CORAM: HER HONOUR SEDINAM AWO KWADAM (MRS), JUDGE. SITTING AT THE CIRCUIT COURT 2, ADENTAN, ACCRA ON THE 24™ DAY OF JUNE, 2024
SUIT NO. C08/001/2023
1. WINFRED TSE
2. RODGER BISMARK TSE
3. WALTER TSE
H/NO. 15, 22nd STREET ACHIMOTA
VRS.
MARWAKO FAST FOOD LIMITED
OSABU STREET ABELEMKPE
PLAINTIFFS ………………………. ABSENT
DEFENDANT………………………. ABSENT
ELIKEM ADISENU – DOE ESQ ………………PRESENT FOR PLAINTIFFS
JUSTICE KWAKU SALLAH ESQ………………PRESENT FOR DEFENDANT
JUDGEMENT
The theme for World Food Safety Day 2023 was, “Food Standards Save Lives.” This theme underscores the critical role that food standards play in ensuring consumer safety and promoting equitable trade in food worldwide. It is a reminder that what we eat must meet rigorous safety standards to protect our health and well-being. It underscores the global importance of food safety and its profound impact on nations.
The present lawsuit involves Plaintiffs seeking legal remedy for an alleged harm or injury they incurred from eating food purchased from the East Legon branch of the Defendant, a commercial food vendor operating a chain of restaurants in Accra.
The Plaintiffs issued a Writ of Summons from the Registry of this court on the 19th day of January, 2023. The reliefs indorsed on the said Writ of Summons are as follows;
a) General damages for physical injury suffered by the Plaintiffs.
b) General damages for psychological trauma following the injury and harm caused to the Plaintiffs.
c) General damage for inconvenience and general discomfort suffered by the Plaintiffs.
d) An Order directed at the Defendant to refund the amount of GHC25,215.48 which amount constitutes special damages.
e) Costs inclusive of legal fees.
THE
THE PLAINTIFFS’ CASE
The Plaintiffs, who are siblings, allege that they suffered physical injuries, psychological trauma, and general discomfort due to food poisoning after they consumed food purchased from the Defendant’s East Legon branch, a fast-food company adjacent to the A&C Mall. Specifically, they allege that the 1st Plaintiff purchased 6 packs of fried rice from the Defendant’s East Legon branch on the 8th day of May 2022.
Shortly after consuming this food, the Plaintiffs experienced severe abdominal pain, vomiting, and diarrhea duringthe early hours of May 9, 2022. They assert that they had not eaten any other meal after consuming the Defendant’s food.
Their symptoms persisted for two agonizing days, leading to hospital admissions. The 1st Plaintiff was diagnosed with acute gastroenteritis at Nyaho Medical Centre, while the 2nd and 3rd Plaintiffs were diagnosed with severe food poisoning at Holy Trinity Medical Centre.
The Plaintiffs base their case on negligence (as outlined in specific paragraphs of their Statement of Claim) and further invoke the legal principle of Res Ipsa Loquitur, as entitling them to the reliefs they seek per their Writ of Summons.
In terms of the damages they seek, they attribute their suffering to the contaminated food purchased from the Defendant’s East Legon branch on May 8, 2022. Their reliefs, as indicated in the Writ of Summons issued by their counsel on January 19, 2023, seek redress for these injuries.
THE DEFENDANT’S CASE
The Defendant acknowledges that the 1st Plaintiff purchased 6 packs of fried rice from its East Legon branch on 8th May, 2022, and received payment for the purchase.
However, the Defendant denies any liability regarding the Plaintiffs’ claim of suffering food poisoning from the fried rice it sold to the 1st Plaintiff.
The Defendant also disputes the assertion that the food purchased on that day was
contaminated.
While the Defendant acknowledges its duty toward the 1st Plaintiff, it denies breaching that duty.
The Defendant emphasizes that the Foods and Drugs Authority (hereinafter referred to simply as “FDA”) did not confirm negligence or culpability against it in relation to the Plaintiffs.
interestingly, the Defendant reveals that it received complaints from about 30 customers who were receiving medical treatment after consuming food from its East Legon branch. The Defendant visited these affected customers and covered their hospital bills as a gesture of concern.
The Defendant clarifies that this action does not constitute an admission of culpability.
Additionally, the Defendant challenges the Plaintiffs’ interpretation of the FDA’s report, and asserts that the conclusions drawn by the FDA did not establish contamination of the food purchased by the 1st Plaintiff.
LEGAL REQUIREMENT AS TO PROOF
With reference to Section 10 of the Evidence Act, 1975 (NRCD 323, hereinafter referred to simply as “NRCD 323”), the burden of persuasion refers to a party’s obligation to establish a certain level of belief regarding a fact in the minds of the court or tribunal. Specifically, this requires proof by a preponderance of the probabilities. Meaning that, the degree of certainty must convince the court that the existence of a fact is more likely than its non-existence. (See Section 12 of NRCD 323).
Again, Section 14 of NRCD .323 provides that unless and until it is shifted, a party has the burden of persuasion as to each fact, the existence or non – existence of which is essentia! to their Claim or Defence. Therefore, unless the burden of persuasion is shifted, a party is responsible for proving each essential fact related to their claim or defense.
