Court name
Court of Appeal
Case number
368 of 2005

Gyansah Vrs Accra Brewery and Another (368 of 2005) [2006] GHACA 6 (10 March 2006);

Law report citations
Media neutral citation
[2006] GHACA 6
Coram
Akoto-Bamfo, JA
Asare-Korang, JA
Kanyoke, JA

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL -  ACCRA, GHANA

 

CORAM  -  AKOTO-BAMFO, JA [MRS.]

                    ASARE KORANG, JA

                    KANYOKE, JA

 

H1/368/05

FRIDAY 10TH MARCH, 2006

 

 

NANA TABIRI GYANSAH III             …     PLAINTIFF/APPELLANT

 

           V E R S U S

 

ACCRA BREWERY [PER

MANAGING DIRECTOR], ACCRA   …    DEFENDANT/RESPONDENT

                        ---------------------------------------------------------------

                                           J  U  D  G  M  E  N  T

                         --------------------------------------------------------------

 

KANYOKE, JA  -  On the 24th day of April 2003 the plaintiff/appellant (hereinafter called the plaintiff), a farmer and a paramount chief of Mpasaso Traditional Area in the Ashanti Region bought two bottles of castle milk stout from an outlet or retailer/distributor called Asonaba Spot at Suame, Kumasi and whilst drinking it he discovered that the taste of the milk stout was different from what he had drank previously for the past three or four months.  

         According to his pleading he nevertheless continued to consume the drink and after he had consumed half of the contents of the bottle, he felt dizzy and weak and fell down unconscious.  Water was poured on him to revive him to no avail.  When he gained consciousness he found himself at the Komfo Anokye Teaching Hospital, Kumasi where he was admitted for treatment which lasted for two weeks.  According to the plaintiff, at the hospital, some samples of his stool and blood were taken and sent to the laboratory for investigations and examination.  The laboratory report was tendered during the trial as exhibit ‘B.”  The plaintiff alleged in his statement of claim that when he was discharged from the hospital and got home he realized that the castle milk stout bottle from which he drank the milt stout contained some metal.  The plaintiff alleged further that as a result of the consumption of the castle milk stout he had been scratching himself and had suddenly become shortsighted and also felt pains in his veins.  He also had difficulty dealing with cases at his palace.  During the trial the plaintiff stated that at a point in time the defendant agreed to pay him compensation of Four Hundred Million Cedis (¢400,000,000.00) but that promise was never fulfilled by the defendant  This was however not pleaded by the plaintiff but the defendant did not object to that evidence.

          It is against the background of this scenario that the plaintiff on the 26th day of November 2003 took out a writ of summons claiming against the defendant the following reliefs:

         “(1)  Both Special and General damages proximately arising from the plaintiffs’

                 consumption of the defendants’ manufactured product to wit, Castle Milk

                 Stout on 25th day of April 2003(?) and which said consumption has caused

                 permanent and temporary health injuries to the plaintiff.

  1. The plaintiff shall rely on the doctrine of res ipsa Loquitur in proving the

negligence and liability of the defendant, and

  1. And for any order or such further order(s) or relief(s) which this Honourable

Court may seem fit in terms of Order 63 r.6 of the Rules of Court.”

        The defendant vehemently resisted the action and filed a statement of defence.  On the conclusion of pleadings, the following issues were set down and agreed upon in the summons for directions for trial and determination: 

         “(a)  Whether or not the defendant has a high scientific computerized technology

                  in its production processes which is full-proof from adulteration or

                  contamination.

  1. Whether or not on the 24th day of April 2003 the plaintiff purchased and

consumed a bottle of castle milk stout manufactured by the defendant.

  1. Whether or not the defendant is liable to the plaintiff on account of

manufacturer’s liability.

  1. Whether or not the doctrine of resipsa loquitur shall apply in this case.
  2. Whether or not the plaintiff is entitled to the reliefs being sought by him.
  3. And any other issue or issues raised on the pleadings.”

       In prosecuting his claims the plaintiff called evidence by himself and two witnesses.  The defendant also called three witnesses.  The defendants admitted both in their pleading and evidence that they are the manufacturers of the alcoholic beverage labeled castle milk stout and that what was sold to the plaintiff was in fact and in truth  their product but denied that the contents of exhibit ‘A’ i.e. the bottle of castle milk stout from which the plaintiff allegedly took the drink contained any foreign substance or material in the form of a metal or crown corks when it passed through its production process or at the time the plaintiff purchased the castle milk stout or at the time the plaintiff drank the liquid contents of the bottle.  The defendants further contended that they had a full proof scientific and computerized technology system in the manufacture of their products including the Castle Milk Stout so they were not liable to the plaintiff for his claims.                                                                                                                                                                                                                                                                                                                                                    

         On the conclusion of the trial, the learned trial judge delivered his judgment on the 10th day of June 2005 dismissing the plaintiff’s action for the reasons that

  1. the negligence of the defendant company had not been proved or established,
  2. the plaintiff had failed to strictly prove his claim for special damages because

he had not tendered any receipts to support his claim for the special damages and

  1. that the maxim resipsa loquitur was not applicable to the facts of this case since

the plaintiff was unable to lead evidence to show that the consumption of the

castle milk stout resulted in any injuries to him.

