Zambia Breweries PLC v Chibwe (Appeal 107 of 2012) [2017] ZMSC 292 (31 August 2017)

SELECTED JUDGMENT NO. 41/2017 (P1448) IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 107/2012 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ZAMBIAN BREWERIES PLC APPELLANT AND DAVID CHIBWE RESPONDENT CORAM: Mwanamwambwa DCJ, Wood and Musonda JJS. On 11th July, 2017 and 31st August, 2017. For the Appellant: No Appearance For the Respondent: In Person JUDGMENT WOOD, JS, delivered the Judgment of the Court. Cases referred to: 1) Continental Restaurant and Casino Limited and Aridah Mercy Chulu- SCJ. J. No. 28 of2000. 2) Zulu v. Avondale Housing project [1982] Z. R. 175 3) Kapansa Mwansa v Zambian Breweries Plc Appeal No. 153/2014 4) J. Z. Car Hire Limited v Malvin Chala, Scirocco Limited, SCZ Judgment No. 26 of2002. | S U P R t M E • J * * T . 2 3 AUG 2017 J2 (P1449) Legislation referred to: 1) Section 3 (b) of the Food and Drugs Act Cap 303 of the Laws of Zambia Other works referred to: 1) Paragraph 6-06 of Phipson on Evidence, 17th Edition This is an appeal against a decision of the High court which held that the appellant was liable for damages for personal injury and consequential loss and also for damages caused by negligence and breach of statutory duty of care by the appellant in the manufacturing and bottling of Castle beer. According to the statement of claim in the court below which was repeated by the respondent in his evidence, the respondent on 5th March, 2012 in the evening, in the company of his friends, purchased three bottles of Castle lager from Club Zero, a licensed liquor dealer in Serenje. The statement of claim states that the respondent opened and consumed part of the drink and he immediately vomited. He informed the sales lady and later went to Serenje Police Station where he reported the matter. In his evidence in chief he testified that the bar attendant opened the J3 (P1450) bottles of beer. The respondent then visited Serenje District Hospital where he was admitted and treated for "abdominal tenderness and breath of alcohol.” The matter did not end there. The respondent took the Castle bottle together with its contents to the Food and Drugs Laboratory in Lusaka, where it was examined by Ms. Margaret Sakala, a Public Analyst. Her findings, which are contained in her letter dated 3rd April, 2012 addressed to the Director of Serenje District Medical Office, were to the effect that "The smell was identified as a Hydro Carbon Product (Diesel). ” As a result of this finding, the respondent demanded compensation in the sum of K30,000.00 for negligence and breach of duty of care. The appellant denied liability and as a result, the respondent issued a writ claiming damages. In its defence, the appellant denied it had breached any duty of care to the respondent. Its defence was that it produced its Castle beer under stringent hygienic conditions with no possibility of producing Castle beer which had the smell of diesel. J4 (P1451) In the alternative, its defence was that the Castle beer could have been contaminated after it was opened or was a counterfeit product or could have been the result of sabotage by unknown people after it had left the appellant’s control. The appellant’s defence did not raise the defence that it was not its bottle as was being suggested by the appellant’s witness in his evidence but this was not objected to. In his judgment after analyzing the evidence as mentioned above, the learned trial judge held that the respondent in order to succeed had to prove on a balance of probabilities that the beer he consumed was the appellant’s product. He found this to be a difficult issue because it was entirely in the hands of the appellant who alone knew the product code of its bottles and that the respondent had no way of proving the fact unless the appellant cooperated with him. He further made an observation that it is common cause that Zambians who drink alcoholic beverages such as Castle beer associate the same with the J5 (P1452) appellant and it was therefore reasonable for a consumer to assume that such products are manufactured by the appellant. The learned trial judge then held that in the case of a consumer who is injured as a result of consuming beer or indeed any product contained in a bottle bearing the appellant’s mark it was reasonable to point a finger at the appellant as a consumer is not reasonably expected to know the distinguishing marks of bottles and products under the same mark but manufactured by entities in different countries. The learned trial judge concluded that the duty rested with the appellant to show that the product in question was not manufactured by the appellant but by another entity. That was so because it was not enough for the appellant to simply state that the bottle was not from its plant. He added that there must be something that the court could use to come to the conclusion that the bottle was not