Birus v RD Tuna Canners Ltd [2017] PGNC 31; N6648 (15 February 2017)

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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, unbelievable and false. A trial was conducted on the issue of liability.

Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181
Burns Philp (New Guinea) Limited v Maxine George (1983) SC259
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

5. This issue is dealt with in the following way: first, the evidence is outlined; secondly the evidence is set out in detail; thirdly, observations of the evidence are recorded; finally, findings of fact are made.

6. The plaintiffs’ case was based on the affidavits of two plaintiffs and oral testimony of those plaintiffs and oral testimony of two persons who are not plaintiffs (together with an affidavit by one of those persons), each of whom was subject to cross-examination. There was no evidence from the defendant. On the day set for the defendant to present its evidence, it was not ready to proceed and its application for adjournment was refused.

No	Name	Description
1	Michael Birus	Principal plaintiff: husband of Ruth Nuali, father of other plaintiffs
Evidence :He resides with his family at Erima village, South Ambenob area, Rai Coast District, Madang Province – on 26 January 2007 [note that the statement of claim pleads that the date of the incident was 26 January 2006] he came to Madang town and purchased some groceries at the Martin Tsang supermarket, including a large can of Diana Tuna tinned fish – that evening, his wife, Ruth Nuali, cooked dinner consisting of rice and greens and the Diana Tuna tinned fish he had purchased earlier that day – dinner was at 7.00 pm – they lit a kerosene lamp as it was getting dark – the others present (Ruth and their children Kodua Nuali, Barbara Ami, Joshua Ami, Jacob Ami and Naimen Kodua) started eating – he (the witness) was the last to eat, as he had been outside chewing betel nut– he ate several spoonfuls before he felt something rubbery in his mouth – he pulled it out and to his horror it was a condom – all present, including himself, were shocked. He put the condom in the empty can, which had contained the tinned fish – the family went to sleep – however, the children Barbara, Jacob and Naimen, had stomach pain and vomited – he chewed betel, which stopped himvomiting, but he had diarrhoea. Early the next day, 27 January 2007, he took Barbara, Jacob and Naimen to Modilon General Hospital in town – at that time Barbara was 10 years old, Jacob was 12 years old and Naimen was 4 years old – Naimen was admitted, and discharged the following day, 28 January 2007 – all children were given medication. Annexed to his affidavit were copies of medical notes with names written at the top [annexures A, B and C]. He also took the condom to the hospital for testing. Also annexed to his affidavit was the laboratory test report [annexure D]. In cross-examination the witness was quizzed by the defendant’s counsel, Mr Wadau, as to the circumstances of the cooking of the tinned fish – he (the witness) said that he saw his wife using different pots but he had not seen her open the can or put the contents of the can into the pot – asked what he had done with the condom, the witness replied that he had given it to a senior Police officer, Steven Kaupa, who had retained it.

2	Gordon Uloulo	Medical technologist, pathology department, Modilon General Hospital
Evidence: In January 2007 he was given a can of Diana tinned fish and a condom that had been found in the can, and was asked to examine those items – he did so and prepared a report (annexure D to the affidavit of Michael Birus). In cross-examination the witness said that in his report he referred to this as “yet another incident whereby a condom was found in a RDT product bought at MST supermarket in Madang town” as there had been a number of similar incidents referred to the pathology department.
3	Ruth Nuali	Wife of Michael Birus, mother of other plaintiffs
Evidence: On the evening of 26 January 2007 she cooked a meal for the family, using the can of tinned fish, a 380-gram can of Diana Tuna,which had been bought by her husband, Michael Birus, earlier that day – she used two pots, one for boiling rice and the other for boiling greens – she opened the can and put the tinned fish in with the greens and stirred the pot – she served the food, once cooked, on seven plates – her husband was the last to eat and he spat out his food and alerted her and the others to a condom – they were all shocked and afraid they might die – they slept but everyone woke up with stomach pains and vomited – her son, Neiman, was in the worst condition. She and her husband took the children to Modilon General Hospital the next day, 27 January 2007 – Neiman was put on a drip and stayed in hospital overnight – she (the witness) was afraid that one of her children might die. In cross-examination she stated that after opening the can, she did not examine the contents before pouring the contents into the greens – it was dark and there was not much light – she did not see any condom but it could only have been in the can, it was not in the pot.
4	Gilbert Minja	A member of the household of Michael Birus
Evidence:He stays with Michael Birus and family at their house at Erima – he was present when the meal was served – he states that the person who cooked the meal was “Ruth Kodua” – he ate his share with the others before Michael Birus ate his food and informed the group that he had pulled a condom out of his mouth, which had been in the food served to him – he (the witness) chewed betel nut, which stopped him from vomiting, but he had a terrible stomach ache and regularly went to the toilet. He did not go to hospital with the others.

