OVERSEAS BREWERIES LTD. vs. ACHEAMPONG [1973] 1 GLR 421

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. 369; 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) Mayne v. Sivermere Cleaners Ltd. [1939] 1 All E.R. 693.

(4) Chaproniére v. Mason (1905) 21 T.L.R. 633, C.A.

(5) Daniels v. White (R.) & Sons Ltd. [1938] 4 All E.R. 258; 160 L.T. 128; 82 S.J. 912. [p.423] of [1973] 1 GLR 421 (6) Mullen v. Barr and M’Gowan v. Barr & Co. 1929 S.C. 461.

(7) Evans v. Triplex Safety Glass Co.,Ltd. [1936] 1 All E.R. 283.

(8) Lockhart v. Barr 1941 S.C. 578; affirmed 1943 S.C. (H.L.) 1.

(9) Mason v. Williams and Williams Ltd. and Thomas Turton & Sons Ltd. [1955] 1 W.L.R. 549;

[1955] 1 All E.R. 808; 99 S.J. 338.

NATURE OF PROCEEDINGS

APPEAL from the decision of the High Court awarding damages for personal injury suffered by the respondent after drinking a bottle of beer manufactured by the appellants which contained kerosene. The facts are fully set out in the judgment of Archer J.A.

COUNSEL

Quashie-Idun for the appellants.

No appearance for the respondent.

JUDGMENT OF ARCHER J.A.

The respondent, a legal practitioner resident in Kumasi, bought from a retailer in Kumasi, a carton of beer manufactured by the appellants in their factory at Accra. Two days after the purchase, the respondent opened one of the bottles and consumed half of the contents after he had poured it out into his usual drinking mug. The respondent smelt not only kerosene from the contents but tasted kerosene in his mouth and throat after drinking the beer. As a result he suffered a burning sensation in his mouth, he coughed, vomited and had stomach upset, frequent stools and a sleepless night. He was given medical attention and in two days he was fully recovered. The respondent, before reporting his experience to the appellants, had sent the bottle concerned with part of the contaminated beer in it to the Pharmacy Department of the University of Science and Technology, Kumasi, for analysis to ascertain how much kerosene was contained in the bottle. The Pharmacy Department reported that although the bottle and its contents smelt of kerosene the quantity in it was not enough to permit isolation of it by distillation. Thereafter the appellants also collected the same bottle and its contents for analysis. Later they informed the respondent that although the beer contained some kerosene, the quantity was not sufficient to cause injury to the respondent.

About a year later, the respondent sued the appellants claiming general damages for negligence. After hearing evidence from both parties and after considering the evidence of the doctor who attended the respondent within a few hours of drinking the contaminated beer and also the evidence of a pathologist brought by the appellants to expatiate on the ramifications of kerosene poisoning and its concomitant effects on human beings, the learned trial judge, on the application of the appellants, visited the factory where the beer was manufactured and saw the whole process and the machinery involved.

In delivering his judgment reported sub nom. Acheampong v. Overseas Breweries Ltd. [1971] 1 G.L.R. 7, the learned trial judge stated at p. 11 that he had no doubt that the appellants’ mechanical system was reasonably thorough and carefully, devised. In his words:

[p.424] of [1973] 1 GLR 421

“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.”

The learned trial judge accordingly applied the principle laid down in the leading case of Donoghue v. Stevenson [1932] A.C. 562, H.L. and held that the appellants, as manufacturers of the beer, owed a duty of care to the respondent to ensure that the beer sold to him was not contaminated with kerosene, and awarded the respondent ¢800.00 general damages for the appellants’ negligence.

The appellants appealed to this court against the judgment and the following grounds of appeal were argued:

(1) That the judgment of the court cannot be supported having regard to the evidence adduced at the trial;

(2) That the learned judge was wrong in giving judgment for the plaintiff in view of the defence established by the defendant company.

These two grounds of appeal were argued together and it was submitted on behalf of the appellants that, even if there was some kerosene in the bottle, the quantity was so small and negligible that it could not have caused any damage to the respondent as alleged. The second submission was that the learned trial judge, after having heard the evidence of the master brewer and after inspecting the whole manufacturing process at the appellants’ factory, came to the conclusion that the manufacturing process and the system of supervision were of a high standard. This finding, it was submitted, meant that the appellants had satisfactorily negatived any charge that they had been negligent. It was therefore argued that the learned trial judge was wrong in concluding that, notwithstanding the efficient system in the factory, the appellants were negligent.

