SC2232

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 45 OF 2017

BETWEEN
RD TUNA CANNERS LIMITED
Appellant

AND
DAVID SENGI, JOHN RAY, REX FASI, SAMUEL UNDONOMO, MONO RAY, ELIJAH BRIAN & KUME RAY
First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents

SCA NO 42 OF 2017

BETWEEN
RD TUNA CANNERS LIMITED
Appellant

AND
LUKE PETER, HENDRICK JAMES AND JUSTIN WAKE
First, Second and Third Respondents

SCA NO 47 OF 2017

BETWEEN
RD TUNA CANNERS LIMITED
Appellant

AND
MICHAEL BIRUS AND RUTH NUALI
First and Second Respondents

SCA NO 43 OF 2017

BETWEEN
RD TUNA CANNERS LIMITED
Appellant

AND
EDDIE DONATUS, JENNIFER DONATUS, DELAILAH DONATUS,
WEI ANGU AND LESLIE WEI
First, Second, Third, Fourth and Fifth Respondents

SCA NO 44 OF 2017

BETWEEN
RD TUNA CANNERS LIMITED
Appellant

AND
JOHN MOMBI, AGNES MOMBI, REGINA MOMBI, ROSINA MOMBI, MALAI MOMBI, MAX MOMBI, BARRY MOMBI AND LESA MOMBI
First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents

Waigani: Salika CJ & Berrigan J
2020: 29th October
2022: 4th May

APPEAL – AGAINST FINDING OF FACT - A Court should not interfere with a primary judge’s finding of fact which is substantially dependent on demeanour and credibility unless it is inconsistent with facts incontrovertibly established by evidence or where it is demonstrated to be glaringly improbable, contrary to compelling inferences or palpably or manifestly wrong.

APPEAL – CIVIL PROCEEDINGS - PRINCIPLES TO BE APPLIED IN A CIRCUMSTANTIAL CASE - It is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged - The existence of other reasonable hypotheses is simply a matter to be taken into account. 

APPEAL – NEGLIGENCE – NERVOUS SHOCK - Meaning of “Nervous Shock” – Recognisable psychiatric or psychological illness or disorder.

Five appeals were heard together.  They were brought by the appellant against findings of negligence arising from five separate claims heard before the same trial judge in the National Court.  In each case the respondents claimed that a can of the appellant’s tinned fish contained a foreign object, namely a condom, causing them injury.  The trial judge found in each case that the respondents “felt and/or were sick, and shocked, as a result of consuming the tinned fish containing a condom”.  There was no dispute that a manufacturer of goods owes a duty of care to a consumer.  Rather, the appellant contended firstly, that the trial judge erred in finding that the incidents occurred as alleged, or at all, and secondly, if so satisfied, in finding negligence on the part of appellant.

The claim in SCA No 45 of 2017: RD Tuna Canners Ltd v David Sengi & Five Others was based on direct evidence from six respondents that they became ill after consuming tinned fish from a can which contained a condom. 

The case in SCA No 42 of 2017: RD Tuna Canners Ltd v Luke Peter & Two Others was based on direct evidence from three respondents that they became ill upon seeing a can of tinned fish which contained a condom but before consuming the can’s contents. 

The claims in SCA No 47 OF 2017: RD Tuna Canners Ltd v Michael Birus & Another, SCA No 43 of 2017: RD Tuna Canners Ltd v Eddie Donatus & Four Others, and SCA No 44 of 2017: RD Tuna Canners Ltd v John Mombi & Seven Others were based on circumstantial evidence.  A condom was found in food during the course of a meal in each case. The evidence as to the preparation of the meal was limited.  At the time it was dark. In each case the person who cooked the meal, cooked rice in one pot and greens in another. When the greens were ready they added tinned fish to the boiling water, heated the tinned fish over the fire and served the food to those present.  The respondents became ill and were subsequently treated at hospital. There was no evidence as to what a condom would do upon contact with boiling water, or if immersed for any particular period.  There was no scientific evidence to establish that the tinned fish was toxic, infectious or otherwise deleterious in nature, that is, whether it contained any contaminants, or whether any of those contaminants would have been destroyed upon immersion in boiling water, and if so, after what period.  There was no medical evidence to establish the cause of the illness suffered by the respondents.  

Held:

(1)	The objections to competency were raised, without notice, at the hearing of the substantive appeal and were an abuse of process: Yama v Singirok (2020) SC1982. Furthermore, the grounds of appeal sufficiently complied with Order 7 Rule 9(c) and 10 of the Supreme Court Rules.  The objections are dismissed.

(2)	A finding of fact by a trial judge based on the credibility of a witness may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where the decision at the trial was glaringly improbable, contrary to compelling inferences, or palpably or manifestly wrong: Karo Gamoga v The State [1981] PNGLR 443; Peter Wawaru Waranaka v Gabriel Dusava (2008) SC 942; Beng v The State [1977] PNGLR 115; Michael Tenarum Balbal v. The State (2007) SC860; Waranaka v Dusava [2009] PGSC 11; SC980; Fox v Percy (2003) CLR 118; Devries v Australian National Railways Commission (1992) 177 CLR 472.

(3)	Where a civil claim relies on circumstantial evidence, the party bearing the burden of proof must establish that the more probable inference supports the case alleged. An inference can be drawn provided it is reasonable and definite based on the circumstances appearing in the evidence.  The court cannot draw an inference where the circumstances give rise to conflicting inferences of equal degrees of probability, where the choice between them is a mere matter of conjecture.  But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then it is not to be regarded as mere conjecture or surmise even though it may fall short of certainty. Burns Philp (NG) Ltd v George [1983] PNGLR 55 adopting and applying Bradshaw v McEwans Pty Ltd, High Court of Australia, Unreported, 27 April 1951; and Holloway v. McFeeters (1956) 94 CLR 470. See also Jones v Dunkel (1959) 101 CLR 298, Doney v R (1990) 171 CLR 207 and Henderson v State of Queensland [2014] 255 CLR 1.

(4)	To establish “nervous shock” a plaintiff must prove psychiatric injury, or a recognisable psychiatric or psychological illness or disorder: Lome v Kundi [2009] N3791; Mewari Patrick Paobi -v- PNG Electricity Commission & Anor (2002) N2511.  See also Page v Smith [1996] 1 AC 155 (HL); Mustapha v Culligan of Canada Ltd [2008] SCC27; Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.); Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317; RMC v NAC [2009] QSC 149. 

SCA No 45 of 2017: RD Tuna Canners Ltd v David Sengi & Six Others: 

(5)	The finding that a condom was in the can of tuna was based on the trial judge’s assessment of the respondents’ credibility and the appellant failed to demonstrate that the finding was glaringly improbable, contrary to compelling inferences or palpably or manifestly wrong.  There was no error in the trial judge’s application of res ipsa loquitor. A condom does not present any inherent risk of injury.  Nevertheless, condoms are not usually found in tins of food. The presence of the condom provided some evidence that something had gone wrong in the manufacturing process, from which it is reasonable to infer that the tinned fish had become tainted, contaminated or otherwise deleterious. Accordingly, we do not disturb the trial judge’s finding that the respondents suffered physical injury as a result of consuming the tinned fish containing the condom. The evidence did not establish liability for nervous shock. Subject to that matter, the appeal is dismissed.

SCA No 42 of 2017: RD Tuna Canners Ltd v Luke Peter & Two Others 

(6)	The finding that a condom was in the can of tuna was based on the trial judge’s assessment of the respondents’ credibility and the appellant failed to demonstrate that the finding was glaringly improbable or contrary to compelling inferences.  The trial judge erred, however, in finding that the respondents’ felt and/or were sick and shocked as a result of consuming the tinned fish containing a condom when he found in fact that they did not consume the tinned fish.  It was the thought of consuming the tinned fish containing the condom that made the respondents ill.  That is it was due to disgust or revulsion, which does not normally constitute injury.  The appeal is upheld.  