In the context of this specific lawsuit, Section 15(2) of NRCD 323 specifies that unless the burden is shifted, the party asserting that someone failed to exercise the necessary degree of care bears the responsibility of persuasion on that matter.
(Refer also to Section 11(1) and (4) of NRCD regarding the burden of producing
evidence in a civil suit).
See also the following cases;
1) Ababio Vrs. AkwasiM [1994-95] GBR part II, 74.
2) Re Ashalley Botwe Lands: Adjetey Agbosu & Ors. Vrs. Kotey & Ors [2003-2G04]SCGLR 420
3) Okudzeto Ablakwa [No. 2] Vrs. Attorney General & Anor. [2012] 2SCGLR
845 at 867
4} Zambrama Vrs. Segbedzi [1991] 2 GLR 221
5) Ackah Vrs. Pergah Transport Ltd. [2010] SCGLR 731
ISSUES
Two main issues stand out from the issues outlined and set down for trial by this court at the proceedings of 12th June 2023;
(i) Whether or not the Plaintiffs can successfully rely on the legal principle
of Res Ipsa Loquitur, and
(ii) Whether or not the Defendant is liable for negligence with respect to the Plaintiffs.
THE EVIDENCE PRESENTED BY THE PLAINTIFFS
The 1st Plaintiff testified for herself and on behalf of the other 2 Plaintiffs. Her Witness Statement and attached Exhibits A to J series constitute the totality of her evidence on record.
Thus, the 1st Plaintiffs evidence may be summed up as follows;
1) The Plaintiffs are siblings and the 1st Plaintiff is an Environmental Consultant.
2) She purchased food worth GHC228.00 from the Defendant, a fast-food company’s eatery at East Legon on the 8th day of May 2022.
3) The food purchased was 6 packs of fried rice, and it was consumed by all three (3) Plaintiffs on the same 8th day of May 2022.
4) All 3 Plaintiffs after consuming the said food were beset with terrible abdominal pain accompanied by vomiting and diarrhea on 9th May 2022 at dawn. This continued for 2 continuous days.
5) The 3 Plaintiffs were admitted to 2 hospitals. The 1st Plaintiff was admitted to Nyaho Medical Centre at Airport Accra after she was rushed to the Accident and Emergency Department of the said hospital. The 2nd and 3rd Plaintiffs were rushed to the Holy Trinity Medical Centre.
6) The 1st Plaintiff was diagnosed with acute gastroenteritis while the 2nd and 3rd Plaintiffs was diagnosed with severe food poisoning.
7) After their respective discharge, the Plaintiffs continued to endure trauma, general discomfort and nervous shock arising from the food poisoning incident they suffered.
8) The aged parents of the Plaintiffs suffered shock and trauma which worsened their health conditions, as a result of the food poisoning incident their children had suffered and their consequent hospitalization.
9) The Plaintiffs suffered physical injuries including excruciating abdominal and recta! pains, diarrhea, vomiting and dehydration, which experience was traumatic for the Plaintiffs.
10) The 1st Plaintiff was unable to meet work deadlines, attend work meetings and this resulted in loss of a contract she had secured prior to the incident.
11) Plaintiffs had to hire domestic help for 5 days to assist in caring for their aged parents as a result of their incapacitation from the food poisoning incident.
12) Plaintiffs lost a total of GHC25,215.48 as a result of the food poisoning incident they suffered.
13) The Plaintiffs suffered the incident of food poisoning after eating food they bought from the Defendant’s eatery at East Legon because the Defendant failed to ensure that the said food was wholesome and devoid of any contamination.
14) The Defendant sold contaminated and microbial infested food to the general public including the Plaintiffs herein on 8th May 2022.
15) The Nation’s regulatory authority, the FDA, investigated the Defendant and found that the food samples obtained from Defendant and its branches including the East Legon branch on the day of incident contained heavy microbial load linked to the food borne disease reported. The FDA also concluded that the levels of sanitation and hygiene in the food preparation area in the facilities of the Defendant, including the East Legon branch, were poor.
16) The FDA further found that the Defendant had poor storage practices, poor handling of ingredients used for cooking, and high temperature of its freezers and refrigerators. The FDA indicated that Defendant destroyed some food items which resulted in the FDA’s inability to establish the root cause of the contaminated food found at Defendant’s eateries.
17) The food poising incident of 8th May 2022 had been widely reported in both print and electronic media which led to the FDA’s intervention. There was media reportage to the effect that about 53 customers who had eaten food sold by Defendant on 8th May 2022 were infected and had to receive medical treatment at various health centers in Accra for suspected food poisoning. The Defendant was reported to have rendered an apology to its customers through its public relations officer and further paid the medical bills forthese affected customers. The Defendant’s Public Relation Officer was reported to have said that they visited some of the hospitalized customers, paid some of their bills and further visited those at home. The Public Relation Officer is reported to have accepted everything and apologized to the victims.
18) The Defendant offered to pay the Plaintiffs’ medical bills but refused to compensate them when the Plaintiffs made a written demand for same.