What led the learned trial judge to find against the appellants although he had high praise for the mechanical system and the human supervision? The evidence was that the appellants used second-hand bottles in distributing their beer to retailers and consumers. On account of possible contamination of these bottles by foreign matter and other noxious substances, each bottle is smelt by human noses. If any bottle contained or smelt of such matter the bottle was rejected, thrown away and destroyed. Bottles that pass the smelling test are then sent into the washing apparatus filled with alkaline solution. The washing process is mechanical and the bottles go through this process in various

[p.425] of [1973] 1 GLR 421 positions, the vertical, horizontal, slanting and what one may call the “upside down” position. The bottles then go on to a stage where they are cleansed with clean water. They then proceed to another stage where they are screened through powerful beaming lights to ensure that they are clean. After going through a drying process, the bottles are filled with the beer and sealed.

After commending this process, the learned trial judge reasoned that a careless worker might have let through the bottle in question in its contaminated condition and therefore held that the appellants were liable as manufacturers under the principle in Donoghue v. Stevenson (supra). The learned trial judge relied not only on this case but on Grant v. Australian Knitting Mills Ltd. [1936] A.C. 85, P.C., Mayne v. Silvermere Cleaners Ltd. [1939] 1 All E.R. 693 and Chaproniére v. Mason (1905) 21 T.L.R. 633, C.A. The learned trial judge further considered the case of Daniels v. White (R.) & Sons Ltd. [1938] 4 All E.R. 258 and remarked that that case was not easy to reconcile with the other cases and therefore it was not a helpful precedent in the present case.

In this appeal, the appellants rely on Daniels v. White (R.) & Sons Ltd. (supra). The question one may ask is whether the Daniels decision has, since its delivery, had any redeeming influence in the country where it was decided.

What is the principle one can discern from the string of English and Scottish decisions on manufacturers and the duty of care they owe to consumers of their goods? Only a few cases will be referred to in this judgment and the starting point will be the case of Chaproniére v. Mason (1905) 21 T.L.R. 633, C.A. In that case the plaintiff, a solicitor, bought a bun at the defendant’s shop, and as he was eating it one of his teeth, a decayed tooth, came on a stone, which had been produced to the court, with the result that the tooth was damaged. The plaintiff suffered pain and increased expenses for which he claimed damages. A strong Court of Appeal (Collins M.R., Romer and Mathew L.JJ.) held at p. 634 as follows:

“In the bun sold to the plaintiff was found a considerable stone, which was certainly not an article of food and was not adapted for mastication. The unexplained presence of the stone in the bun was prima facie evidence of negligence on the part of the person who made the bun. That was admitted, and the defendant produced evidence to rebut this prima facie presumption of negligence. He called witnesses who gave evidence to the effect that in the manufacture of his buns he made use of a system which rendered it impossible that a stone should be present in the dough. One of the witnesses said that it was not feasible, in the system adopted by the defendant, for a stone to pass into the dough of which the buns were made. He must have meant that it was not feasible if proper care had been used. That did not rebut the presumption of negligence, but, on the contrary, it showed that the system was [p.426] of [1973] 1 GLR 421 not properly carried out—that there was negligence. A stone did get into the dough, and that fact was evidence that the system followed by the defendant was not carried out with proper care and skill. There was, therefore certainly evidence of negligence causing injury.”

It should be mentioned that in the Chaproniére v. Mason case (supra), it was admitted that the principle of res ipsa loquitur applied. I should also be pointed out that the defendant was both the baker and seller of the bun to the plaintiff.

In 1929, two Scottish decisions ruled that the manufacturer of ginger-beer which was later found to contain the decomposed remains of a mouse, owed no duty to the consumer: see Mullen v. Barr and M’Gowan v. Barr & Co. 1929 S.C. 461 at p.479. In the words of Lord Anderson:

“In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims which they could not possibly investigate or answer.”

Fortunately for consumers, the House of Lords in the celebrated case of Donoghue v. Stevenson (1932] A.C. 562, H.L. overruled the two 1929 Scottish cases and the classic statement of the law enunciated by Lord Atkin at p. 599 has since held sway, namely:

“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.”

In Donoghue v. Stevenson (supra), the decomposed remains in the ginger-beer were those of a snail and not of a mouse. Moreover, there was no trial at which evidence could have been adduced because the defendant died and the case was settled for £100. Yet the principle of law it enunciated as representing both English and Scottish law has never been challenged. Nevertheless, there was a passage in the judgment of Lord McMillan in that case which was capable of creating a storm over the nature of the onus on the plaintiff in such cases. Thus at p. 622, he stated as follows:

“The burden of proof must always be upon the injured party to establish that the defect which caused the injury was present in the article when it left the hands of the party whom he sues, that the defect was occasioned by the carelessness of that party, and that the circumstances are such as to cast upon the defender a

[p.427] of [1973] 1 GLR 421 duty to take care not to injure the pursuer. There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maxim res ipsa loquitur. Negligence must be both averred and proved.”