           It is against this judgment that the plaintiff has appealed to this court to reverse the judgment of the learned trial judge and enter judgment for him on the following six grounds of appeal:

           “1.  The trial judge failed to consider the crucial fact that despite the respondent’s

                  alleged highly scientific computerized technology in its production processes

                  which is full-proof from adulteration or contamination the crown corks in

                   said castle milk stout bottle could not have been washed off and or out of the

                   said bottle even if the bottle was washed with caustic soda at temperatures

                   of 80o-82o.   

2.  The trial judge erred when he wondered why the appellant did not leave             Exhibit A (i.e. castle milk stout bottle) with the Police when he (appellant) reported the matter to the Police disregarding the corroborated evidence of the              appellant that the Police even advised the parties to amicably settle the                       matter out of court.

  1. The trial judge erred when he held that the appellant had consistently and

incontrovertibly maintained the fact that he did not bother to procure receipts

for drugs he (appellant) purchased based on the compendia initial representation

by the respondent’s employees that they (respondents) wanted to settle the matter with the appellant amicably and out of court.

  1. The trial judge erred when he simply held that the fact that D.W.1 (i.e. the

operator of Asonaba Spot) testified that he did not see the crown corks in the bottle at the very time he (D.W.1) sold same to the appellant did not mean that the crown corks could not be in the bottle.

  1. The trial judge erred when he held that the appellant did not produce any evidence

to establish any injuries he (appellant) might have sustained upon consumption of the said castle milk stout particularly as he (appellant) did not call the alleged medical officer who treated him (appellant) at the Komfo Anokye Teaching Hospital, when on the pleadings the respondent did not challenge the particular injuries sustained by the appellant when he consumed the said Castle Milk Stout.

  1. The trial judge inadvertently failed to consider and or advent his mind to the crucial evidence proffered by DW II that the respondent’s highly computerized scientific technology for processing castle milk stout could sometimes fail and that was why the respondent had to engage some system to complement omissions by the respondent’s production manufacturing computer processing.”

Before I proceed to deal with the merits of these grounds of appeal I wish to make a comment on a procedural matter for purposes of interest only.  I would have thought that the maxim of res ipsa loquitur is a plea or weapon in the hands of a plaintiff and not a relief or remedy and as such its proper place is in the statement of claim if it is to be pleaded at all and not in an indorsement on a writ of summons.  Thus by order 3 r 1 of the now revoked High Court(Civil Procedure) Rules, 1954 (L.N. 140A) and new order 32r 3(1) of the new High Court (Civil Procedure) Rules, 2000(L.1.47) when an action is commenced by a writ of summons a statement of the nature of the claim and the relief(s) or remedy (or remedies) sought must be endorsed on the writ.  The maxim of res ipsa loquitur is neither the nature of the claim nor a relief/remedy and therefore it has no place in the indorsement on the writ.  It is a plea and its proper place is therefore in the statement of claim.

     With this comment, I plunge into dealing with the grounds of appeal.  In prosecuting this appeal learned counsel for the plaintiff argued grounds (1) and (6) of the grounds of appeal together.  He contended that in view of the evidence of DW2 (the defendant’s quality Control Manager) that even if the caustic soda which they use to wash their bottles was heated at 5000 the crown corks if they were already in the castle milk bottle (exhibit A) could not have been washed out of that bottle the trial judge erred when he doubted how the objects were found to be in exhibit A (the castle milk stout bottle).  The short response of learned counsel for the defendant is that the trial was not about the washing off or removing the crown corks from the bottle but it was about essentially how the crown corks got into the bottle, exhibit A.

I think learned counsel for the plaintiff is complaining in grounds (1)and (6) of the grounds of appeal about the portion of the trial judge’s judgment where he delivered himself as follows at pages 65-67 of the record of proceedings (page 6 of the judgment:

      “In answer to the question whether the defendant company has a highly scientific

computerised technology in its production processes which is full-proof from adulteration or contamination, D.W. 1 and D.W. 2 stated that it was not possible for the crown corks contained in Exhibit A to be found in the castle milk stout bottle or in any of their products after it had passed through its production line.  DW1 and DW2 told the court that the defendant company uses safe production procedures run by computerized technology which ensure that the empty bottles are thoroughly washed with water and turned upside down several times at high temperature before they are passed on to be filled with the drink and corked mechanically.  DW3 gave evidence to show that the empty bottles are soaked in the washing machine with caustic soda of high temperatures of 800-820 and thereafter turned upside down and that in the unlikely event of any matter which the crown corks getting into the bottle during production the effect of the caustic soda at the temperatures of 800 -820 would result in the drink in the bottle falling short of the normal measure, thus prompting the sighters who are human beings specially trained and posted along the production lines, will defect the half filled broken bottles and take them out of the production.  

