Michael Chilufya Sata MP v Zambia Bottlers Ltd (SCZ 112 of 2001; SCZ 1 of 2003) [2003] ZMSC 123 (19 February 2003)

SCZNo. 1 of 2003 IN THE SUPREME COURT OF ZAMBIA SCZ/APPEAL NO. 112/2001 HOLDEN IN LUSAKA (CIVIL JURISDICTION) BETWEEN: MICHAEL CH1LUFYA SATA MP APPELLANT AND ZAMBI A BOTTLERS LIMITED RESPONDENT Coram: LEWANIKA, DCJ, SAKALA, MAMBILIMA JJS On 19th March, 2002 and 19ih February, 2003. For the Appellant: For the Respondent: Mr. R. M. S1MEZA of Sinieza, Sangwa & Associates Mr. N. MUBONDA of D. H. Kemp & Co. JUDGMENT LEWANIKA, DCJ delivered the judgment of the court. Authorities referred to: 1. 2. 3. 4. 5. 6. Donoghue vs Stephenson, (1932) A. C. 562 Continental Restaurant and Casino Ltd vs Arida Mercy Chulu S. C. Z. No. 28/2000 Zambia Breweries pic vs Reuben Mwanza, SCZ No. 59/2000 Grant Vs Australian Knitting Mills (1936), AC 85 London Passenger Transport Board vs UPSON, (1949) A. C. Charlesworth on Negligence, 6th edition - paragraphs 16,1104,1105 2 This is an appeal against,the decision of a Judge of the High Court dismissing the Appellant's claim for damages for personal injuries and consequential loss and damage caused by the negligence and/or breach of statutory duty by the Respondent in the manufacture and bottling of one bottle of sprite beverage and interest on the sums found to be due and costs. The facts before the learned trial Judge are not in dispute and are common cause. The Appellant bought a case of sprite from an outlet known as Melissa Supermarket for KI2,000.00 on 3rd June, 1998. The sprite is manufactured by the Respondent a company involved, inter alia, in the production of soft drinks like sprite. When the Appellant took the sprite at home, he drunk some bottles with his children. When the bottle produced in the court below was taken to be opened it was found to contain a dead cockroach. Neither the Appellant nor any of his children opened the bottle or drunk its contents. On seeing the cockroach in the bottle the Appellant alleged that he and his children fell sick and went to see a private medical practitioner who treated them for nausea. The learned trial Judge took the view that as the Appellant and his children did not consume the adulterated drink and did not suffer injury therefrom; the claim could not succeed, hence this appeal. Counsel for the Appellant has filed three grounds of appeal namely:- the first being: that the learned trial Judge misdirected himself in law when he held that to constitute negligence under the principles laid down in Donoghue Vs Stevenson, a Plaintiff must actually have consumed the adulterated drink or food wholly or partially, and in consequence of which the Plaintiff must suffer injury. In arguing this ground counsel submitted that the case of DONOGHUE VS STEVENSON besides adding a new jurisprudence to the law of negligence in so far as liability of a manufacturer is concerned, set down the principles or ingredients to be proved in order that liability may exist. He said that the principles of liability outlined in that case are that the party complained against should owe to the party complaining, a duty of care should show breach of that duty and that he has as a consequence suffered damage as a result of that breach. That neither Lord AFKIN nor the principles enumerated in the DONOGHUE VS STEVENSON case suggested that the Plaintiff must first have consumed the food/drink complained of in order to succeed in an action of this nature as the learned trial Judge found. He said that in the case of CONTINENTAL RESTAURANT AND CASINO LIMITED vs ARIDA CHULU (Z) this court found that a duty of care was owed to the Plaintiff by the Defendant 4 and had been breached on the strength of the provisions of Section 3(b) of the Food and Drugs Act, Cap 303 of the Laws of Zambia. That reference to the Donoghue case in ARIDA CHULU's case was on the necessity of medical evidence of the Plaintiffs illness and not the consumption of the adulterated food as suggested by the learned trial judge. fie said the court had made it clear in the ARIDA CHULU case that the issue before it was one for damages and not liability as the court below appears to have suggested. That the question whether one consumed the product or not only arises when considering the quantum of damages to be awarded. He said that the finding of the court below that liability only arises when the Plaintiff opens the drink and consumes it, either wholly or partially is not only misguided but is also unsupported in law. He said that there was evidence in this case to show that by reason of the Respondent’s breach, the Appellant suffered mental injury resulting from nausea, discomfort and mental distress and had to receive medical treatment. That the evidence given on behalf of the Appellant by Dr. KAWfMBE a medical practitioner was that nausea is an illness resulting from mental stress/injury. He said that the law has always recognized and awarded damages under the head non pecuniary damages for loss suffered as a result of physical or mental injury. The second ground of appeal argued was: That the learned trial Judge erred in law when he held that manufacturers of drinks and food will be inundated with law suits by money seeking people who will go around deliberately to look for adulterated food and drink to buy in order to bring law suits against manufacturers. In arguing this ground, counsel submitted that the learned trial Judge erred by imposing a qualification on the principles of liability as yet unrecognized in law. The only safeguards which the law has this far recognized to avoid flood gates of actions for economic loss are inter alia, reasonable foreseability and the relationship of proximity. Counsel said that Section 3(b) of the Food and Drugs Act places a duty on the manufacturers to ensure that food manufactured by them is not ‘ adulterated. The Act goes on to state that contravention of this duty amounts to an offence. That it is not untrue therefore that Parliament sought to cure the evil of manufacture of unwholesome and adulterated food when it enacted this statute. This is because it is not common that food is manufactured with cockroaches