Zambia Breweries Plc v Nomsa Ngatcha (App. No. 27/2017) [2018] ZMCA 623 (10 August 2018)

IN THE - COUR~ FOR ZAMBIA App. No.27/2017 ~a~ HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ZAMBIA BREWERIES PL APPELLANT AND NOMSA NGATCHA RESPONDENT Coram: Mchenga, DJP, Mulongoti and Sichinga, JJA On 28th March 2018 and l()th August, 2018 For the Appellants: Mr. R. Ngulube of Messrs Tembo, Ngulube and Associates For the Respondents: No Appearance JUDGMENT Sichinga, JA, delivered the Judgment of the Court CASES REFERRED TO: 1. Michael Chilufya Sata v Zambia Bottlers Limited (2003) Z. R.l 2. Attorney General v Marcus Kapumba Achiume (1983) ZRl. 3. Chilufya Sata v Zambian Bottlers (2003) Z. R. 1 4. Hamilton Mulendama v Zambia Breweries Plc (Appeal No. 7 of 2016- Unreported) 5. Continental Restaurant and Casino Limited v Chulu (SCZ Judgment No. 28 of 2000) 6. Zulu v Avondale Housing Project Ltd (1982) Z. R. 172 (S. C.) 7. J. Z Car Hire Limited v Chala Sciroco (SCZ Judgment No. 26 of 2002) 8. Miller v Minister of Pensions (1947) 2 All ER 372 at 373- OTHER WORKS REFERRED TO: 1. Winfield & Jolowicz, 18th Edition This appeal is against a judgment of the High Court dated 19 th December, 2016 awarding the respondent a sum of K7,000 as damages for negligence, breach of statutory duty, pain and suffering, mental anguish and distress as well as inconvenience and loss suffered. According to her statement of claim, the circumstances that gave rise to the respondent's cause of action in the court below were that on 6 th February 2012, the respondent consumed a bottle of unwholesome coca-cola, as a result of which she fell ill and was treated as an outpatient at Kabwata Mum's Care Clinic & Hospital. The particulars of negligence alleged against the appellant were; failure to clean and ensure that each bottle of coca-cola was clean and did not contain impurities, failure to inspect and detect impurities in the coca-cola bottle, and selling an unwholesome beverage to her, as a result of which she suffered loss and damages. In its defence, the appellant denied any negligence on its part as alleged by the respondent. As regards the respondent's particulars -J2- of negligence, the appellant stated in its defence that it cleans and ensures that each bottle of coca-cola is cleaned and does not contain any impurities. The cleaning is done physically and electronically to detect any impurities. The appellant further averred that it does not sell and did not sale to the respondent any unwholesome beverage. Further, the appellant contended that if there was a foreign matter in the bottle, the same could be attributed to reasons in which it had no role to play whatsoever. Therefore it denied that the respondent suffered any damages attributable to it, or at all. At trial, the summary of the respondent's evidence was that she had bought a crate of drinks from a shop near her house, and opened one bottle of coca-cola that had debris at the bottom. Ten to fifteen minutes after consuming the drink, the respondent had a stomach ache and started vomiting. The following morning, she went to the hospital and was given medication and an injection for nausea and a stomach upset. The testimony of PW2 and the documentary evidence on record are to the effect that the subject bottle was inspected by a public inspector at the Food and Drugs Control Laboratory on 17th February 2012 and the analysis revealed that the foreign matter was fungal growth and pieces of khaki paper. The trial court found that the respondent had discharged her burden of proof and showed that she partially consumed an adulterated drink. With regards to the respondent having suffered -J3- loss or injury as a result, the trial judge made reference to the case of Michael Chilufya Sata v Zambia Bottlers Limitedf1J where it was held that; "negligence is only actionable if actual damage is proved. There is no right of action for nominal damages." The learned trial judge distinguished the aforementioned case from the matter in casu, stating that in the Sata (supra) case , the adulterated drink was never consumed or ingested and thus the basis for the injury was not met but in the instant case , the respondent partially ingested or consumed the adulterated drink and suffered injury in that she developed nausea and had to be treated for the condition, as per medical evidence produced. The judge the ref ore found that the respondent's condition was more than mild and it met the threshold for an award of damages and accordingly awarded her K7 ,000. Dissatisfied with the decision of the court below, the appellant now appeals before this court on the following grounds ; Ground One: The Court below erred in law and fact when it held that the subject coca-cola bottle was a product of the appellant when there was no evidence whatsoever to prove the said allegation. Ground Two: The Court below erred in law and fact when it stated that the drink is what caused the plaintiff's condition when there was -J4- no credible and satisfactory evidence adduced at trial to prove the causal link between the drink and the alleged sickness and also when it found that nausea was more than a mild condition to warrant the award of damages. The appellant filed heads of argument on 12th July 2017. Under