Zambia Bottlers v Mwamba (Appeal 95 of 2016) [2019] ZMSC 307 (24 July 2019)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 95/2016 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: ZAMBIA BOTTLERS APPELLANT AND JOSEPH MWAMBA RESPONDENT CORAM: Wood, Kabuka and Mutuna JJS. On 2nd April, 2019 and 24th July, 2019 For the Appellant: Mr. A Tembo - Tembo Ngulu.be and Associates For the Respondent: In person JUDGMENT Wood, JS, delivered the Judgment of the Court. Case re ferred to: 1. Zambia Breweries Plc v David Chibwe SCZ Judgment No. 41/ 201 7. This is an appeal against a decision of the High Court which held that the appellant was liable for nominal damages in the sum J2 of K5000.00 as damages for breach of duty and for injury caused as a result of the appellant’s negligence. We dealt with a similar appeal not too long ago in the case of Zambia Breweries Plc v David Chibwe1. According to the amended statement of claim, the respondent bought a bottle of Fanta from the appellant on 13th February, 2009 and consumed it. The respondent then developed abdominal problems and as a result sought to be medically examined. The medical examination revealed that he had consumed some foreign matter. The respondent was diagnosed with a chronic fungal infection which came from the product supplied by the appellant. The respondent went to the appellant and explained what had happened but the appellant did not respond. The respondent stated in his statement of claim that he now had a serious medical condition as a result of consuming the Fanta and he could only perform light work and was put on a special diet. Arising out of this he was claiming that he had suffered loss and damage and was claiming damages for breach of duty for the injury cause as a result of the appellant’s negligence. J3 The respondent’s evidence repeated what is contained in the statement of claim and added that he reported the matter to the police who issued him with a medical report and referred him to a clinic. The clinical officer referred him to Kafue Hospital where his blood pressure was found to be 180/190 and was admitted from 15:00hours to 17:30hours. When he went home he failed to eat anything. Later at night he had terrible diarrhoea which continued until the following morning. He went back to the clinic and was referred to Kafue Hospital. On 16th March, 2009 he was given a laboratory report by Kafue Hospital. He took the results to the appellant. The appellant asked him for his phone number and copies of his documents. At that time he was not able to walk and had nausea, headache and diarrhoea. In cross-examination he said that he had a fungal infection which gave him non-stop diarrhoea. The appellant’s witness testified that the condition in which the appellant’s products were produced could not allow the mould J4 growth because of the treatment through which the product undergoes in the process. He then explained that surfaces that came into contact with the product were sanitized using chemicals that would not support mould growth. He clarified that by surfaces he meant pipes through which they are filled. He further explained that when bottles come from the market they undergo a screening process and they choose glass bottles that are washable. The bottles are taken into a washer fitted with tanks of detergent sodium hydroxide w/c which penetrates any surfaces or soils one can think of. The sodium hydroxide or caustic soda as it is commonly known is very corrosive and acts as a sanitizer and cleaning detergent. After the caustic wash, the bottles are sprayed with hot water to remove, residue detergent and then passed through chlorinated water to remove all bacteria and mould. After that, the bottles are rinsed in chlorine for a final rinse and are passed through a surface electronic bottle inspector which checks the cleanliness of bottles and is able to detect any minor cracks, dents or particles. The bottles are then vacuum filled which eliminates the possibility of filling a bottle with any foreign matter J5 as all bottles are filled up to a volume of 300mls. The filled bottles undergo another screening process to ensure that they are of the same level and have no foreign matter. After that the bottles are coded to show an expiry date and manufacturer of product and time of production prior to going for casing. The bottle the respondent took to the appellant did not have markings and the respondent did not allow the appellant to examine it. The expiry date was not engraved on the respondent’s bottle and he never gave them an opportunity to identify it. In her judgment, the Judge found that the appellant owed the plaintiff a duty of care as manufacturer and distributor of beverages to the general public and that it had to ensure that its products were fit for human consumption and not adulterated in any way. She found as a fact that the respondent had bought and consumed a bottle of Fanta which contained foreign particles. The report from the University Teaching Hospital confirmed that there was fungus in the drink. She accepted the medical evidence and the report from the University Teaching Hospital. Even though she had her doubts about the respondent’s testimony on the illness and J6 treatment received, she was inclined to find that he suffered injury after consuming the drink. She therefore awarded him the sum of K5,000.00 as nominal damages for negligence. The appellant has now appealed to this court raising three grounds of appeal as follows: i) The learned trial Judge erred in law and fact when she accepted and relied on the medical evidence and report from University Teaching Hospital in coming to the finding that the respondent had consumed part of the adulterated drink when the respondent had clearly failed to lead evidence of a medical nature to