or other foreign matters and where this is so, then the onus is on the manufacturer to show that he exercised reasonable 6 care. . He said that the legislature could not have had in mind prevention of law suits against manufacturers by people going round deliberately looking for adulterated drinks and food when it enacted this law. That moreover such an argument ignores the fact that Judges by their training are capable of determining which cases are real and which ones are not. He further said that it is a notorious fact that cockroaches are common sight in Zambia of which the court took judicial notice of, is different from it being a notorious fact that food is manufactured with cockroaches or filthy adulterated foreign substances, otherwise this would render obsolete the legislature's intention in enacting legislation such as the Food and Drugs Act which is meant to protect consumers against unwholesome or adulterated food manufactured below the standards of hygiene recognized by the law. The third ground of appeal argued was:- that the learned trial Judge misdirected himself both in law and fact when he refused to find the Respondent liable for breach of statutory duty on the ground that the Appellant first needed to prove that he suffered injury as a result of such breach of statutory duty by the Respondent. In arguing this ground, counsel submitted that it cannot be disputed that Section 3(b) and (c) of the Food and Drugs Act places a duty on « manufacturers not to manufacture unwholesome or adulterated food. 7 He said that the general law is that a statutory duty frequently gives rise to a liability in civil action. He referred us to what Lord Wright said in the case of LONDON PASSENGER TRANSPORT BOARD VS UPSON, (1949) AC. 155 where he said:- "The statutory right has its origin in the statute but that particular remedy for an action for damages is given by that common law in order to make it effective, for the benefit of the injured Plaintiff his right to the performance by the Defendant of the Defendant's statutory duty....it is not a claim in negligence in the strict or ordinary sense." He said that a statutory duty being placed on the Respondent and this duty having been breached in the manner envisaged by the Food and Drugs Act, the court below ought to have held the Respondent liable and should not have tried liability under breach of statutory duty to proof of injury. He said that the magnitude of injury is what determines that quantum of damages that should be awarded to the Appellant and has no bearing on the question of liability. That consideration of proof of injury should only have arisen after having settled the question of liability first and then proceed to determine the quantum of damages to be awarded to the Appellant. He said that where a statute creates a duty but gives no remedy or where liability at common law is affirmed by statute as in casu, the law is that an action for 8 damages can be brought provided that the person suing is one of a class intended to be benefited by the duty. In reply counsel for the Respondent submitted that with regard to the f first ground of appeal, the learned trial Judge was right when he held that for the Plaintiff to succeed under the principle of DONOGHUE VS STEVENSON, he must actually consume the adulterated drink or food wholly or partially and in consequence of which the Plaintiff must suffer injury. He said that this action was launched in the lower court on the basis of negligence and breach of statutory duty. That the case of DONOGHUE VS STEVENSON (I) clearly established the tort of negligence in relation to manufactures as it set out the principle that a manufacturer did owe a duty to the consumer. The said case is composed of specific facts upon which the principle was founded. Consequently in order for a Plaintiff to have a claim for "actionable" negligence or "a reasonable cause of action" in negligence against a manufacturer of drinks or food, he must bring himself on all fours within the facts of DONOGHUE VS STEVENSON. He said that the law makes a clear distinction between "actionable" negligence and negligence on which a "cause of action does not arise" as all the elements based on the 9 facts of DONOGHUE VS 'STEVENSON must be present. He submitted that the Appellant failed to do so in this case as he did not consume the drink in issue at all or even open the bottle. That as the Appellant did not consume any part of the said drink, he does not have any cause of action against the Respondent in negligence. He referred us to paragraph 16 of the 6lh edition of Charlesworth on negligence which reads: "Negligence is only actionable if actual damage is proved. There is no right of action for nominal damages... . Negligence alone does not give a cause of action, damage alone does not give a cause of action, the two must co-exist." He said that in essence the learned trial Judge was merely stating that the essential ingredients of actionable negligence had not been established by the Appellant. That the only legally recognized way at present by which the Appellant could have established his case was by him consuming the said drink and in consequence of which he should have suffered injury through credible evidence of illness. As to the second ground of appeal counsel submitted that the learned trial Judge was correct when he held that the manufacturers of food and drink will be inundated with law suits from money seeking people who will go round deliberately to look for adulterated food and drink to buy in order 10 to bring a law suit against the Manufacturer. He said that the remarks by the learned trial Judge should not be taken out of context. That the correct context in which the remarks were made is that there was no tort of negligence that covers the facts established by the Appellant, facts which were completely outside the legal boundaries of the tort of negligence elating to manufacturer of drinks and food. He said that the learned trial Judge was merely stating that the likely consequences of not upholding the law is as it stands at present. As to the third ground of appeal, Counsel submitted