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Donatus v RD Tuna Canners Ltd [2017] PGNC 30; N6647 (15 February 2017)

N6647

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1286 OF 2008

EDDIE DONATUS
FOR AND ON BEHALF OF HIMSELF AND FOUR OTHERS
Plaintiffs

V

RD TUNA CANNERS LIMITED
Defendant

Madang: Cannings, J

2012: 23 October, 19, 20 November,

2013: 5 April,

2015: 12 August,

2017: 15 February

TORTS – negligence – plaintiffs’ claim that they contracted food poisoning due to consumption of tinned fish, manufactured by defendant, purchased from retail outlet – claim that tinned fish contained foreign object: condom –elements of tort of negligence – whether defendant owed duty of care to plaintiffs – whether defendant was negligent – whether defendant’s negligence caused injury to plaintiffs – whether injuries not too remote.

The plaintiffs claimed that they purchased from a retail outlet an unopened can of tinned fish that had been manufactured by the defendant, that they ate part of the contents of the can before realising that it contained, amongst the expected contents, a foreign object, namely a condom, and that they were shocked and became sick as a consequence. They sued the defendant manufacturer, claiming damages for negligence. The defendant challenged the assertions of fact on which the plaintiffs’ case was based and denied the allegation of negligence. The defendant argued that the plaintiffs’ evidence was unreliable and unbelievable and that its manufacturing and quality assurance processes were of such a high standard as to force the conclusion that the plaintiffs’ evidence was false. A trial was conducted on the issue of liability.

Held:

(1) The facts, as alleged by the plaintiffs, were proven to have occurred: they purchased from a retail outlet an unopened can of tinned fish manufactured by the defendant; they ate part of the contents of the can before realising that it contained a condom, they were shocked and became sick as a consequence.

(2) To establish a cause of action in negligence a plaintiff must prove the elements of the tort: (a) the defendant owed a duty of care to the plaintiff; (b) the defendant breached that duty (acted negligently); (c) the breach of duty caused damage to the plaintiff; and (d) the type of damage was not too remote.

(3) Here: (a) the defendant, the manufacturer of a product intended for consumption by consumers, owed a duty of care to the consumers, including the plaintiffs; (b) the doctrine of res ipsa loquitur (the thing speaks for itself) applied and it was proven that the defendant was negligent; (c) the defendant’s negligence caused injury to the plaintiffs; and (d) the types of injuries incurred by the plaintiffs were not too remote.

(4) All elements of the tort of negligence were proven and it was declared that the defendant is liable in negligence.

Cases cited:

Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181
Burns Philp (New Guinea) Limited v Maxine George (1983) SC259
Donoghue v Stevenson [1932] AC 562
Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184
Kembo Tirima v Angau Memorial Hospital Board (2005) N2779
Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650
Michael Tenaram Balbal v The State (2007) SC860
Rimbink Pato v Umbu Pupu [1986] PNGLR 310
Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260
Welsh Samor v The State (2014) SC1398

Counsel:

T M Ilaisa, for the Plaintiffs
Y Wadau, for the Defendant

15^th February, 2017

1. CANNINGS J: The issue in this case is whether the defendant, RD Tuna Canners Ltd, is liable in damages to the plaintiffs, Eddie Donatus and four others: Jennifer Donatus, Wei Angu, Leslie Wei and Delailah Donatus, all members of his extended family.
   
2. The plaintiffs claim that they purchased, from a retail outlet, an unopened can of “Diana Tuna” brand of tinned fish that had been manufactured by the defendant, RD Tuna Canners Ltd, that they ate part of the contents of the can before realising that it contained, amongst the expected contents, a foreign object, namely a condom, that they were shocked and became sick as a consequence. They commenced proceedings against the defendant, claiming damages for negligence.
   
3. The defendant challenges the assertions of fact on which the plaintiffs’ case is based and denies the allegation of negligence. The defendant argues that the plaintiffs’ evidence is unreliable and unbelievable. It claims that its manufacturing and quality assurance processes are of such a high standard as to force the conclusion that the plaintiffs’ evidence is false.
   
4. The trial was conducted in 2012. After the close of evidence, before submissions, the Court ordered on 5 April 2013 with the consent of the parties that the proceedings be referred to mediation. Mediation was conducted but it failed and the matter returned to court for submissions in 2015. There are three issues:
   
1. What are the facts?
   
2. Have the plaintiffs established a cause of action in negligence?
   
3. What orders should be made?
   
1. WHAT ARE THE FACTS?
   
5. This issue is dealt with in the following way: first, the competing evidence is outlined; secondly the evidence will be set out in detail; thirdly, observations of the evidence are recorded; finally, findings of fact are made.
   