from the appellant’s production line. The learned trial judge rejected the appellant’s argument that the bottle was not the appellant’s property as there was J6 (P1453) nothing to show that that was the case. He found that the bottle was the appellant’s property on the basis of its label as stated by the respondent. On the question of negligence, the learned judge found that it was common cause that the duty of care was statutory as provided by section 3 (b) of the Food and Drugs Act Cap 303 of the Laws of Zambia. He found that a manufacturer of food and drink had a higher duty of care than that of a manufacturer of non-food products because of the high risk consumers of such food are exposed to. He held that in spite of the appellant’s elaborate cleaning procedure in its manufacturing process, the diesel must have been in the bottle at the time of manufacturing the beer and must have escaped detection as it was only discovered when the bottle of beer was opened and the respondent drank some of it. He therefore found that the appellant was negligent in its manufacturer of the beer. J7 (P1454) The last issue the learned trial judge dealt with related to the damages arising from the negligence. He held that the medical report which the respondent had produced that he had been treated for alcohol poisoning constituted sufficient evidence of damage as a consequence of the beer he consumed which beer was contaminated due to the appellant’s negligence. He then awarded the respondent the sum of K20,000.00 as damages. When this appeal was heard, there was no appearance from the appellant. The respondent appeared in person and briefly submitted that we should uphold the high court as the Castle beer was contaminated and he had been injured. The appellant has now appealed to this court raising six grounds of appeal as follows: i) The learned trial Judge erred in fact and in law in holding that the burden of proving that the Castle beer in issue was the product of the appellant is discharged merely because it is reasonable for consumers to assume that such products are manufactured by the appellant. J8 (P1455) ii) The teamed trial judge erred in fact and in law in shifting the burden of proof to the appellant to prove that the bottle in issue was not manufactured by the appellant as opposed to placing the burden on the respondent to prove that the bottle was actually manufactured by appellant and not anyone else. Ui) The learned trial judge erred in fact and in law in failing to distinguish the finding on the origin of the bottle and the contents of the bottle and proceeding to find in favour of the respondent despite there being no evidence or finding that the contents of the bottle were manufactured by the appellant. iv) The learned trial judge erred in fact and in law in holding that the respondent had discharged the burden of proving that the bottle left the manufacturer’s plant already contaminated merely because there was evidence that the bottle was sealed with the usual crown at the mouth and opened by the bar tender at the counter without considering the possibility that the drink was expired or could have been tempered with after it had left the manufacturer. v) The learned trial judge erred in fact and in law in holding that the discharge slip which stated that the respondent had been treated for alcohol poisoning was sufficient medical evidence even when there was no doctor/ medical practitioner called to testify on the link between the alleged negligence and the disease as well as the cause J9 (P1456) and extent of the alleged alcohol poisoning. Additionally, the trial judge glosses over the seriousness of adducing credible evidence of a medical nature as directed by the Supreme Court in the case of CONTINENTAL RESTAURANT AND CASINO LIMITED AND ARID AH MERCY CHULU-SCJ. J. NO. 28 OF20001. vi) The learned trial judge erred in fact and in law in awarding the sum ofK20, 000.00 in the absence of credible evidence of the medical nature as required by law. The appellant argued the first and second grounds of appeal together. The appellant argued that it is a fundamental principle of law that he who alleges must prove. For this proposition the appellant relied on the case of Zulu v. Avondale Housing Project2 and paragraph 6-06 of Phipson on Evidence, 17th Edition where it states as follows at page 151: “So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issues. