HIGH COURT, KUMASI
15 JULY 1970
BEFORE: ANNAN J
CASES REFERRED TO
(1) Donoghue v. Stevenson [1932] A.C. 562; [1932] All E.R. Rep. 1;101 L.J.P.C. 119; 147 L.T. 281; 48 T.L.R. 494; 76 S.J. 396; 37 Com.Cas. 350, H.L.
(2) Grant v. Australian Knitting Mills, Ltd [1936] A.C. 85; [1935] All E.R. Rep. 209; 105 L.J.P.C. 6; 154 L.T. 18; 52 T.L.R. 38, P. C.
(3) Stennett v. Hancock [1939] 2 All E.R. 578; 83 S.J. 379.
(4) Daniels v. White & Sons, Ltd. [1938] 4 All E.R. 258.
(5) Mayne v. Silvermere Cleaners, Ltd. [1939] 1 All E.R. 693.
(6) Chapronière v. Mason (1905) 21 T.L.R. 633, C.A.
(7) Aboagye v. Kumasi Brewery [1964] G.L.R. 242.
NATURE OF PROCEEDINGS
ACTION for damages for personal injury suffered by the plaintiff which was caused by the presence of kerosene in a bottle of beer manufactured by the defendants. The facts are fully set out in the judgment of Annan J.
COUNSEL
F. Hayfron-Benjamin for the plaintiff.
K. Manu for the defendants.
JUDGEMENT OF ANNAN J.
The plaintiff, a barrister-at-law, claims from the defendants general damages by reason of the negligence of and breach of duty of the defendants in failing to take adequate precautions in the manufacture of their product, Club beer, so as to prevent any injurious or deleterious substances being contained in the beer. The defendants are brewers of the brand of beer known as Club beer. The plaintiff states in his claim that on or about 24 April 1965 he purchased from a retailer in Kumasi a carton of Club beer manufactured by the defendants. On or about 26 April 1965 the plaintiff consumed some of the beer and later found that it contained some kerosene. The plaintiff sustained injuries. The plaintiff states that the injuries were occasioned by reason of the negligence and breach of duty of the defendants. Particulars of the negligence were:
“(a) Manufacturing and selling the said beer when defendants knew or ought to have known that the same contained extraneous or deleterious substances, the consumption of which would cause damage or injury to the consumer.
(b) Failing to take any or adequate or necessary precautions in the manufacture of the said Club beer so as to prevent any injurious or deleterious substances being contained therein.
(c) Permitting the said Club beer to contain injurious or deleterious substances.
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(d) Failing to take any or adequate measures whether by way of examination, inspection, test or otherwise to ensure that no beer manufactured or sold by them contained any injurious or deleterious substances.”
There is no claim for special damage.
The defendants in their statement of defence deny the allegation of negligence in the plaintiff ‘s statement of claim or any negligence at all and aver that their factory and system of washing are fool-proof, and that there is adequate and efficient supervision of the employees at their factory. They also do not admit or deny that the plaintiff suffered injuries after he had consumed the beer and said that even if such injury was suffered this was not due to the presence of kerosene in the beer.
The issues settled for trial are:
(a) Whether or not the plaintiff consumed a bottle of Club beer contaminated with kerosene.
(b) Whether or not the plaintiff after consuming the beer suffered injuries as a result of the presence of kerosene in the beer.
(c) Whether the defendants were negligent or were in breach of their duty.
(d) Whether the defendants had a fool-proof system for washing bottles.
I will first summarise the case on both sides as to the facts and refer to the law relevant to the consideration of the facts and then make my findings as to liability and the matter of damages.
