Zambia Breweries PLC v Kayungwa (Appeal 82 of 2006) [2008] ZMSC 158 (7 August 2008)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 82/2006 HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) ZAMBIAN BREWERIES PLC APPELLANT AND JOSIAS KAYUNGWA RESPONDENT Coram: Sakala, CJ.,Chitengi and Silomba, JJS 6th November, 2007 and 7th August, 2008 For the Appellant: Mr. N. K. Mubonda of D. H. KEMP & CO. For the Respondent: Mr. L. C. Zulu of Malambo & CO. JUDGMENT Sakala, CJ., delivered the Judgment of the Court. Cases referred to: 1. Donoghue Vs Stevenson (1932) AC 562. 2. Grant Vs Australian Knitting Mills (1936) AC 85. 3. Wise Vs Hervey Ltd (1985) ZR 179 at 180. 4. Continental Restaurant and Casino Ltd Vs Arida Mercy Chulu (2000) ZR 164. 5. Mary Patricia Soko Vs The Attorney-General (1988/89) ZR 158 at 161. 6. Hunt Vs Severs (1994) 2 ALLER 385. 7. Zulu Vs Avondale Housing Project Ltd (1982) ZR 172 at page 174. 8. Wilson Masauso Zulu Vs Avondale Housing Project Ltd (1982) ZR 172 at page 174 lines 13-18. Works referred to: 1. Charlesworthy On Negligence, The Common Law Library No. 6, 6th Edition para 20. 2. Halsbury’s Laws of England 4th Edition, Volume 34 in paragraph 54. This is an appeal against the Judgment of the High Court entered in favour of the Respondent in the sum of K10,000,000:0 as general damages, and K5,000,000:00 as aggravated damages for negligence on the part of the Appellant. For convenience, the Appellant will be referred to as the Defendant; and the Respondent as the Plaintiff which designations the parties were at the trial. The Plaintiff, by a Writ of Summons, sued the Defendant claiming for general and aggravated damages for breach of an implied warranty that the beer sold would be of merchantable quality; general and aggravated damages for negligence; and a declaration that the Defendant were liable to prosecution under Section 79 of the Public Health Act, Cap 295 and Section 185 of the Penal Code, Cap 87 of the Laws of Zambia for sale of unwholesome alcohol, Castle Lager, containing remains of dead cockroaches which the Plaintiff purchased on 25th April, 2000. The Plaintiff also claimed for legal fees reasonably incurred and costs. The facts of the case are that the Defendant were the Brewer of the beer widely distributed across the country. The Plaintiff was a lecturer in the School of Education at the University of Zambia. On 25th April, 2000, the Plaintiff went to the Workers Canteen at the University of Zambia. While there, he bought a bottle of Castle Lager beer bottled by the Defendant. He drunk some of the beer; but was unable to swallow all of it as it tasted bitter. He spat it out. Upon checking the bottle, he noticed some dregs; which had settled at the bottom of the bottle and floated after he shook the bottle. He brought this fact to the attention of the bar tender. He left for his room, but left the bottle with the bar tender. At his room, he induced vomiting and managed to vomit the stuff he had swallowed. The following day, he saw the Canteen Manager, who gave him a note. With the note and the bottle, he reported the matter to Hansworth Police Post; and later to his Advocates. The bottle and its remaining contents were later taken to the Lusaka City Council Public Health Department. Subsequently, the bottle with its remaining contents was taken to the Food and Drug Control Laboratory for analysis. The evidence of the Plaintiff was that after vomiting, he felt nausea and his appetite was affected. He went to the University of Zambia Clinic where he was given medication. Later, he was referred to Prof. Haworth at Chainama Hills Mental Hospital. Prof. Haworth attended to him and gave him some medication. The Plaintiff testified that he temporarily recovered after the medication; but the feeling of nausea came back and he still felt nausea. It was also the Plaintiffs evidence that he was devastated by drinking beer that contained impurities to the extent that he does not drink beer any more and he feels like vomiting, whenever he sees people drinking beer. He told the Court that his drinking and eating habits have not come back to normal; that the Defendant was negligent in that it bottled beer containing rotten cockroaches. Prof. Haworth, a psychiatrist at the University Teaching Hospital; testified that on 26th July, 2000, he attended to the Plaintiff about his feeling nausea after he had drunk beer containing cockroaches. He treated him for nausea and made a report to his Advocates. He saw the Plaintiff on two occasions. Mr. Albert Musonda, a Health Inspector with Lusaka City Council testified that he received a bottle of beer on 1st August, 2000, containing foreign matter from the Plaintiff. He sent the bottle, with