Outline

6. The plaintiffs’ case was based on the affidavits and oral testimony of the five plaintiffs, each of whom was subject to cross-examination. The defence case was based on the affidavits and oral testimony of two of the defendant’s employees and one document, a quality assurance certificate.
   

Evidence for the plaintiffs

7. The plaintiffs’ evidence is summarised in the following table.
   

Evidence for the defendant

8. Two witnesses gave evidence for the defendant. Their evidence is summarised in the following table.

Observations

Plaintiffs’ evidence

9. First, there is a lack of detail in the plaintiffs’ evidence. For example:
   

• There is no receipt or any record of purchase to verify the plaintiffs’ claim that the can of Diana Tuna was purchased at the Rabtrad supermarket.
  
• None of the plaintiffs gave evidence of the details of the production date, batch number or use-by date that were on the can or its label.
  

10. Secondly, there is little corroboration of the plaintiffs’ evidence. I note the following:
    

• The report of M G Uloulo, OIC, Pathology Department, Modilon General Hospital (annexure B to the affidavit of Eddie Donatus) is, at best, evidence only that a condom was brought to him on 9 March 2006 “neatly rolled”, allegedly being found in a can of fish (unidentified) purchased from Rabtrad on 4 March 2006. The “incident report”, as it is described, is entirely hearsay and the author of the report did not give evidence.
  
• The medical notes annexed to each of the plaintiff’s affidavits, which purport to relate to treatment given to them at Modilon General Hospital are copies (not originals) and it is not known who prepared them. There is nothing on them that indicates that they are patient notes relating to treatment at Modilon General Hospital. They are confusingly dated “03/08/06”. These medical notes have no probabtive value.
  
• No evidence has been given by a doctor or nurse or other medical professional who any of the plaintiffs at Modilon General Hospital.
  

Defendant’s evidence

11. The evidence was of limited probative value as both Ms Fernando and Mr Wangak only gave evidence of the state of things at the time of trial (2012). What was required was evidence of the state of things in 2005 or early 2006 (which is reasonably presumed to be the period within which the tinned fish at the centre of this case would have been manufactured).
    
12. The SGS certificate of compliance with ISO 22000:2010 is an impressive testimony to quality control and assurance measures in place since May 2012, but says nothing about the state of things in 2005 or early 2006.
    

Findings of fact

13. Because of the deficiencies in the evidence on both sides, the task of making findings of fact has not been straightforward. Ultimately, however, bearing in mind that it is the plaintiffs’ obligation to prove their case, and not the defendant’s obligation to disprove the plaintiffs’ case, I am satisfied that on the balance of probabilities, the plaintiffs’ version of events should be accepted, for the following reasons:
    
1. I was impressed by the quality of the plaintiffs’ oral evidence. All of them gave oral evidence. All were cross-examined vigorously. All were unshaken about what happened.
   
2. I have had regard to the sound demeanour of all plaintiffs in the witness box. In other jurisdictions such as Australia and New Zealand, which now have available a high level of forensic evidence to assist courts in determining contested facts, particularly in criminal cases, searing criticism has been made of judges giving directions to juries that invite them to consider the demeanour of witnesses in deciding who is telling the truth. However, in PNG the situation is different. We rarely decide cases according to forensic evidence. The demeanour of the witness remains an important consideration for the judge, as the tribunal of fact, to take into account when assessing the credibility of a witness and the believability and probative value of his or her evidence (Rimbink Pato v Umbu Pupu [1986] PNGLR 310, Michael Tenaram Balbal v The State (2007) SC860, Welsh Samor v The State (2014) SC1398). I was impressed by the demeanour of the plaintiffs. By that I mean the way that they gave their evidence: their answers were direct and to the point, they stuck to their stories, they were adamant that this incident happened. They did not appear to be lying. They appeared to be giving an honest account of what happened.
   
3. The evidence of the plaintiffs who gave evidence was consistent.
   
4. Though, as I have observed, the plaintiffs’ evidence could have much improved with more detail and corroboration, I do not draw any inferences, adverse to the credibility of the plaintiffs’ evidence, from those shortcomings in the plaintiffs’ case.
   