SCA No 47 OF 2017: RD Tuna Canners Ltd v Michael Birus & Another   

SCA No 43 of 2017: RD Tuna Canners Ltd v Eddie Donatus & Four Ors 

SCA No 44 of 2017: RD Tuna Canners Ltd v John Mombi & Seven Ors

(7)	The learned trial judge did not state his reasons for finding on the balance of probabilities that the condom was in the tinned fish.  The trial judge did not appear to infer based on the onset, nature and duration of their symptoms that the respondents suffered food poisoning, rather that they felt and/or were sick, and shocked as a result of consuming the tinned fish containing a condom.  Putting aside issues of causation, in those circumstances the source of the condom in the meal was critical. The learned trial judge did not consider the alternative sources of the condom in the meal, or find them to be less likely to have caused the respondents’ illness.  In view of the deficiencies in the evidence in each case, we are not in a position to substitute our findings for that of the trial judge, and are unable to find on the balance of probabilities that the tinned fish contained a condom. The appeals are upheld.  

Cases Cited:
Papua New Guinean Cases

RD Tuna Canners Limited v Steven Kaipa and Betty Kaipa, unreported, 5 March 2020
Burns Philp (NG) Ltd v George [1983] PNGLR 55 
Yama v Singirok (2020) SC1982
Allan Oa Koroka v The State [1988-89] PNGLR 131 
Kule v State (2011) SC1138
Karo Gamoga v The State [1981] PNGLR 443 
Rimbink Pato v Umbu Pupu [1986] PNGLR 310  
John Kaina v The State [1990] PNGLR 292
Peter Wawaru Waranaka v Gabriel Dusava (2008) SC942
Beng v The State [1977] PNGLR 115; Michael Tenarum Balbal v. The State (2007) SC860
Waranaka v Dusava [2009] PGSC 11; SC980
Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650
Burns Philp (New Guinea) Limited v Maxine George (1983) SC259
Timson Noki v Fraser v Barclay Bros [1991] PNGLR 260 
Mustapha v Culligan of Canada Ltd [2008] SCC27
Lome v Kundi [2009] N3791
Mewari Patrick Paobi -v- PNG Electricity Commission & Anor (2002) N2511 
Motor Vehicles Insurance (PNG) Trust v. Pupune [1993] PNGLR 370 
Telikom PNG Ltd v Kopalye [2021] PGSC 66; SC2141

Overseas Cases

Donoghue v Stevenson [1932] AC 562
Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 
Fox v Percy (2003) CLR 118
Devries v Australian National Railways Commission (1992) 177 CLR 472
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Wyong Shire Council v Shirt (1980) 146 C.L.R. 40
Bradshaw v McEwans Pty Ltd, High Court of Australia, Unreported, 27 April 1951
Holloway v. McFeeters (1956) 94 CLR 470
Jones v Dunkel (1959) 101 CLR 298 
Doney v R (1990) 171 CLR 207 
Henderson v State of Queensland [2014] 255 CLR 1
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Page v Smith [1996] 1 AC 155 (HL)
Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.)
Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 
RMC v NAC [2009] QSC 149
Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658

References Cited

Sections 3(1), 6(1) of the Supreme Court Act, 1975
S 36 of the Wrongs Act, 1975 

Counsel

Mr I. Shepherd, for the Appellant
Mr T. Ilaisa, for the Respondents

DECISION ON APPEALS

4th May, 2022
 
1.	BY THE COURT: The appeals were heard before us with his Honour Koeget J. Following his death the parties have agreed that we should continue to determine the appeal, pursuant to s 3(1) of the Supreme Court Act, 1975. 

INTRODUCTION

2.	The appeals were heard together.  They are five of six appeals brought by the appellant against findings of negligence arising from similar claims heard before the same trial judge.  In each case the respondents claimed that a can of the appellant’s tinned fish contained a foreign object, namely a condom, causing them injury.  The claims were brought in 2008 in relation to events alleged to have occurred between 2006 and 2007 in and around Madang town.  The same lawyers acted for the respective parties in each case, which whilst not heard together, were heard at about the same time in late 2012/early 2013, before submissions in all matters were heard in July and August 2015, and decisions delivered in February 2017.

3.	The sixth appeal was heard before a differently comprised Supreme Court bench in 2019, and upheld:  SCA No 46 of 2017, RD Tuna Canners Limited v Steven Kaipa and Betty Kaipa, unreported, 5 March 2020.  The appellant submitted that it was a “test case” and that we should adopt and apply the decision on the basis that all appeals raise the same issue for determination.  We do not agree.  That appeal was upheld on the basis of factual errors particular to that case. 

4.	Furthermore, whilst the circumstances in which it was alleged that a condom was found in a can of the appellant’s tuna were in some respects similar, the plaintiffs and the details of the events alleged differed in each case.  Similarly, whilst the appellant called the same witnesses in most cases to testify as to its manufacturing systems and processes, and their evidence was primarily given by affidavit, those witnesses also gave oral evidence and were cross-examined to varying degrees.  It follows that there was some divergence in the evidence between the cases. 

5.	In addition, whilst the trial judge took judicial notice of the other cases, he made it clear in every case that he had drawn no inference from the existence of the related cases, adverse to or supportive of the respondents’ case.  Neither party had sought the trial judge to draw any inference from the fact of the other cases, “neither one of similar fact, nor of a grand conspiracy”.  The cases were each considered on their own merits.  

6.	The appellant sells its product nationally and internationally according to the evidence.  On one view, multiple claims  during a particular period might have strengthened the respondents’ cases. On the other, the fact that the incidents were confined to the Madang area might suggest that the claims lacked authenticity, especially given the extended period over which they were said to have occurred.  There are some features of the cases that might have concerned us when looked at globally, including the factual similarities of the cases, the fact that in four of the six cases, the condom was discovered by the last person to eat, as well as the fact that there was no medical evidence, reports, or receipts, from the hospital in any of the cases substantiating the respondents’ claims that they required medical treatment, which was the basis of the claims, and further that the itemised costs in the statement of claim bore almost no resemblance to the evidence presented in most cases.  

7.	Given the manner in which the cases at the lower court were conducted, of which we make no criticism of the trial judge, and the submissions of counsel before us on the hearing of the appeals, however, we too make it clear that we will consider each of the appeals on their own merits.

8.	That said, it remains that the cases concern a number of general principles and it is appropriate to deliver our decisions in a single judgement. In this regard we would remind counsel of their duty both at this court and below that it is their responsibility to assist the court by reference to established legal principle and relevant authorities.  

GROUNDS OF APPEAL
9.	Before turning to consider each case, we note that there is no dispute in any of these matters that a manufacturer of goods owes a duty of care to a consumer:  Donoghue v Stevenson [1932] AC 562; Burns Philp (NG) Ltd v George [1983] PNGLR 55.  Rather, the appellant contends firstly, that the trial judge erred in finding that the incidents occurred as alleged, or at all, and secondly, if so satisfied, in finding negligence on the part of appellant. 

10.	With some variation in each case, the appellant relies on four principal grounds of appeal: 

(1) The National Court should have found that in all the circumstances, including the evidence of the appellant’s manner and speed of production, the processes of chopping and cooking to which its tuna was subjected, the absence of detail in or corroboration of the respondent’s evidence, the failure of the respondents to produce the actual can or alleged contaminant, the unexplained failure of two of the named plaintiffs to give evidence (including the lead plaintiff), that it could not be satisfied as to the circumstances alleged by the respondents or that the alleged incident occurred;
(2) Further or alternatively, the National Court should have found that in all the circumstances, including those referred to in (1) above, that the respondents’ evidence on the issue of finding a condom in a can of tuna was so glaringly improbable that the court could not accept the evidence;
(3) Further or alternatively, the National Court erred in assessing the respondent’s credibility by focusing on features such as their demeanour and their evidence and their apparent ability to maintain a consistent version of events, and failed to give any or sufficient weight to other relevant facts or circumstances, in particular the defendant’s evidence concerning its process of manufacture, its system of quality control, and in particular the processing of canned tuna (including chopping and cooking ) at all material times;
(4) Further or alternatively, the National Court erred in that it should have found that the onus of proof of negligence was on the respondents, and notwithstanding the circumstances as related by the respondents (if accepted) may have raised an inference or presumption of negligence, the appellant had adduced sufficient evidence to show that it had exercised all due care.

OBJECTIONS TO COMPETENCY

11.	At the hearing of the appeals the respondents objected to the competency of each of the appeals.  No prior notice was given and the respondents had no right to have the objections heard.  The appellants did not object to the objections being heard and we proceeded to hear them but on reflection we should not have done so. 