19) The Plaintiffs tendered the following Exhibits in evidence;
(o) Exhibit A – Receipt of payment of GHC288 for the purchase of 6 packs of fried rice on 8th May 2022 at 3:16 p.m. from Defendant’s East Legon Eatery.
b) Exhibit B series – Medical Report, Discharge Summary, Receipts of payment of medical bills for the 1st Plaintiff.
c) Exhibit C series – Receipts of payment of medical bills for 1st Plaintiff.
d) Exhibits D series – Receipts of payment of medical bills for the 2nd Plaintiff
e) Exhibit E – Medical Report for 2nd Plaintiff
f) Exhibit El – Medical Report for 3rd Plaintiff
g) Exhibit F – Withdrawal of Offer for Environmental Impact Assessment against the 1st Plaintiff by UIC Energy Ghana Limited.
h) Exhibit G series – Food and Dugs Authority (FDA) Notices and Findings.
i) Exhibit H series – Ghanaweb publication, City News Room publication, Food Safety Africa publication, BBC News Pigeon publication, all being online publications.
j) Exhibit J series – Demand Notice to Defendant, Response to Demand Notice and Further Response by Counsel for Plaintiffs.
CROSS EXAMINATION OF THE 1st PLAINTIFF PiSCLOSED THE FOLLOWING TO THE
COURT;
1) Even though the 1st Plaintiff bought and ate food she purchased from the Defendant’s East Legon branch on 8th May 2022, she was rushed to the hospital on 11th May 2022 and not on 8th May 2022.
2) The first Plaintiff did not author Exhibit G series and H series and thus cannot speak to the veracity of their respective content.
3) The first Plaintiff did not provide evidence of the contract she claims to have secured with UIC Energy Limited even though Exhibit F shows withdrawal of such a contract for which the 1st Plaintiff lost GHC15,Q00.
4) Per Exhibit HI and H3, the Public Relation statement of Defendant stated that the Defendant paid the medical bills of victims of the food poisoning incident.
5) Plaintiffs’ aged and convalescing parents had to take them to the hospital at dawn when their condition worsened.
6) Plaintiffs brought their predicaments to the Defendant’s attention on 12th day of October 202.2, about 5 months after 8th May 2022.
THE DEFENDANT’S EVIDENCE
Richmond Kponor, the General Manager of the Defendant, presented the
Defendant’s evidence via his witness statement and Exhibits 1 to 5. His evidence
on record may be summed up as follows;
1) The Defendant admits that the 1st Plaintiff purchased 6 packs of fried rice from its East Legon branch on 8th May 2022 and paid GHC288.00 for the said food purchased.
2) Defendant did not admit or deny that the 1st Plaintiff consumed the said food on 8th May 2022.
3) Defendant did not admit or deny the plaintiffs’ claim that a few hours after consuming the said food, they each suffered terrible abdominal pain accompanied by vomiting and diarrhea on 9th May 2022.
4) Defendant confirmed to the court that some of its customers who bought food from Defendant’s East Legon branch drew its attention to their hospitalization after eating the food.
5) Defendant admits that 30 customers who had bought food from its East Legon branch on 8th May 2022. out of a total of 598 customers complained to the Defendant about their condition.
6) Defendant visited the affected customers at various hospitals and paid their medical bills having been moved by the said customers’ plight.
7) Defendant denies culpability and insist that the help it offered to the affected customers was the proper thing to do at least in appreciation of the customers.
8) In fairness, Defendant decided to reimburse all customers with genuine complaints, not fraudulent opportunistic ones, their medical expenses made.
9) Defendant admits that the incident was widely reported in the media causing the Food and Drugs Authorities intervention.
10) Defendant admits that its eateries at East Legon, Abelemkpe and Labadi were affected by the incident and the FDA’s consequent intervention.
11) Defendant testified that the regulatory infractions found against it by the FDA were not peculiar to it and that is known by the industry players.
12) Defendant denies that the FDA made a finding that there was heavy microbial load linked to the foodborne disease reported. Defendant concedes that the FDA punished it for the regulatory infractions it committed but that does not establish that the food bought by 1st Plaintiff was contaminated and infested by heavy microbial load.
13) Defendant admits that the FDA was unable to establish the root cause of the contamination owing to the unapproved and unilateral decision by the management of Defendant to destroy some of the food items while investigation was still in progress.
14) Defendant admit that it owes its customers particularly the 1st Plaintiff, a duty of care but denies breaching the said duty.
15) Defendant testifies that assuming without admitting that the Plaintiffs indeed suffered food poisoning and the health conditions complained of, the Defendant is not liable as same cannot be attributed to the Defendant.
16) Defendant says it offered to reimburse plaintiffs’ medical expenses without prejudice and that same cannot be construed as an admission of any wrong doing on its part.
17) The Defendant tendered the following Exhibits in evidence;
a) Exhibit 1 – Demand Notice made by one Kelvin Syne.
b) Exhibit 2 – Demand Notice made by one Nana Kojo Anokye Darko.
c) Exhibit 3 – Complaint of False claims to the FDA.
d) Exhibit 4 – Suspension of Catering Activities Notice from the FDA.
e) Exhibit 5 – Public Notice by FDA.
THE CROSS – EXAMINATION OF DW1 REVEALED THE FOLLOWING;
1) DW1 is the Genera! Manager of the Defendant who has worked for the Defendant for about 17 years. DW1 was at his post as the General Manager of Defendant when the alleged food poisoning incident of 8th May 2022 allegedly occurred.
2) An average of 400 customers are served daily at Defendant’s East Legon branch.