As to the evidence, the plaintiff says that in accordance with his usual practice he bought a carton of Club beer in April 1965 and a few days later he opened a bottle to drink it. He bought the beer from the distributors of the defendants’ product in Kumasi. The plaintiff seems to be a practiced beer drinker and, as he put it, when he took a bottle of beer from the refrigerator he poured a mug full and took it all down “as the Germans do.” The mug takes about two thirds of the contents of the large bottle of beer and he usually held his breath while he downed the mug of beer or most of it. He followed this practice on 26 April 1965 when he drank the beer about which he complains in this action. To describe the events that followed after the plaintiff had imbibed the beer I can do no better than to quote the plaintiff’s own graphic account:
“After I had finished I felt a burning sensation in my mouth and I smelt a scent of kerosene. I examined the mug. It smelt of kerosene and I saw a thin oily film in the top of the inside of the mug. I examined the bottle and with rest of the beer in it. It smelt of kerosene strongly and the meniscus of the beer also had an oily film.”
The plaintiff covered the bottle with the stopper and chewed a stick and used tooth paste to clear his mouth as his tongue felt a bit raw and thick. After this he had lunch but found that he could only eat less than half his normal portion. He then had a short siesta before going to his chambers. The plaintiff did not vomit, although he tried to induce vomiting by putting
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two fingers in his mouth. It was at the office that he really started to feel sick. The plaintiff said, “I went to the office but I did not keep long. I was coughing and had slight pains in the abdomen and felt like going to toilet.” He went home and shortly afterwards went to the toilet for a stool. It was normal. Soon after that he vomited. The coughing continued so he decided to see his doctor. He saw the doctor at about 7 p.m. and at that time the coughing was incessant. When he went home from the clinic he had frequent stools which disturbed his sleep. The burning sensation persisted the whole evening and the next day. He missed his normal work the next day and on the third day he could not do a full day’s work. The plaintiff said that the rest of the beer in the bottle was sent for analysis to the Pharmacy Department of the Kumasi University and the result showed that although the beer smelt of kerosene the quantity in it was not enough to permit the isolation of it by the process of distillation. The defendants also had the rest of the beer analysed and as the plaintiff says they informed him later through their insurers that the beer contained some kerosene but that the quantity was not enough to cause injury to him. The plaintiff’s doctor also gave evidence and described the condition of the plaintiff in the evening of the day when the plaintiff drank the beer. He spoke of a smell of kerosene on the breath of the plaintiff which he noticed before the plaintiff had spoken to him. He spoke of incessant coughing. He said he came to the conclusion that the plaintiff had had kerosene poisoning and he treated him accordingly. The next day the plaintiff complained of frequent stools and chest pains and this strengthened him in his earlier diagnosis of kerosene poisoning. The doctor thought that the plaintiff could have frequent stools from other causes but not the other symptoms.
The defendants called a specialist pathologist, Dr. Marbell, to give evidence as to his experience and knowledge of kerosene poisoning. Dr. Marbell did not examine the plaintiff. Dr. Marbell had seen half a dozen cases of kerosene poisoning and treated about half that number. He said that the immediate effect, if an adult took a large quantity of kerosene, would be irritation in the throat, coughing, a feeling of choking and possibly difficulty in breathing. The coughing would start more or less immediately. He said diarrhoea has been described as an effect of kerosene poisoning but that it is uncommon. When the symptoms and the reaction of the plaintiff after he had drunk the beer were put to him he gave it as his opinion that if coughing was not immediate he would say that there was not much kerosene in the beer, because if there had been a lot of kerosene in the beer there would have been immediate coughing and there would have been a sense of choking felt. He thought that the plaintiff’s symptoms — some of them — could have been caused by food poisoning from bacteria, and he did not think that they could have been caused by a smell of kerosene in a bottle of beer as distinct from actual kerosene in the beer and that the mere smell would have no toxic effect on an adult. Dr. Marbell’s experience was concerned with one case of suicide and five of children and the three cases he had read recently in the British Medical Journal concerned suicide. He agreed that the higher grades of paraffin
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have a laxative effect. He agreed that if a patient had a smell of kerosene on his breath, was at the same time coughing incessantly, and complained the next morning of frequent stools then such symptoms would be consistent with kerosene poisoning.