12.	It is well established that the Court has a discretion to entertain an objection to competency even if leave is not sought and notice of it is non-compliant with the Rules, and that it may of its own volition at any time raise any issue as to jurisdiction of the Court, including competency of an appeal:  Beni Sarea & Ilaiah Bigilala v Dr Andrew Moutu & Ors (2019) SC1893; Amet v Yama (2010) SC1064, Mountain Catering Ltd v Punangi (2013) SC1225, Kuk v O’Neill (2014) SC1331, Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646.  The Court may decide to exercise the discretion where the notice of objection raises arguable grounds and the appellants have been put on notice of them:  Beni Sarea & Ilaiah Bigilala v Dr Andrew Moutu & Ors.

13.	We agree with the Supreme Court in Yama v Singirok (2020) SC1982, however, that for a party to raise the objection for the first time as has been done here, without notice, and when the matter has completed the listing process, submissions have, or should have been filed and exchanged, and the substantive matter is finally before the Supreme Court for hearing is an abuse of process.

14.	As for the objections themselves, the respondents essentially contend that the grounds are convoluted and confusing such that they fail to conform to Order 7 Rule 9(c) and 10 of the Supreme Court Rules.  We do not agree.  Whilst the grounds in each appeal might have been more clearly expressed each sufficiently identifies the error alleged to have been made by the learned trial judge and the basis of that error.  The respondents’ objections to the competency of each appeal are dismissed.

SCA No 45 of 2017: RD TUNA CANNERS LTD v DAVID SENGI & SIX OTHERS
BACKGROUND 

15.	The trial judge found that on 20 January 2006 the seven respondents purchased, from M & S Tsang retail store, a loaf of bread and an unopened 380 gram can of “Diana Tuna” brand of tinned fish that had been manufactured by the appellant. Further, that the respondents went to the bus stop where one of the respondents, John Ray, opened the can and made sandwiches by scooping tuna meat from the can on to slices of bread which were eaten by the others.  He drank soup from the can and poured the remaining meat on to his own slice of bread, after which a condom came out.  The respondents were shocked and reported the matter at the Madang Police Station, where they handed over the can to police, who told them to go to the hospital.  The respondents felt ill and some vomited. John Ray was the most affected.  They went to Modilon General Hospital where they were treated and released the same afternoon.  

GROUNDS 1 TO 3: FINDING OF FACT GLARINGLY IMPROBABLE  

Appeal against finding of fact based on credibility  

16.	Appeal is not a common law right. It is a creature of statute.  This is an appeal brought pursuant to s 6(1) of the Supreme Court Act which is an appeal by way of re-hearing:
(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court–
(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b) to draw inferences of fact.
(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
17.	Whilst by way of re-hearing, it is a fundamental rule that an appellate court will not interfere with the decision of the lower court unless it is shown to be in error.

18.	In Allan Oa Koroka v The State [1988-89] PNGLR 131 at 136 – 137, the Supreme Court adopted with approval the following passage of Kirby P in Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-211 (emphasis ours):
“First, since Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, it is clear law that this Court is to be taken as being in as good a position as the trial judge to decide upon the proper inferences to be drawn from facts which are undisputed or which, although disputed at the trial, are established by the judge’s findings. Respect and weight is to be given to the conclusions which the trial judge draws from the evidence. However, once having reached our own conclusion on the facts, we are not to shrink from giving effect to it: see also Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 426... Detailed argument must be addressed to disputed evidence and competing, permissible inferences from that evidence, although this process of evaluation has already taken place before the trial judge. An appeal court is, to some extent, always at a disadvantage in conducting such a reassessment. It lacks the impression of witnesses, the opportunity to evaluate non-verbal communication and the immediacy and command of detail which is the proper province of the trial judge. It sees the evidence through a curtain, penetrated in selected parts by the reading of evidence, presented, often out of order and in an inevitably disjointed and selective way by the parties. This approach carries an inevitable risk of encouraging appellate wisdom after events. Without care, it may result in undue weight being given to words considered without the benefit of the full context.
None of these observations touch the legal duty of the court, which is that defined in Warren v Coombes. It is a duty that must be loyally fulfilled...
Secondly, appellate courts will normally show deference to the assessment of credibility made by the trial judge ...”.
19.	The critical issue in this appeal, and all of the appeals considered below, is whether the trial judge erred in finding as a fact that the condom was in the can of tuna.  

20.	In this case it was a finding he made on the basis of direct evidence from the respondents. It is the second principle of Allan Oa Koroka v The State (supra) that is most relevant here, namely that an appellate court will not interfere with a trial judge’s finding of fact based on the credibility of a witness unless compelled to do so.  This is a principle that has been applied in both criminal and civil matters: see  Kule v State [2011] PGSC 47; SC1138; Rimbink Pato v Umbu Pupu [1986] PNGLR 310.  

21.	In Karo Gamoga v The State [1981] PNGLR 443 Pratt J, with whom the other members of the Supreme Court agreed, adopted the comments of Lord Justice Edmund-Davies in Whitehouse v. Jordan and Another (emphasis ours): 

“It has long been settled law that, when the decision of a trial judge is based substantially on his assessment of the quality and credibility of witnesses, an appellate court must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong.... And that is so irrespective of whether or not the trial judge made any observation with regard to credibility.”

22.	In John Kaina v The State [1990] PNGLR 292, Woods J said:

“Whilst it is quite clear that an appellate court can make up its own mind on the evidence it must still be satisfied that the trial judge has erred in his analysis or assessment of the evidence. And an appeal court must never forget the obvious: that where the judge at first instance has had the opportunity of seeing the witnesses, where it turns on the matter of credibility, where they have been cross-examined and where he has deliberately come to a conclusion as to which side has given the correct version, it is very difficult to induce a court of appeal to differ from the decision of the judge at the first instance.”

23.	Similarly, in Peter Wawaru Waranaka v Gabriel Dusava (2008) SC 942, Injia CJ said:
“It is difficult for a review Court to overturn findings of fact based on assessment of credibility of witnesses because the review court is not in a better position than the trial judge to assess the performance and demeanour of witnesses and asses the probative value of the evidence they give. The review Court will often defer to the trial judge's judgment on these sort of matters except where there is gross error manifest on the findings of fact based on the evidence before the Court.”
24.	In Fox v Percy (2003) CLR 118, the appellant suffered injury when the horse she was riding was hit by a vehicle driven by the respondent.  At trial the critical issue was whether the respondent was driving on the correct side of the road at the time of the collision.  Ambulance and police officers gave evidence, including a sketch map from one of the police officers, that skid marks were on the correct side of the road.  Despite accepting this evidence, the judge found that the respondent was on the wrong side of the road, relying on the testimony of the appellant and her friend, and an expert’s report.  The respondent appealed to the NSW Court of Appeal who, by majority, upheld the appeal on the basis that the skids marks on the correct side of the road were an incontestable fact.  In doing so it noted that the expert report contained a number of defects, including assumptions not based on proved evidence, and that the expert had not been called to give oral evidence.  

25.	In upholding the Court of Appeal’s decision the High Court of Australia held that a finding of fact by a trial judge based on the credibility of a witness may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or, in some quite rare cases, where the decision at the trial was glaringly improbable or contrary to compelling inferences in the case. 

26.	Per Gleeson CJ, Gummow and Kirby JJ at [28] and [29] (citations omitted):
“In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
...  In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion.”
27.	In doing so the Court referred to the decision in Devries v Australian National Railways Commission (1992) 177 CLR 472 at 479 (Brennan, Gaudron and McHugh JJ: 
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."
28.	What is abundantly clear from the above cases is that whilst an appellate court may reverse a finding based, expressly or inferentially, on demeanour, there must be something that points “decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses”:  Fox v Percy, per McHugh at [90].  This is for the obvious and oft-cited reason that the trial judge has the advantage of hearing and observing the witnesses when giving evidence.     

Consideration

29.	Returning to the present case.  The respondents needed to prove that it was more probable than not that a condom was in the can of tinned fish.  The thrust of the appellant’s case on appeal was that the trial judge’s finding that the condom was in the can was glaringly improbable or contrary to compelling inferences in the face of the appellant’s evidence establishing the safety measures in place at its plant, including the screening and supervision of staff, together with the nature of the manufacturing process, which included chopping and retorting (heating to 117 degrees Celcius).  

30.	Before making his findings of fact the learned trial judge made it clear that the task of fact finding had not been straightforward having regard to the deficiencies in the evidence of both parties, which he set out in some detail.  He correctly reminded himself that the burden of proof lay with the respondents to the requisite standard.  