the first ground of appeal, the appellant argues that no solid evidence was led in the court below by the respondent to challenge the appellant's defence. Counsel for the appellant drew our attention to the evidence of the respondent when she stated in cross examination that she did not know where the shop from which she bought the subject drink sources its drinks, and that by looking at the bottle, she was unable to tell if it was from Zambia Bottlers, although it was written 'coca-cola company.' In this regard, counsel submits that the respondent's evidence did not firmly assert the source of the beverage in question, nor did it establish without any ounce of doubt that the beverage was a product of the appellant. We are further directed to the evidence of DWl, a Trade and Quality Manager at the appellant company, who testified to the effect that there are several coca-cola products on the market produced at different plants, such as Tanzanian products which are sold at COMESA, Shoprite and other shops and that in order to distinguish the products, the appellant company's products are labeled "ZB" in contrast to others, such as those from Harare which are labeled "HR". On this premise, it is counsel's submission that the trial court -JS- gravely misdirected itself when it found that the subject drink was a product of the defendant, as this finding was not supported by any grain of evidence, and the court did not state the basis upon which it arrived at this finding. The appellant acknowledges its awareness of the Supreme Court's position vis an appellate court's reversal of a trial courts findings of fact , and in this vein makes reference to the case of Attorney General v Marcus Kapumba Achiume.f2J Counsel's submission is that the trial court's finding as regards the source of the coca-cola bottle in question falls within the realm of when a finding of fact can be reversed by an appellate court, as it was made 1n the absence of relevant evidence or upon a misapprehension of the facts. Under the second ground of appeal, counsel submits that for a plaintiff to succeed in an action for negligence , actual damage or 1nJury 1s a necessary element of the action , such that not only should the damage or injury be caused to the plaintiff, the said damage or injury occasioned to the plaintiff must have been caused by the defendant's fault or negligent act or omission. On this premise, counsel calls in aid the case of Michael Chilufya Sata v Zambian Bottlers{3J wherein it was held that; "Negligence alone does not give rise to a cause of action, damage alone does not give rise to a cause of action; the two must co-exist." -J6- On this basis, the appellant submits that if a causal link or a cause and effect link is not established between the negligent act or omission and the injury or damage, such failure puts an end to the plaintiff's case. In addition, reference is made to a passage at page 305 by the authors of Win.field & Jolowicz, 18th Edition, where it is stated that: "The claimant must show a causal link on the usual civil standard of balance of probabilities between the loss he has suffered and the defendant's wrong; he must also show that the loss in respect of which he claims is within the range of that for which it is just to make the defendant responsible." Counsel submits in light of the above passage, that in arriving at her finding and apportioning blame to the appellant, the court below failed to observe the highlighted settled principle of law, and that the learned trial judge made her finding in the absence of any medical or empirical evidence that the drink in question caused the respondent's illness. In this regard, our attention is drawn to the respondent's testimony in the court below where she stated that when she asked the doctor whether her sickness was due to the foreign matter in the drink she had consumed, his response was that he could not tell. -J7- Counsel argues further that it is one thing for the beverage to have been contaminated, which the respondent may have proved, whereas it is another thing for it to have actually been the cause of the respondent's illness . The respondent offered no evidence at trial to prove that the contaminated drink actually caused her illness , as the medical evidence she adduced did not establish a causal link between the adulterated drink in question and the illness she suffered thereafter. As regards the medical reports, it is the appellant's submission that the same merely state the contents that were found in the coca-cola bottle in question but do not state the potential harm that the said impurities could cause on a human being if ingested, let alone what harm they could have actually caused to the respondent. It is the appellant's contention that in the absence of such evidence , it was exceedingly erroneous for the trial court to have concluded that the adulterated drink was the cause of the respondent's illness , and in this regard calls in aid the case of Hamilton Mulendama v Zambia Breweries Plc<4J where this court stated, vis the importance to establish causation in negligence actions , as follows: "In product liability, it is trite that the issue of causation is an important ingredient and without it, no finding of liability