9. First, only two of the seven plaintiffs, Michael Birus and his wife, Ruth Nuali gave evidence. Five plaintiffs did not give evidence: Kodua Nuali, Barbara Ami, Joshua Ami, Jacob Ami and Naimen Kodua. There was evidence that Barbara Ami, Jacob Ami and Naimen Kodua are the children of Michael Birus and Ruth Nuali and that they were aged 10, 12 and 4 years respectively at the relevant time, 26 January 2007. This means that at the time of trial, in 2012, they would have been aged 15, 17 and 9 years respectively. The Court was not informed of any good reason that they could not give evidence. I have decided that without direct evidence from a plaintiff and without a good explanation for their failure to give direct evidence, it would not be proper to consider making a finding of liability in their favour. As for the other two plaintiffs who did not give evidence –Kodua Nuali and Joshua Ami –it is not clear from the evidence whether they are children of Michael Birus and Ruth Nuali. In any event, they did not give evidence and I will not consider making a finding of liability in their favour. Gilbert Minja, who gave evidence for the plaintiffs, is not a plaintiff. Though it is suggested that his name was inadvertently omitted from the list of plaintiffs in the schedule to writ, no application was made to join him to the proceedings as a plaintiff, so I will not consider making a finding of liability in his favour.

10. Secondly, as pointed out by Mr Wadau, for the defendant, the plaintiffs’ evidence of the meal being cooked on 26 January 2007 conflicts with the statement of claim, which identifies the date as 26 January 2006. The date in the statement of claim should have been amended. It was not. However, the plaintiffs’ evidence consistently refers to 2007, so it can be safely determined, despite the conflict, that the relevant date is 26 January 2007.

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

12. Fourthly, there is little corroboration of the plaintiffs’ evidence. I note the following:

13. Because of the deficiencies in the plaintiffs’ evidence and the absence of evidence for the defendants, 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:

14. I was impressed by the quality of the oral evidence of the plaintiffs Michael Birus and Ruth Nuali. Both were cross-examined vigorously. Both were unshaken about what happened.

15. 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.

17. 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.

18. I have considered the possibility that Michael Birus and Ruth Nuali gave false evidence in an attempt to get money from the defendant through a bogus claim. Michael Birus is the principal plaintiff and the possibility exists that he conspired with and coached his wife 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 first part of 2007 (when the incident took place), through 2008 (when the proceedings were filed), to 2012 (when they gave oral evidence).

19. 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 1286/2008, 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.

21. To establish a cause of action the plaintiffs must prove the four elements of the tort of negligence, ie:

22. 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.

23. 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.

24. 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.

25. 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.

26. 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:

27. 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:

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

29. 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.

30. 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.

31. 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.

32. 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:

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. The remoteness issue is often not regarded as a separate element of the tort of negligence. Sometimes it is brought within the causation element. 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".

42. 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.

43. The plaintiffs Michael Birus and Ruth Nuali have proven all elements of the tort of negligence. A cause of action has been established.

44. 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.

45. 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. As only two of seven plaintiffs have succeeded, the parties will bear their own costs.

_____________________________________________________________
Thomas More Ilaisa Lawyers : Lawyers for the Plaintiffs
Young Lawyers Wadau : Lawyers for the Defendant

National Court of Papua New Guinea

Birus v RD Tuna Canners Ltd [2017] PGNC 31; N6648 (15 February 2017)