31.	The learned trial judge critically considered the evidence of the respondents, including the lack of physical evidence and independent corroborating evidence to support their claims.  The deficiencies relied upon by the appellant on the appeal were considered by the learned trial judge, including that there was no receipt to verify the purchase of the tuna, and neither the condom nor the can itself or its batch number were produced.  There was no independent evidence to verify that the matter was reported to the Madang Police Station. The report from the pathologist at the Modilon General Hospital was hearsay and the maker was not called to give evidence.  No medical professional was called from the hospital where the respondents said they were treated, and the medical notes attached to the respondents’ affidavits purporting to relate to each of them were of no probative value.  

32.	The trial judge took into account that none of the bystanders at the bus stop where the incident allegedly took place were called, although that was hardly surprising for various reasons.  

33.	The judge also considered the fact that two of the nine initial plaintiffs failed to appear and give evidence.  The trial judge dismissed the claims of those plaintiffs but heard the seven remaining respondents and accepted their evidence that the condom was in the can. 

34.	In doing so the trial judge placed great weight on their demeanour.  He found each of them to be impressive.  All were rigorously cross-examined.  All were unshaken. Their evidence was consistent.  He considered the possibility that they might fabricate evidence in an attempt to obtain financial gain but dismissed it, in part given the difficultly in maintaining the falsehood over such a long period of time.  He considered the possibility that one 380 gm can of tinned fish would be insufficient to feed nine people for lunch.   

35.	Conclusions about truthfulness and reliability solely or mainly based on demeanour are not without risk. Judges are increasingly aware “of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain” per Deane and Dawson JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472.

36.	Demeanour may be affected by a variety of factors including the nature of the case, the courtroom environment and the personal circumstances of the witness including their age, education, culture, background, gender and experience.     

37.	Wherever possible judges make their decisions “on the basis of contemporary materials, objectively established facts and the apparent logic of events”.  Again, however, in the words of Deane and Dawson JJ in  Devries https://jade.io/article/188365/section/1296341 at 479: “this does not deny that in many cases a trial judge's observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings…”. 

38.	We agree with the trial judge that this is particularly so in this jurisdiction where forensic, scientific, audio visual and other such evidence is rarely available in either civil or criminal trials, and contemporaneous records are also often limited.  In many cases decisions will turn on findings as to the truthfulness and reliability of witnesses, having regard to their demeanour, the content of their evidence, both on its own, and in the context of the evidence as a whole, as well as logic and common sense.  See Beng v The State [1977] PNGLR 115; Michael Tenarum Balbal v. The State (2007) SC860; Waranaka v Dusava [2009] PGSC 11; SC980 and the many cases that have followed.

39.	In assessing the respondents’ evidence in this case, the trial judge considered the evidence of the appellant’s witnesses, Genevieve Fernando, the Quality Assurance Manager, and Danny Wangak, Senior Factory Supervisor.  They testified that the factory operated two shifts a day, employing 1200 workers per shift.  Workers are screened and frisked before entering the plant, provided company clothes to wear which are colour coded according to their respective section, and supervised at each stage of production. Ms Fernando explained that the factory is certified to international standards. She described the process by which tuna is first sorted and cooked in a steamer, before it is cut and transferred by employees on to a conveyor belt to the filling machine, where tuna is cut again, and packed into cans, which are manufactured and cleaned at the plant.  Filled cans are machine weighed and employees remove any can which is over or under weight before the can is sealed and put through a second cooking, or “retorting” process, during which the can is heated to 117 degrees Celsius to kill bacteria.  The canning process takes place along a conveyor belt and by machines operating at high speed.  If anyone attempted to put a foreign object amongst the fish it would disrupt the production line and be detected. Cans are labelled with a code which can be traced to the date of production. 

40.	The trial judge found the evidence to be of limited probative value for several reasons. Critically, the evidence of both Ms Fernando and Mr Wangkak focused on operations at the time of the trial in 2012, and not at the time of the allegations in 2006.  The international certificate authorised by SGL United Kingdom Ltd stating that the appellant’s management systems were compliant with international standards was not issued until May 2012.  Whilst the trial judge found the evidence of a former employee of the appellant that workers used their bare hands to scoop tuna meat into cans from the floor following the breakdown of machines after blackouts to be of limited probative value, he observed that Ms Fernando conceded that the appellant was unable to guarantee the effectiveness of its quality and control measures in the period 2005 to 2006 to the same level it had since it was first certified to international standards in 2012.  Having reviewed the evidence we find no error in the trial judge’s findings.  Furthermore, we observe that whilst conceding that production was affected by power outages when work stopped, Mr Wangkak was not asked to identify the impact on production, in particular what happened when processing recommenced, or what processes were in place to maintain systems and security during blackouts.  

41.	It is the case that the trial judge, whilst referring to it in his summary of the evidence, did not address the effect of Mr Wangkak’s affidavit evidence that in 2005 a condom was placed into a can by the “Quality Controller and Quality Assurance”, which was clearly marked and put through the retorting process following which it had “disappeared”, but the evidence cannot be regarded as incontrovertible or compelling in our view. There was no evidence from the Quality Control Manager Ms Fernando on the matter. Nor was it clear from his affidavit that Mr Wangkak himself had been present at the time of the test.  No scientific evidence was called to explain the outcome. No evidence was given to explain how the test was conducted or moreover, why such a test had been conducted, for instance whether condoms were at times brought in with the fish from the sea, or whether condoms had been found in the appellant’s products previously?  We don’t know and will not speculate. 

42.	We would have expected some evidence from a medical professional describing the respondents’ symptoms and their severity, diagnosis and treatment, together with at least some receipts to confirm their treatment, or some evidence at trial to explain their absence, particularly as this was the basis of their claim.  Nevertheless, the trial judge considered these issues before making his finding on their credibility, and accepting their evidence that the can contained a condom.  He did so after hearing and observing the seven respondents.  The judge dedicated some detail to explaining his finding.  That finding was based on his assessment of the respondents’ credibility and the appellant has failed to demonstrate that the finding was glaringly improbable, contrary to compelling inferences or palpably or manifestly wrong.  Grounds 1 to 3 are dismissed. 

GROUND 4:  BREACH OF DUTY  

43.	Ground 4 was not expanded on to any great extent other than by a belated attempt in written submissions to suggest that if the trial judge’s findings were accepted then it spoke to sabotage rather than negligence.  The effect of the submission is unclear and we have not been assisted by reference to any relevant principle or authority.  In the circumstances we will deal with the ground briefly.  

44.	In the event the judge found that the condom was added to the can after it left the factory, the appellant could not be held responsible for the deliberate acts of an intervening third party: see Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.  (As cfd with the duty of care owed by a manufacturer to take reasonable steps to avoid harm associated with normal distribution and consumer handling of their product: see Burns Philp v George.)  

45.	In this case the trial judge found that the condom entered the can before it left the factory.  It was, he found, a situation like that in Donoghue v Stevenson (1932) A.C. 562, where the product was sold in such a form that it was intended to reach the ultimate consumer in the form in which it left him with no reasonable possibility of intermediate examination.

46.	The evidence did not establish how the condom entered the can.

47.	The appellant was required to take reasonable steps to avoid such an event: Burns Philp (NG) Ltd v George [1982] PGSC 3; SC259 adopting and applying Wyong Shire Council v Shirt (1980) 146 C.L.R. 40 at p 48 per Mason J, with whom the majority agreed:

“In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense and difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced, out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position ...”.
48.	It might have been argued with respect to the above principles that the respondents failed to establish the basis of liability, that is that there was any deficiency in the manufacture of the tinned fish, and furthermore, failed to establish a basis on which the Court could determine what remedial measures were required having regard to foreseeability, risk, cost and inconvenience. 

49.	There are, however, two difficulties with such an argument in this case.  The first is that for the reasons outlined above, the appellant’s evidence as to the manufacturing process failed to rule out the possibility of any deficiency.  Secondly, the trial judge found that the condom entered the can during the manufacturing process.  We find no error in his Honour’s application of res ipsa loquitor in those circumstances. There was a relevant absence of explanation as to how the condom came to be in the unopened can; a condom does not ordinarily find its way into cans of tuna without negligence; and, as the trial judge found that it did so whilst the can was still in the factory, then the instrument or agency responsible was under the control of the appellant: see Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650, see also Burns Philp (New Guinea) Limited v Maxine George (1983) SC259, Timson Noki v Fraser v Barclay Bros [1991] PNGLR 260. 