3) A total of 598 customers were served at the Defendant’s East Legon branch on 8th May 2022.
4) The 1st Plaintiff, on 8th May 2022, purchased 6 packs of food at GHC228.00 from the Defendant’s East Legon branch.
5) Defendant paid the hospital bills of 30 persons who had suffered food poisoning after they had eaten food from Defendant’s East Legon branch on 8th May 2022 and DW1 had seen some of these peoples’ hospital, reports.
G) Some of these 30 customers had suffered typhoid, gastroenteritis and malaria.
7) Defendant paid the hospital bills of these 30 customers having been moved with compassion to fulfill God’s law of loving their neighbour as one’s self.
8) The FDA found that food and food items found in Defendant’s East Legon branch on 8th May 2022 and 9th May 2022 were contaminated and had heavy microbial loads (pathogens). This finding was not challenged by the Defendant. The FDA fined Defendant GHC700,000 for all the findings made against it.
9) The Defendant is aware of its duty to its customers to provide them with wholesome food.
10) Defendant’s Public Relation Officer, Mr. Amin Lamptey, accepted Defendant’s responsibility for the 8th may 2022 food poisoning incident.
ISSUE ONE
THE QUESTION OF RES IPSA LOQUITUR
The Plaintiffs in their claim before this court have prayed the court to make a finding in their favour on grounds that the matter of 8th May 2022 and its consequences speak for itself. Thus, the Plaintiffs in this suit wish to rely on the legal principle of Res Ipsa Loquitur. This common law principle is one in tort which literally means that “the thing speaks for itself” or “the matter speaks for itself”. It allows for Plaintiffs to meet their burden of proof with essentially circumstantial evidence.
To prove Res Ipsa Loquitur negligence, the Plaintiff must prove;
a) that the alleged incident complained of is not one that generally happens without negligence,
h) that the incident complained of was caused by an instrumentality or agency exclusively or solely in the Defendant’s control,
c) that the Plaintiff did not contribute to the cause of the incident complained
of, and
d) that the Defendant’s rion~negligent explanation does not completely explain the Plaintiff’s injury.
See the following cases which are instructive on the requirements to prove a case of Res ipso Loquitur;
1) Asafo Vrs. Catholic Hospital ofApam [1973] 1GLR 282
2) Aboagye Vrs. IC8L [1964] GLR 242.
3) Aingela Neequaye Vrs. Universal Motors Ltd. [26th July 2019] High court GJ, GJ/159/2015
4) Scott Vrs. London & St Katterine Docks Co. [1865] 3159 665
5) Barkway Vrs. Scult Wales Transport Co. Ltd. [1950] 1 All ER 392
In the present case, the alleged incident pertains to food poisoning. Can it be reasonably argued that food poisoning typically occurs without some degree of negligence? Notably, the World Health Organization (WHO) has established a nexus between foodborne illnesses and various factors, including bacteria, viruses, parasites, prions, and chemical agents. (See the WHO’s online publication on 19th May 2022. https://www.whQ.int/news-room/fact-sheets/detaH/food~safetv).
While all the aforementioned factors could contribute to food poisoning incidents, it is essential to recognize that some of these causes may have a connection or nexus, whether directly or indirectly, intentionally or accidentally, to the actions or oversights, of the individuals responsible for overseeing the food supply chain.
Again, while it is true that negligence by a controlling entity can contribute to food poisoning incidents, it would be inaccurate to universally assert that such negligence is always the primary cause.
Often, other factors, whether major or minor, play a role in specific instances of food poisoning. Considering the evidence presented by the Plaintiffs in the current lawsuit, it could be argued that the food poisoning experienced by the Plaintiffs might be attributable to the Defendant’s negligence (see Exhibits G series).
However, it remains a fact that the 6 packs of food purchased by the 1st Plaintiff and consumed by all 3 Plaintiffs were never subjected to testing to confirm their contamination. In order to support a claim under Res Ipsa Loquitur, the food purchased by the 1st Plaintiff from the Defendant and subsequently consumed by all 3 Plaintiffs should have undergone testing for contamination. A positive test result for contamination of the said food would have supported the claim under Res Ipsa Loquitur.
Subsequent to the 1st Plaintiff removing the food from the Defendant’s East Legon branch, the Defendant relinquished control over the said food. Consequently, it cannot be asserted that the Defendant maintained exclusive or absolute control over the 6 packs of food once they departed the Defendant’s East Legon branch.
The custody of the food thus, transitioned from the Defendant’s East Legon branch to the Plaintiffs’ possession when the 1st Plaintiff carried the 6 packs away. As a result, the Defendant’s exclusive control over the 6 packs of food which was purchased by the 1st Plaintiff and subsequently consumed by all 3 Plaintiffs, terminated upon the 1st Plaintiff’s transportation of the food from the Defendant’s East Legon branch to the Plaintiffs’ residence.
Undoubtedly, during this period, the Defendant had no influence over how the 6 packs of food were handled prior to their consumption by the Plaintiffs.
Thus, upon a careful examination of all the evidence on record, it has become evident that the elements necessary to establish a Res Ipsa Loquitur claim are lacking.
Consequently, the Plaintiff’s case in this regard does not succeed.
ISSUE TWO
A CASE OF NEGLIGENCE?
The court must, in the circumstances, attempt to determine whether or not the evidence presented by the Plaintiffs establishes a case of negligence against the Defendant.
