Division: IN THE HIGH COURT, KUMASI
Date: 20 APRIL 1964
Before: DJABANOR J.
JUDGMENT OF DJABANOR J.
On the afternoon of Sunday, 3 February 1963, the plaintiff Mr. I. R. Aboagye, then district magistrate at Bolgatanga in the Upper Region of Ghana was entertaining friends in his bungalow. He and a Mr. Mensah, a detective corporal, had Star beer, while the local bank manager, Mr. Storph had whisky. According to Mr. Aboagye after he had drank about three-quarters of the contents of the beer bottle and was pouring the rest into his glass he heard a clicking sound which appeared to have come from the bottle. He therefore held the bottle up and shook it and he then saw a palm nut moving inside the bottle. He let out an exclamation at the sight of this nut, which drew the attention of his guests to what he had found. They also examined the bottle and saw the palm nut moving in the beer in the bottle.
Mr. Aboagye said he had a funny feeling after he had seen the nut and felt like vomiting, but did not then do so. After his guests departed he had a meal of yam and went to bed. By all accounts he had a very uncomfortable night. He vomited and had frequent stools most of the night. Next morning Mr. Amoatin, a Tamale barrister, who had been with him that night during his predicament, took him to a doctor. From the history of the case and through examination it was the doctor’s opinion that Mr. Aboagye has gastroenteritis (food poisoning) with vomiting and diarrhoea, and that the cause was the beer. Both the doctor and Mr. Amoatin were shown the bottle of Star beer containing the nut. The plaintiff instructed his solicitor to claim damages from the defendants—the manufacturers of the Star beer. Unfortunately the solicitor put the defendants off by asking for £G1,500, a sum which obviously was too excessive in all the circumstances. Finally, the plaintiff brought this action claiming against the defendants damages for injury suffered by him in drinking on 3 February 1963 a bottle of Star beer negligently bottled by the defendants.
The defendants denied that they were negligent in bottling their beer, and also that the beer contained a rotten nut as a result of their negligence.
The issues as agreed upon were: (a) whether or not the bottle of Star beer contained a rotten nut, (b) if the said bottle contained a rotten nut whether it was due to the negligence of the defendants, and (c) whether or not the plaintiff fell sick consequent upon drinking the said beer.
As regards the first issue, whether or not the bottle of Star beer contained a rotten nut I have no difficulty in giving an affirmative decision. The plaintiff and his witnesses impressed me as persons who were speaking the truth about what actually happened, and both the Bolgatanga doctor and Mr. Amoatin confirmed that they too were shown this bottle containing the nut. I do not think that it could be suggested that they had made up the story, or that they or any of them put the nut into the bottle just to facilitate presenting such a claim. Counsel for the defendants made it plain that he could not suggest that what the plaintiff said was not correct. I am satisfied from the evidence that the palm nut was found in the bottle of Star beer that Sunday afternoon while the plaintiff was drinking the beer.
Whether or not this proves that the defendants have been negligent is not at all an easy matter. The authorities are settled in the view that the maxim res ipsa loquitur applies to negligence in manufacture when the circumstances are such as to call for its application. In Charlesworth on Negligence (4th ed.), p. 363, para. 802 appears the following passage which I accept as the correct statement of the law:
“The mere presence of a snail in a stoppered and sealed bottle of ginger beer would appear to be within the maxim because, owing to retention of effective control by the manufacturer until the ginger beer reached the consumer, there is a greater probability of negligence on the part of the manufacturer than on the part of any other person. In Grant v. Australian Knitting Mills [1936] A.C. 85 the court apparently proceeded on the view that the presence of the chemical irritant in the garments was evidence of negligence . . . Similarly, in the earlier case of Chaproniere v. Mason (1905) 21 T.L.R. 633, the presence of a stone in a bath bun manufactured by the defendant was held to be within the maxim res ipsa loquitur and to be evidence of negligence against the manufacturer.”
On the authorities therefore I hold that the maxim res ipsa loquitur applies in this case and therefore that a prima facie case of negligence has been established against the defendant.
