORATION LIMITED T/A UNITED BOTTLERS HIGH COURT OF ZIMBABWE UCHENA J HARARE, 28 January, 28 February and 7 April 2004 Civil Trial G. Mabuye, for the plaintiff G. Mamvura, for the defendant UCHENA J: The plaintiff sued the defendant for damages suffered as a result of his drinking a soft drink contaminated with moulds. The plaintiff alleges that on 12 February 2003 he went to a food outlet shop and bought a bottle of coca cola. He says he opened it and started drinking while he was in the shop. He swallowed an object. He thought it was an ice block. He continued drinking and he again swallowed an object but it was slippery. He then suspected something was wrong though the drink tasted normal. He raised the bottle and noticed whitish objects. He took the bottle to the shopkeeper. The shopkeeper took him to the shop owner. He said the shop owner observed the objects in the coca cola bottle and said he was only an agent of Coca Cola Company the respondent. He offered the plaintiff the phone so he could talk to Coca Cola. The shop owner phoned the defendant. He gave the plaintiff the phone and he spoke to Grace Ngandu who told him she was sorry about what happened. She asked for plaintiff’s name and details. She asked plaintiff to leave the bottle in the shop for collection by one Tendekai defendant’s employee. The drink was to be taken to a laboratory for analysis. Plaintiff agreed with Grace Ngandu that he would leave the bottle in the shop. Plaintiff however asked Grace Ngandu if she could give him medical assistance. She asked for details the plaintiff said he could not give her the details as there where customers in the shop. He explained to the court that he was feeling upset in the stomach without feeling any pain. He offered to bring the coca cola bottle and its contents to Grace Ngandu so that he could explain the help he wanted. Plaintiff said Grace Ngandu agreed. He started on his way to respondent’s premises. He started vomiting on the way. He realized he would have difficulties getting to defendant’s premises. He then proceeded to the Consumer Council offices where he saw one Silibaziso. He explained his ordeal to her. HH 64-2004 Silibaziso phoned respondent’s offices and spoke to Grace Ngandu who asked if plaintiff was not the person who had agreed to come to their premises for discussions. Plaintiff agreed that he was and asked for financial assistance so that he could consult a doctor. Plaintiff said Grace Ngandu told him their new policy was that one should use his own money for medical treatment and claim a refund later. The plaintiff eventually left the coca cola bottle at the Consumer Council offices for collection by respondent’s officials. On coming back from the doctor the plaintiff came back through the Consumer Council offices checking if the bottle had been collected. He found it had not yet been collected. He requested for permission to take some of the contents for examination by a Government analyst. He took some of the bottle’s contents. After two days defendant gave him their results and asked him to submit his claim. He submitted his claim for $10 291-00 and waited for an answer. He subsequently received a letter from Scanlen and Holderness respondent’s legal practitioners. In that letter defendant denied liability. He later received a report from the Government Analyst on his examination of the contents of the bottle. The letter was produced as Ex. III, Exhibit III identifies the foreign body as mould. It indicates it was fed to Guinea pigs and no signs of illness were observed after 24 hours. The defendant’s first response to plaintiff dated 14 February 2003 Ex. II, in paragraph 1-2 reads: “I would at the very onset like to express our concern about your having found cause to be less than totally satisfied with the quality of one of our products. Our quality control Laboratory examined the empty and almost empty bottle of 300ml Coke surrendered and was found to have food particles coated with none viable mould inside. I would like to give you assurance that our bottles go through an extensive cleaning process before filling. After they are washed and before filling the bottles are inspected visually for foreign objects and lack of cleanliness. After filling they again pass through the same process.” The plaintiff produced documental evidence of the medical expenses he incurred. He later called Dr Runyowa who led evidence to the effect that the taking of a drink with foreign objects can induce vomiting which causes tenderness in the stomach leading to the development of a peptic ulcer which the plaintiff is now suffering from. He gave details of medical examinations and HH 64-2004 treatments the plaintiff is to receive. He said the plaintiff could not undergo the examination and treatment due to lack of funds. After the doctor’s evidence Mr Mabuye applied to amend the summons to include the claim for medical expenses still to be incurred. Mr Mamvura for the defendant did not oppose the amendments. The amendments were granted by consent. After the plaintiff’s case was closed the defendant opened its case by calling Mr Alois Chiguvi who is employed by defendant as a packaging manager. He told the court that the cleaning process leaves no room for unremoved dirty. He told the court that the bottles are cleaned by a machine called a bottle washer. The machine has 4 compartments. He said no objects can remain in the bottle after the cleaning process. Mr Mamvura invited the court for an inspection of the cleaning process. Mr Mabuye did not object. The court proceeded to defendant’s premises for an inspection in loco. The following observations were made during the inspection led by Mr Alois Chiguvi. Bottles from the market are moved by cranes to the cleaning area. They are offloaded at a place were there are four employees who offload them from crates on to a conveyer belt. The bottles are taken by