its contents, to the Food and Drug Laboratory at the University Teaching Hospital for analysis. A Chemist and Public Analyst with the Food and Drug Control Laboratory confirmed receiving the bottle of castle beer with its contents. She also confirmed the contents of the bottle as being Castle Lager beer which contained foreign matter; namely, cockroaches. She also prepared a report. All the reports were produced as part of the Plaintiff’s evidence. On behalf of the Defendant, Mr. Clement Chelu, the Quality Manager, gave a detailed account of the process of bottling beer from the time the bottles are received from various outlets to when the beer bottles come out of the bottle line after being filled with beer. According to the Quality Manager, DW1, the process and the various checks on the bottling line allows for no impurities or foreign matter into the beer bottles; and that the Defendant strives for zero defect. Suffice it to mention that part of DWl’s evidence was given at the site when the Court moved there. Before considering the evidence, the trial Judge pointed out that the claim for a declaration in relation to the offences committed under Section 79 of the Public Health Act, Cap 295 and Section 185 of the Penal Code relate to criminal sanctions, that there is no provision for civil relief in those acts; and that the relief sought could not be granted and was accordingly refused. All we can say at this stage is that the claim for a declaration that the Defendant was liable to prosecution for sale of unwholesome drink was misconceived in civil proceedings of this nature and properly dismissed. The learned trial Judge considered the evidence and made the following findings; that the Defendant was a Brewer of clear beer, one brand of which is Castle Lager beer; that the beer including, Castle Lager, are distributed to various outlets, including the University of Zambia Workers Canteen; that on 25th April 2000, the Plaintiff bought a bottle of Castle Lager beer from the Workers Canteen at the University of Zambia; that the beer proved unwholesome in that it contained impurities or foreign matter; namely, cockroaches; that the Public Analyst confirmed these findings; that when the Plaintiff drunk and partly swallowed the beer, it tasted bitter and had to spit out the remaining beer; that this was due to the cockroaches in the beer; the Plaintiff vomited when he went back to his room, and that he felt nausea and had to be treated with medication at the University of Zambia Clinic, where later, he was referred to Prof. Haworth; and that the Plaintiff has been feeling sickly; his appetite affected and has since stopped drinking beer. The trial Judge further accepted the evidence of Prof. Haworth that the Plaintiff suffered psychological trauma as a result of drinking impure beer; that he treated him with medication for the nausea suffered; and that the Plaintiffs social life was seriously affected and traumatized by drinking contaminated beer. The Court observed that on the evidence of the Defendant that the beer brewered by the Defendant is delivered to different and various outlets where it is expected and anticipated that beer drinkers will buy the beers from such outlets; it was obvious that there would be no intervention as between the Defendant company and its beer consumers. After citing the dictum in the case of Donoghue Vs Stevenson1 on no reasonable possibility of intermediate examination, which dictum was followed in the case of Grant Vs Australian Knitting Mills2, the Court found that in the present case, the Defendant Company, in distributing its products, allowed no intermediate examination of the beer between itself and the ultimate consumer, the Plaintiff in this case; that the Defendant Company owed the Plaintiff a reasonable duty of care to ensure that its product was not harmful and did not cause harm to the Plaintiffs life or health; that it was not in dispute that the beer the Plaintiff bought and partly consumed contained foreign matter, namely, cockroaches; that although the Defendant put up stringent measures to avoid foreign matter finding itself in the beer bottle, there was failure of the measures with regard to the beer bottle the Plaintiff bought and partly consumed; and that the lapse in the checking process was due to negligence on the part of the Defendant Company’s servants and or workers, which, as a result, allowed the cockroaches to be bottled with the beer. The Court concluded that the Plaintiff had proved his case against the Defendant. On quantum of damages, the Court observed that the Plaintiffs health and life had been adversely affected by drinking contaminated beer that he had to induce vomiting in case