          So the question that comes to mind is, where did the crown corks contained in exhibit A come from?.  The defendant company has contended that the crown corks contained in exhibit A were put into the bottle after the plaintiff had drank the castle milk stout and that the children of plaintiff’s household might have put the crown corks in the bottle in the course of having fun.  The evidence of D.W. 1 did not advance the case of the plaintiff.  He explained that at the time he sold the drink to the plaintiff it did not contain crown corks, that it was possible that the crown corks were put into the bottle at the house of the plaintiff and that when Exhibit A was shown to him he did not observe the bottle contained any drink, if the bottle did not contain any drink then it means Exhibit A is not the bottle from which the plaintiff consumed the castle milk stout and that it was possible that the plaintiff did not become sick after consuming the castle milk stout.  Since the case started I have been wondering why the plaintiff did not leave Exhibit A with the Police when he lodged the report at the Police Station because the Police would have given an independent evidence in respect of the contents of Exhibit A at the time the report was made.  The evidence on record shows that the presence of the crown corks in Exhibit A could be explained in other ways other than the negligence of the defendant company.  As far as this trial is concerned the negligence of the defendant company has not been proved or established…….” [My emphasis].

          Though learned counsel for the plaintiff did not say so expressly in his statement of case filed on the 7th day of October 2005 and did not also cite in support of his submission the celebrated case of Donoghue Vrs. Stevenson [1963] A.C. 562, H.L. he seemed  to be contending on grounds (1) and (6) of the grounds of appeal that even if the defendant company had proved or established that they had a full-proof scientific and computerised technology system in the production of their castle milk stout, they were still responsible for negligence and therefore the trial judge should have so held.  I think that submission has to some extent support in the case of Overseas Breweries Ltd. Vrs. Acheampong [1973] 1 G.L.R. 421, C.A.   In that case the respondent, a legal practitioner in Kumasi bought from a retailer in Kumasi a carton of beer manufactured by the appellants in their factory in Accra.  Two days after the purchase the respondent opened one of the bottles and consumed half of the contents after he had poured it out into his usual drinking mug.  The respondent smelt not only kerosene from the contents but tasted kerosene in his mouth and throat after drinking the beer.  As a result he suffered a burning sensation in his mouth, he coughed, vomited and had stomach upset, frequent tools and a sleepless night.  He was given medical attention and fully recovered in two days.  He reported his experience to the appellants and before then he had sent the bottle concerned with part of the contaminated beer in it to the Pharmacy Department of the University of Science and Technology Kumasi for analysis.  The analysis showed that even though the bottle and its contents smelt of kerosene the quantity in it was not enough to permit isolation of it by distillation.  There after the appellants also collected the bottle and its contents for analysis.

          Later the appellants informed the respondent that although the beer contained some kerosene the quantity was not sufficient enough to cause injury to the respondent.  About a year later the respondent sued the appellants claiming general damages for negligence.

Among the witnesses called by the respondent was the doctor who attended the respondent within a few hours of drinking the contaminated beer.  The appellants also led evidence through a pathologist to expatiate on the ramifications of kerosene poisoning and its concomitant effects on the human being.  On the invitation of the appellants, the trial judge also visited the factory of the appellants where the beer was manufactured and saw the whole process and the machinery involved.

            In delivering his judgment, sub nom Acheampong Vrs. Overseas Breweries Ltd. [1971] 1 G.L.R. 7, the learned trial judge stated at p. 11 that he had no doubt that the appellants mechanized system was reasonably thorough and carefully devised.  In his words:  

           “The mechanical part of the system, however, seems to me, as was described to me and as I saw it a rather efficient system and the standard of supervision also seemed to me rather high.  The bottles assumed various positions at various stages of the process, including the vectical position and in my view there is something to be said for the defendant’s version that it would be impossible for a bottle to go through those mechanized stages and still retain any appreciable amount of foreign matter. However it is not clear to me whether the defendants’ process is full-proof enough to clear all traces of kerosene from a contaminated bottle which had been let through by a careless worker.”

        The learned trial judge refused to follow the case of Daniels Vrs. White (R) & Sons Ltd. [1938] 1 All E.R. 258 and rather applied the principle laid down in the case of Donoghue Vrs. Stevenson (supra) and held that the appellants as manufacturers of the beer owed a duty of care to the respondent to ensure that the beer sold to him was not contaminated with kerosene.  On appeal to the Court of appeal, the Court, held dismissing the appeal as appears in the head note at p. 422 that:

           “(1)  a manufacturer of products which he sold in such a form as to show that he

                    intended 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 production of the

                    products would result in an injury to the consumer’s life owed a duty to the

                    consumer to take reasonable care.  The duty of care was not fulfilled by a

                    manufacturer who succeeded in demonstrating that he had a full-proof

                    system of manufacture.