conveyer belt into the bottle washing machine. As the bottles enter the machine they are received into washer pockets. They are then held up-side-down by the washer pockets and are sprayed with water while in that position. Mr Chiguvi said tank one from which the cleaning starts contains caustic soda. The temperature is between 55 and 60 degrees Celsius. The concentration of caustic soda in tank one is between 2 and 3%. The mixture of caustic soda and water is sprayed into the bottles to flush out any dirty. The bottles are then moved to tank two which again contains caustic soda. The temperature in tank two is between 60 and 75 degrees Celsius. The use of caustic soda which is a highly corrosive detergent is to remove all the dirty and destroy harmful organisms at high temperature. The bottles are then moved by the machine into tank three which contains water. The bottles are sprayed while still held up-side-down in the washers. The aim is to remove caustic soda. The bottles are then moved by the machine into tank four where they are again sprayed with a mixture of water and chlorine to sterilize them. From tank four the bottles are discharged from the washing machine on to a conveyer belt which transports them to two sighters. The sighters sit at an HH 64-2004 illuminated place. They watch the bottles as they pass on conveyer belt. They look for foreign objects and dirty in bottles. The sighters are changed every 20 minutes to avoid poor sighting due to fatigue. From the sighters the bottles are moved on conveyer belt to a blender were a mixture of water, syrup and carbon dioxide are taken by pipes to a filler. The conveyor belt takes the bottles to a filler and bottles are filled with the product. The filled bottles move on on conveyor belt to a capping machine. The filler and capping machine are housed in a glass cover. After capping the filled bottles are moved on conveyor belt out of the glass housing and continue on conveyor belt to another sighting station. The station is manned by two sighters. They check for under or over filled bottles, and for foreign objects. After the second sighting station the bottles continue on conveyor belt to a dispatch station where they are packed into crates ready for the market. When we got back to court Mr Mamvura and Mr Mabuye agreed with the court’s observations as narrated above. Under examination in chief by Mr Mamvura Mr Chiguvi said the bottles are soaked in caustic soda to remove all the dirty in a bottle as caustic soda is a highly corrosive detergent. He said the dirty includes organic matter that may be stuck at the bottom of the bottle. Mr Chiguvi told the court that he holds a Bachelor of Science degree in chemistry from the University of Zimbabwe and diplomas in Projects Management and Production Systems. Under cross-examination by Mr Mabuye Mr Chiguvi said moulds grow in an environment were there is sugar and oxygen. He also agreed that when the bottle in question was brought to them they assumed ownership of it. When asked if he could detect whether or not the coca cola in the bottle was flat he said carbon dioxide would have escape, leaving the contents flat. When asked about plaintiff’s evidence that the bottle fizzled when he opened it Mr Chiguvi said “the product can be fizzy even if there is insufficient gas”. On whether a person taking a drink can taste the difference if the drink has previously been opened. He said – “Yes depending on whether you have eaten something which can affect your taste”. Mr Chiguvi said moulds can not grow in a properly capped product as moulds only grow when there is sugar and oxygen. He said a product contains sugar and carbon dioxide. Under re-examination he said “Mould is invisible until it turns into its none viable state due to growth in an environment of sugar HH 64-2004 and oxygen. It will then have grown to its maximum state then it dies. That’s why we call it none viable.”. The evidence led by the plaintiff gives the impression that the coca cola bottle was properly capped as he opened it himself and it fizzled. He said it tasted normal and he had not had anything to eat as it was early in the morning. The plaintiff’s evidence gives the impression that he knew what to guard against to ensure the success of his case. He said everything that would prove the product was defective due to the manufacturer’s negligence. He attempted to exclude negligence by the retailer. The danger I have to guard against is tempering by a consumer who is aware that if an object is found in a bottle he will be compensated. In the present case the plaintiff seems to have had an idea on what was to happen if an object was found in a bottle. He quickly pointed that out to the shop keeper who took him to the shop owner. The shop owner phoned respondent and plaintiff spoke to Grace Ngandu of the respondent. This far one can say the sequence could have been a natural reaction to plaintiff’s finding an object in his drink. The plaintiff however agreed to leave the bottle with the shop owner after Grace Ngandu had taken his details. While on the phone he asked Grace for medical assistance. She inquired what type and he hesitated and offered to personally bring the bottle to respondent so that they could discuss. One wonders why the plaintiff did not want to discuss the assistance on the phone. Grace agreed and plaintiff started on his way to defendant’s premises. He however ended up at the offices of the Consumer Council. He caused Grace Ngandu of the respondent to be phoned from there. He agreed to leave the bottle and contents with the Consumer Council when he went to see a doctor. On coming back from the doctor he passed through the consumer council offices to check if the bottle had been taken by respondent. On finding it had not yet been taken he took some of the contents to the Government analyst. Are these the actions of a person who has by chance found