show the link between the drink and the injury to his health and physical wellbeing. ii) The learned trial Judge erred in fact when she found as a matter of fact that the respondent had suffered injury after consuming the drink contrary to her earlier finding that the respondent’s testimony on the illness and treatment received did not add up. Ui) The learned trial Judge erred in law and in fact when she discredited the appellant’s evidence as not in any way rebutting the respondent’s assertion that he bought and consumed a contaminated bottle of Fanta. J7 With regard to the first ground of appeal the appellant has argued that an examination of the analyst’s report from the University Teaching Hospital shows that it falls short of the requirements of an analyst’s report. The report does not state whether the drink that the respondent alleges to have taken was a counterfeit or original product, how old the alleged fungus found in the bottle was, its weight, the type of fungus, and if it was poisonous or infectious. We have read the public analyst’s report dated 29th February. 2009 in the record of appeal. It is bereft of any useful information to establish any nexus between the appellant and the respondent’s alleged condition. It reads as follows: “Analysis: Fanta-KF 01/02/09 On 20th February, 2009 the laboratory received from Ms Maureen Muma, Environmental Health Technician of Kafue District Health Management Team, one (1) clear Fanta Bottle containing ISOmls Orange liquid (Fanta drink) with some foreign matter labeled “Fanta” The foreign matter was identified as fungal growths. The Food and Drugs Act 303 section 3 (b) stipulates that any person who sell any food that consists in whole or in part of any filthy, putrid, rotten, -1 J8 decomposed or diseased substance or foreign matter or is otherwise unfit for human consumption shall be guilty of an offence . Getrude E. Mundia Public Analyst” In the case of Zambia Breweries Plc v David Chibwe1 we emphasized the need for litigants to obtain comprehensive reports from public analysts as sketchy reports are of no use to the courts. There is nothing in this report which is of any value. It is not enough for a report to simply state that “The foreign matter was identified as fungal growths” without indicating anything about the nature of the fungal growths or how they possibly got into the bottle. The medical report from Kafue Estates Clinic is not helpful either. It just makes reference to the fact that the respondent was being treated for a “chronic fungal infection” as at 24th August, 2009. No details were provided as to what could have caused the chronic fungal infection. The term chronic suggests a long existing medical condition persisting for a long time or constantly recurring. The Judge however found that the respondent had proved that he had a chronic condition without evidence pointing to the fact that it was J9 chronic. The letter from Kafue Estate Clinic dated 24th August, 2009 was written almost four months after the respondent last visited a hospital. There is no evidence to show what his condition was in the intervening period. There is therefore no evidence to prove that it was indeed chronic. It is quite apparent to us that from the evidence no link was clearly established between the drink and the injuiy to the respondent’s health and wellbeing. We therefore find merit in the appellant’s first ground of appeal and allow it. We are aware from a cursory reading on fungal infections that candida is the most common cause of fungal infections. Several key symptoms can help whether a person has an overgrowth of candida. We are also aware that the most common signs of infection include oral thrush, digestive issues and fungal infections of the skin and nails. Both the Public Analyst’s Report and the Medical Report do not provide this basic information or at the very least show how the Fanta caused the chronic fungal infection. The issue in the second ground of appeal is whether or not after finding that the respondent’s testimony on the illness and J10 treatment received did not add up, the Judge was correct when she concluded that the respondent suffered injury after consuming the drink. Having found that the respondent’s illness and testimony did not add up, the Judge in our view should not have on the basis of the same evidence found that the respondent had suffered injury after consuming the drink. If as the Judge held in her judgment that the testimony on the illness and treatment received did not add up, then it raised the possibility of there being no causal link between the drink and the illness. The conclusion reached is not supported by the evidence. We accordingly allow this ground of appeal as well. The appellant in its third ground of appeal has argued that the appellants’ bottles go through a rigorous cleaning process before they are re-used. We agree with the appellant that the unchallenged evidence is that its bottles go through a rigorous cleaning process. This evidence was not properly evaluated by the trial Judge who instead adopted a broad brush approach when dealing with the duty of care principle. Had she considered the evidence relating to the Jll manufacturing process in a little more detail coupled with the fact that there was no direct proof that it was the appellant’s product or indeed that there was no conclusive causal link between the drink and the respondent’s illness, she would have reached a different conclusion. There is merit in this ground of appeal. The net result is that all three grounds of appeal are successful. The judgment of the High Court is set aside and the appeal is allowed with costs here and in the court below to be taxed in default of agreement. SUPREME COURT JUDGE J. K. KABUKA SUPREME COURT JUDGE N. K. MpTUNA - SUPREME COURT JUDGE