GARWE JA:
This is an appeal against the judgment of the High Court sitting at Harare
dismissing with costs an application for absolution from the instance.
Background
The respondent, who was
plaintiff in the court a quo, issued summons claiming payment of
damages in the sum of US$20 051 and costs of suit. The basis of his claim
was that he had consumed a contaminated coca-cola beverage and that further
inspection of the bottle had revealed “a rusting iron nail and blackish foreign
substances.” In his declaration he alleged that the appellant as the
manufacturer of the beverage in question owed him and the general public “a
duty of care to ensure that the product is safe, clean, health (sic)
and fit for human consumption” and that the appellant had breached that duty by
producing the contaminated coke. In the alternative the respondent
alleged that the appellant had “negligently allowed the production and selling
of contaminated coke” which he consumed. In the result he sought damages
in the sum mentioned for what he termed “distress and anxiety.”
In its plea before the court a quo, the appellant denied that any
harmful foreign particle of any nature was found in the unopened bottle of coke
and, in the event that it was, that it was inserted by the appellant before,
during, or after the manufacturing process. The appellant further pleaded
that its manufacturing process was in line with international standards of
quality and that in any event the cleaning, manufacturing and bottling process
made it impossible to produce a beverage that contained a nail. In short
the appellant denied producing contaminated coca-cola or any negligence in the
production of the beverage.
The evidence
During cross-examination in the court a quo the
respondent appeared to accept that he had not suffered any nervous shock.
The following exchange captures the evidence that came out during cross
examination on this aspect:
“Q.
Did you suffer any nervous shock as a result of consuming the contents?
A. Yes at that time. To my surprise it came to my attention, I
thought what if I had consumed the nail, wondered what could have been the
outcome.
“Q. Let us not waste time on that
that does not constitute nervous shock does it? A. Yes I was
actually shocked in that manner.
“Q. The question is does that
constitute nervous shock? A. No, I was actually shocked.
Surprised and shocked at the same time in seeing the iron nail in the bottle.
“Q. You agree with me that no
psychiatric condition developed as a result of the incident in you?
A. No, nothing of that sort.
“Q. As recorded in exhibit that we
have placed before the court you similarly confirm that you did not develop any
medical conditions? A. No, I did not develop any medical condition.
“Q. If in fact your personality
was not in any way altered by the event that you described? A. My
personality as after consuming the iron nail, there was a slight change when I
was about to (sic) another bottle during since coke was my favourite
drink, I would observe more and look forward in seeing whether there is any
substance inside or not.
“Q. You are simply saying you
became more careful, you are not saying there was a change in
personality. Is that not so? A. When you say personality what
do you exactly mean? Can you define personality in change?
“Q. Ok, I will not define what
personality is but you accept that there has not been any change in you as a
result of the incident that you described?
BERE J. He has become more
cautious? A. That is what I would say.”
Questioned further, he had the
following to say:-
“Q. Your claim is that you
suffered anxiety and distress as a result of the incident. Is that
so? A. Yes it is.
“Q. And, you allerge (sic)
you also had fear for the worst? A. Yes I did have fear for the
worst.
“Q. And, this is all that this
claim is about, anxiety and distress? A. Yes and also the manner in which
my case was handled which I thought could have been handled in a better
manner.”
“Q. You say you could have been
affected if you consumed the iron nail but you did not consume it and you were
not affected? A. I repeat, my human body would have been affected if I
had consumed the iron nail.”
On the question whether the appellant's processes involved
in the production of beverages fell below the standard expected of a reasonable
beverage manufacturer, the following exchange took place:
“Q. The basis of your claim is
that defendant was negligent in manufacturing the product that you are talking
about and you indicated in your evidence in chief that you were offered the
opportunity to tour its facilities and you confirm now that you did not take
that offer. Yes or no? A. No I did not take that offer.
As I had explained before for the banking of the site in which I was managing
and at that time actually had not done the banking, so, I was in a hurry in
doing so.
“Q. Did you subsequently take up
your offer in order to be satisfied that defendants process (sic) are
below the standards expectant (sic) of a reasonable
manufacturer? A. No, I did not take up the offer because it
indicated to me during that meeting that they just wanted me to visit the plant
in showing me that I placed the iron nail myself.
“Q. Do you agree with me that
there is nothing that you can put before the court concerning the payment
process? A. Sorry I did not get the last word?
“Q. You agree with me that there
is nothing that you can put before the court concerning defendant's process on
the basis upon which the court can find that defendant did not take necessary
precautions or does not take necessary precautions in manufacturing its
products? A. No, there is no evidence. You said is there
evidence that I have?