              (2)  The respondent having established that kerosene was in the bottled beer had

                     discharged the burden of proving negligence on the part of the appellants.

                     The appellants could not rely on their fool-proof system alone to escape

                      responsibility because there was no evidence before the Court below as to

                      how the kerosene got or might have got into the bottled beer. It was

                      not the duty of the respondent to prove how it got into the beer.  It was

                      rather the responsibility of the appellants to explain that the kerosene might

                      have go into the beer without any negligence on their part.  This they failed

                      to do and negligence could be found as a matter of inference.”

          The court referred to and applied the cases of Donoghue Vrs. Stevenson (supra);

Grant Vrs. Australian Knitting Mills Ltd. [1936] A.C. 85; Mason Vrs. Williams and Williams Ltd; and Thomas Turkson & Sons Ltd. [1955] 211 All ER 808 Chapromiere Mason [1903] 21 T. 633, C.A; Mayne Vrs. Silvermore Cleaners Ltd. [1939] 1 All E.R. and Luckhort Vrs. Barr [1941] S.C. 578.  The Court of appeal however refused to follow the decisions in Evans Vrs. Triplex Safety Glass Co. Ltd. [1936] 1 All E.R. 283, Daniels Vrs. White (R) & Sons Ltd. [1938] 4 All E.R. 258 and Mullen Vrs. Barr and MacGowan Vrs. Barr & Co., 1929 S.C. 461. 

          It is not proposed to deal in detail with all the other cases mentioned above which the Court of appeal applied in the Overseas Breweries Ltd. Vrs. Acheampong (supra), suffice it to state that all these cases merely adopted and applied the principle laid down in the Donoghue Vrs. Stevenson case (supra) to find the manufacturers of the products in each of those cases liable for negligence.  Nevertheless there is a passage in the judgment of Lord McMillan in the Donoghue Vrs. Stevenson case (supra) concerning the nature of the onus of proof on the plaintiff in such cases which has caused a stir.  Thus at p. 622 Lord McMillan stated as follows:

        “The burden of proof must always be upon the injured party to establish that the

          defect which caused the injury was present in the article when it left the hands

          of the party whom he sues, that the defect was occasioned by the carelessness

          of that party, and that the circumstances are such as to cast upon the defendant

          a duty to take care not to injure the pursuer.  There is no presumption of

          negligence in such a case as the present, nor is there any justification for applying

          the maxim res ipsa loquitur.  Negligence must be both averred and proved.”

          In the same year in the case of Grant Vrs. Australian Knitting Mills Ltd. (supra) of which Lord McMillan was a member of the court (P.C.) Lord McMillan’s dictum in the Donoghue Vrs. Stevenson (supra) above quoted seems to have been disregarded and treated as obiter.  In that case in which the plaintiff sued the manufacturers of a woolen underwear which contained excess sulphites and caused the plaintiff to contract dermatitis Lord Wright delivering the judgment of the Court stated at p. 101 as follows:-

           “According to the evidence the method of manufacture was correct, the danger of

             excess sulphites being left was recognized and was guarded against:  the

            process was intended to be fool-proof.  If excess sulphites were left in the

            garment, that could only be because someone was at fault.  The appellant

            is not required to lay his finger on the exact person in all the chain who was

            responsible, or to specify what he did wrong.  Negligence is found as a matter

            of inference from the existence of the defects taken in connection with all the

            known circumstances: even if the manufacturers could by apt evidence have

            rebutted that inference they have not done so.”

       Despite this pronouncement of Lord Wright, it could be seen from his dictum that the negligence of a manufacturer is a matter of inference from the evidence laid before the court so that where the evidence shows that the defect in the manufactured product or article could be attributable to other causes other than the negligence of the manufacturer, then negligence cannot be inferred against him.  In fact in the Overseas Breweries Ltd. Vrs. Acheampong case, (supra), Archer J.A. (as he then was) recognized and accepted this limitation of the principle laid down in the Donoghue Vrs. Stevenson case (supra).  Thus at pages 429-430 Archer J.A. stated as follows:-

            “One principle of law can be discovered without difficulty from all the other

cases:  Chaproniere Vrs. Mason (supra), Grant’s case (supra), Lockhart Vrs. Barr (supra), Mason Vrs. Williams (supra) to cite a few namely, the duty of   care exacted by the doctrine in Donoghue Vrs. Stevenson (supra) is not fulfilled by manufacturer who succeeds in demonstrating that he has a fool-proof system of manufacture. 