In order to prove a case of negligence, the evidence adduced must prove;
1) the existence of a Segal duty of care owed the Plaintiffs by the Defendant,
2) The fact showing that the said duty of care has been breached by the
Defendant; and
3) That the Plaintiff suffered consequential damage owing to the Defendant’s breach of its duty of care owed the Plaintiffs.
See the case of Ecobank GH. Ltd. Vrs. Aluminum Ent. Ltd. [No. J4/18/2020, Delivered on 13th May 2020].
See also the cases of Ghana Highway Authority Vrs. Mensah [1999 – 2000] 2 GLR 237, and Gyan Vrs Ashanti Goldfield Corp. [1991] 1GLR 466.
THE DUTY OF CARE
In the context of the hospitality industry, it is well-established that service providers bear a legal obligation to exercise care toward their customers. A legal nexus exists between food vendors and purchasers, which extends to the ultimate consumers of the food. This recognized legal relationship holds true worldwide, both within society and under legal principles.
Throughout the proceedings of the current lawsuit, the Defendant consistently acknowledged its duty of care toward all customers, including the 1st Plaintiff. This court, after careful examination of the evidence on record, concludes that the duty of care owed by the Defendant to the 1st Plaintiff also extends to the 2nd and 3rd Plaintiffs.
This determination is supported by Exhibits A, D series, E, and El, which establish that the food purchased by the 1st Plaintiff from the Defendant’s East Legon branch on May 8, 2022, was also consumed by the 2nd and 3rd Plaintiffs. The court therefore, finds it more probable than not that the 2nd and 3rd Plaintiffs consumed some of the 6 packs of food purchased by the 1st Plaintiff from the Defendant’s East Legon branch.
It is also more probable that the quantity of 6 packs of food were consumed by all three Plaintiffs, who happen to be siblings, than one person, the 1st Plaintiff alone. It is therefore more probable than not that the food purchased from the Defendant’s East Legon branch on May 8, 2022, was indeed consumed by these three individuals.
THE SCOPE OF THE DUTY OF CARE
The Defendant’s duty of care is to all its customers and, by extension, consumers of its products. This duty requires the Defendant to ensure that all consumables it sells remain free from contamination. Given the nature of the Defendant’s services, specifically the provision of food and beverages, the safety of these products should be paramount. The relationship between the Defendant and its customers fundamentally revolves around the exchange of food and beverages for payment. Consequently, safeguarding the well-being of consumers who partake in these food and beverage offerings constitutes the core of the legal duty of care owed by the Defendant. This is trite.
Based on the comprehensive evidence presented, this court concludes that the Defendant owed a duty of care to the three Plaintiffs. This duty arose from the fact that all three Plaintiffs consumed the 6 packs of food purchased by the 1st Plaintiff from the Defendant’s East Legon branch on May 8, 2022. By providing this food, the Defendant effectively assumed the role of a service provider to the Plaintiffs, thereby establishing a legal duty of care toward them.
To that effect, it remains accurate that the Defendant had a legal obligation to ensure that the food provided and/or sold to the Plaintiffs for consumption was free from contamination.
The following cases are instructive on the element of the duty care as described immediately above;
1) Ecohank Gh. Ltd. Aluminuim Ent Ltd. [No. J4/18/2020, Delivered on 13th May 2020].
2) Donoghue Vrs. Stevenson [1932] AC 562
3) Heaven Vrs. Pendar [1883] 11Q.B.D 503
4) Edward Nassar & Co. Ltd. Vrs. McVroorn & Anor. [1996 -1997] SCGLR
BREACH OF THE DUTY OF CARE
Is there evidence presented by the Plaintiffs that indicates a breach of the duty of care owed to them by the Defendant?
The present case is unique: The Defendant, a restaurant operator and food vendor, sold food to over 500 customers, including the 1st Plaintiff, at the Defendant’s East Legon branch on May 8, 2022. By the end of that day, reports emerged via the internet that customers who had visited the Defendant’s East Legon branch on that same day suffered food poisoning, leading to hospitalization. Further investigation revealed that 30 customers who had consumed food purchased from the Defendant’s East Legon branch on May 8, 2022, were hospitalized due to food poisoning. The Defendant assisted in covering the medical expenses for these affected customers and issued an apology.
Although the Public Relations Officer of the Defendant initially accepted responsibility for the incident on behalf of the Defendant, the Defendant later-denied any wrongdoing during the trial. The financial assistance provided to the 30 hospitalized customers was attributed by the Defendant to a humanitarian gesture rather than an admission of liability.
Given this context, the question arises: Did the Defendant breach its duty of care toward the Plaintiffs in this case?
The extent of the Defendant’s duty of care toward its customers and consumers of its products has been previously discussed. Now, based on the evidence presented, it is established that the Plaintiffs, similar to the 30 customers who were hospitalized after consuming food from the Defendant’s East Legon branch on May 8, 2022, also consumed food purchased by the 1st Plaintiff from the same branch.
Furthermore, the evidence indicates that the Plaintiffs, like those 30 hospitalized customers who received visits and financial assistance from the Defendant, were also hospitalized and reported cases of food poisoning after consuming the food purchased from the Defendant’s East Legon branch on the same date (see Exhibits B series, C series, D series, E & El}.