When a prima facie case of negligence against the defendant has been established under the doctrine of res ipsa loquitur the defendant can rebut that case by providing that he was not negligent. As Lord Dunedin said in Ballard v. North British Railway Co.1 “if the defenders can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears, and the pursuer is left as he began, namely, that he has to show negligence.” Again in the case of Mayne v. Silvermere Cleaners, Ltd.2 when dermatitis was contracted on wearing a suit just cleaned by the defendants it was held that the burden was on the defendants to prove no negligence.
I shall now consider whether the defendants have discharged this burden of proof. After observing with rapt attention and interest the defendants brewery, the machinery and the method used by them in brewing and bottling their beer, I listened to a description of the method used in these works in dealing with these bottles before bottling and stoppering. This is what Mr. Horstman said:
“From the time a second-hand bottle is brought into the factory this is what happens: They arrive in cases or in bags. They are unpacked, smelt (at which stage all bottles detected with kerosene or foreign bodies inside are rejected and smashed) and placed on the conveyor and passed on to the empty packers. Again they are smelt and examined for bad bottles and those unfit are rejected. They then go to the bottle compound for storage or direct to the bottle washers. Before the bottles are actually put in the washer they are smelt again before putting them on the rack. Again bottles smelling of kerosene or bad in other respect are rejected. While there they go through three caustic soda baths heated up to temperature 40 to 50 degrees centigrade and 66 degrees centigrade. The caustic soda concentration is twenty-two and a half per cent. This concentration is checked up hourly and kept adjusted. The bottles are upside down in the bath and keep turning while being washed inside and come out of each bath upside down again. The bottle coming out from the third bath is again upside down and it is sprayed with caustic soda six times under pressure of three atmospheres—and the temperature of the caustic soda is again 60 degrees centigrade. One atmosphere is 16 lb. per square inch. After this the bottles are soaked in hot water baths—specially designed to get rid of the caustic soda.
Then the bottles go to the brush section of the washing machine. A brush is introduced into the bottles and washed out and sprayed with water. Then the bottles go further and are sprayed out (while upside down) six times with water. They are then turned the proper side up and glide out on to moving racks. From there the bottles are not touched by hand again. All the bottles pass under a sighter place where strong light is shone on the bottles so that one can see through. One person sits there looking through the bottles and rejecting any bottle which is dirty, or in which he sees anything strange). We employ two sighters who are changed every two hours. It is most likely that if a palm nut in a bottle is brought into contact with caustic soda of 60 degrees centigrade the clash on the nut will disintegrate. Under that temperature and that strength of solution all the bacteria will be killed.
The bottles are then ready to be filled with beer crown corked, and then sighted again. From here they go into the pasturiser, i.e. the beer is brought to a temperature of 60 degrees centigrade during twenty minutes and then they are cooled off again to normal room temperature. This heating up and cooling down takes another hour. In the pasturiser the object is to kill off any yeast cell or bacteria which may still be in the beer. From the pasturiser we split the bottle stream into two and pass through two sighters. Before the pasturiser the bottles pass at the rate of 130 per minute, after the pasturiser it is at the rate of 65 per minute. From here the bottles pass to the labelling section and then packed.”
I am satisfied from what I have seen and heard in this case that the defendants’ plant is the best possible plant. I am satisfied that no possible attack can be made on their implements, their machinery or the general way in which their business is carried on; and indeed this is a very substantial and modern place of business. The whole system of work should really be described as fool-proof, but for the fact, as admitted by Mr. Horstman himself, that when these machines and processes are being operated by human beings one cannot be always certain. However, the defendants are saying following the case of Daniels and Daniels v. R. White & Sons, Ltd.,3 that by adopting a fool-proof process and by carrying out that process under proper supervision, they had taken reasonable care to see that the beer going out of their factory was free from contamination of any kind, and that they had discharged the burden on them.
But the plaintiff in effect is saying: I have no doubt that your machinery may be up to date or that your processes are also of the best. But they are manned by human beings who may negligently, deliberately or even absent-mindedly faulter. The sighters could have missed that one bottle containing that nut just as some few bottles have been known to have passed through all these processes and come out still smelling of kerosene.