“Q. Yes that was the question and
your answer is that there is no such evidence. Now, had there been any
deficiencies, any defects in the defendant's processes. You agree with me
that if you told the blunt you probably would have seen those? A. No, I
would not know of any defectives because I do not know how the machinery is
operated but what I do know in any manufacturing process there is always room
for human error.”
On the question as to which manufacturer of coca-cola
beverages in the country was responsible for the production of the beverage in
question, the following exchange took place:-
“Q. Are you aware that there are
two entities that manufacture, packaged and distribute the product that we are
talking about? A. No, I do not know anything about the processes.
“Q. If I told you about Mutare
Bottlers will that instill your memory? A. Yes I am aware.
“Q. The relevant bottle that we
are talking about who had manufactured, packaged and distributed it? A.
No, I would not know but what I do know is the deliveries that we do place and
orders come from the DELTA depot along Seke road.”
During further cross examination the respondent stated as follows:-
ADV MPOFU. Q. But you accept that
the delivery is notwithstanding. It is important to establish the origins
of the bottle because you do not know the interparty arrangements between the
manufacturers? A. I did not take in mind that the bottle came from
different stock holds that is why I did not bother to identify where the bottle
had come from.”
At the close of the respondent's case (plaintiff in the
court a quo) the appellant applied for absolution from the
instance. Whilst acknowledging that the appellant was disputing that the
drink in question had emanated from its plant, the court a quo reached
the conclusion that the evidence tended to show that all was not well in the
appellants' manufacturing processes. The court further reasoned that,
although issue had been taken with the propriety of a claim for distress and
anxiety, this was a legal issue to be dealt with at the end of the trial.
Accordingly the court a quo reached the conclusion that the appellant
should be placed on its defence to rebut the plaintiff's allegations. It
is against that order that the appellant has now appealed to this Court.
Grounds of appeal
In its grounds of appeal the
appellant has attacked the decision of the court on the following grounds:
1. That the court a quo
erred in placing appellant on its defence against a claim for stress and
anxiety which claim is not cognisable at law and despite there not having been
any evidence to support the claim made.
2. The court a quo
also erred in postulating (without invitation) that a claim for stress and
anxiety might fall under the head of pain and suffering notwithstanding that
such was never plaintiff's position and plaintiff had specifically abandoned a
claim for stress and anxiety in favour of a claim for nervous shock.
3. The court a quo
further erred in coming to the conclusion that appellant could be put on its
defence notwithstanding that no negligence had been alleged against it as
required by law and superior court authority brought to the court's
attention. It so erred in seeking to place reliance upon evidence of
alleged negligence that had nothing to do with the claim placed before
it.
4. The court a quo
erred in placing appellant on its defence notwithstanding that plaintiff had
not claimed that he had suffered any harm cognisable under the Aquilian
action.
5. The court a quo
erred in coming to the conclusion that appellant should be put on its defence
to defend the
$51-00 claim for medical expenses notwithstanding that it
was accepted by plaintiff that he had been offered medical assistance and
freely decided not to take it despite not taking issue with either its nature
or quality.”
From my reading of the above grounds of appeal and the oral
submissions made before this Court, it seems to me that there are in fact two
main issues that arise for consideration. These are firstly whether the
respondent's claim before the court a quo disclosed a proper cause of
action and in particular whether he was entitled to damages for anxiety and
distress or, as submitted by his counsel during submissions made before the
court a quo, nervous shock. The second is whether negligence had
been alleged and proved.
The claim for distress and anxiety
The respondent's claim in the
court a quo was for damages for distress and anxiety. Although
during argument the respondent's counsel submitted that the claim for general
damages is based on the fact that the respondent suffered nervous shock, the
respondent's claim was never amended to reflect such a claim. His claim
on the pleadings remained one for distress and anxiety.
It is the appellant's submission
that no cause of action can be founded on a claim for distress and anxiety in
our law and that even if it were to be accepted for a moment that the
respondent's claim was one for nervous shock, such a condition was transient
and did not result in a condition requiring treatment.
There would appear to be
substance in this submission. It is not every form of harm which constitutes
damage.