50.	Accordingly, we dismiss Ground 4.  

PERSONAL INJURY AND NERVOUS SHOCK

51.	Before leaving this appeal we make the following observations.  

52.	To establish a claim in negligence a plaintiff must establish personal injury (or damage to property).  Personal injury includes physical injury and “nervous shock”. 

53.	The trial judge found that the respondents “felt and/or were sick, and shocked, as a result of consuming the tinned fish containing a condom”, and that the food had been “contaminated by the condom”. It is unclear what is meant by this. A condom does not present any inherent risk of injury.  Nevertheless, condoms are not usually found in tins of food. The presence of the condom provided some evidence that something had gone wrong during the manufacturing process, from which it is reasonable to infer, in our view, that the tinned fish had become tainted, contaminated or otherwise deleterious.  

54.	On that basis the physical injuries in the case of each of the respondents were  limited to the stomach pain, discomfort and vomiting suffered.  David Sengi vomited once.  Rex Fasi had stomach aches but did not vomit. Samuel Undonomo had stomach pain and vomited once. Kume Ray had stomach pain. It appears John Ray vomited several times.  Mono Ray and Elijah Brian felt nauseous but did not vomit. 

55.	With great respect to the learned trial judge he did not articulate the basis for his further finding on liability that each of the respondents also suffered nervous shock.  

56.	The meaning of “nervous shock” has a long legal history.  At common law it is well understood to refer to psychiatric injury and is used to describe a recognisable psychiatric or psychological illness or disorder.  

57.	As Lord Lloyd recognised in Page v Smith [1996] 1 AC 155 (HL) at p 188:

“In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded.  Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law.”

58.	That said, “psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset”: Mustapha v Culligan of Canada Ltd [2008] SCC27 at [9].  Personal injury at law connotes serious trauma or illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p. 189.  A person is not liable in negligence for “emotional distress”, such as fear, alarm, anxiety, grief, humiliation, disgust or despondency without any resulting recognised psychiatric illness: see Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 at [7], [219]. 

59.	In RMC v NAC [2009] QSC 149, Byrne SJA, of the Queensland Supreme Court summarised the position across England, Scotland, Ireland, New Zealand, Canada and Australia, as follows at [32] to [34] (citations omitted):

“Before the War, the English Court of Appeal spoke of nervous shock as a “form of ill-health” “ascertainable by the physician.” In Hinz v Berry, Lord Denning MR translated nervous shock into medical terms as “any recognisable psychiatric illness”.  In Page v Smith, Lord Keith of Kinkel paraphrased the expression as “some recognisable psychiatric illness”;  Lord Jauncey of Tullichettle regarded it as synonymous with an impact upon the mind or nervous system “as is recognised by modern medical science as capable of causing physical or psychiatric illness”; and Lord Lloyd of Berwick spoke of a “recognisable psychiatric illness” as being prerequisite to compensation for nervous shock negligently inflicted. 

In Scotland, “psychiatric injury, illness or disorder” is the terminology that has replaced nervous shock.  In Ireland, nervous shock has been used to describe “any recognisable psychiatric illness.” In Canada, it has been said that nervous shock, “put in medical terms”, involves “any recognizable psychiatric illness…”.  In New Zealand, too, the term indicates “a recognisable psychiatric disorder or illness”. 

In Australia, the same usage has long been established. In 1965, Burbury CJ called nervous shock “medically recognisable neurosis or damage to the mind.” Almost 40 years ago, Windeyer J equated the term with “recognizable psychiatric illness”. In Queensland, in 1971, Wanstall ACJ accepted that nervous shock meant “recognisable psychiatric illness.” In 1984, Brennan J spoke of it as “some recognizable psychiatric illness…”. A decade later, Gleeson CJ described nervous shock as “a recognizable psychiatric illness or injury”, and Kirby P approved the idea that it signifies “psychiatric illness or psychiatric or psychological disorder.” More recently, McHugh J has said: “‘Nervous shock’ is an outdated term that nowadays is taken to mean a recognisable psychiatric injury”.” 

60.	Section 36 of the Wrongs Act, 1975, which provides that “in an action for injury to the person, the plaintiff is not debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock”, does not alter the meaning of the term but removes a restriction at common law which prevented recovery for nervous shock in the absence of physical injury.  

61.	This area of law is complex and the subject of much judicial and academic debate in other common law jurisdictions as the courts endeavour to balance competing policy considerations and grapple with issues of foreseeability, causation and remoteness.  The circumstances in which it has been found to apply, especially as more is understood about mental health, continue to expand and develop.  

62.	There are fewer authorities dealing with the topic in this jurisdiction.  Those authorities recognise that whilst an absence of medical evidence may not necessarily preclude a finding of nervous shock, the plaintiff must still establish psychological or psychiatric injury: see Lome v Kundi [2009] N3791; Mewari Patrick Paobi -v- PNG Electricity Commission & Anor (2002) N2511. 

63.	It is not necessary to consider the issue in further detail other than to say that we are unable to find on the evidence that the respondents suffered nervous shock. There was no medical evidence to that effect from a suitably qualified health professional and general claims about being fearful of the “unknown side effects” of consuming the tinned fish, and apprehension that other cans of Diana tuna fish might also contain a condom were not sufficient to meet the standard in our view.   

Orders

64.	We make the following orders.  

1.	The appeal is dismissed. 
2.	The matter is remitted to the National Court trial judge for assessment of damages, noting our finding as to nervous shock.
3.	The appellant shall pay the respondents’ costs of and incidental to the appeal on a party-party basis, which shall, if not agreed, be taxed. 

SCA No 42 of 2017: RD TUNA CANNERS LTD v LUKE PETER & TWO OTHERS 

65.	This case is similar to the first in that there was direct evidence that the condom came from the can.  This case is different, however, in other respects. 

66.	The trial judge found that on 30 March 2007 the three respondents purchased an unopened can of “Diana Tuna” tinned fish that had been manufactured by the appellant from a retail store in Madang town.  Later the same evening Luke Peter’s son, Peter Marshall, assisted by Peter’s friends, the respondents, Hendrick James (aka Emrick James) and Justin Wake, prepared dinner for themselves and Luke Peter.  Peter boiled the rice in a pot and once it was cooked, he opened the can of tuna that Luke Peter had purchased earlier that day.  He noticed that, together with fish meat, the can had a condom in it.  He was shocked, felt unwell and vomited. Luke Peter, Hendrick Hames (aka Emrick James) and Justin Wake had a similar reaction.  Though none of them ate the fish, the sight of the condom shocked them and the thought of eating fish contaminated by a condom, made them feel ill.  They all vomited. The next day, Luke Peter reported the matter to the police, a health inspector and Modilon General Hospital.

67.	The statement of claim was very different from the affidavit evidence led in support.  We do not have in the appeal book the transcript of evidence before the judge and rely on his findings as to the respondents’ evidence under cross-examination.  According to the statement of claim, Steven Bill purchased a can of 380 gm of the appellant’s Diana tuna and at about 730 pm he and the other plaintiffs named as Luke Peter, Hendrick James, Hashel Luke and Justin Wake, prepared dinner.  They ate without realising the food contained a condom before Bill found a condom on his plate, after he had eaten half the meal.  Peter Marshall was not mentioned.

68.	Steven Bill did not provide an affidavit and did not appear to give evidence.  No explanation was provided. At trial the three respondents, Luke Peter, Hendrick James and Justin Wake, gave evidence that it was Peter Marshall who opened the tinned fish and discovered the condom when serving it on to their plates.  Peter Marshall also gave evidence to that effect. The trial judge found that there was insufficient evidence that Peter Marshall was Hashel Luke.  He was satisfied that Emrick James was Hendrick James. 

69.	The learned trial judge decided that without direct evidence from a plaintiff and 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.  The appellant submits that in those circumstances, and in the absence of evidence from Bill and Luke, the case should have been dismissed. To our minds, that is not the real issue. 