the liquid he drunk was toxic; later he received medication both at the University of Zambia Clinic and Chainama Hospital; that he also received short term counseling and that he needs long term psychiatric counseling as his appetite has been affected and is unable to drink beer and feels nausea. The Court awarded the Plaintiff a sum of K10,000,000:00, as general damages; and K5,000,000:00, as aggravated damages with costs to be taxed in default of agreement. The Court ordered that the awards carry interest at the short term deposit rate from the date of the writ to the date of judgment; and thereafter at the current bank lending rate as determined by the Bank of Zambia till full payment. The Defendant Company filed an appeal against the trial Court’s judgment based on five grounds; namely: 1. that the learned trial Judge misdirected himself in law and fact in holding that the fact that the beer that the Plaintiff bought and partly consumed contained foreign matter (i.e cockroaches) was not disputed; 2. that the learned trial Judge erred in law in failing to apply the correct test or yardstick of actionable negligence; 3. that the learned trial Judge misdirected himself in law in failing to consider the Plaintiff’s evidence that the vomiting suffered by the Plaintiff was self induced and this vomiting caused the nausea he suffered; 4. that the learned trial Judge misdirected himself in law in awarding the Plaintiff the sum of K10,000,000.00 as general damages and K5,000,000.00 as aggravated damages without assessment; and 5. that the learned trial Judge erred in law in awarding the Plaintiff aggravated damages. The parties filed and relied on written heads of argument based on the five grounds of appeal. There were no oral submissions. On ground one, relating to the holding that the fact that the beer the Plaintiff bought and partly consumed contained foreign matter was not disputed; the summary of the written heads of argument is that the material facts admitted by the Defendant are clear from the amended defence that the Defendant did not admit the fact that the beer the Plaintiff bought and consumed, contained foreign matter; namely cockroaches; and that the learned Judge did not correctly address his mind to the pleadings and failed to understand the issues of fact defined by the pleadings and the importance of the function of pleadings as set out in the case of Wise Vs Hervey Ltd3 in which at page 180 the Court said:- “Perhaps it is useful to recall that, in matter of their functional utility, pleadings are supposed to serve the useful purpose of, inter alia, not only defining the issues of fact and of law to be decided, but also to give each party distinct notice of the case intended to be set up by the other and, perhaps of greater relevance in this appeal, to provide a brief summary of each party’s case from which the nature of the claim and defence may be easily apprehended.” On ground two, relating to failure to apply the correct test or yardstick of actionable negligence, the gist of the written heads of argument is that while the trial Judge found as having been established that there was a duty of care owing from the Defendant to the Plaintiff and that there was a breach of the said duty of care by the Defendant; the trial Judge did not proceed to consider and make a finding of fact as to whether the vomiting and consequent nausea was caused by the said breach of duty of care. On essentials of actionable negligence, the Court was referred to the learned Authors of Charlesworthy On Negligence1, where the authors set out essential ingredients of actionable negligence as 1. the existence of a duty of care owing to the Complainant by the Defendant, 2. failure to attain that standard of care prescribed by the law, thus committing a breach of duty to take care, and 3. damage suffered by the complainant which is causally connected with the breach of duty to take care. Nevertheless, once these requirements are satisfied, the Defendant in law will be held liable in negligence, whereupon it is then necessary to proceed to decide the extent of that damage, which is traceable to the Defendant’s negligence, and finally its value must be converted into a monetary estimation.” We were also referred to Halsbury’s Laws of England2 where the authors state as follows The burden of proof in an action for damages for negligence rests primarily on the Plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the Defendant is in law responsible. This involves the proof of some duty owed by the Defendant to the Plaintiff, some breach of that duty, and an injury to the Plaintiff between which and the breach of duty a causal connection must be established. Therefore, it