Notwithstanding his fool-proof system, negligence will be inferred against him unless there is evidence that the defect in the manufactured article was probably due to causes for which he cannot be held responsible.”  (My emphasis).

          In my view the principle laid down in the Donoghue Vrs. Stevenson (supra) is not therefore sacrosanct for if there is evidence in any given case that the defect in the manufactured product or article was due to causes for which the manufacturer cannot be held responsible then there can be no inference of negligence and the Donoghue Vrs. Stevenson (supra) principle will not apply in such a case.  For instance in Evans Vrs. Triplex  Safety Glass Co. Ltd. (supra) the principle in the Donoghue Vrs. Stevenson case was not followed.  In that case the plaintiff claimed damages from the manufacturers of a car windscreen  which had for no apparent reason broken into fragments after one year’s use and had injured the occupants of the car.  The High Court in England presided over by Porter J. held that the manufacturers were not liable because among other reasons, the car had been in use for over a year and the breaking of the windscreen might have been caused by something other than a defect in manufacture and therefore that the plaintiff had failed to prove negligence against the defendants and that negligence could not be inferred in these circumstances.

           There is also the subsequent case of Daniels Vrs. White ( R) & Sons Ltd. (supra) in which the principle in Donoghue Vrs. Stevenson (supra) was not followed.

In that case Mr. Daniels and his wife sued the defendants – manufacturers and retailers of a bottle of lemonade for damages sustained by them as a result of a bottle of lemonade which they bought and drank.  The bottle of lemonade contained carbolic acid.  Lewis J. found as a fact that the manufacturer by adopting a fool-proof process and by carrying out that process under proper supervision had taken reasonable care to ensure that there was in the lemonade no defect which would injure the plaintiff.

          In his judgment he stated at p. 262 as follows:

          “That method has been described as fool-proof and it seems to me a little difficult to say that if people supply a fool-proof method of cleaning, washing and filling the bottles they have not taken all reasonable care to prevent defects in their commodity.  The only way in which it might be said that the fool-proof machine was not sufficient was if it could be shown that the people who were working it were so incompetent that they did not give the fool-proof machine a chance.”   

           There does not however appear to be agreement amongst jurists and text book writers on whether the statement of Peter J. in the Daniels case (supra) is still good law or not.  For instance Lord Halsbury in his book Halsbury’s Laws of England (3rd ed.) Vol. 28 in his discussion on “NEGLIGENCE” particularly in relation to a manufacturer, does not mention the Daniels case at all; Professor Street in his book The Law of Torts (4th ed.) at p. 175 thinks that the Daniels case (supra) can be reconciled with Grants case but in a footnote he has qualified his said opinion by saying that “…..there is room for difference of opinion whether the judge was too easily satisfied that the evidence of the defendants answered the inference of negligence made in respect of the manufacture of the mineral water in this case.”  Salmond in his book Salmond on the Law of Torts (15th ed.) at p. 400 thinks that the Daniels case is contrary to the Grant’s case and to Chaproniere Vrs. Mason (supra).

            In the local case of Overseas Breweries Ltd. Vrs. Acheampong (supra) Archer J.A. (as he then was) said the trial judge at the court below was at liberty to decline to follow the Daniel’s case.  But the learned Justice of Appeal refused or declined to be drugged into pronouncing on whether the Daniel’s case is still good law or not.  In his words at page 429: 

“It is also not open to this court to say that the Daniel’s decision should be buried     so securely that its purturbed spirit shall no longer vex the law.”

        Perhaps the Evans case (supra) and the Daniel’s case (supra) have not found judicial prominence in the firmament of judicial precedents because they are decisions of the High Court.  However, in my opinion what has emerged from my review of all those judicial decisions in relation to a manufacturer’s duty to the ultimate consumer of his product or articles is that the manufacturer cannot rely solely on a defence that he has a fool-proof system of manufacturing his products or articles and therefore he cannot be held liable for negligence for defects detected in any of his products or articles. 

But where there is evidence to show that the defect in the product or article can be attributed to causes or other causes for which the manufacturer of the product cannot be held liable or for which negligence cannot be inferred against him, then the plaintiff cannot merely rely on the principle ennunciated in Donoghue Vrs. Steveson to prove his claim.

            In the present case I agree with the learned trial judge that the evidence laid before him and in the record of proceedings before us in this court show that the presence of the crown corks in the castle milk stout bottle could have been due to other causes for which the defendants could not be held liable.  The plaintiff was very inconsistent and conflicting in his pleadings and evidence for instance as to whether or not when he bought the bottle of castle milk stout and started drinking it he saw anything unusual or foreign or strange in that bottle.  He pleaded in paragraph 10 of his statement of claim that:

         “10.  The plaintiff says that when he was discharged from the hospital, he

                  observed that the bottle from which he consumed the said milk contained

                  a strange metal object in the bottle of the said stout.”

