DC666

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 450 of 2007

BETWEEN

STEVEN HOLLAND
Complainant

AND

1. THE MANAGER
2. PRICE RITE ENTERPRISE
Respondents

Popondetta: L J Asimba
2007: November 20

CIVIL - Law of Torts – Invasion of interests in person and property where Intentional or negligent conduct need not always be proved – Product Liability. 

Cases Cited
Donoghue –v- Stevenson [1932] AC 652 

Counsel
Steven Holland - Complainant in person
Manager, Price Rite Enterprise - Respondents – No Appearance.

20 November 2007

L J Asimba: This is a civil suit filed by Plaintiff against the Respondents claiming compensation for product liability.

2. It is alleged that the Plaintiff on the 7 August 2007 bought and ate a food product named “FISH BREAD” which contained maggots in the early morning hours. After that he developed abdominal pains and vomited through the night. He was treated at Saiho Health Centre out patient for the above symptoms.

3. ISSUE: In order to prove liability, the Court must satisfy the manner, its purpose, the fish bread preparation, whether or not contamination existed, sold to the consumer not fit for consumption.

4. According to the report by the Plaintiff to the Health Inspector of Popondetta General Hospital that he bought “Fish Bread” from Respondents food bar at around ten O’clock on Tuesday the 7 day of August 2007.

5. He took it out to One Super Market, PMV bus stop where he started eating the foodstuff. After some bites he realized that there were present of some maggots inside the fish bread.

6. He decided to go back to Price Rite food bar to present the matter to the management there. However a retired Health personal came to his aide advising him to report the matter to the Health Inspector’s office.

7. The Health Inspector physically checked and confirmed that the foodstuff contained maggots. He also realized that the foodstuff was very cold and that it contained moisture as if it was not coming out from the food warmer.

8. He then made assumption that the foodstuff could be a left over from the previous day or otherwise contamination of fly, laying eggs could have occurred at the kitchen where smell of onion and tinned fish attract more flies according to experience.

9. The Plaintiff reported the matter to the assistant Manager at the store same day, reimbursed with a packet of highway beef cracker, a tin of OX Palm corned beef and a 500 mls coke.

10. The Health Inspector made some recommendations to the Respondents ensuring proper strict control of flies from food bar and provides food warmer to avoid food contamination in writing dated on 8 August 2007. Annexure “A”

11. Due to consumption of contaminated fish bread the Plaintiff developed abdominal pains and vomiting through the night. He was treated at Saiho Health Centre out patient for the above symptoms confirmed by Community Health Worker in writing dated on the 8 August 2007. Annexure “B”

12. Therefore the Complaint was lodged to the Court and summons issued to the Respondents, served upon them and the proof of service was retuned, endorsed and filed in order on its face.

13. The Respondents were represented by the Assistant Manager Mr B Warea on the first mentioned case on 25 September 2007.

14. The Court read and explained the nature of Complaint and also inspection report on contaminated fish bread, compiled by the Popondetta General Hospital Health Inspector. 

15. The copy of the Health Inspector’s report was not served to the Respondents. Therefore the plea of liability was not administered in order to allow the Plaintiff to serve the copy to Respondents to have time to prepare their defence or response. The case was adjourned for hearing on 1 November 2007.

16. The Respondents had failed to appear and the Plaintiff informed the Court that he approached the Respondents several times for possible settlement out of Court but no responses from them. He applied for EX PARTE Order, the application was granted, matter was adjourned and notice of adjournment then served.

17. The Plaintiff appeared on the 20 November 2007, informed the Court that he personally served the notice of adjournment but both Respondents failed to appear and no response to application for EX PARTE Order. The Respondents failed to appear before the Court twice and no responses to his complaint as well as Health Inspector’s inspection report.

18. His several attempts to settle out of Court by returning contaminated foodstuff, admission by reimbursing one packet of highway beef cracker, OX Palm tin meat and one 500 mls coke before he had food poisoning and treated. 

19. Furthermore Respondents failed to respond to Health Inspector’s report on 8 August 2007.

20. Therefore he prayed to the Court to assess claim and grant ex parte order as well as costs.

21. On the other hand the Respondents since summons have not responded anything to the nature of complaint filed against them.

22. The Health Inspector’s inspection report addressed to the Manager not acknowledged, denied receipt of original copy so the Respondents served photocopy to them.

23. Their admission of reimbursement of foodstuff and no appearance twice clearly indicates no grounds of defence to the foodstuff quality and fitness sold to the consumer.

24. In this matter the Plaintiff was considered to prove the manner and its purpose the fish bread was prepared that contaminated with the presence of maggots.

25. However it appears the Respondents deliberately reluctant to attend the case and present their argument in defence. Even thought there were two adjournments, notice of EX PARTE Order issued and inspection report from the Health Inspector made known to them. They should prepare responses and present to the Court instead of delaying course of justice without any justification.