is insufficient for the Plaintiff to prove a breach of duty to a third person, or a breach of duty without proving injury or to prove injury without proving a breach of duty, or injury which may or may not be caused by a breach of duty.” It was submitted that there was a legal requirement in terms of the Essentials of Actionable Negligence for the trial judge to have addressed himself as to whether the vomiting and nausea was caused by the breach of duty; that it was necessary for the trial Judge to have satisfied himself on the available evidence that there was a causal connection between the breach of duty and vomiting and the consequent nausea. It was submitted that the trial Judge failed to apply the correct test for actionable negligence as was pointed out in the case of Continental Restaurant and Casino Ltd Vs Arida Mercy Chulu.4 The summary of the written heads of argument on ground three relating to the trial Judge’s failure to consider the Plaintiff’s evidence that the vomiting he suffered was self induced and caused nausea is that in both examination in chief and cross-examination, the Plaintiff made it categorically clear that "he induced the vomiting for fear that the beer was unwholesome and he suffered chest pains and nausea as a result;” that the trial Judge failed to draw and deduce the correct inferences from the evidence which were that the vomiting and the consequent nausea were not naturally caused by the breach of duty on the part of the Defendant, but caused by a voluntary and intervening act of self inducement and did not automatically flow or emanate from the consumption of beer. On ground four, relating to the awards of damages without assessment, the summary of the written heads of argument is that the sums of K10 million and K5 million are amounts which the Plaintiff’s Advocates requested the Court to grant in their submissions; that the trial Judge did not at all attempt to carry out an assessment of the compensation or damages to be awarded; but merely adopted and accepted the sums requested by the Plaintiff. It was submitted that the trial Judge should have clearly indicated the method used in calculating or computing the awards; but that he did not carry out any assessment of his own contrary to the law. It was further submitted that the trial Judge did not apply the correct test as stipulated in the case of Mary Patricia Soko Vs The Attorney-General5. In which the Court said:- “The tests should be what the common man in Zambia would regard as a fair sum, such as would, in the words of Lord Devlin in West Vs Shephard(3), allow the wrongdoer to hold his head among his neighbours and say with their approval that he has done the fair thing. ” On ground five, relating to the award of aggravated damages, the gist is that there were no specific grounds or reasons for this award. The case of Hunt Vs Severs (1994)6 was cited in support of the arguments on ground five in which the Court said:- “The starting point for any inquiry into the measure of damages which an injured Plaintiff was entitled to recover was recognition that damages in the tort of negligence are purely compensatory. ” The summary of the written response to ground one is that among the facts that were in issue before the trial court were whether the beer that the Plaintiff had purchased and partially consumed contained the remains of cockroaches and not whether or not the Defendant denied such allegation of fact in their defence; that the evidence of the Plaintiff and his witnesses, PW2 and PW5, a Sales Lady at the Canteen and a Public Analyst, respectively, was credible and not discredited; and that the fact that the bottle of Castle Lager, whose contents the Plaintiff partially consumed contained remains of dead cockroaches, was one of the facts in issue; and that it was conclusively established that the foreign matter in the bottle were indeed the remains of cockroaches. It was submitted that the holding of the trial Judge that that fact was not in dispute was not perverse and did not lead the Court to a wrong decision. The case of Zulu Vs Avondale Housing Project Ltd7 was cited in support of the submission. On ground two, the summary of the written response is that the trial Judge was alive to the essential elements of actionable negligence by the fact that he accepted the evidence of the Plaintiff regarding the cause of the nausea; and that the Defendant cannot now raise the issue that was not in contention before the trial Court. It was contended that the fact as to whether the vomiting and consequent nausea caused breach of duty of care was not in issue. It was submitted that the relevant facts were established, including the fact that the Plaintiff