an object in his drink. The organized reactions and sudden changes to the agreed course of action between him and Grace Ngandu tends to give rise to suspicion. In the case of Delta Operations (Pvt) Ltd t/a National Breweries v Charles Maraura SC 126/99 referred to by Mr Mamvura McNALLY JA at page 3 said “So there is a danger that claims like this will be falsely made up. The learned judge was aware of this”. In the present case the plaintiff’s reactions raise suspicion but they could HH 64-2004 also be genuine actions of a person who had foreknowledge that if one finds an object in a bottle one can claim compensation. He could have been merely acting carefully to ensure that he was compensated for the damages he had suffered or was likely to suffer. The plaintiff’s claim is however weakened by his omitting to call the shopkeeper and shop owner to confirm that their client in deed found an object in a soft drink he had bought from their shop. If he had allowed the bottle to be collected from the shop that could have strengthened his case and removed the possibility of tempering. The plaintiff does not even state the name of the shop. He merely refers to it as a certain food outlet. He could have phoned from anywhere and that could be the reason why he opted to bring the bottle to the defendant’s premises personally. The collection of the bottle from the shop could also have made it easy for the plaintiff to prove that the bottle was defendant’s product. Defendant raises the issue of the source of the product in its issues. Its witness said the contents of the bottle could have come from other sources though the bottle belongs to it. Chiguvi testified that he has knowledge of other bottlers. He was not closely cross-examined on this aspect. In my view nothing turns on that as the defendant in Ex. II admitted that the coca cola was its product. The real issue is on whether or not the moulds in the bottle were a result of defendant’s negligence. I now turn to the analysis of the plaintiff’s evidence against the defendant’s cleaning process to determine whether the moulds could have come from the defendant if there was no tempering by the plaintiff. I must say the way the plaintiff handled the drink gives room for tempering but I need not make a conclusive finding on that as that is not the defendant’s case. The defendant said its cleaning process does not leave room for moulds to have survived the cleaning process. I agree with respondent that the use of caustic soda could not have left dirty in the form of none-viable mould in a bottle. The use of caustic soda is to dissolve dirty even that which would be stuck at the bottom of the bottle. In my view moulds could not have survived the soaking in caustic soda and water, the spraying into a bottle held upside down throughout the four tanks. Even the invisible form of mould could not have survived the process. Even if it were possible for it to survive the cleaning with caustic soda, high temperatures and chroline which I find to be highly unlikely it could not have grown in a capped bottle as there would be no oxygen in the bottle. The contents of the bottle HH 64-2004 would be the mixture of water and sugar and carbon dioxide. Therefore if the plaintiff did not temper with the bottle and its contents the moulds in the bottle could be as a result of tempering after the product was removed from the respondent’s premises to the market. It is therefore possible that the plaintiff and defendant may not be responsible for the none-viable moulds found in the bottle. The plaintiff’s evidence that the bottle fizzled and tasted normal is not consistent with the scientific evidence given by Chiguvi. The scientific evidence exonerates the defendant. I have also found that the defendant’s cleaning procedure including the two sightings by sighters is adequate. In the case of Delta Operations supra McNALLY JA at page 5 said – “The liability of the brewery is not an absolute liability. If steps it took to avoid contamination were reasonable in the sense that nothing more could reasonably have been done, then it would not be liable because it would not have been negligent.” (emphasis added). In the present case the details of the cleaning process given above, the positioning of sighters on the production line and the placing of the filler and capping machine in a glass housing are sufficient steps aimed at avoiding contamination. The defendant cannot therefore be said to have caused the presence of none-viable moulds found in the bottle through its negligence. The scientific evidence also excludes the possibility of negligence on defendant’s part. This case can be distinguished from the case of Donoglune v Stevenson 1932 AC 563 where a snail was found in a bottle because the snail could not easily be removed from the bottle by the cleaning process. Its size would make it difficult to remove by the cleaning process so the liability would be based on the system’s failure to see that there was a snail in the bottle. In the present case the none viable moulds could not have resisted and survived the cleaning process. None viable moulds could also not have developed in a properly capped bottle. The plaintiff’s evidence is to the effect that the bottle was properly capped. In the circumstances the only two possible sources of the moulds are (a) interference by third parties after the product was released to the market if plaintiff’s evidence is to be disbelieved and (b) tempering by the plaintiff himself if his evidence on the bottle having been properly capped is believed. These two possibilities do to attach liability on the defendant. The plaintiff has therefore failed to prove that defendant caused him to suffer any damages. The plaintiff’s claim is therefore dismissed with costs. HH 64-2004 Mabuye & Company, plaintiff’s legal practitioners. Scanlen & Holderness, defendant’s legal practitioners.