         Thus from this pleading the plaintiff did not see the alleged strange metal object in the castle milk stout bottle on the day he bought and drank the milk stout.  Again whilst the plaintiff pleaded in paragraphs 6 and 7 of his statement of claim that he had drank half of the milk stout in the bottle when he became unconscious  and was rushed to the hospital where he was admitted for about two weeks in cross-examination he denied that he was admitted in the hospital.  Thus at p. 31 of the record of proceedings the plaintiff gave evidence in cross-examination as follows:

        “Q.  You see Nana, you want this court to believe that when even you fell

                unconscious as a result of the consumption of this product that day you were

                not sent to the hospital?

  1. That is so my Lord, I was taken to the hospital the following day.
  1. When you were sent to the hospital you were admitted, is that correct?

A.  My Lord I was not admitted.

          Q.  So Nana, if you informed your lawyer for your lawyer to put in writing before

                this court in your claim that the plaintiff says he became unconscious and was

                rushed to Komfo Anokye Teaching Hospital, Kumasi, where he was admitted

                for about two weeks that is not correct.

           A.  My Lord, that is not correct I was not admitted for two weeks.”

         Again whilst in his pleading the plaintiff said he had consumed only half of the contents of the castle milk stout bottle under cross-examination he said as follows at the same page 31 of the record of proceedings:

          “Q.  Now, Nana did you drink all the contents?

  1. My Lord, I drank all.
  1. Nana, you said you drank all the contents outright on the day in question,

is that what you are telling this court?

           A.  My Lord, I drank all the contents in the bottle.”

          So even though the plaintiff said when he started to consume the milk stout he realized that the taste was different from what he drank for about three or four months previously, he nevertheless consumed all the castle milk stout in the bottle.

          It is significant to note that throughout his evidence the plaintiff did not say that he observed anything strange or foreign or unusual in the castle milk stout bottle right from the time he bought it, up to the time he started consuming it and even when he finished consuming all the contents of that bottle.

          Again quite significantly the plaintiff’s first witness (PW1) Baffour Arhin the operator of the Asonaba Spot from whom and where the plaintiff bought the castle milk stout was emphatic in cross-examination that when he served the plaintiff with the castle milk stout, he did not see anything unusual in the bottle (Exhibit A).

At page 35 of the record of proceedings. PW1 gave these answers in cross-examination:

         “Q. Baffour Arhin when you sold the two (2) bottles of castle milk stout, to the

                 plaintiff did you see anything unusual with the bottle.

          A. No.

          Q.  When you served the drinks to the bearer later he came back.  Did you observe

                  the bottle (Exhibit A) contain drink.

          A.  There was no drink inside.”

         Clearly this last answer by P.W.1 even puts in doubt whether (Exhibit A) was even the bottle from which the plaintiff drank the castle milk stout.  This answer from PW1 coupled with the evidence of the plaintiff himself that he had completely consumed all the contents of the castle milk stout sold to him by PW1 provides clear evidence that, that bottle from which the plaintiff drank the castle milk stout was returned empty to PW1.

          Now the case of the defendant company at the court below was not only that they had a fool-proof scientific and computerised technology system of manufacturing their product i.e. castle milk stout but also that (1) Exhibit A was not the castle milk stout bottle from which the plaintiff took the drink and (2) even if Exhibit A was that bottle either the plaintiff himself or someone else might have put the crown corks into that empty bottle after the plaintiff had consumed all the castle milk stout in that bottle.  When D.W.1 – Mr. Michael Effah was asked in his evidence in chief what could account for the presence of the crown corks in Exhibit A he said:  

“My Lord I would immediately say that someone outside the brewery could have put this in the bottle.”     

And as to what happened to the bottle after the plaintiff had drank all the contents of Exhibit A after which he allegedly fell down unconscious, the plaintiff answered in cross-examination as follows at page 31 of the record of proceedings:

“Q.  Nana you see when you were taken to the hospital following your             unconsciousness where was Exhibit A. Could you tell the court in all fairness?

  1. My Lord, the bottle was on my table.”

       Thus from the evidence on the record of proceedings these facts stand out undisputed.

       (1)  That on the 24th day of April 2003 the plaintiff purchased two bottles of castle

              milk stout from a drinking spot at Suame, Kumasi called Asonaba Spot operated

              by one Mr. Baffour Arhin (PW1).

      (2)   The plaintiff started consuming the castle milk stout presumably from one of the

              two bottles and realized that the castle milk stout tasted different from the castle

              milk stout he drank about three or four months previously.  Nevertheless the

              plaintiff continued to consume the drink until he had completely consumed the

              entire castle milk stout in the bottle..

       (3)  When PW1 sold the castle milk stout to the plaintiff he did not observe or see

              any foreign or strange substance or material in the castle milk stout bottle.