suffered injury as a result of consuming the contaminated beer. The gist of the written response to ground three is that a person’s psychological state of mind is as much part of a person’s state of health as the physical state is. It was submitted that the Plaintiffs reaction was normal and consistent with the diagnosis and as such; the trial Judge could not be said to have drawn wrong inferences from the facts. On ground four, the gist of the written response is that the trial Court was at liberty to adopt the amount of damages as proposed by a party to the proceedings if the court feels sufficiently persuaded by the argument and the authorities cited. The case of Soko was cited in support of the arguments on ground four. The gist of the response to ground five is that the trial Judge revealed the grounds upon which aggravated damages were awarded; that the trial Judge held the view that the Plaintiffs health and life had been adversely affected by drinking contaminated beer and took into account that the Plaintiff received short term counseling and that he needed long term psychiatric counseling and still felt nausea. We have considered the evidence on record, the pleadings, the submissions on behalf of the parties as well as the Judgment of the trial Court. In ground one, the contention on behalf of the Defendant was that the trial Court misdirected itself in holding that it was not in dispute that the beer that the Plaintiff bought and partly consumed contained foreign matter, namely, cockroaches. It was submitted that according to the amended defence filed on 15th January, 2003, the Defendant did not admit the fact that the beer the Plaintiff bought and partly consumed contained coackroaches, and that the trial Judge did not correctly address his mind to the pleadings and completely failed to understand the issues of fact defined by the pleadings. On behalf of the Plaintiff, the contention was that among the facts that were in issue at trial were whether the beer purchased and partially consumed by the Plaintiff contained the remains of cockroaches and not whether the Defendant denied such allegation. It was submitted that the Plaintiffs evidence established that the beer purchased and partially consumed by the Plaintiff contained remains of dead cockroaches. In ground one, we are essentially being requested to reverse the findings of fact by the trial Judge. The principle of reversing findings of fact of a trial court is very well settled. In Wilson Masauso Zulu Vs Avondale Housing Project Ltd8 we stated as follows “ Before this Court can reverse findings of fact made by a trial Judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial Court acting correctly could reasonably make.” In the instant case, the Plaintiff pleaded that the Defendant were at all material times brewers, producing alcoholic beverages including a brand known as Castle Lager; that on 25th April 2000, the Plaintiff bought a brand of Castle Lager from the University Canteen. He saw foreign matter in it, which turned out to be remains of dead cockroaches. The fact that the Plaintiff bought and partially consumed contaminated Castle Lager was confirmed by PW2, the Sales lady at the material time. PW3, a Health Inspector, confirmed receiving a bottle of beer containing foreign matter. PW5, the Public Analyst, also confirmed receiving a bottle of castle beer containing cockroaches. In the amended defence, the Defendant admitted being a brewer of Castle Lager beer. In oral evidence, the Defendant only testified to the various process of bottling beer. The Plaintiff’s evidence was never challenged. On the pleadings and the oral evidence, one of the issues before the Court was whether the beer that the Plaintiff had purchased and partially consumed contained the remains of cockroaches? Whether the Defendant denied the allegation in their defence or not and whether the Defendant admitted or not was, in our view, irrelevant. Quite clearly, on the only evidence adduced by the Plaintiff, which was not rebutted, the fact that the beer the Plaintiff bought and partly consumed, contained foreign matter; namely; cockroaches was, in our view, not in dispute. The Court visited the Defendant’s premises, meaning that they were the producers of the Castle Lager beer which contained the dead cockroaches. We, therefore, find no merit in ground one of appeal. We, accordingly, dismiss it. In the second ground, the Defendant contended that the trial Judge failed to apply the correct test or yardstick of actionable negligence; that while the trial Judge found established a duty of care owing from the Defendant to the Plaintiff; and that there was a breach of the said duty by the Defendant, the trial