can be made at all. Negligence alone does not give rise to a cause of action; it must be accompanied by damage or injury suffered as a result of that negligence." -JS- The appellant's counsel also relies on the case of Continental Restaurant and Casino Limited v Chulu/5 1, where the Supreme Court stated as follows: "The important point to stress, however, 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 hospitalized. Mild condition is generally not enough a basis for awarding damages. The plaintiff has, therefore, a duty to bring credible evidence of illness. The award in this 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 future, nothing will be awarded if no proper evidence of a medical nature is adduced." It is on the basis of this guidance by the Supreme Court that the appellant submits that having failed to produce proper evidence of a medical nature, the respondent was not entitled to any damages, and that according to the learned authors of Winfield & Jolowicz, 18th Edition (page 1007), "ordinarily an award of damages is made in order to compensate the claimant for his injury." It therefore follows that where a plaintiff fails to prove his case, he must not be entitled to damages. -J9- In support of the principle that where a plaintiff makes an allegation, it is generally for him to prove those allegations and that it is for the party claiming damages to prove the damage, counsel relies on Zulu v Avondale Housing Project Ltdf6J and J. Z Car Hire Limited v Chalaf7J, respectively. As we see it, the pertinent issues to be determined in this appeal are as follows: 1. Whether the respondent sufficiently proved that the coca-cola bottle in question was a product of the appellant and; 2. The adulterated coca-cola drink was the cause of the respondent's illness. At the hearing of the appeal on the 28 th of March 2018, the respondent's advocates were not present. Having satisfied ourselves that the notice of hearing was served on them, we allowed the appellant's counsel to proceed with the appeal, and he obliged by relying entirely on the appellants heads of argument filed into court on 12 th July 2017, to which we have made reference . We have considered the evidence on record, the grounds of appeal and the said heads of argument advanced by counsel. We will now proceed to determine the appeal. It is trite law, and as indeed stated in the authorities cited by the claimant, that for the defendant to be held liable in tort, the plaintiff has to prove that the defendant owes him a duty of care, which the -JlO- defendant has breached and as a result of that breach, the claimant has suffered damage. In relation to the matter in casu, the issues herein are based on the duty of care owed by a manufacturer to its consumers to take reasonable care. In the first ground of appeal, by denying that the subject drink was its product, the appellant is essentially denying having owed the respondent a duty of care, as such duty of care as a manufacturer to a consumer can only be established if indeed the drink was a product of the appellant. It therefore follows that if we find that the subject drink was indeed a product of the appellant, a duty of care will have been established and said to have been breached, and we can then proceed to determine whether such breach occasioned loss or injury to the respondent, so as to warrant an award of damages to her. From the evidence on record, it appears that in so far as establishing that the subject drink was indeed a product of the appellant, the respondent stated in cross examination that she was told that they got their drinks from Zambia Breweries depot in Woodlands. We also note that in its defence, the appellant stated that given the manner in which its drinks are carefully and properly packaged in an environment with the highest hygienic conditions, there is no possibility that a drink packaged by it could contain foreign matter. Also, it was the appellant's contention in the court -Jll- below that if there was foreign matter in the bottle, which it expressly denied, the same could be attributed to reasons in which it has no role to play whatsoever. In essence, under this ground of appeal, the appellant's prayer is for us to set aside the learned trial judge's finding that the beverage in question was its product. In this regard, the appellant submits that the respondent's evidence did not firmly assert without any ounce of doubt that the beverage was a product of the appellant. Contrary to the appellant's contention as regards the standard to which the respondent ought to have proved that the subject drink was a product of the appellant, it is trite law that the standard of proof in a civil matter such as this one is on a balance of probabilities. The trial judge therefore properly applied her mind when she cited the case of Miller v Minister of Pensions8J at page J 15 of her judgment as follows: is well settled. It must carry a "That degree reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal, it is not." In casu, the issue of the possibility of the subject beverage being a counterfeit or a product of another manufacturer, was not pleaded by the appellant in its defence; it was merely raised in cross -J12- examination. Also, the appellant's