This court has already determined, based on the evidence presented, that it is more likely than not that the Plaintiffs consumed the 6 packs of food purchased by the 1st Plaintiff from the Defendant’s East Legon branch on May 8, 2022.
The evidence further establishes that the Plaintiffs experienced severe abdominal pain, vomiting, and diarrhea after consuming the aforementioned food. According to the 1st Plaintiff’s testimony, these symptoms began at dawn on May 9, 2022, prompting their admission to two hospitals for medical treatment. Medical reports on record confirm that the Plaintiffs suffered from food poisoning and gastroenteritis, similar to the .30 hospitalized customers who received financial assistance from the Defendant after consuming food from the same East Legon branch on May 8, 2022.
There is no dispute that the 1st Plaintiff purchased the 6 packs of food from the very branch where the 30 hospitalized customers also obtained the food that caused their food poisoning and subsequent hospitalization. It is evident that this same food was later consumed by the 3 Plaintiffs, resulting in their food poisoning and subsequent hospitalization.
The Food and Drugs Authority (FDA) responded promptly to numerous complaints regarding a suspected food poisoning incident at the Defendant’s East Legon branch. The Plaintiffs presented Exhibit G series, which contains all the FDA’s communications during its regulatory intervention. After careful analysis, this court established the following facts based on Exhibit G;
1) The FDA after receiving complaints about the suspected food poisoning incident at the East Legon branch of the Defendant, took notice of same and closed down the said restaurant for thorough investigation and appropriate action, and also to prevent any further harm to the public. (See Exhibit G).
2) Food, juice drinks and swabs taken from the environment of Defendant’s East Legon branch were tested and analyzed by the FDA. The findings indicated that there was heavy microbial load (pathogens) which may be linked to the foodbome disease reported. Samples collected from Defendant’s Abelemkpe and La branches were also found to be heavily contaminated. The.levels of sanitation and hygiene in the food preparation areas in ail three facilities (East Legon, La and Abelemkpe) were poor. The Defendant had poor storage practices, with the temperatures of its deep freezers and refrigerators being far above acceptable ranges. The Defendant was also found to have had very poor handling practices of ingredients used in cooking and aiso of cooked and ready to eat food items.
3) The process to establish the root cause of the contamination found was hampered by Defendant unapproved and unilateral decision to destroy some food items while investigations were still pending.
4) The Defendant was appropriately sanctioned. The FDA monitored the implementation of Corrective and Preventive Actions (CAPA) to be undertaken by the Defendant to address all the non-conformance identified and to prevent any reoccurrence.
From the above, the court has sufficient evidence to support the Plaintiffs’ claim that the food discovered at the Defendant’s East Legon branch on May 8, 2022, was contaminated.
Consequently, the court finds that the food items tested from the Defendant’s branch were indeed contaminated with a heavy microbial load (pathogens). However, there is no evidence on record regarding the source of this
contamination.
Therefore, the court concludes that the food sold by the Defendant’s East Legon branch to 598 customers, including the 1st Plaintiff, on that day was contaminated with pathogens.
Nonetheless, the Defendant contends that while the food discovered at its East Legon branch exhibited contamination due to a heavy microbial load, the food purchased by the 1st Plaintiff should not be deemed similarly contaminated. The Court, however, finds this argument untenable in light of the following factual considerations:
a. The evidence that the food stock, from which the Plaintiffs’ meal originated, tested positive for contamination.
b. The documented cases of 33 customers, including the Plaintiffs, who consumed food from the Defendant’s East Legon branch on May 8, 2022, and subsequently suffered from foodborne illnesses.
Picture this scenario: If one had a cooking pot of fried rice and sold two-thirds of this fried rice to different individuals, but lab results later revealed that the remaining one-third of the fried rice tested positive for contamination, would it come as a surprise to any reasonable person that the different individuals who bought the two-thirds of this pot of fried rice, ended up suffering from food poisoning?
Would it also be reasonable to assert that the two-thirds sold to the different individuals could not have been contaminated even though one-third of the remaining stock tested positive for contamination?
It would be unreasonable to infer that despite the remaining stock of fried rice testing positive for contamination and the fact that those who consumed two-thirds of it suffered from food poisoning, there is no nexus between the remaining contaminated food and the portions sold to different individuals who experienced food poisoning contemporaneously.
This is the scenario the Defendant invites this court to accept. However, the court deems this argument porous. It defies reason to imagine a situation where the food discovered in the Defendant’s East Legon Branch on May 8, 2022, tested positive for contamination, yet the food sold to the 1st Plaintiff and consumed by the Plaintiffs ori that same day, could somehow remain uncontaminated.
Even more preposterous is the assertion that although 30 different individuals suffered food poisoning from food purchased and consumed from the Defendant’s East Legon branch on the same day, and the remainder of that food, which was still in the custody of the Defendant’s East Legon Branch also having tested positive for contamination, the Plaintiffs’ food remained uncontaminated. This court finds the Defendant’s argument in this regard untenable and in blatant and unbridled defiance to logic.
There is therefore no doubt on the mind of this court as to the facts in evidence that the Plaintiffs herein, as well as the 30 other customers who had been visited and assisted financially by the Defendant, suffered food poisoning after they had consumed the contaminated food which they had purchased from the Defendant’s East Legon branch on 8th May 2022.