5. The defendant fell short of demonstrating that it had a foolproof processing and quality assurance system in place at the relevant time. It was of course under no legal obligation to prove that it had a foolproof system. But if it had produced such evidence, for example by showing, in support of the oral evidence of Ms Fernando and Mr Wangak, that it had an SGS certificate for ISO 22000:2010 covering the period prior to mid-2006, this would have cast doubt on the veracity of the plaintiffs’ evidence.
   
6. I have considered the possibility that all plaintiffs gave false evidence in an attempt to get money from the defendant through a bogus claim. Eddie Donatus is the principal plaintiff and the possibility exists that he conspired with and coached his wife and daughter and his two relatives to give fabricated evidence. I rule out that possibility as it would require conjuration and maintenance of a scam involving too many players that would be too difficult to maintain over such a long period, from the early 2006 (when the incident took place), through 2008 (when the proceedings were filed), and 2011 (when the plaintiffs affidavits were sworn) to 2012 (when they gave oral evidence).
   
7. I take judicial notice of the fact that at least five other similar cases were commenced against RD Tuna Canners in the period from 2008 to 2010. In all cases the plaintiffs claimed that they had purchased a can of Diana Tuna tinned fish and in the process of consuming the contents discovered a condom or its remnants and as a consequence suffered nervous shock and became physically ill. I heard those cases at the same time as this one (WS 1284/2008, WS 1285/2008, WS 1287/2008, WS 1292/2008 and WS 11/2010). In all cases the plaintiffs are represented by the same lawyers, and the defendant is represented by the same lawyers. Neither side in the present case has asked that any inferences be drawn from this scenario. The plaintiffs did not attempt to run a ‘similar fact evidence’ sort of argument. The defendant did not attempt to run an argument that some sort of grand conspiracy was afoot. So I have, from the existence of the related cases, drawn no inference, adverse to or supportive of the present plaintiffs’ case, which has been dealt with on its merits.
   
14. I therefore make the following findings:
    
    1. On Saturday 4 March 2006 Eddie and Jennifer Donatus of Erima village, Rai Coast District, purchased three unopened 185-gram cans of Diana Tuna tinned fish, from a retail outlet in Madang town, the Rabtrad supermarket.
       
    2. The can was manufactured by the defendant at its cannery near Madang and sold by the defendant, probably to an intermediary, with the intention that it be eventually available for sale to consumers, such as Eddie and Jennifer Donatus, at retail outlets, including the Rabtrad supermarket.
       
    3. The following evening Jennifer Donatus prepared dinner for her husband, Eddie Donatus, their daughter Delailah Donatus and their relatives, Wei Angu and Leslie Angu, who live in the same house.
       
    4. Jennifer boiled rice in one pot and in a separate pot boiled green vegetables. When the vegetables were ready she opened on the cans of tinned fish that had been purchased the previous day, into the greens, stirred the pot and when the mixture of greens and fish was hot, served it with the rice on five plates, for those present.
       
    5. Jennifer Donatus, Delailah Donatus, Wei Angu and Leslie Angu finished their meal and found it nice.
       
    6. Eddie Donatus was the last to eat. He digested three spoonfuls of the greens-and-fish mixture but spat out his third spoonful upon feeling something rubbery in his mouth. It was a condom.
       
    7. The condom had been in the can of tinned fish. All those present were shocked.
       
    8. Eddie Donatus chewed betel nut to stop himself vomiting. It worked but he felt unwell. The others who consumed the food, which had become contaminated by the condom, were sick as a result of consuming it.
       
    9. The next day, 6 March 2006, Eddie Donatus took the can from which the condom had emerged and the condom to the Police in Madang. He then laid a complaint at the RD Tuna cannery. He vomited and went back to Erima and gathered together the people who had been sick, and took them to Modilon General Hospital.
       
    10. The plaintiffs were observed and treated and medicated at the hospital. They were discharged after several hours’ observation.
        
2. HAVE THE PLAINTIFFS ESTABLISHED A CAUSE OF ACTION AGAINST THE DEFENDANT?
   
15. To establish a cause of action the plaintiffs must prove the four elements of the tort of negligence, ie:
    

(a) the defendant owed a duty of care to the plaintiffs;

(b) the defendant breached that duty (ie acted negligently);

(c) the breach of duty caused injury to the plaintiffs;

(d) the type of injury was not too remote.