70.	As the trial judge observed it was the absence of explanation that was problematic.  A plaintiff may not be able to give evidence themselves for various reasons, their age, the extent of their injury etc but the evidence may still establish their claim.  The real issue here is whether the variance in the names of the plaintiffs and the significant shift in the case gave rise to questions of credibility on the part of the respondents and their witness.  That is particularly so given that the case was predicated on a claim that the respondents required medical treatment, and the cost of various matters associated with that treatment.    

71.	Pleadings and particulars furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; define the issues for decision and thereby enable the relevance and admissibility of evidence to be determined at the trial, and give a defendant an understanding of the plaintiff’s case: Kapi DCJ and Jalina and Doherty JJ in Motor Vehicles Insurance (PNG) Trust v. Pupune [1993] PNGLR 370 citing Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664; Telikom PNG Ltd v Kopalye [2021] PGSC 66; SC2141.  But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and the particulars earlier furnished will not disentitle a party to a verdict based upon the evidence: Dare v Pulham. 

72.	Whilst there was no departure during the trial from the pleaded cause of action the departure from the factual basis of the claim was significant.  

73.	The certified appeal book is missing transcript but it does not appear that there was any objection to the evidence from the respondents when it was led.  In addition, the learned trial judge considered the evidence of the respondents, including the lack of physical evidence and independent corroborating evidence to support their claims.  He took into account that the condom was not produced, that there was no receipt to verify the purchase of the tuna, the can itself was not produced, and none of the respondents gave evidence as to the size of the can of tuna or the detail of the production date, batch number or use-by date.  Whilst not stating explicitly that there was no independent evidence to verify that they reported the matter to the Madang Police Station, he specifically noted a lack of independent corroboration generally. The judge correctly observed that the report from the pathologist at the Modilon General Hospital was hearsay and the maker was not called to give evidence.  No medical professional was called from the hospital where the respondents said they were treated and the medical notes attached to the respondents’ affidavits purporting to relate to each of them were of no probative value in the absence of anyone to produce them from the hospital. He found that the photographs of an opened can and condom were of no probative value and must be ignored.  

74.	In the upshot the trial judge heard from four witnesses and there was evidence before him on which to determine the issue. He accepted the respondents’ evidence and found that a condom was in the can. That finding was based on his assessment of the respondents’ credibility and that finding cannot be said to be glaringly improbable, palpably or manifestly wrong on the evidence.  

75.	There is, however, another issue in this appeal.  The learned trial judge found as a fact that none of the respondents consumed the tinned fish containing the condom but that “the sight of the condom shocked them and the thought of eating tinned fish contaminated by a condom made them feel ill. They all vomited.” 

76.	Despite that finding of fact the judge found that the element of causation was established on the basis that: “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”.

77.	Judges are not immune from making typographical errors but the error is reflected at least twice elsewhere in his decision.  It follows that the finding on the element of causation is inconsistent with the findings of fact. In addition, the learned trial judge did not outline his reasons for finding that the respondents suffered personal injury for the purposes of establishing causation on the basis of the facts established.  

78.	As above, to establish negligence a plaintiff must prove personal injury.  Personal injury includes direct physical injury sustained as a result of the defendant’s negligence. It also includes direct physical injury sustained as a result of an immediate reaction, for example to being startled, or frightened. For instance, where the plaintiff was startled by a loud bang caused by the violent shunting of goods wagons into a stationary wagon he was examining, he fell and his hand was cut off:  Slatter v British Railways Board [1966] 2 Lloyd’s Rep 395.

79.	Did the respondents suffer any physical injury from merely seeing the condom in the tin of tuna?  It is true that the respondents felt nauseous and vomited but it was the sight of the tinned fish containing the condom that made them sick.  Or, as they said in their evidence, it was the thought of consuming the tinned fish containing the condom that made them ill.  That is it was due to disgust or revulsion, which does not normally constitute injury.  In some jurisdictions product liability legislation overcomes such issues at common law.   

80.	Finally, for the reasons outlined in the David Sengi case, there was no evidence, medical or otherwise, to establish that the respondents had suffered any recognisable psychiatric or psychological injury.  

81.	Accordingly, we uphold the appeal and make the following orders. 

Orders

1 The appeal is upheld. 
2 The orders of the National Court of 15 February 2017 are quashed. 
3 The respondents shall pay the appellant’s costs of and incidental to the appeal on a party-party basis, which shall, if not agreed, be taxed.

SCA No 47 OF 2017: RD TUNA CANNERS LTD V MICHAEL BIRUS & ANOTHER   

BACKGROUND

82.	This case concerned the last of the alleged incidents.  The trial judge found that on 26 January 2007 the two respondents purchased an unopened 380 gram can of “Diana Tuna” tinned fish that had been manufactured by the appellant, from the M & S Tsang retail store in Madang town.  Later the same evening Michael Birus’ wife, Ruth Nuali, prepared dinner for her husband and other members of the household, including their children, Barbara Ami, Jacob Ami and Naimen Kodua, then aged, 10, 12 and 4 years, respectively. Ruth boiled rice in one pot and green vegetables in another.  When the greens were ready she opened the can of tuna into the boiling greens, stirred it with the greens, and when the mixture of greens and fish was hot, served it on rice to those present.  Ruth and the children finished their meal and found nothing wrong with it.  Michael ate last.  After digesting a few mouthfuls he felt something rubbery in his mouth and was shocked to discover a condom.  The condom had been in the can of tinned fish. All of those present were shocked. Michael felt unwell but chewed betelnut to stop himself from vomiting.  The others who consumed the food, which had become contaminated by the condom, were sick as a result of consuming it.  The following day they were treated at the Modilon General Hospital and medicated for stomach disorder, pain, nausea and vomiting. 

GROUNDS 1 to 3

Principles governing a circumstantial case in civil proceedings 

83.	Again, the central issue in the appeal is whether the trial judge erred in finding on the balance of probabilities that the can of tinned fish manufactured by the appellant contained a condom.  This case, and the two that follow, was circumstantial.  

84.	We reject the appellant’s submission that the trial judge erred in finding in favour of the respondents merely because there was an absence of direct evidence.  Many cases that come before the courts are circumstantial.  Depending on the number and/or weight of circumstances relied upon, a circumstantial case may well be stronger than one relying on the direct evidence of witnesses alone. Ultimately it will depend on the quality of the evidence and whether it is sufficient to establish the elements of the cause of action.  

85.	The principles governing circumstantial evidence in civil proceedings are well settled. As explained by Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd, High Court of Australia, Unreported, 27 April 1951, in a passage repeated in Luxton v. Vines (1952) 85 CLR 352 . (at p168) and Holloway v. McFeeters (1956) 94 CLR 470, at p 480, and adopted and applied in this jurisdiction in Burns Philp (supra) (emphasis ours:

“Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise ...”

86.	The Court went on to explain that:  

“All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence.  By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood."

87.	At p. 305 of Jones v Dunkel (1959) 101 CLR 298 Dixon C.J. said at p 162: (emphasis ours)

"But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied". 

88.	The existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved: Doney v R (1990) 171 CLR 207 Deane, Dawson, Toohey, Gaudron and McHugh JJ at 211.  Unlike criminal cases, it is not necessary to exclude them. The plaintiff need only raise a more probable inference in favour of what is alleged.

89.	More recently, French CJ said in Henderson v State of Queensland [2014] 255 CLR 1 (emphasis ours): 

“Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists.  The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel:
"One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed."
90.	On these authorities, where a case relies on circumstantial evidence, the party bearing the burden of proof must establish that the more probable inference supports the case alleged. An inference can be drawn provided it is reasonable and definite based on the circumstances appearing in the evidence.  The court cannot draw an inference where the circumstances give rise to conflicting inferences of equal degrees of probability, where the choice between them is a mere matter of conjecture.  But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then it is not to be regarded as a mere conjecture or surmise even though it may fall short of certainty.  

91.	Unlike the other five cases, the appellant failed to call any evidence in its case.  Where a party fails to produce evidence which they would be expected to rely on in support of its case, and the party fails to provide an adequate explanation for the absence, a decision maker may infer that the evidence would not have assisted the case of that party, or it may draw with greater confidence an inference that is unfavourable to that party, provided that such an unfavourable inference can be drawn from other evidence in the case: Jones v Dunkel.  

92.	The rule cannot, however, be used to fill gaps in the evidence or convert conjecture and suspicion into inference. There must be an evidentiary basis for any such inference: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at [53].