26. Had the Respondents available to the Court should contend and prove fitness, non-existence of maggots from the fish bread which was sold to the Plaintiff.

27. The burden of proof remains with the Plaintiff on the balance of probabilities. LORD MACMILLAN said in DONOGHUE v STEVENSON in proving negligence -

The burden of proof must always be upon the injured party to establish that, the defence, which caused the injury, was present in the article when it left the hands of the party who he sues, that the defective was occasioned by the carelessness of the party.

28. Therefore the Plaintiff was concerned to prove the presence of maggots were visible in fish bread purchased by him and prepared then sold from their food bar of Respondents.

29. The Court allowed the Respondents adequate two adjournments, failed to response or raise denial to the product liability. Having complaint from the Plaintiff, which was supported by medical reports, fish bread sold had wet moist, left over from the previous day not from the food warmer. There was existence of maggots in fish bread, which contaminated not fit for consumption, contracted food poisoning.

30. Therefore the complaint was proved on the balance of probabilities remedial EX PARTE Order warded to the Plaintiff for damages in the sum of K600.00, costs related K280.00, the total amount of K880.00 be settled in full within 2 months.

31. After the EX PARTE Order granted Mr Allan F David, the Manager who submitted his affidavit statement in applying for the Order be set aside under Section 25 District Court Act for hearing.

32. The application was filed and heard on 20 December 2007. The Court considered and determined its refusal to the application on following grounds.

(a) The Respondents live and work about 10 minutes walk to the Court House while the Plaintiff walks several hours to and fro spending whole day for the matter be dealt with during the disaster period.

(b) The question about medical laboratory for analysis test to prove the present of the microorganism, the Respondents were at fault, remaining silent over the complaint and medical reports.

(c) The presence of maggots in fish bread was visible from wet moist likely from the previous day left over food. That was physically checked and confirmed by the health inspector and returned to the food bar.

(d) Their admission to the complaint by reimbursing the Plaintiff with 1 packet highway beef cracker, 1 OX Palm tin meat and one 500 mls coke on the same day. If medical laboratory analysis or test should be arranged at the time of complaint if maggots were not present be considered other objects.

33. Therefore the application was refused due to Respondents deliberate reluctance to attend and defend or respond causing delay to course of justice to be done.

34. That the original EX PARTE Court Order made on the 20 November 2007 still effective to be complied with accordingly.

THE GROUNDS OF APPEAL ARE: -

(a)	The presiding Magistrate failed to properly and thoroughly hears and considers the evidence before the Court in reaching determination. 
In rebuttal refer to paragraph 32 (a) the Respondents passive responses to the adjournments and notice issued to the date of EX PARTE Order. They have no justification for non-attendance, regard to transport, communication, easy access to the Court House while the Plaintiff travels long distance to attend the case to prove liability. 

(b)	That the presiding Magistrate erred in a finding in favour of the Plaintiff as there was no or no sufficient evidence by the Plaintiff substantiating the allegation in the claim.
As to this ground of appeal in rebuttal the Respondents make well aware the nature of complaint, brought to their attention on the date of incident. After inspection of the contaminated fish bread by the health inspector referred Plaintiff and reported to Respondents who were well aware of the complaint.

There was no denial, admitted and reimbursed with food stuff, refer to paragraph 32 (d) followed by Health Inspector’s report written to them next day. There reluctance to appear and defend the case to prove, never supplied the product to the Plaintiff, defect or contamination didn’t exist in the fish bread sold to him to disprove liability.

(c)	Alternatively, the evidence relied on by the Plaintiff consisting the Medical Report was not prepared and or certified by a properly registered medical Practitioner.

This ground of appeal questioning medical professional standard the Court must bear in min, every medical field staff are trained and registered to administer their responsibilities with skills and diligently.

The complaint was reported on the same day presented the food stuff to Health Inspector who physically checked type of food, “Fish bread”, found wet moist, appeared to be left over from previous day, not from food warmer, contaminated present of maggots, medical reports. Annexure “A” & “B”

In these circumstances of this cases, fish bread ordinarily supplied for private use or consumption where damage arose proving contamination while in consumer use results from negligence of Respondents concerned in the preparation and selling food stuff liability for damages.

For this purpose fish bread or any foodstuff sold from the food bar are to be regarded as is in consumer use when the Plaintiff in using it or had in his possession for use, otherwise than exclusively for the purpose of consumption.

Therefore the product liability was proved on the balance of probability by the injured party while Respondents failed to attend to disprove even though adjournments were made and notice of EX PARTE Order issued and served to them. Due to their non-appearances the EX PARTE Order was granted in favour of the Complainant, later followed by application to set aside the Order heard and refused. It was ordered the EX PARTE Order still remains effective and be satisfied by the Respondents within the time allowed.

Lawyer for the First Complainant - In person 
Lawyer for the Respondents - No appearances.