In 1936, in the case of Grant v. Australian Knitting Mills Ltd. [1936] A.C. 85, P.C. the plaintiff had contracted dermatitis as a result of excess sulphites found in a pair of woollen underwear manufactured by the defendants. The Judicial Committee of the Privy Council overruling the judgment of the High Court of Australia held that the manufacturers were liable to the plaintiff on the principle laid down in Donoghue v. Stevenson. Lord Wright delivering the judgment of the court stated at p.101 as follows:

“According to the evidence, the method of manufacture was correct: the danger of excess sulphites being left was recognised and was guarded against: the process was intended to be fool proof. If excess sulphites were left in the garment, that could only be because someone was at fault. The appellant is not required to lay his finger on the exact person in all the chain who was responsible, or to specify what he did wrong. Negligence is found as a matter of inference from the existence of the defects taken in connection with all the known circumstances: even if the manufacturers could by apt evidence have rebutted that inference they have not done so.”

The Grant case clearly illuminated the nature of the burden of proof on the plaintiff. Lord McMillan was a member of the court in the Grant case and therefore his dicta in the Donoghue case (supra) as regards the nature of the burden of proof on the plaintiff must be regarded as obiter.

In the same year 1936, Evans v. Triplex Safety Glass Co., Ltd. [1936] 1 All E.R. 283, came before the English High Court and the plaintiff claimed damages from the manufacturers of a car windscreen which had for no apparent reason broken into many fragments after one year’s use and had injured the occupants of the car. The plaintiff relied on Donoghue v. Stevenson (supra) and Grant v. Australian Knitting Mills Ltd. (supra) but Potter J. held that the manufacturers were not liable because among other reasons, the car had been in use for over a year and the breaking of the glass might have been caused by something other than a defect in manufacture and therefore the plaintiff had failed to prove negligence against the defendants.

Two years later, Daniels v. White (R.) & Sons Ltd. [1938] 4 All E.R. 258 was decided. Mr. Daniels and his wife sued the manufacturers and retailer of a bottle of lemonade for damages for injuries sustained by them because a bottle of lemonade which they had bought and drank contained carbolic acid. Lewis J. found as a fact that the manufacturers, by adopting a fool-proof process and by carrying out that process under proper supervision, had taken reasonable care to ensure that there was in the lemonade no defect which would injure the plaintiffs. Lewis J.

[p.428] of [1973] 1 GLR 421 did not visit the factory to see the process but he listened in court to a description on the process in the factory and stated as follows in his judgment at p 262:

“That method has been described as fool-proof, and it seems to me a little difficult to say that if people supply method of cleaning, washing and filling bottles, they have not taken all reasonable care to prevent defects in their commodity. The only way in which it might be said that the fool-proof machine was not sufficient was if it could be shown that the people who were working it were so incompetent that they did not give the fool-proof machine a chance.”

The appellants in the present appeal rely on the decision in the Daniels case and maintain that once the learned trial judge found that their system was high and efficient, in other words fool-proof, it meant that they had taken all reasonable care and had discharged any duty of care they owed to the respondent. What is the reputation of the Daniels’ decision in the forensic world? Vol. 28 of Halsbury’s Laws of England (3rd ed.) which contains the subject “Negligence” states the law of England as in force on 1 October 1959. The Daniels case was decided in 1938 and there is no mention whatsoever of this case in Halsbury.

What do the legal commentators think? Professor Street in his textbook on the Law of Torts (4th ed.) at p. 175 thinks that Daniels case can be reconciled with Grant’s case (supra) although the same author in a footnote on the same page qualifies his opinion by saying “although, of course, there is room for difference of opinion whether the judge was too easily satisfied that the evidence of the defendants answered the inference of negligence made in respect of the manufacture of the mineral water in this case.” Salmond on the Law of Torts (15th ed.) at p.400 takes the view that Daniels’ decision is contrary to Grant’s case and to Chaproniére v. Mason (supra). A learned author in 50 Law Quarterly Review at p. 352 has drawn attention to the obvious fact that during the hearing of the Daniels case the decision of the Privy Council in Grant’s case (supra) was not cited for consideration by Lewis J. It appears also that Daniels’ case has been criticised in (1938) 14 Canadian Bar Review (December issue) and also in (1939) Australian Law Journal (February issue).

In the present appeal, I propose to refer to two cases subsequent to Grant’s case in an effort to find out whether the learned trial judge in the court below was justified in refusing to follow the Daniels decision. The first is the Scottish case of Lockhart v. Barr 1941 S.C. 578. There the purchaser of a bottle of aerated water from a retailer was injured by drinking its contents, which were contaminated with phenol. It was held that the plaintiff was entitled to an award of damages, because the improper action of an employee justified an inference of negligence on the part of the manufacturers, and that it was unnecessary for the plaintiff to demonstrate precisely when, why or by whom the mistake had been made. This decision was affirmed by the House of Lords in

[p.429] of [1973] 1 GLR 421

Lockhart v. Barr 1943 S.C. (H.L.)1. It is significant to remark that although the Daniels case was referred to in the arguments and in the judgment of Cooper L.J. in the Court of Session, yet the House of Lords in its judgment was completely silent on the Daniels case (supra). In view of this silence one is tempted to bring the Daniels decision within the classical precept “put that case out of your books, for it is not law.” But that temptation should be resisted.