The other witness for the defendants was their brew-master who had been with them since 1958 and who described in great detail what he said was a fool-proof system of washing the bottles and filling them with beer. The bottles are first put to a smell test by trained workers. This operation, the start of the whole process of cleansing, is entirely human and is obviously subject to the usual frailties of human behaviour. The workmen were required to smell the bottles to make sure that there were no foreign smells in any of them, since the bottles used by the defendants were second hand bottles which could have been used previously to store all kinds of liquids, including kerosene. Indeed, in this country, it is a matter of common knowledge that kerosene is often stored in bottles of all shapes and sizes. After passing the smell test, the bottles then go on a conveyer and from that stage the process is wholly automatic. They go through several carefully devised stages of washing and rinsing in alkaline solutions and with single jets of water. They also pass in front of light screens. The court itself inspected the mechanism at the defendants’ factory and I have no doubt that the defendants’ mechanical system is reasonably thorough and carefully devised.
The paramount issue of fact is obviously the matter of whether or not the beer which the plaintiff drank contained any kerosene. The defendants say that their system is fool-proof and that any bottle going through that system cannot come out of it with any kerosene in it. I think that there are two observations to make here: firstly, the bottles used by the defendants could contain kerosene before being at all put in the system since they were second hand bottles; secondly, the rejection of a particular bottle on account of smell would depend largely on the efficiency at any given time of the nasal biological mechanism of the individual bottle smeller. To take an easy enough example, if the workman had catarrh he might not smell the kerosene at all in the bottle. Again if he was lazy and careless he might not detect that one bottle out of a particular batch smell of kerosene. In other words there is no evidence of a fool-proof system in respect of the very first stage of the system. The mechanical part of the system, however, seems to me, as it was described to me and as I saw it, a rather efficient system and the standard of supervision also seemed to me rather high. The bottles assumed various positions at various stages of the process, including the vertical position and in my view there is something to be said for the defendants’ version that it would be impossible for a bottle to go through these mechanical stages and still retain any appreciable amount of foreign matter. However, it is not clear to me whether the defendants’ process is fool-proof enough to clear all traces of kerosene from a contaminated bottle which had been let through by a careless worker. Assuming that such a contaminated bottle did slip by into the mechanical system, does the evidence show that it could be cleansed and
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freed of all kerosene in the bottle? I have no evidence as to the effect of the alkaline solutions and the jets of rinsing water on kerosene in a bottle. One may expect that if there was kerosene in the bottle it would probably drain out when the bottle was in the vertical position. What the brew-master said was that the jet of warm water is sprayed into the bottle to get rid of any sediment or dirt in it and that the alkaline solution will loosen any dried sediment in the bottle so that it can come out. Again there is no evidence that the light screens can detect any traces of kerosene that might be in a bottle and from the view I had I do not think that they can.
The plaintiff’s case is that he smelt kerosene in the beer. The doctor smelt kerosene on his breath. He noticed that smell at once. The plaintiff saw an oily film in the mug. He had a burning sensation in the mouth and his tongue felt raw and thick. Then there is the evidence as to the analysis of the rest of the beer and also the symptoms as described by his doctor. The plaintiff’s evidence and that of his doctor impresses me as marked with the stamp of truth. I accept their evidence. Putting together that evidence and that of the defendants’ brew-master and Dr. Marbell I find no difficulty in finding as a fact that the bottle of beer did contain some kerosene as distinct from a mere smell of it and that the symptoms seen in the plaintiff were caused as a result of that kerosene content. I think it more probable than not that these symptoms were due to kerosene in the beer than to other hypothetical causes such as food poisoning from bacteria, and I find accordingly.
What then is the legal liability of the defendants? The issue has been considered in a large number of cases starting from the case of Donoghue v. Stevenson [1932] A.C. 562, H.L. and followed in a line of cases including Grant v. Australian Knitting Mills, Ltd. [1936] A.C. 85, P.C., Stennett v. Hancock [1939] 2 All E.R. 578, and Daniels v. White & Sons, Ltd. [1938] 4 All E.R. 258. The basic principle is as stated in the Donoghue case by Lord Atkin at p. 599:
“[A] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.”