Consideration

93.	The appellant contends that the learned trial judge erred in dismissing the evidence of one of the respondents’ witnesses, Mr Uloulo, Medical Technologist, Officer in Charge, Pathology Department, Modilon General Hospital.  He gave evidence for the respondents that the laboratory examined an opened Dianna Tuna can with some fish left inside.  In his report he stated that the contaminants grown from the culture medium in the tin was due to “the tin’s exposure to air and not originally from the factory”. The effect of the appellant’s submission is that the evidence shows that there was no bacterial contaminant in the can which would have caused the respondents’ injuries.  

94.	The trial judge rejected his findings on the basis that the tin was not provided to him until five weeks after the alleged incident.  We agree that this and the absence of any information explaining the results renders the conclusions contained in the report “practically useless”. 

95.	As for Mr Uloulo’s evidence under cross-examination that he would have expected the condom to have shrunk if it had been immersed in boiling water, it is the case that the trial judge did not consider it.  Mr Uloulo did not, however, give reasons for his opinion. Whilst it seems reasonable to us to assume that the condom was made of latex, there was no evidence as to what would happen to a condom upon coming into contact with boiling water, at all, or for any particular period.  Mr Uloulo also gave evidence that any bacteria in the fish would be destroyed in boiling water, although he qualified that view in re-examination to some extent. We think we can take judicial notice of the fact that the time it takes to destroy bacteria or other pathogens in boiling water, albeit relatively short, may depend on a number of factors.     

96.	The learned trial judge again considered the lack of physical evidence and independent corroborating evidence to support the respondents’ claims.  The deficiencies relied upon by the appellant on the appeal were considered by the learned trial judge, including that there was no receipt to verify the purchase of the tuna, and neither the condom, nor the can or its batch number were produced.  It was not known who produced the medical notes annexed to the respondents’ affidavits, and there was no evidence from a health professional confirming their treatment at the hospital.  There were no receipts from the hospital produced in support of the statement of claim.  

97.	Taking these matters into account, the trial judge found the respondents to be credible.  We find no error with his finding in this regard. He had the opportunity to observe them whilst giving evidence and we repeat our comments above.  It is his finding that the condom was in the can of tinned fish that we are troubled by.  

98.	We are not suggesting that it is necessary in every civil case to expressly state that it is a circumstantial one.  In an otherwise very detailed decision, however, the learned trial judge did not articulate his reasons for finding on the balance of probabilities that the condom was in the tinned fish. The trial judge did not identify or consider the alternative sources of the condom in the meal, or find them to be less likely to have caused the respondents’ illness.  

99.	In his findings of fact the trial judge found that the food had been “contaminated by the condom” but it is unclear what he meant by that. 

100.	As above, there was no evidence as to what a condom would do upon contact with hot water, or if immersed for any particular period.  There was no evidence from the respondents as to what else they ate or drank that day, or whether anything else might have caused their symptoms. There was no scientific evidence to establish that the tinned fish was toxic, infectious or otherwise deleterious in nature, that is, whether it contained any contaminants, or whether any of those contaminants would have been destroyed upon immersion in boiling water, and if so, after what period.  There was no medical evidence to establish the cause of the illness suffered by the respondents, and the trial judge does not appear to infer based on the onset, nature and duration of their symptoms that the respondents suffered food poisoning.  Instead it appears that the trial judge was careful not to find that the respondents suffered food poisoning or gastroenteritis.  Thus it appears the trial judge did not reason, for instance, that the respondents suffered food poisoning, and that in all the circumstances, of the potential sources, the tinned fish was the most likely. Given the deficiencies in the evidence this is understandable.    

101.	Rather he appears to leave that matter open finding instead on the issue of causation, that the respondents “felt and/or were sick, and shocked, as a result of consuming the tinned fish containing a condom”.  It was the fact of consuming the tinned fish that contained the condom that caused them to be ill.  The learned trial judge’s findings on breach of duty do not take the matter further.  In considering this issue he found that the respondents were “getting sick and being shocked due to consumption of the contaminated tinned fish and or the sight of a condom in their fish”, and the respondents became ill “due to consuming and seeing tinned fish containing a condom”.  Putting aside issues of causation, in those circumstances the source of the condom was critical.  

102.	It may be that the unarticulated inference the learned trial judge drew was that Ruth would have observed the condom in the course of preparing the rice and greens, or whilst they were cooking over the fire for at least some time, whilst her failure to observe the condom in the tuna might be explained as the can was emptied immediately into the greens, without much attention, and in little light.  

103.	There was very limited evidence, however, as to what Ruth did to prepare the meal, from where she got the rice or the greens she cooked that night, whether she washed the rice, or the greens, or chopped the latter, how long either of them took to cook, covered or uncovered, or how or from where the water to cook the food was sourced, or whether the respondents may have drunk that same water before or after the meal.  

104.	We can accept on the basis of common experience that the rice for seven people would have taken some time to cook over the fire, and that the greens would have taken at least some minutes.  According to her evidence it was already dark when she started cooking. There was one kerosene lamp hanging in the verandah that shone towards the kitchen, although we don’t know from what distance.  Whilst there must have been some light from the fire, it is apparent from her evidence that there was very little light whilst she was cooking, when she served the food, and whilst the family ate.  Her husband was unable to identify the condom until the lamp was brought right up to him.  Despite being given ample opportunity, Ruth was unable to explain in cross-examination why she could say that the condom was not in the pot of greens before the fish was added, other than it was dark and she did not bother to look. It was night and she was “in a hurry to cook”.  

105.	Whilst we recognise that “no judicial reasons can ever state all the pertinent factors; nor can they express every feature of the evidence that causes a decision maker to prefer one factual conclusion over another” (Fox v Percy (supra), Gleeson, Gummow, Kirby at [41]), the learned trial judge did not articulate his reasons for finding as he did despite the deficiencies in the evidence, and did not take into account the competing hypotheses for the presence of the condom in the family’s meal.  

106.	Like the trial judge, we are obliged to tread the narrow path between reasonable and definite inferences and mere conjecture, speculation and guesswork. Given the deficiencies in the evidence, we are unable to find on the balance of probabilities that the tinned fish was the source of the condom found in the family’s meal. 

107.	Accordingly, we uphold Ground 3 of the appeal and make the following orders. 

Orders

1.	The appeal is upheld. 
2.	The orders of the National Court of 15 February 2017 are quashed. 
3.	The respondents shall pay the appellant’s costs of and incidental to the appeal on a party-party basis, which shall, if not agreed, be taxed.

SCA No 43 of 2017: RD TUNA CANNERS LTD V EDDIE DONATUS & FOUR OTHERS  

108.	The trial judge found that on 4 March 2006 Eddie and Jennifer Donatus purchased, from Rabtrad supermarket in Madang town, three unopened 185 gram cans of “Diana Tuna” tinned fish that had been manufactured by the appellant at its cannery near Madang.  The following evening Jennifer Donatus prepared dinner for her husband, Eddie Donatus, their daughter, Delailah Donatus, and their relatives, Wei Angu and Lesli Angu, who live in the same house.  Jennifer boiled rice in one pot and in a separate pot green vegetables.  When the vegetables were ready she opened the cans of tinned fish into the boiling greens, stirred the pot, and when the mixture was hot, served it on five plates, for those present.  Jennifer, Delailah, Wei and Leslie finished their meal and found it nice.  Eddie was the last to eat.  He ate 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.  The condom had been in the tinned fish.  All those present were shocked. Eddie chewed betelnut 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. The next day Eddie took the can and the condom to the police and laid a complaint at the cannery.  He vomited and went back home and gathered the others and took them to Modilon General Hospital, where they were treated, given medication, and discharged after several hours observation.  

109.	Again the appellant’s case on appeal was that safety measures in place at its plant, including the screening and supervision of staff, together with the nature of the manufacturing process, which included chopping and retorting (heating to 117 degrees Celcius) made the trial judge’s finding that the condom could be introduced into a can of tuna and survive intact, glaringly improbable.  

110.	Before making his findings of fact the learned trial judge set out the evidence of both parties and made it clear that the task of fact finding had not been straightforward having regard to the deficiencies in the evidence of both parties, which he also set out in some detail.  He correctly reminded himself that the burden of proof lay with the respondents to the requisite standard.  