that the learned trial Judge was correct when he refused to find the Respondent liable for breach of statutory duty on the ground that the Appellant needed to prove that he suffered injury as a result of the breach of statutory duty by the Respondent. He said that the Respondent has not breached any statutory duty imposed on it by either the Food and Drugs Act or any other statute. That no evidence of this nature proving any breach was adduced in the court below. Further that there was no evidence adduced in the court below proving that the Respondent was convicted of any breaches or violations of the Food and Drugs Act. 11 lie said that the Food and Dnigs Act is silent as regards the availability of any remedy in civil law for damages arising out of any penalties imposed for breach of its provisions. That in the circumstances, there is a presumption that the remedy prescribed by the criminal law (i.e, penalty) is the only remedy available. He referred us to paragraph 1104 of Charlseworth on Negligence on the point. He further said that there is consequently no right available to the Appellant in these circumstances to bring a civil action on the basis of any breach of statutory duty by the Respondent. That further, if a civil action is brought by an Appellant, he has a legal burden to establish or prove that the breach of statutory duty caused or materially contributed to his damage. He said that as the learned trial Judge correctly observed and found, the Appellant failed to prove the injury or damage he suffered as a result of the alleged breach of statutory duty by the Respondent. He referred us to paragraph 1105 of Charlesworth on Negligence on the point. We are indebted to both counsel for their submissions which have been of great assistance to us in arriving at our decision. u As we have stated Earlier; the facts in this case are not in dispute. It is common cause that the Appellant bought a case of sprite manufactured by the Respondent from a retailer. It is also common cause that one of the bottles of sprite contained a dead cockroach, this bottle was not opened and its contents were not consumed by the Appellant. The first ground of appeal was that the learned trial Judge misdirected himself in law when he held that to constitute negligence under the principles held down in DONOGHUE VS STEVENSON, a Plaintiff must actually have consumed the adulterated drink or food wholly or partially and in consequence of which the Plaintiff must suffer injury. In the case of DONOGHUE VS STEVENSON (1) Lord Atkin in enunciating the principles said as follows:- "My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that, by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate customer 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." 13 It is important to point out that in that case, the Plaintiff had partially consumed the adulterated ginger beer and the sight of the dead snail caused her shock and she also had a bout of gastro enteritis which necessitated her being hospitalized. In the case of CONTINGENT AL RESTAURANT AND CASINO LTD VS ARIDA CHULU (2) the Plaintiff had partially consumed the contaminated soup before she saw the dead cockroach. Similarly in the case of ZAMBIAN BREWERIES PLC VS REUBEN MW ANZA (3) the Plaintiff had partially consumed the adulterated beer before he saw the dead lizard in the bottle. The principles laid down in DONOGHUE VS STEVENSON were based on the fact that the Plaintiff consumed the adulterated drink and suffered injury as a consequence thereof. We do not believe that it is permissible to extend those principles to a case of this nature where there has been no ingestion of the adulterated food or drink. The learned trial Judge was on firm ground in holding as he did and this ground of appeal cannot succeed. We shall deal with the second and third grounds of appeal together as we believe that they are interrelated. There is no dispute that the bottle of sprite produced in the court below was adulterated as it contained a dead 14 cockroach. Section 3(b) ’of the Foods and Drugs Act makes it a criminal offence to sell any food or drink which is contaminated with any foreign matter. The penalties for a breach of this section are contained in Section 31(2) of the Act and these are, in the case of a first offence, a fine not exceeding one thousand penalty points or to imprisonment for a term not exceeding three months, or to both. Thus, it will be observed that the only remedies for a breach of Section 3(b) of the Food and Drugs Act are criminal sanctions and there is no provision for the recovery of damages in a civil suit. As the learned authors of Charlesworth on Negligence observed at paragraph 1104 "it would seem that if the statute has imposed a penalty for Us breach but. was silent as regards any remedy in civil law for damages there may be a presumption initially that the remedy prescribed by the criminal law is the only remedy." Further the learned authors go on to point out that unless the statute or regulations provide to the contrary, the burden rests on the Plaintiff to prove on a balance of probabilities that the breach of duty caused or materially contributed to his damage. In other words, negligence is only actionable if actual damage is proved, there is no right of action for nominal damages. As Lord Reading, C. J. said in the case of E. SUFFOLK RIVERS CATCHMENT BOARD VS KENT, 1941 A. C. 74 15 'Negligence, alone does nbt give a cause of action, damage alone does not give a cause of action; the two must co-exist." There was no injury or damage caused to the Appellant by the adulterated drink as he did not consume any part of it. Even Dr. KAWIMBE the medical practitioner called by the Appellant in the court below admitted that no treatment was prescribed for the Appellant and his children for the "nausea” caused by the sight of a dead cockroach in an unopened bottle of sprite. Grounds 2 and 3 cannot also succeed and in the event we dismiss the appeal with costs, the costs are to be taxed in default of agreement. D. M. Lewanika DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE I. M. C. Mambilima SUPREME COURT JUDGE 15