In the case of Barnett v. H. & J. Packer & Co., Ltd.4 the plaintiff bought a box of sweets from the defendant manufacturers and was putting them out in his display tray when his finger was injured by a piece of wire in one of the sweets. Singleton J. (as he then was) in the course of his judgment observed
“I think that it is clear, too, that there was negligence on the part of the manufacturers in this sense. When Sargent, who explained to me the manner of manufacture of the sweets and the different processes through which the materials went, was cross-examined by counsel for the plaintiff, he said: `Two people had an opportunity of inspecting the sweets before they are passed. They should have found the metal if it were there.’ Why did those two people examine them? They did so in order to examine, as he said, the shape to some extent, and in order to see that the sweets were all right before they were passed. Each of those two people, I gather, had a duty—namely, to examine – and each of them, according to Sargent, would have seen the metal if it were there. I am satisfied that the metal was in the sweet when it was passed. Each of those persons, then, ought to have seen it, and could have seen it. They were examining the sweets for that purpose, and they did not see it. In my view, that is failure to exercise the proper care which they ought to have exercised, and, though it may be said that it is a small thing, and though it is said that these defendants with regard to these particular sweets have had no complaint before, I am bound to find that, in the circumstances, there was negligence.
Counsel for the defendants also referred me to the decision of Lewis, J., in Daniels and Daniels v. White & Sons, Ltd., and Tarbard [1938] 4 All E.R. 258, where Lewis, J., held as follows, according to the headnote:` . . . the duty owed by the manufacturers to the consumer was not to ensure that their goods were perfect, but merely to take reasonable care to see that no injury was done to the consumer or ultimate purchaser, and this duty they had completely fulfilled.’
On the evidence in that case, Lewis, J., came to the conclusion that the plaintiff had not established the case on that allegation, though on another part of the case, a small part, the plaintiffs did succeed.
In this case, I am faced with the fact that the defendants tell me: `We put on two people to examine. Those
people would have seen this wire or nail if it had been present.’ If the matter is left in that state, and if I am satisfied, as I am, that the metal was in that sweet, how can I find that that was not negligence? It seems to me that I am bound to find that the defendants were negligent.”
Similarly in this case I have found that the nut was in the beer when the plaintiff drank it. I have been told and have seen the up-to-date machinery and process that the defendants have in their factory for brewing and bottling their beer to prevent things like a nut from entering or remaining in the bottles of beer that they sell out to their customers. All that shows that if all the workmen did the work that was expected of them the nut should never have remained in the bottle. Somebody in the defendants’ employment failed to do his duty on this occasion and allowed the beer with the nut in it to pass out of the factory. In my view (as was the view of Lord Dunedin in Ballard v. North British Railway Co. (supra)) the defendants had to show how the nut could have got into the bottle and remained there, in spite of their system of work, if somebody had not been negligent. It is my view that they failed to do that. It is my further view therefore that the plaintiff has proved that the nut was in the beer when he drank it, and that it could not have been there if the defendants were not negligent.
The next issue is whether or not the plaintiff fell sick consequent upon drinking the said beer. It was not seriously challenged that the plaintiff felt funny after discovering the nut in the beer. He had then consumed more than half the contents of the bottle. This funny feeling persisted until the evening when he went to bed. In the night he was violently sick and suffered from diarrhoea. He thought, as was confirmed by the doctor, that the attack was caused by the beer. Dr. Bose said that the plaintiff could suffer in the same way from merely discovering that he had consumed beer in which was found the rotten nut. Especially since the beer did not taste funny or exhibit any extraordinary behaviour I am inclined to the view that the effect on the plaintiff was probably more psychological. But there is no doubt that it was a result of the nut being found in the beer. I therefore adjudge the defendants liable to the plaintiff.
It only remains the matter of damages which of course is at the discretion of the court. The plaintiff said he suffered seven shillings special damage—which has not been disputed. He also said he was ill for one day and had to rest for two more days. There is no evidence that he was not paid for those three days. I think he is only entitled to damages for pain and suffering which on the evidence I assess at £G250.
The plaintiff will have judgment against the defendant for £G250 7s. and cost of 100 guineas inclusive of court fees and subpoena fees for the witnesses who had to come from Bolgatanga.
DECISION
Judgment for the plaintiff.
N. A. Y.