That was the celebrated case of the decomposed snail in the bottle of ginger beer. It did not, however, itself decide the issue of whether the manufacturers were in the circumstances of that case guilty of negligence or not. The defendant died before the date of trial of the action and the case was later settled for £100. The duty as laid down is to take reasonable care in the manufacture of the product and it is the failure to take such care that will render him liable to the consumer who is injured. Negligence therefore has to be established against the manufacturer before liability is established and the method of proof is the same as in any other case of negligence. The mere presence of foreign or deleterious matter is not per
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se enough and negligence has to be established either by way of the presumption of negligence with res ipsa loquitur, or where facts are established which give rise to an inference of negligence. Thus it has been held that there was evidence of negligence where there was present in undergarments a chemical irritant (the Australian Knitting Mills case supra); where dermatitis was contracted on wearing a suit just cleansed by cleaners (Mayne v. Silvermere Cleaners, Ltd. [1939] 1 All E.R. 693); or where there was found a stone in a bun (Chapronière v. Mason (1905) 21 T.L.R. 633, C.A.). The Daniels case (supra) seems at first sight to create some difficulty as to the application of the principle. That case is the case of the carbolic acid in a bottle of lemonade, and is the authority quoted to support arguments based on a fool-proof system of manufacture. In that case the trial judge found as a fact that there was some carbolic acid in the lemonade but he held on the particular facts of the case that he was satisfied that the manufacturers had answered the case of the plaintiff and that the plaintiff had failed to prove to his satisfaction that the manufacturers were guilty of a breach of their duty of care towards the plaintiff, namely, the duty to take reasonable care to see that there should be no defect which might injure the plaintiff. Indeed the system of cleansing described in that judgment seems remarkably similar to that in use by the defendants in this case. I have read the judgment of Lewis J. and I do not think, with respect,
that it is decisive of the issue, and it seems to me not easy to reconcile with the other cases I have referred to earlier. There was a fairly large amount of carbolic acid in the lemonade. There was no question of any probability of intermediate examination or inspection. If the system of cleansing was fool-proof then the acid ought not to have got into the bottle. Be that as it may I do not take that case as any helpful authority in the present dispute. I find that there is a clear inference of negligence from the facts proved by the plaintiff. I find that that case has not been met by the defendants. I find that whatever claims the defendants’ mechanical system may have generally as to its fool-proof nature — and I think that by and large it is a carefully devised system — I am not satisfied that in respect of kerosene it has been shown to be fool-proof. Again the human aspect of the initial stage of smelling is not shown to me to be fool-proof. That area of the system is clearly a potential area where carelessness could be found.
I find that the plaintiff has established negligence. As to damages, there is no claim for special damage for loss of income. Clearly whatever loss the plaintiff suffered in that respect must have crystallised before this action. With regard to general damages the main head of claim is obviously pain and suffering. Pain for the actual burning sensation on the tongue and in the chest, and suffering for the frequent stools, vomiting, loss of sleep, and coughing. The plaintiff suffered these discomforts for two days or so, and there does not seem to be any permanent or serious after effects. In the case of Aboagye v. Kumasi Brewery [1964] G.L.R. 242, decided in this court by Djabanor J. in rather similar circumstances, he awarded a sum of N¢500.00 as general damages for pain and suffering. That was in 1964 and the foreign matter in the beer was a palm nut, edible
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matter much in demand in the cooked stage in most homes in this country, but not pleasant in its raw state. In the present case foreign matter was kerosene, a noxious matter. There was a higher degree of suffering in the present case, I should think, than in the Aboagye case (supra). There is also the fact of the sharp fall in real money values since 1964, leading to a decline in the purchasing power of the cedi. In all the circumstances, I will award the plaintiff the sum of N¢800.00 as general damages as against the defendants with costs of N¢200.00 inclusive to the plaintiff.
DECISION
Judgment for the plaintiff with costs.
- G. K.
