BERE
J:
At
the close of the plaintiff's case the defendant swiftly moved to
make an application for absolution from the instance.
What
runs through the plaintiff's declaration is the allegation that the
defendant lacked due diligence and care in the manufacturing of its
product to the extent that the product itself is not safe, clean,
health and fit for human consumption.
The
plaintiff testified himself and called two more witnesses one of whom
testified to corroborate the plaintiff's evidence that he had
partaken of contaminated coke. That the plaintiff drank coke which
was not safe for human consumption could not have been successfully
challenged by the defendants as none of its representatives were
present when the partaking took place. The thrust of the defendant's
defence as demonstrated by the cross-examination was the source of
the drink in question.
The
second witness called by the plaintiff alleged he was also a victim
of contaminated coke on an entirely different occasion and in the
court's view, his unsolicitated testimony tendered to corroborate
the plaintiff's contention that all was not well in the defendant's
manufacturing of the product in question.
Exhibits
8 and 9 which were produced by the plaintiff again tended to show
that there were some foreign substances in the defendant's coke and
this appeared, in the eyes and mind of the court to show that there
was something amiss with the defendant's product.
The
plaintiff testified that as a result of drinking the contaminated
coke he ended up incurring medical expenses some of which even the
defendant's counsel was unable to challenge at the time he made an
application for absolution from the instance.
It
appeared the defendant's counsel's position was that the
plaintiff ought to have used the defendant's testing facilities at
the defendant's place if he felt there was something wrong with the
coke that he drank.
I
was not persuaded to accept this argument.
In
fact it raises quite an interesting debate for one to argue that it
would have been reasonably expected for the plaintiff, being a victim
of the alleged negligence of the defendant to make use of the
defendant's facilities to either confirm or exonerate the
defendant's alleged lack of care and due diligence.
The
plaintiff alleged in his declaration that he had suffered general
damages in the sum of US$20,000.00 for distress and anxiety.
The
defendant counsel argued that in acquilian
action distress and anxiety are not recognisable. This obviously is
a legal issue which both the plaintiff and the defendant would have
to deal with when all the evidence in this case (including the
defendant's) have been gathered.
Authorities
are agreed on the test to be applied in deciding an application for
absolution from the instance. GUBBAY CJ eloquently laid down the
legal position in the following:
“A
plaintiff will successfully withstand such an application if, at the
close of his case there is evidence which a court, directing its mind
reasonably to such evidence could or might (not should or ought to)
find for him. See Supreme SVC Station (1969) (Pvt) Ltd vs Fox and
Goodridge (Pvt) Ltd 1971 (1) RLR (A) at SD – E; Lowrence vs Ragar
Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at
158/B – E.”
Could
or might the court in the instant case find for the plaintiff?
In
the court's view the answer must be in the affirmative. The
totality of the pieces of evidence put together by the plaintiff
appear to me to establish a prima
facie
case of negligence on the part of the defendant. The defendant must
not be denied the opportunity to explain its manufacturing process to
court by this application for absolution from the instance.
In
both cases
cited by counsel for the defendant, the enquiry was allowed to run
its full course and the court was only able to make a proper
determination after assessing the defendant's evidence together
with that of the plaintiff. It is clear to me that in both cases the
courts made a specific finding that there was a likelihood or
probability of interference with the defendant's process after the
product had left the production and distribution line on its way to
the retailer.
These
findings were not made as a result of conjencture but followed a
thorough analysis of the evidence placed before the court by both
parties. I am unable to speculate on such finding at this stage. The
defendant must give evidence to rebut the plaintiff's allegations
which have been reasonably corroborated by the witnesses who
testified.
Consequently,
the application for absolution from the instance is dismissed with
costs in the cause.
IEG
Musimbe & Partners, Plaintiff's legal practitioners
Messrs
Dube, Manikai & Hwacha, defendant's legal practitioners
1.
United Air Charterns v Jarman 1994 (2) ZLR 341 (S) at 343
2.
Delta Operations (Private) Limited t/a National Breweries v Charles
Maraura Judgment No. SC 106/99
2.
Seliphias Musiyiwa vs Delta Corporations Limited t/a United Bottlers
HH 64-2004