16. See generally J G Fleming, The Law of Torts, 5^th edition, LBC Information Services, © 1977, Chapter 6, Negligence: Introduction, pages 104-105. In some cases, I have said that there are five elements, the fifth being that the plaintiff rebut any defences such as contributory negligence and voluntary assumption of risk (eg Kembo Tirima v Angau Memorial Hospital Board (2005) N2779). On reflection I think it is better to treat such defences separately and not regard them as giving rise to an element that must be proven by the plaintiff. In the present cases no such defences were raised by the defendant so it is not necessary to address the question of their rebuttal. Each of the four elements is now addressed in turn.
    

(a) Duty of care

17. In the classic British case of Donoghue v Stevenson [1932] AC 562, the plaintiff, Mrs Donoghue, became ill and suffered shock after discovering the she had consumed, in a café in Scotland, ginger beer that contained a decomposed snail. The ginger beer was purchased from the café proprietor, who had purchased it from the defendant, the ginger beer manufacturer, Mr Stevenson. The question arose whether the plaintiff consumer had a cause of action in negligence against the defendant manufacturer, and that question turned on whether the manufacturer owed a duty of care to the plaintiff, a consumer. The case went to the House of Lords and Mrs Donoghue won. The House of Lords decided by a 3:2 majority that Mr Stevenson owed a duty of care to Mrs Donoghue and that she had established a cause of action in negligence. The decision changed the course of the common law. The leading opinion was given by Lord Atkin.
    
18. As to the general concept of duty of care, his Lordship offered the following opinion, which is probably the most often quoted in the history of the common law, at 580:
    

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question.

19. As to the circumstances in which a manufacturer owes a duty of care to a consumer, Lord Atkin stated:
    

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 consumer 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.

It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense.

20. It has been accepted, almost without question, since Donoghue v Stevenson was decided, that it is an integral part of the common law of negligence that the manufacturer of a product will owe a duty of care to the ultimate consumer of the product if the following conditions exist:
    

• the manufacturer sells the product in a form showing that the manufacturer intends the product to reach the ultimate consumer in the same form it left the manufacturer;
  
• there is no reasonable possibility of intermediate examination of the product;
  
• the manufacturer knows that if reasonable care is not taken in manufacturing the product, injury to the consumer’s life or property will be the result.
  

21. Papua New Guinea adopted the above principles of the common law at Independence, which form part of our underlying law. Those principles apply here, and the conditions are satisfied. The only reasonable inferences to be drawn from the facts are that:
    

• the defendant manufactured, then sold, its Diana Tuna brand of tinned fish in a form, in cans, showing that it intended its product to reach consumers, such as the plaintiffs, in the same form it left its cannery;
  
• there was no reasonable possibility of intermediate examination of the contents of the cans;
  
• the defendant knew that if reasonable care were not taken in manufacturing the product, injury to consumers would result.
  

22. The defendant owed a duty of care to the plaintiffs. The first element of negligence is proven.
    

(b) Breach of duty

23. The question is whether the defendant breached its duty of care to the plaintiffs. Did the defendant act negligently? Did it fail to take reasonable care? At this point of a negligence trial, if there is a lack of evidence as to how or why some event happened, it is appropriate apply the principle of res ipsa loquitur (the Latin maxim, ‘the thing speaks for itself’). The Court determines the facts and then poses the question: do those proven facts lead to only one conclusion, that the defendant was negligent? If the answer is yes, the defendant is negligent. That is my simplified explanation of the principle. As I said in Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181 (the case of contaminated fried rice purchased from a kai bar in Madang), other Judges have explained it in different ways.
    
24. In Burns Philp (New Guinea) Limited v Maxine George (1983) SC259 McDermott J explained res ipsa loquitur in these terms:
    

The accident must bespeak the defendant's negligence and be such as to raise two inferences: (1) that the accident was caused by a breach by somebody of a duty of care to the plaintiff, and (2) that the defendant was that somebody.

14. In Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260 Woods J put it this way:
    

Res ipsa loquitur is no more than a rule of evidence based on common sense which raises a presumption of fact in the absence of any other evidence of explanation that the defendant has been negligent. It suggests that because something went wrong and in the normal scheme of things such would not go wrong unless someone was negligent but no negligence can be found here nevertheless the thing speaks for itself and common sense says there must have been negligence.

15. Hartshorn J explained the operation of the principle in Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650:
    

The principle of res ipsa loquitur may be invoked when three elements are established:

(a) there is an “absence of explanation” of the occurrence that caused the damage;
(b) the occurrence was of a kind that does not ordinarily occur without negligence; and
(c) whatever caused the occurrence was under the control of the defendant.