       (4)  Even though the plaintiff completely consumed the contents of the bottle he did 

              not observe or see any foreign or strange substance or material in the bottle right

              from the moment he started consuming the contents of the castle milk stout to  

               the time he completely consumed all the contents of the castle milk stout in the

              bottle.

        (5)  An empty castle milk stout bottle was returned to PW1 but PW1 did not see any

              foreign or strange substance or material in that bottle.

        (6)  When the plaintiff allegedly fell down unconscious after consuming all the  

               contents of the castle milk stout in the bottle and fell down unconscious and

               was taken to the hospital the empty castle milk stout bottle was left on the table

               of the plaintiff.

        (7)  The empty castle milk stout bottle from which the plaintiff had drank the milk

               stout had then been opened or decorked and left on the table of the plaintiff.

         In the light of all these facts is it fair to conclude that the castle milk stout the plaintiff bought and consumed on that day contained these crown corks from the defendant’s factory in Accra up to the time the plaintiff bought and consumed same.  From these facts can it not be reasonably inferred that either the plaintiff himself or someone else put those crown corks into that empty bottle left on the table of the plaintiff perhaps to let it appear that the plaintiff’s purported ill health resulted from his consumption of the castle milk stout and also for purposes of perhaps to enable the plaintiff make money by way of compensation from the defendant.  And quite strangely and unlike what the respondent did in Overseas Breweries Ltd. Vrs. Acheampong, (supra) the plaintiff in the instant case did not send the castle milk stout bottle to any place for investigation and analysis. He did not even send it to the defendants for such investigations.  And worse still the plaintiff did not even call the medical officer who allegedly treated him of his ill health to testify during the trial on whether or not the ill health or injuries of the plaintiff had any nexus with his consumption of the castle milk stout on that day.

         All that I am trying to say and demonstrate is that on the totality of the evidence laid before the learned trial judge and as available on the record of proceedings before this court, the defendant have been able to establish that aside their fool-proof scientific and computensed system of producing or manufacturing their castle milk stout the facts or circumstances of this present case show that the presence of the crown corks in Exhibit A, (assuming that it was the bottle from which the plaintiff consumed the castle milk

stout on 24/04.2003) could or might reasonably and probably be due to causes for which the defendant could not be held responsible.  I therefore agree with the learned trial judge that there could not therefore be an inference of negligence on the part of the defendant on the facts and circumstances of this case.  I accordingly affirm that finding of the trial judge and dismiss the appeal on grounds (1), (2), (4) and (6) of the grounds of appeal:  See Evans Vrs. Triplex Safety Glass Co. Ltd. (supra) at pages 429-430, C.A.

        The plaintiff is also aggrieved by the finding and holding of the learned trial judge that he (the plaintiff) failed to prove special damages and learned counsel for the plaintiff contends that that finding is contrary to the evidence on the record to the effect that the defendant had promised they wanted the matter to be settled out of court.

That submission lacks any ment whatsoever.  In the first place there is no positive evidence in the record of proceedings to show that the relevant authorities of the defendant company had made any promise of paying the plaintiff any compensation for the injuries he allegedly  suffered as a result of his consumption of the castle milk stout.  There is evidence from DW1 and DW3 that when the plaintiff demanded compensation they told him that they would send his request to the authorities in Accra.  The plaintiff’s own witness (PW1) corroborated DW1 and DW3 on that testimony.  In any case even if the defendant had promised to compensate the plaintiff in the sum of ¢400 million, by his writ of summons the plaintiff was claiming general and special damages of ¢800 million.  He alleged that he spent ¢30,000,000.00 on medication.  It is the law that special damages must not only be pleaded and particularized in the pleadings, they must also be strictly proved.  See Ilkiw Vrs. Samuels [1963] 2 All ER 879, Jima Lagos Vrs. A. Lang Ltd., Court of Appeal, 27 July 1973, unreported; and Asantekramo alias Kumah Vrs. Attorney-General [1975] 1 G.L.R. 319 and Kubi & Others Vrs. Dali [1984-86] 2 G.L.R. 501, C.A.   In the latter case which was a running down action and a claim was made by the plaintiff for special damages the Court of appeal stated that in a claim for special damages there is a necessity to prove strictly such damages.  The Court held as appears in the headnote at page 502 that:

         “Special damages in the sense of a monetary loss which the plaintiff has sustained up to the date of the trial must be pleaded and particularized and then proved by admissible evidence, otherwise it could not be recovered.”

          In the instant case the plaintiff was claiming the colossal sum of Thirty Million Cedis (¢30,000,000.00) as monetary loss and which he alleged he spent on medication.

He could only prove this positively by producing receipts of such alleged expenditure.  The plaintiff was not by his writ claiming the sum of ¢400 million as agreed compensation.  Therefore even if the defendants had promised to pay him such compensation, that was not what he was claiming by his writ.  That promise, if any could not therefore relieve the plaintiff of his legal duty to prove the special damages i.e. the monetary loss strictly.  I find no merit in ground (3) of the grounds of appeal.  The appeal is dismissed on that ground too.