defence that the foreign matter could have been due to factors that cannot be attributed to it, such as expiry of the drink, was not sufficiently established by the appellant because the expiry date was not visible on the bottle. We are therefore of the considered view that the trial court did not err either in law or fact, when it found it more probable than not, that the coca-cola glass bottle in issue was the product of the defendant as alleged by the plaintiff. The first ground of appeal is therefore dismissed for lack of merit. Having found that the first ground of appeal has no merit, it then follows that the appellant owed a duty of care to the respondent herein, her being a consumer of its product, and that this duty of care was breached by the appellant. However, breach of duty of care alone does not entitle a claimant to damages. It is essential and in fact necessary, to prove that the claimant suffered damage or injury as a result of the breach of duty. It is therefore pertinent to show that it was the breach of duty or the negligence that caused damage or injury to the claimant. Not so long ago, we stated in the case of Hamilton Mulendema v Zambia Breweries Plc141 at page J20 as follows: "We cannot fault the lower court for holding that the appellant had not shown that he suffered damage. The point to comprehend is that the ingredients necessary to prove negligence namely a duty of care owed, breach the appellant seems not that -J13- of that duty and the consequential damage must be proved and are not separate from each other. The breach or negligence must be shown to have caused the injury. There must be credible medical evidence showing that the appellant suffered the injury as a result of the consumed contaminated drink, failure to which damages will not be awarded." We note that the appellant also cited this case and we have considered the portion of the judgment to which our attention has been drawn. In this matter, and in relation to loss or injury allegedly suffered, it was indeed the respondent's testimony in the court below that the doctor who attended to her could not tell for sure whether her illness was caused by the adulterated drink that she had ingested. Further, and as argued by the appellant, there is no medical evidence on record to establish the potential effect of the foreign matter found in the subject bottle on a human being. Having perused the record, we note that the documents produced into court by the plaintiff relating to her treatment at Mum's Care Clinic include two prescriptions, one of which states that she was treated for nausea, and an invoice. Whether or not the debris in the drink she had ingested is what caused her illness, remains mysterious. In fact, this uncertainty is only worsened by the respondent's testimony to the effect that the doctor who attended to her could not tell whether the foreign matter in the drink is what caused her illness. -J14- A reading of the portion of the judgment of the court below, vis her justification for awarding the respondent damages, reveals that she distinguished this matter from the Sata Case (Supra) wherein the adulterated drink was never ingested . In this regard , the learned trial judge in the court below stated at page J 16: "In the instant case, the plaintiff partially ingested or consumed the adulterated drink and suffered injury in that she developed nausea and had to be treated for the condition as attested by the medical condition as attested by the medical records produced. Injury warranting treatment is more than a mild condition." There is no dispute that at trial, the respondent produced documents relating to her treatment at Mum's Care Clinic in Kabwata. However, going by the precedent we set in the Mulendema case (Supra), the pertinent question , whose answer will ultimately determine the success or failure of this ground of appeal, is whether the medical evidence shows that the appellant suffered the injury as a result of the consumed contaminated drink. Having considered the position of the law as stated above and the circumstances of this case, it is without difficulty that we find that the respondent herein, did not sufficiently establish a causal link between the contents of the contaminated drink that she consumed and her illness, so as to warrant an award of damages in her favour. We have had sight of the medical evidence pursuant to -J15- which the learned trial judge purportedly awarded damages to the plaintiff. The said medical evidence does not disclose the cause or even the probable cause of the illness. The respondent therefore fell short of this cardinal requirement and, contrary to the finding of the learned trial judge, she was not entitled to the award of damages. This ground of appeal therefore succeeds, for reasons set out above, and the award of K7,000 is consequently set aside. In conclusion, and for avoidance of doubt, this appeal succeeds. We therefore set aside the judgment of the lower court in this regard and hold that the respondent herein was not entitled to the award of damages. We award costs to the appellant, to be taxed in default of agreement. C. F. R Mchenga DEPUTY JUDGE PRESIDE J. Z. Mulongoti COURT OF APPEAL JUDGE .... . . . . . . . D. f · Y. COURT OF AP -Jl6-