The position is settled that:
“A claim for damages in respect of pain and suffering
strictly constitutes more than a head in a general Aquilian action; it is in
origin a separate remedy. It aims at compensating the victim for all
pain, suffering, shock and discomfort suffered by him as a result of the
wrongful act. It includes both physical and mental pain and suffering and
both past and future pain and suffering. Moreover account must be taken
not only of the pain and suffering suffered as a direct consequence of the
infliction of the injuries but also of pain and suffering associated with
surgical operations and other curative treatment reasonably undergone by the
plaintiff in respect of such injuries....”
SeetheQuantum of Damages in Bodily and Fatal
Injury Cases, 3 ed by Corbett, Buchanan and Gauntlett,
at pp 51-2.
Damage is the detrimental impact upon any patrimonial or personality interest
deemed worthy of protection by the law. The concept of damage is not
unlimited in scope. It does not include every form of harm whatsoever and
indeed some forms of harm are excluded. In this context, the learned
authors, Neethling Potgieter Visser in The Law of Delicit, 6
ed, state at p 212:
“the concept of damage does, of
course, include more than harm for which compensation is recoverable, since satisfaction
may be awarded for some forms of damage. As indicated by the definition above,
only harm in respect of legally recognised patrimonial and non-patrimonial
interests of a person qualifies as damage. This may be the reason why
losses and harm such as inconvenience, disappointment, fear or frustration are
not compensable in terms of the Aquilian action, or why a husband may not claim
for the loss of the comfort and society of his wife who has been killed, or why
the frustration of an expectation of inheriting something does not constitute
damage. One may, of course, also argue that the losses referred to are
damage but that the law refuses compensation for policy reasons. Reinecke's
argument that the frustration of income from an unlawful activity does not
amount to damage in the legal sense appears to be correct, although it has been
subjected to criticism”
In The Law of Delict 2 ed by Neethling Potgieter
& Visser, the authors cite with approval remarks by Boberg, The Law
of Delict that;
“Mere mental distress,injured
feelings, inconvenience or annoyance cannot support an award of Aquilian
damages” (at page 224)
Professor G Feltoe in A Guide to the Zimbabwean Law
of Delict also states:-
“whereas damages can be claimed
for pain and suffering, damages cannot be claimed for transient nervous
distress which does not lead on to a recognised psychiatric complaint requiring
treatment.”
The position may therefore be accepted as settled that it
is not every complaint that warrants an award of damages. The complaint
must lead to a recognised medical condition which would require treatment
before such damage can be cognizable in terms of the law.
In the present matter, the respondent agreed during cross examination in the
court a quo that no psychiatric condition resulted. The medical
report produced before the court showed that there were no pathogens in the
sample that was analysed. No harm requiring medical treatment was
proved. Indeed no medical evidence was called to confirm whether he had
suffered any nervous shock as suggested. It was his legal practitioner,
Mr Musimbe who sought to lead such evidence from the bar when he
stated:
“....it is my respectful
submission that in terms of the evidence led by the plaintiff his character
changed every time he will get a coke bottle, he examines it and my Lord, he
was shocked to see an iron nail in his coke bottle....”
In his heads of argument before
this Court, Mr Musimbe further states:-
“It is further submitted that the
respondent suffered a medical and psychiatric harm. After suffering from
the shock of finding a nail in a coke bottle, Respondent had to go to a doctor
to be examined and the doctor then prescribed antibiotics and milk of
magnesia. Further the psychiatric harm is revealed by his change of
character where now every time he gets a coke bottle he examines it and this
always gives him shocking memories and can be equated to post traumatic disorder,
a direct result of finding a nail in the coke bottle. It is respectfully
submitted that Respondent suffered harm which is recognised under the Aquilian
Action.”
The fact of the matter is that this submission does not
disclose what, if any, medical condition developed and the treatment that
became necessary. In the absence of medical evidence, no real reliance
can be placed on these remarks by the legal practitioner who clearly is not
qualified to express an expert opinion on this matter. Indeed Mr Musimbe
conceded before this Court that medical evidence should have been adduced to
confirm whether the respondent had developed a medical condition following his
consumption of the beverage.
In the result therefore, I am
satisfied that the respondent did not prove any damage such as would have
founded a cause of action under our law of delict. Clearly whatever
distress or anxiety or nervous shock he may have experienced was transitory and
no psychiatric or other medical condition requiring treatment eventuated.
In the circumstances, the appellant had no case to
answer. That should have been the end of the matter and absolution from
the instance ought to have been granted.
Whether negligence proved
There can be no doubt that the
respondent's claim in the court a quo was based on the Aquilian
action. The respondent specifically pleaded that the appellant owed the
general public a duty of care to ensure that its products are safe, clean,
healthy and fit for human consumption. In the alternative the respondent
alleged that the appellant negligently allowed the production and sale of a
contaminated coca-cola beverage.