          Finally learned counsel for the plaintiff in pursuance to ground (5) of the grounds of appeal submitted that in their pleading the defendant did not challenge the particular injuries pleaded by the plaintiff so the learned trial judge erred when he held that the plaintiff did not produce any evidence to establish any injuries he allegedly sustained.  In the first place it is factually incorrect that in their pleading the defendant did not challenge the injuries pleaded by the plaintiff.  The plaintiff pleaded his injuries in paragraphs 12 and 13 of his statement of claim thus:

“12.  The plaintiff says that he suffered both permanent and temporary health injuries.

 13.  The plaintiff says that he had since been seeing blood in his ‘stool’ and will seek

        leave of the court to tender all laboratory reports which were prepared as a result of

        taking the stout.”

      In their statement of defence the defendant pleaded in paragraph 6 of same as follows:

“6.  The defendant denies paragraphs 11, 12, 13, 14, 15, 16 and 17 of the Statement of

       Claim.”

       By this denial by the defendant the plaintiff was required by law as his duty to prove his alleged permanent and temporary health injuries strictly.  He could only do this effectively by calling the medical officer who treated him at the hospital and by tendering prescriptions and or receipts to prove that he did spend such amount of money on medication.  It was only the medical officer who could tell the court whether or not the plaintiff’s permanent and temporary health injuries were as a result of the consumption of the castle milk stout.  It is even to be noted that the plaintiff did not even particularize his permanent and temporary health injuries in his Statement of Claim or in his Reply.  The learned trial judge was therefore perfectly right when he stated at page 8 of his judgment

(page 68) of the record of proceedings that:

“The plaintiff was unable to lead evidence to show that the consumption of castle milk stout resulted in any injuries to him.”

        This finding by the learned trial judge cannot be faulted because the plaintiff did not lead evidence to establish a nexus between his permanent and temporary health injuries and his consumption of the defendant’s manufactured castle milk stout.

The law, as I know it is that a wrongdoer is liable only for damages or injuries which were intended by him or which though not intended by him are the natural and probable consequences of his negligent act or acts.  No man is responsible for consequences neither intended nor naturally or reasonably probable and a consequence in this context is probable when it is, so likely to result from the act or negligent act or omission that a reasonable man in the circumstances or shoes of the wrongdoer and with his knowledge and means of knowledge would have foreseen it and abstained from the act or would have acted reasonably to prevent its occurrence.  See Salmond on The Law of Torts (14th ed.) pages 210-211.  In the case of Re: an Arbitration between Polemis and Furness Withy & Co. [1921] 2 K.B. 560, the Court of Appeal in England held that the probability of evil consequences is a test of whether the defendant was negligent or not but if he was negligent, he is liable for the direct physical consequences whether probable or not.  But before he can beheld liable for the consequences of his act there must be evidence to show that the consequence is the direct result of his act or omission to act.  In the instant case there is no evidence to show that the plaintiff’s permanent and temporary health injuries, if any, were the direct result of the consumption of the defendant’s manufactured castle milk stout by the plaintiff.

Consequently the failure of the plaintiff to call the medical officer to testify or tell the court the probable causes of the plaintiff’s body scratching, the pains in his veins and his short sightedness or the blood in his ‘stool’ was fatal to his claims at the court below and is also in my opinion, fatal to the success of this appeal.  The failure of the plaintiff to call the medical officer resulted in a fatal break in the links of the chain of evidence adduced by the plaintiff about the alleged negligence of the defendant, and the proof of his permanent and temporary health injuries, if any, suffered or sustained by him.

That break in the links of the chain caused a complete disintegration and collapsing of that chain.

            I find no merit also in ground (5) of the grounds of appeal.  In conclusion I will dismiss the appeal in its entirety and it is accordingly dismissed.  The judgment of the learned trial judge is accordingly affirmed.

 

 

 

                                                                                                S.E. KANYOKE

                                                                                           JUSTICE OF APPEAL

 

 

 

AKOTO-BAMFO, JA  -    I agree that the appeal be dismissed for the reasons so ably

 

advanced by my learned brother .  I have nothing useful to add.

 

 

 

                                                                                    V. AKOTO-BAMFO

                                                                                   JUSTICE OF APPEAL

 

 

 

 

ASARE KORANG , JA  -  I also agree.

 

 

 

 

 

  1. ASARE KORANG

            JUSTICE OF APPEAL

 

 

COUNSEL  -  HANSEN KODUAH, ESQ., FOR PLAINTIFF/APPELLANT.

 

                        PEASAH BOADU, ESQ., FOR THE DEFENDANT/RESPONDENT.

 

 

 

 

 

 

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