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. ” J10 (P1457) The appellant argued that the burden of proving that the bottle was the appellant’s product, rested on the respondent who was alleging that he was injured as a result of consuming the beer. The appellant relied on the following passage from the judgment to support its argument: "... in this case it is common cause that Zambians who drink alcoholic beverages such as Castle associate the same with Zambian Breweries Plc. It is therefore reasonable to assume that such products are manufactured by Zambian Breweries Plc. ” Earlier on in the judgment, the learned trial judge stated as follows: “...as a starting point, for the plaintiff to succeed, he must prove, on a balance of probabilities that the beer he consumed was a product of the Defendant. This is a difficult issue because it is entirely in the hands of the defendant who alone knows the product code of its bottles. The plaintiff has no way of proving the fact unless the defendant co-operates with him. ” Later on in his judgment the learned trial judge held that: “I think that the duty rests with the defendant to show that the product in question was not manufactured by the defendant but another entity. ” Counsel for the appellant argued that the sentiments expressed by the court below in its judgment are erroneous and Jll (P1458) are not supported by the law. We agree. There is no obligation in civil proceedings for a party to aid its opponent to prove its case in order to succeed. It is a time honored principle in civil proceedings that it is for a plaintiff to prove its case against the defendant even when it is difficult to do so. The burden of proof is at all times on the party making the claim and does not shift to the defendant simply because there is need for the defendant to cooperate so as to assist the plaintiff to prove its case. The law of negligence places the burden on the claimant to prove every element of the tort. This is what we also held in the case of Kapansa Mwansa v Zambian Breweries Plc3 when we quoted paragraph 6-02 at page 406 of the 12 Edition of Charlesworth and Percy on Negligence which states that: “During the course of a trial, whilst the state of the evidence as to some particular issue was to impose a provisional burden of proof on the defendant to rebut an inference or presumption to which the evidence gives rise, the legal burden of proof continues to rest throughout upon the claimant as the person alleging negligence. ” In this case, the difficulty the appellant faced was proving that the bottle and its contents were produced by the appellant as J12 (P1459) the appellant had raised the defence that the beer and its contents could have been produced by another brewer or was a counterfeit or was contaminated with the diesel after it had left the appellant’s production line. Faced with such a situation, the respondent could have (even though he was appearing in person) obtained an order for discovery of the appellant’s product code of its bottles and compared it with the bottle in dispute in order to prove that it was indeed the appellant’s product. At the very least, the bar man who sold him the Castle beer could have testified on behalf of the respondent that he obtained all his stock from the appellant and no other source, which would have established some connection with the beer in dispute. It was simply not enough for the learned trial to make a general assumption as he did, that since it was a Castle beer it was reasonable to assume that it was manufactured by the appellant. In J. Z. Car Hire Limited v Malvin Chala, Scirocco Limited,4 this Court held that “It is for the party claiming any damages to prove the damage never mind the opponent’s case. ” Similarly in this case it was J13 (P1460) for the respondent to prove his case and not to shift the burden of proof onto the appellant. There is merit in the first and second grounds of appeal and we allow them. The appellant has repeated its arguments in respect of the first two grounds of appeal in arguing its third ground of appeal. In addition, the appellant has argued that there was no evidence adduced by the respondent in the court below to prove that the contents of the bottle were manufactured by the appellant. The appellant argued that the respondent failed to call witnesses from the Food and Drug Laboratory who analyzed the bottle and its contents. The Public analyst’s report dated 3rd April, 2012 was not at all helpful as it simply concluded that “The smell was identified as a hydrocarbon product (Diesel). ” The Public Analyst’s report as such did nothing to help the court conclude whether or not the product was genuine or who manufactured it. As such, the appellant argued that the absence of evidence on this material issue must react against the respondent. In the circumstances, the appellant argued that the learned judge erred in fact and law J14 (P1461) when he failed to distinguish the finding on the origin of the bottle and its contents and found in favour of the respondent in the absence of evidence that the contents of the bottle were manufactured by the appellant. There is merit in this argument. The learned judge in his judgment again shifted the burden of proof onto the appellant when he held that: “But without anything to show that the bottle was not the defendant’s property, I must take the bottle as it is and find that in fact, is the property