The expression 'duty of care' is used in two separate and
distinct senses. The first sense in which it is used is in connection
with negligence. A person is said to have breached the duty of care (i.e.
to have been negligent) when he fails to foresee and guard against harm which
the reasonable person would have foreseen and guarded against. The second
connotation of this phrase is in connection with wrongfulness. When it is
used to denote wrongfulness, it will be used in this sort of way; although the
reasonable man would have foreseen and guarded against harm, the defendant is
not liable in the circumstances as the law does not recognise any duty of care
to avoid causing that sort of harm (i.e. the conduct was not wrongful or to put
it another way, there was no recognised legal duty to avoid causing harm by
negligent conduct)-See A Guide to The Zimbabwean
Law of Delicit, Third Edition 2001 by G Feltoe at p 9.
In other words in determining
whether or not a person was negligent, there is need to determine whether harm
was reasonably foreseeable and if so whether the reasonable person would have
guarded against such harm. As stated by G Feltoe in The Guide to the
Zimbabwean Law of Delict (op cit):-
“....there are some situations
where, despite the fact that harm was reasonable, the reasonable person might
not necessarily have taken any steps at all to prevent that particular harm or
he might only have taken certain limited precautions. Therefore in
addition to reasonable foreseability, the question of what steps if any, the
reasonable person would have taken has to be investigated...” at p 37.
Attention is also drawn to
similar remarks by the learned author, Boberg in The Law Delict, at p
194.
In his heads of argument Mr Mpofu,
for the appellant, argued that as no particulars of the negligence alleged were
set out or proved, there was no basis upon which the appellant could have been
placed on its defence. I am inclined to agree with this submission.
In an Aquilian action in which a plaintiff claims damages
whether for patrimonial or non-patrimonial loss, it is, I believe, incumbent
upon such plaintiff to plead negligence on the part of the defendant and to set
out the particulars of such negligence. Where such particulars are not
set out, the defendant is embarrassed in his defence as he cannot know the
basis on which liability is claimed. It is not enough to allege negligence and
fail to give particulars of such negligence. It is now well established
that a defendant is entitled to know the outline of the case that a plaintiff
will try to make against him. Border Timbers Ltd v Zimbabwe Revenue
Authority 2009 (1) ZLR 131 (H), p 139 D-E. Also Honikman v
Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404, 407 A-B.
On the facts of this case no particulars of
negligence were alleged or proved. Such failure assumes an important dimension
when regard is had to the fact that the appellant is a beverage
manufacturer. It is now settled that the liability of a beverage
manufacturer or brewery is not absolute. If the steps it took to avoid
contamination were reasonable, in the sense that nothing more could reasonably
have been done, then it would not be liable because it would not have been
negligent. Delta Operations (Pvt) Ltd t/a National Breweries
v Charles Naraura SC 106/99 at p 5 of the cyclostyled judgment.
I would agree that at the end of the plaintiff's case
before the court a quo, there was no evidence before the court on the
state or condition of the bottling equipment used by the appellant. There
was no evidence that there was anything amiss with either the equipment or the
procedures adopted during the manufacturing process. There was no
evidence that the appellant had failed to take necessary precautions in the
manufacturing process. In a situation such as this, failure could have
been not because of negligence but human error. There was therefore no
evidence which could be tested against the objective standards of a reasonable
beverage manufacturer. Evidence could indeed have been led from a neutral
institution such as the Standards Association of Zimbabwe. It was for the
respondent to prove that the manufacturing processes of the appellant were
deficient in particular respects. Only then could the appellant have been
placed on its defence.
Moreover it was common cause that there are two separate companies involved in
the manufacturing of coca-cola beverages. Whether the beverage forming
the subject of this case was manufactured by the appellant or by Mutare
Bottlers was never determined.
DISPOSITION
I am satisfied that for the additional reason that
negligence was not proved and a causal link shown between the beverage in
question and the appellant, absolution should have been granted.
The appeal must therefore succeed.
In the circumstances the following
order is made:
(1)
The appeal succeeds with costs.
(2)
The order of the court a quo is set aside and in its place the
following substituted:-
“the application for absolution from the instance be and is
hereby granted with costs.”
ZIYAMBI
JA:
I agree
OMERJEE AJA:
I agree
Dube Manukai & Hwacha, appellant's
legal practitioners
IEG Musimbe & Partners, respondent's legal practitioners.