This court: has already found thatthe Defendant, being a vendor of food and drinks, owes all its customers and all consumers of its products a duty of care, to wit; to offer and sell wholesome arid safe food and drinks.
Now, to the extent that the food sold by the Defendant’s East Legon branch on 8th May 2022 to its customers and which said food was found by the FDA to have been contaminated, was the very food that was purchased by the 1st Plaintiff herein and which said food was consumed by ail 3 Plaintiffs herein as previously found by this court, the evidence on record supports a finding that the duty of care owed the Plaintiffs by the Defendant was breached by the Defendant when the Defendant sold the said contaminated food to the 1st Plaintiff, which was subsequently consumed by all 3 Plaintiffs.
This court accordingly finds that the Defendant breached the duty of care it owed the Plaintiffs when it sold contaminated food to the 1st Plaintiff on 8th May 2022 and which said contaminated food was consumed by all 3 Plaintiffs on 8th May 2022.
CONSEQUENTIAL DAMAGE SUFFERED
The Plaintiffs, through the 1st Plaintiff’s testimony, presented to this court their respective medical reports and various receipts of the payment of medical bills, (see Exhibits B series, C series, D series, E and El).
Now, from the Exhibits, this court makes the following facts findings;
1) The 1st Plaintiff was diagnosed with acute infective gastroenteritis (see Exhibit B).
2) The 2nd Plaintiff was diagnosed with food poisoning (see Exhibit E).
3) The 3rd Plaintiff was diagnosed with food poisoning (see Exhibit El).
4) The Plaintiffs after eating the contaminated food the 1st Plaintiff had purchased from the Defendant’s East Legon branch on 8th May 2022 suffered from abdominal pains, vomiting and diarrhea which eventually had them hospitalized just like the 30 visited and financially assisted hospitalized customers of Defendant who had also purchased and consumed food they had bought from Defendant’s East Legon branch on the same 8th May 2022.
The Exhibits on these records are therefore sufficient evidence that establish the requisite degree of certainty on the mind of the court that the Plaintiffs suffered physical harm or damage as a consequence of consuming the contaminated food sold by the Defendant’s East Legon branch on 8th May 2022.
The Plaintiffs experienced the following consequential damage after consuming the contaminated food sold by the Defendant’s East Legon branch to the 1st Plaintiff on May 8, 2022;
1. Abdominal pains
2. Vomiting
3. Diarrhea
Based on the medical assessments conducted by doctors who examined and treated the Plaintiffs, the identified diagnoses were food poisoning and acute infective gastroenteritis, which are both foodborne diseases.
Consequently, this court finds that each of the 3 Plaintiffs suffered consequential injuries due to the Defendant’s breach of its duty of care when it sold contaminated food to the 1st Plaintiff, which was subsequently consumed by all
3 Plaintiffs.
FINDING OF NEGLIGENCE
Based on the preponderance of the probabilities, the Plaintiffs have successfully proven the three elements of the tort of negligence through the evidence presented. The Defendant’s defense, as articulated by DW1 (Defendant’s General Manager), failed to provide a plausible counterargument to the,Plaintiffs’ evidence, particularly the testimony of the 1st Plaintiff.
Essentially, the Defendant’s defense attempted to cast doubt on the nexus between the contaminated food discovered at its East Legon branch on May 8, 2022, and the subsequent food poisoning suffered by the Plaintiffs after consuming food from the same branch.
It is well-established that the burden of proof rests with the Plaintiffs, based on the preponderance of the probabilities (as per section 12 of NRCD 323). Consequently, the defense’s attempts to deflect responsibility, despite clear evidence linking the Defendant to the harm suffered by the Plaintiffs after consuming the contaminated food the Defendant sold to the 1st Plaintiff, which was subsequently consumed by all 3 Plaintiffs, fails.
This court declines to entertain any request to shift blame away from the Defendant for the events of May 8, 2022.
In light of the circumstances, the court concludes that the Defendant through its East Legon branch was negligent in selling contaminated food to the 1st Plaintiff.
Furthermore, this negligence extends to each of the three Plaintiffs.
Consequently, the court enters Judgment in favor of the Plaintiffs for the reliefs specified in the writ of summons, save for relief (b), the claim for genera! damages due to psychological trauma, which was unsubstantiated. The Plaintiffs’ suit thus, succeeds to the extent outlined above.
ASSESSMENT OF DAMAGES 1) Reliefs (a) and (C)
The following cases are instructive in the determination of the award of general damages;
1) Appiah Vrs. Kwabina Anani [J4/42/2019; Delivered on 22nd January 2020.
2) H. West & Son Ltd. Vrs. Shepherded [1963] 2 All GR 625 at Page 631
3) Philips Vrs. South Western Railway Co. [1879] 4QBD 406
4) Delmas Agency Gh. Ltd. Vrs. Food Distribution International Ltd. [2007 –
2008] SCGLR 748 Act 760.
5) EDG Ltd. Vrs. Provident Insurance Company Ltd. & 2 Ors. [J4/31/2019, Delivered on 18th March 2020].
6) Roach Vrs. Yates [1938] IKB 256.