16. I find that the principle of res ipsa loquitur should be invoked in this case. Applying my simplified approach set out above: the proven facts that the defendant manufactured a can of tinned fish intended for retail sale and human consumption, which contained a condom, leads to only one conclusion: that the defendant was negligent.
    
17. It is not necessary for the plaintiffs to prove how the defendant was negligent. Maybe the condom fell into the fish by accident. Maybe a rogue or disgruntled employee placed it in the can to embarrass their employer. None of these things had to be proven as the facts speak for themselves and lead only to the conclusion that the defendant was negligent.
    
18. If the approach outlined by McDermott J in Burns Philp is applied: the “accident” (the plaintiffs getting sick and being shocked due to consumption of the contaminated tinned fish and/or the sight of a condom in their fish) bespeaks (is evidence of) negligence. The accident is such as to raise two inferences: (1) the accident was caused by a breach by somebody of a duty of care to the plaintiffs, and (2) that the defendant (the manufacturer) was that somebody.
    
19. If the approach outlined by Woods J in Noki is applied: something went wrong. The plaintiffs became ill due to consuming and seeing tinned fish containing a condom. In the normal scheme of things that would not happen unless someone was negligent. The thing speaks for itself and common sense says that the person (the defendant) who manufactured the tinned fish must have been negligent.
    
20. If the approach outlined by Hartshorn J in Marshall Lagoon is applied: (a) there is an absence of explanation about how the can of tinned fish came to contain a condom; (b) tinned fish does not ordinarily contain condoms, without negligence; and (c) whatever caused the condom to be in the can was under the control of the defendant.
    
21. The application of all those expositions of the principle of res ipsa loquitur leads to the same conclusion: the defendant breached its duty of care to the plaintiffs. It was negligent. The second element of negligence is proven.
    

(c) Causation

22. This element can be proven by asking the simple question: would the plaintiffs have been sick and shocked but for the negligent conduct of the defendant? (Kembo Tirima v Angau Memorial Hospital Board (2005) N2779). If the answer is ‘no’, the element of causation is established. If the answer is ‘yes’, causation is not established.
    
23. I have already found as a fact that the plaintiffs felt and/or were sick, and shocked, as a result of consuming the tinned fish containing a condom. There is no evidence of anything else being the cause. The answer to the question ‘would the plaintiffs have been sick and shocked but for the negligent conduct of the defendant?’ is no. The third element of negligence is established.
    

(d) Remoteness

24. The remoteness issue is often not regarded as a separate element of the tort of negligence. Sometimes it is brought within the causation element.
25. However, I think it is better regarded as a fourth element. Whether it is dealt with separately or not, plaintiffs must establish that the type of injury for which they are claiming damages was reasonably foreseeable (ie not too remote). As Prentice CJ explained in Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184:
    

This consideration flows from the judgment of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (“The Wagon Mound”) [1961] UKPC 1; [1961] AC 388. In that case the general principle laid down was that "the essential factor in determining liability for the consequence of a tortious act ... is whether the damage is of such a kind as a reasonable man should have foreseen".

26. Here the plaintiffs are claiming, as pleaded in the statement of claim, general damages for stomach disorders and pains, nausea and vomiting and for nervous shock, as well as special damages, damages for economic loss and exemplary damages. They will need to present evidence of these types of damage if the case proceeds to a trial on assessment of damages. However, for present purposes, I am satisfied that all of those types of damage were reasonably foreseeable. They are not too remote. The fourth element of negligence is established.
    

Conclusion

27. The plaintiffs have proven all elements of the tort of negligence. A cause of action has been established.
    

3 WHAT ORDERS SHOULD BE MADE?

28. As this trial was confined to the issue of liability, I will declare that the plaintiffs have each established a cause of action in negligence against the defendant, which is liable in damages. Unless the parties agree to settle the matter, the cases will proceed to an assessment of damages at a separate trial.
    
29. As to costs, the general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.
    

ORDER

(1) The plaintiffs, Eddie Donatus, Jennifer Donatus, Wei Angu, Leslie Wei and Delailah Donatus, have established a cause of action in negligence against the defendant.

(2) The plaintiffs are entitled to damages which shall be subject, in the absence of agreement between the parties, to assessment at a separate trial.

(3) Costs of the proceedings shall be paid by the defendant to the plaintiffs, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly,

_______________________________________________________
Thomas More Ilaisa Lawyers : Lawyers for the Plaintiffs

Young Wadau Lawyers : Lawyers for the Defendant