111.	The learned trial judge considered the evidence of the respondents, including the lack of physical evidence and independent corroborating evidence to support their claims.  The deficiencies relied upon by the appellant on the appeal were considered by the learned trial judge, including that there was no receipt to verify the purchase of the tuna, and neither the can itself or its batch number were produced.  It was not known who produced the medical notes annexed to the respondents’ affidavits, and there was no evidence from a health professional confirming their treatment at the hospital.  

112.	We also note that there was a discrepancy in that the respondents said that event took place on 6 March 2006 but the medical notes they relied on bore a different date, 30 August 2006.  Whilst the discrepancy was not explained, the trial judge considered it before finding the witnesses to be honest. 

113.	Again, however, in an otherwise detailed decision the learned trial judge did not set out why he found the weight of the evidence to favour a finding that the condom was in the tinned fish. The trial judge did not identify the alternative sources of the condom in the meal, or find them to be less likely to have caused the respondents’ illness. We repeat our comments at [97] to [101].

114.	The critical evidence was that of Jennifer Donatus.  It is unclear but it appears she was cooking outside over an open fire.  She cooked the rice first and then the greens.  Whilst the greens were boiling she opened up the tinned fish, poured the fish into the pot and then stirred the fish into the pot.  It is unclear how long the fish was kept on the fire. At the time it was 7 pm and dark.  We assume that there was some light from the fire. The respondents had one kerosene lamp, but it is not clear where that was in relation to Jennifer.  Jennifer did say that she washed the greens but otherwise the evidence was very limited. There was no other evidence about the preparation of the meal. 

115.	Lesley Wei was sitting two metres away from Jennifer on the verandah when she was cooking but her evidence was also limited.  She saw Jennifer cook the rice and the greens but she does not describe what she saw in this regard. She did not see her pour the fish into the greens. She also stated that the greens were cooked with coconut milk. The fact that coconut milk may have been added to the greens at some stage may or may not have been relevant but again it demonstrates the lack of clear evidence as to the preparation of the meal. 

116.	In the circumstances were are unable to substitute the trial judge’s findings with our own.  

117.	Accordingly, we uphold Ground 3 of the appeal and make the following orders. 

Orders

(1) The appeal is upheld. 
(2) The orders of the National Court of 15 February 2017 are quashed. 
(3) The respondents shall pay the appellant’s costs of and incidental to the appeal on a party-party basis, which shall, if not agreed, be taxed.

SCA No 44 of 2017: RD TUNA CANNERS LTD V JOHN MOMBI & ORS

118.	This case is similar to the last two.  
 
119.	The learned trial judge found that in the first half of 2006, probably 28 March or 28 May, John and Agnes Mombi purchased several unopened cans of Diana Tuna tinned fish from a retailer in Madang town.  That evening the task of preparing the meal was allocated to one of their six children, Rosina. At about 7 pm, as it was getting dark, Rosena boiled in separate pots some rice and kumu (aibika and spinach).  She then emptied the contents of at least one of the Dianna Tuna cans, which her parents had purchased earlier that day, into the kumu pot.  She did not smell anything untoward. Agnes Mombi handed Rosina eight plates and Rosina put servings of rice and kumu and tinned fish onto each plate.  All members of the family had commenced eating their food by the time that Rosina commenced eating hers.  Whilst eating, after several spoonfuls, Rosina felt something rubbery, like plastic in her mouth.  She pulled it out, her father brought a candle over and announced that it was a condom.  It was a condom, intact, that was in the tinned fish.   They all stopped eating. The three youngest members of the family, Rosina, Barry and Max, were sent to bed but woke up around midnight, vomiting.  All members of the family except for John Mombi vomited as a result of consuming the food containing the condom.  John Mombi felt sick but took betelnut to prevent himself from vomiting. At around 2 am the whole family went to Modilon General Hospital to get medical treatment.  They walked there. Rosina, Barry and Max were carried by other family members. On arrival, Rosina, Barry and Max were placed on IV drips and medicated. They were discharged at about 630 am.  

120.	We do not entirely agree with the learned trial judge that the evidence of the appellants at the lower court in this case was only as to the manufacturing process in place at the time of the trial and not in 2005 and 2006.  Whilst most of the evidence was concerned with present systems the witnesses said that the manufacturing process was the same in terms of chopping (at several different stages), canning and retorting but conceded that the plant had expanded and quality control procedures had improved in the years since. Mr Wangak, the appellant’s Senior Factory Supervisor, and Ms Fernandez, the Quality Assurance Manager, both gave evidence that it was possible for the machines to malfunction and stop and furthermore, that the machines and the conveyor belts would stop when there were power outages, and that power outages occurred on an almost daily basis.  

121.	Before making his findings of fact the learned trial judge set out the evidence of both parties and made it clear that the task of fact finding had not been straightforward having regard to the deficiencies in the evidence of both parties, which he set out in some detail.  He correctly reminded himself that the burden of proof lay with the respondents to the requisite standard.  

122.	The learned trial judge considered both the demeanour of the respondents and the manner in which they gave evidence.  He considered the possibility that they had conspired to make a false claim before accepting the evidence of eight witnesses, including six adults and two children (aged 11 and 12 at the time of giving evidence).  He was impressed by all of them. The trial judge considered the lack of detail in the respondents’ evidence and the lack of independent corroboration, including in particular, the lack of consistency as to the date of the alleged incident, the absence of a receipt confirming the purchase of the can, and the absence of detail as to the can’s production batch or date.  He also observed that there was no medical evidence from anyone who had treated Rosina, Barry or Max Mombi at the Modilon General Hospital.  

123.	We are troubled by a number of factors.  The evidence was not only limited but there were numerous inconsistencies.  We understand that it might be difficult for someone to recall the date of an event some years later and that might explain the difference between witnesses as to a date, and between a witness and their records in some cases.  But in this case the statement of claim pleaded 27 May 2006, while Agnes Mombi said 28 May 2006 and the other respondents said 28 March 2006. The report of Mr Uloulo, the pathologist at the Modilon General Hospital dated 5 June 2006 refers to the laboratory receiving an empty tin on 31 May 2006.  The medical notes which purport to relate to treatment given to Rosina, Barry and Max have different dates, 31 May 2005, 28 March 2006, 31 May 2006, and 1 June 2006.  The respondents did not clarify this in evidence and no one from the hospital was called to explain.  

124.	It is one thing for a witness to be unsure or confused about dates but it is very difficult to understand how the very documents they rely on to establish their claim that they were treated for injury at the hospital can contradict one another to such an extent.  

125.	Again, however, the trial judge specifically addressed the discrepancies and found that they did not dissuade him from the accepting the respondents’ evidence. Accordingly, we find no error in that regard.

126.	Nevertheless, the learned trial judge did not set out why he found it more probable than not that the condom was in the tinned fish. Again, we repeat our comments at [97] to [101]. 

127.	Given the more detailed evidence of the appellant in this case, the systems and processes in place during manufacturing were relevant factors to be taken into account in all of the circumstances when determining whether or not the respondents had established to the requisite standard that the condom was in the can of tinned fish.  That is not to say that the evidence precluded the application of res ipsa loquitor in the event that he found that the condom was in the tinned fish, but that is a separate matter.  
 
128.	The evidence shows it was already dark. It appears that the food was cooked over a fire in the haus kuk adjoining the house.  There would have been some light from the fire but otherwise it was dark. The family had one candle amongst them and that was with John Mombi who was some eight metres away from where the meal was being prepared. There was limited evidence as to the preparation of the meal, other than that Rosina cooked the rice and the greens, and added the tuna to the pot of greens. It is not known how long the tuna was left to boil with the greens.  Regina gave evidence that she was both three metres away when Rosina was cooking, and that she too cooked the greens with Rosina, which was not explained nor was it consistent with any other evidence. She also said that the greens were cooked with coconut milk but there was no other evidence about this. 

129.	In view of the deficiencies in the evidence we are unable to substitute the trial judge’s findings with our own.  

130.	Accordingly, we uphold the appeal and make the following orders.

Orders

1 The appeal is upheld. 
2 The orders of the National Court of 15 February 2017 are quashed. 
3 The respondents shall pay the appellant’s costs of and incidental to the appeal on a party-party basis, which shall, if not agreed, be taxed.

______________________________________________________________
Ashurst: Lawyers for the Appellant
Thomas More Ilaisa Lawyers: Lawyers for the Respondents