Considering that the Plaintiffs’ claims for general damages under reliefs (a) and (c) arise from the consequential harm they suffered, the court takes into account all relevant facts established thus far. In light of precedent and in exercising its discretion, the court deems it fair and just to award each of the 3 Plaintiffs general damages in the amount of GHC345,000 (Three hundred and forty-five thousand Ghana Cedis) to cover both reliefs (a) and (c).
Genera! damages of GHC345,000 is awarded in favour of each of the Plaintiffs herein.
Order;
The Defendant shall pay to each Plaintiff GHC345,000.
2) Relief (d)
The Plaintiffs have claimed special damages of GHC25,215.48, and the evidence on record sufficiently supports this amount.
Consequently, the court jointly awards special damages of GHC25,215.48 in favor
of the Plaintiffs.
Order;
The Defendant shall pay to the Plaintiffs GHC25,215.48
LAW
Cost
After due consideration of the suit’s duration, Plaintiffs legal representation costs, and overall litigation expenses, the court awards costs of GHC10,000 against the Defendant.
CONCLUSION AMP COMMENT
When everyday citizens find themselves caught up in unfortunate circumstances, and especially when corporate entities or their officers take responsibility, reasonableness and fairness should guide the way. It is not just about reimbursing victims for their Immediate expenses; it is also about acknowledging their suffering and working toward a genuinely fair compensation package.
The antiquated practice of denying responsibility and overlooking the pain experienced by victims should indeed be relegated to history, where it appropriately belongs. After all, businesses thrive because of their customers, the very people they serve.
According to the World Health Organization (WHO), approximately 600 million people worldwide, almost one in 10, fall ill each year due to consuming contaminated food. Tragically, 420,000 lives are lost annually as a result, accounting for a staggering 33 million healthy life years. (See the WHO’s online publication on 19th May 2022. h 11 &s±//w ww. wh<L- int/news-room/fact-sheeis/detail/food-safety). These numbers are sobering reminders of the critical importance of food safety.
Now, let us focus on that pivotal day, 8th May 2022. Picture it: over 30 people hospitalized and their health compromised by contaminated food.
In 2022, barely a month before the World Food Safety Day was celebrated under the theme of “safer food, better health,” aiming to draw attention, mobilize action, and improve human health
by preventing, detecting, and managing foodborne risks, our country faced this unfortunate Marwako crisis.
As we surge forward, we must collectively demand more. No longer can we tolerate subpar practices from food and beverage providers. Our expectations should align with International standards, nothing less. The days of risking customer health due to substandard services and unhygienic practices must be firmly relegated to the past. Those seemingly mundane practices of food, equipment and personal hygiene behind the scenes, hold immense significance. It is not just about taste or convenience; it is about safeguarding lives. When we trust food and beverage providers, we implicitly rely on their commitment to standards of care and safety. And when that trust is breached, whether through negligence or oversight, the consequences ripple far beyond the plate.
The trust wp place in food and beverage providers is profound. When we buy and consume food prepared by others, we are essentially saying, “I trust that this meal will not harm me.” It is a leap of faith, one that should not be taken lightly.
Consider this: You walk into a restaurant, order a dish, and eagerly anticipate a satisfying meal. Behind the scenes, there is an intricate web of processes; the sourcing of ingredients, food storage and preparation, and hygiene practices, all orchestrated by the establishment. We assume they have got it right. After all, we are not just buying sustenance; we are investing trust. But when that trust is breached, when negligence leads to contaminated food, it is more than a mere inconvenience. It can cause irreversible harm.
The World Health Organization (WHO) recognizes the socioeconomic impact of foodborne diseases, They strain healthcare systems, disrupt economies, and even affect tourism and trade.
The 8th May Marwako food poisoning incident serves as a stark reminder, one that compels us to take action, indeed, we were fortunate this time; no lives were lost. But luck alone cannot be our strategy.
So, here is the call: (1PP) improve Hygiene, Prevent Contamination, and Prioritize Safety,
Food producers, vendors, and the entire hospitality industry must elevate their game. Also, we must not forget the guardians of public health, the authorities entrusted with our well-being, specifically, the Food and Drugs Authority (FDA). They, too, bear the responsibility to ensure that unsavory incidents like that which necessitated this lawsuit, remain extremely rare exceptions.
For, Public health and food safety cost more than money can buy, they cost lives.
When a business understands the true value of its customers beyond mere monetary transactions, it carries a greater responsibility. In this case, the Defendant had firsthand experience: they had visited and financially assisted 30 other customers who suffered due to contaminated food from their East Legon branch. Given this context, addressing the Plaintiffs’ concerns promptly would have been not only prudent but also a demonstration of genuine care.
The Defendant, having already covered the medical bills for 30 affected customers in the food poisoning incident, could have taken its Corporate-Social Responsibility even further. ,
Adequate compensation for the suffering caused by the contaminated food would have been a step in the right direction, lest it compels a David, a determined individual, to hold the corporate Goliath accountable.
The Defendant, as a food provider, must consistently serve wholesome and safe food to Its customers, The Food and Drugs Authority (FDA) must ensure that all food vendors uphold the highest standards.
May this Judgment serve as a reminder to all of us that food safety is not just a legal obligation, it is a moral imperative.
(SGD)
H/H SEDINAM AWO KWADAM (MRS) CIRCUIT COURT JUDGE
CIRCUIT COURT-JUDGE ADENTAN-ACCRA
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