The second case is that of Mason v. Williams and Williams Ltd. and Thomas Turton & Sons Ltd. [1955] 1 All E.R. 808. There an employee was injured in the eye by a splinter of metal which flew off a cold chisel which he was using at work. The manufacturers of the chisel were held liable in negligence on the principle of Donoghue v. Stevenson (supra). Finnemore J. in his judgment lucidly demonstrated the nature of the burden of proof that lies on the plaintiff at p. 810 as follows:

“I think that when you have eliminated anything happening in this case at the employers’ factory, whither, as is undisputed, this chisel came direct from the manufacturers—and when it came from the manufacturers the head was too hard, and that undue hardness could have been produced only while it was being manufactured by them, and could have been produced by someone there either carelessly or deliberately to make a harder and more durable head — that is really as far as any plaintiff can be expected to take his case. What the plaintiff says here is: — ‘This is your chisel, you made it and I used it as you made it, in the condition in which you made it, in the way you intended me to use it, and you never relied on any intermediate examination; therefore I have discharged the onus of proof by saying that this trouble must have happened through some act in the manufacture of this chisel in your factory, and that was either careless or deliberate, and in either event it was a breach of duty towards me, a person whom you contemplated would use this article which you made, in the way you intended it to be used.’ He is entitled to succeed against the manufacturers.”

In the present appeal, the respondent discharged his burden of proof on the lines indicated by Finnemore J. The respondent was not obliged to prove how the kerosene went into the beer. Whether an empty bottle was not smelt or washed, it is not his business to say. All that he was expected to prove was that the bottle of beer he bought came from the manufacturers’ factory and that the contents were contaminated with kerosene. It is therefore not open to the appellants to use the isolated decision in Daniels’ case as a tabula in naufragio in the seas of adverse authority. It is also not open to this court to say that the Daniels decision should be buried so securely that its perturbed spirit shall no longer vex the law. Nevertheless, all that need be said is that the Daniels case (supra) is not a decision that is binding on the court below and the learned trial judge was perfectly at liberty to decline to follow it as a guiding star in the firmament of judicial precedents. One

[p.430] of [1973] 1 GLR 421 principle of law can be discovered without difficulty from all the other cases: Chaproniere v. Mason (supra), Grants’ case (supra), Lockhart v. Barr (supra), Mason v. Williams (supra) (to cite a few) namely, the duty of care exacted by the doctrine in Donoghue v. Stevenson (supra) is not fulfilled by a manufacturer who succeeds in demonstrating that he has a fool-proof system of manufacture. Notwithstanding his fool-proof system, negligence will be inferred against him unless there is evidence that the defect in the manufactured article was probably due to causes for which he cannot be held responsible. See for instance Evans v. Triplex (supra) where the manufacturers successfully proved other probable causes for which they could not have been responsible. In the present appeal, the appellants cannot rely on their fool-proof system alone to escape responsibility because there was no evidence before the court below as to how the kerosene got or might have got into the bottled beer. It was not the duty of the respondent to prove how it got into the beer. It was rather the responsibility of the appellants to explain that the kerosene might have got into the beer without any negligence on their part. This they failed to do and on the principle in Grants’ case (supra), negligence must be found as a matter of inference. The learned trial judge was therefore right in finding negligence against the appellants.

The appellants are also aggrieved by the award of ¢800 general damages for pain and suffering, that is, (a) the burning sensation the respondent suffered in his mouth and the consequent loss of appetite and (b) a stomach upset with consequent frequent stools and loss of sleep in the night of 26 April 1965. The appellants consider the award excessive. The appellants were unable to point out to this court any specific principles of law that were violated when the learned trial judge fixed the general damages at ¢800, and the question for this court is whether the amount is reasonable considering the particulars of pain and suffering which the court below was invited to consider. Whether there are degrees of pain and suffering is a question that may be left to the experts. Furthermore, whether the intensity of pain and suffering varies from one human physique to another is also a difficult question to answer. It seems to me that in all such cases, a trial judge is at liberty to draw on his own experience, his knowledge of decisions of other judges, and his ordinary experience in life. I would therefore be breaking bounds if I were to say that if I had tried this case, I would have awarded more or less than ¢800. In my opinion, the amount awarded is not excessive.

For the above reasons, I would dismiss the appeal.

JUDGMENT OF LASSEY J.A.

I agree.

JUDGMENT OF HAYFRON-BENJAMIN J.

I also agree.

DECISION

Appeal dismissed.

S. O.