Judge did not proceed to consider and make a finding of fact as to whether vomiting and consequent nausea was caused by the said breach of care. It was submitted that it was a legal requirement in terms of the essentials of actionable negligence for the trial Judge to have addressed the question of whether the vomiting and nausea was caused by the breach of duty. On behalf of the Plaintiff, it was argued that from the Judgment, it is clear that the trial Judge was alive to the essentials of actionable negligence as he accepted the evidence regarding the cause of nausea. From the record, we are satisfied that the trial Judge found that the lapse in the checking process was due to negligence which allowed the cockroaches to be bottled with beer. The Court considered and accepted the Plaintiffs evidence that he consumed part of the beer and that the Plaintiff induced the vomiting with the consequent nausea. In our view, although the vomiting was induced, it is clear that the inducement that led to vomiting was caused because of the breach of duty of care by the Defendant in allowing cockroaches to be bottled together with the beer. We are satisfied that the evidence established a causal connection between the breach of duty, allowing cockroaches in the beer bottle, and the vomiting and the consequent nausea. Although not in exact terms, the trial Judge applied the correct test or yardstick of actionable negligence. Ground two of appeal is also dismissed. Ground three has partly been discussed in ground two. The contention is that the trial Judge failed to consider the evidence that the vomiting suffered by the Plaintiff was self induced and caused the nausea he suffered. The arguments in ground three seem to emphasize the fact that the vomiting was self induced. In our view, the arguments overlook the explanation why the Plaintiff induced the vomiting. The Plaintiff explained both in examination in chief and in cross examination that he induced the vomiting for fear that the beer was unwholesome....” “......as I feared the contents were fatal...” We agree that the vomiting and nausea were caused by a voluntary and intervening act on the part of the Plaintiff; but this was a natural and normal consequence that automatically flowed or emanated from the consumption of contaminated beers. Indeed, when one swallows a fatal object, the natural reaction is to take it out by whatever means. People do not induce vomiting for the sake of it. It is to get relief from something. In the instant case, the Plaintiff had to get relief from the contaminated beer, which he feared might be fatal. We are satisfied that the trial Judge drew the correct inference from the evidence of the Plaintiff on causal connection. Ground three of appeal fails. The complaint in ground four relates to the quantum of damages awarded to the Plaintiff. The contention was that the Court merely picked figures proposed in the submissions on behalf of the Plaintiff; that the Court never at all attempted an assessment of its own. In dealing with the issue of quantum of damages the Court observed that the Plaintiffs health and life had been adversely affected by drinking contaminated beer; that he had to induce vomiting and later he received medication; that he received short term counseling and that he needs long term psychiatric counseling and that he feels nausea. The Court then awarded K10 million as general damages and K5 million as aggravated damages. In the case of Continental Restaurant and Casino Ltd, we pointed out that “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.” In the instant case, the Plaintiff suffered some injury to his health which required him to attend clinic and hospital. But we cannot say the injury was so serious as to attract the general damages awarded by the trial court. The award of general damages comes to us with a sense of shock as being wrong in principle and as being on the higher side. Accordingly, we set aside the award of KlOmillion. In its place, we award K5 million. The award of K5million as aggravated damages on the facts on this case was not justified. We set it aside in toto. Thus, ground four is partially successful. Ground five in relation to the award of K5 million is a repetition of ground four. We agree that there was no justification to award aggravated damages. The award of K5 million as aggravated damages is set aside. Ground five of appeal is allowed. In conclusion, the appeal is dismissed on liability. On quantum of damages, ground four is partially successful, while ground five is successful in toto. We make no order as to costs in this Court. E. L. Sakala CHIEF JUSTICE P. Chitengi SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE /rmc