of the defendant based on its label as stated by the plaintiff. ” It seems to us that the learned judge took the view that since it was a Castle beer, it must have been manufactured by the appellant in spite of its denial in its defence where it pointed out that its beer and other beverages are carefully and properly packaged in an environment with utmost hygienic conditions with no possibility of its beer having the smell of diesel. Having alleged that the appellant’s beer was contaminated, it was incumbent upon the respondent to prove that the appellant’s manufacturing process was not what it claimed to be but was one which was J15 (P1462) susceptible to contamination including but not limited to diesel. No such evidence was led by the respondent. There is merit in the fourth ground of appeal and we allow it as well. In ground five, the argument relates to the discharge slip issued by Serenje District Hospital on 6th March, 2012 which stated that the respondent had been treated for “Poisoning (alcohol)” and had been passed on to “E. H. T offices for specialized advice.” The record does not show that he received specialized advice but the medical report of 16th July, 2012 signed by Dr. Chirwa states that the respondent had “Abdominal tenderness and breath of alcohol” and in his findings in the medical report the doctor stated that this was consistent with a “Case of poisoning as described above. ” The appellant has argued that no medical practitioner was called to testify on the link between the alleged negligence and the disease as well as the cause and extent of the alleged alcohol poisoning. Additionally, the appellant argued that the learned trial judge glossed over the seriousness of adducing credible J16 (P1463) evidence of a medical nature as directed by this Court in Continental Restaurant and Casino Limited and Aridah Mercy Chulu1 when we held that: “Mild condition is generally not enough a basis for awarding damages. The plaintiff has therefore, a duty to bring credible evidence of illness... 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. ” The medical reports in the record of appeal are extremely brief and do not help this Court at all. More importantly, no medical practitioner was called to testify as to the causal link between the drinking of the beer and the illness suffered including a prognosis of the illness. We note that the summaries given by the medical practitioners in this case are not uncommon in the appeals heard by this Court concerning medical evidence but this should not stop a litigant from obtaining a more detailed medical report for purposes of proving his case or from asking a medical practitioner from testifying on behalf of his patient. We are of the view that the medical report which the learned trial judge relied on that the respondent was treated for alcohol J17 (P1464) poisoning does not constitute sufficient evidence of damage as a consequence of the beer the respondent consumed because it is not proper evidence of a medical nature. He therefore fell into error when he relied on it as sufficient evidence of damage. In addition to that, no medical practitioner was called to testify. It follows from what we have said above that there was therefore no basis for awarding the respondent the sum of K20, 000.00 as damages. We had indicated in the Aridah Chulu case that in future nothing will be awarded if no proper evidence of a medical nature has arisen. That time has now come. There was no proper evidence of a medical nature in this case to persuade us to award any damages. The sixth ground of appeal also has merit and we allow it. As we conclude this judgment we would like to mention in passing the similarities of this appeal with the case of Kapansa Mwansa v Zambian Breweries Plc which we decided on 24th May, 2017. A perusal of the statement of claim in that case is in some paragraphs word for word similar to this case. The first 'j (P1465) J18 paragraph of the statement of claim appears to have been cut and pasted in a hurry as it states that the appellant was at the material time “...a customer of Titanic bar, Kapiri Mposhi District, Central Province” while in paragraph 4 the respondent claims to have . purchased three bottles of castle lager from Club zero a licensed liquor dealer in Serenje. ” It is virtually impossible for the appellant to have been in two bars at the same time, never mind the distance between Serenje and Kapiri Mposhi. What this statement of claim brings to the fore is that its fortunes were riding on the success of Appeal No. 153/2014 which we dismissed. We do not encourage this type of speculative litigation. The net result is that the appellant has succeeded on all grounds of appeal. The appeal is allowed, with costs to the appellant, to be agreed or taxed in default of agreement. M. S. MWANAMWAMBWA DEPUTY CHIEF JUSTICE J19 (P1466) A. M. WOOD SUPREME COURT JUDGE M. MUSONDA, SC SUPREME COURT JUDGE