Tonderai Chingonzo v Delta Beverages (Pvt) Ltd

### Preamble
1
HB 199.19
HC 1137/13
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TONDERAI CHINGONZO

Versus

DELTA BEVERAGES (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 2O OCTOBER AND 19 DECEMBER 2019

Civil Trial

T Tavengwa, for the plaintiff

S Chamunorwa, for the Defendant

TAKUVA J:		This case involves a freak accident that unfortunately left the plaintiff with a corneal and scleral perforation in his right eye.  Plaintiff had filed a delictual claim against the defendant seeking damages as follows;

Loss of income; US$16 000-00.

Hospital expenses; US$2 000-00.

Estimated future and medical expenses; US$4 000-00.

General damages inclusive of pain and suffering and permanent disability; US$200 000-00.

Interest at the prescribed rate from the date of issuance of summons to date of full and final payment.

Costs of suit.

Plaintiff specifically alleged in paragraph 4 of his declaration that on the 28th September 2012 at his place of business, defendant’s product namely Castle Lager bottle top “popped off” while he was loading the beer into the fridge and hit his right eye.  In paragraph 7 of the same declaration plaintiff again specifically alleged that defendant negligently packaged its product.  Plaintiff alleged that “Defendant is thus liable to pay compensation fees as claimed since it was negligently packaged its product (sic) and as result of negligence which could have been prevented the incident occurred” (sic).

Before filing its plea defendant requested the following further particulars;

“In what way is it alleged that defendant negligently packaged its products?”  Plaintiff’s response was “under normal circumstances a beer bottle top is not designed to pop off/explode while being handled.” Defendant in its plea denied interalia being negligent in the manner alleged or at all.  The issues for trial were agreed to be the following;

“(a)	Whether the bottle top from defendant’s product popped off while being loaded?

(b)	If it did, was this due to the negligence of the defendant?

(c)	What injuries were suffered by the plaintiff?

(d)	Whether or not plaintiff’s disability was caused by the defendant’s product?”

Plaintiff’s Evidence

Plaintiff gave evidence on his own behalf.  He is the sole proprieter of Morningside Bottle Store (Pvt) Ltd and also a director of Oddman Carpenters (Pvt) Ltd.  In his bottle store he sells beverages including alcoholic beverages that he purchases from the defendant.  As was the norm, on 24 September 2012, defendant’s Sales Representative collected plaintiff’s order which was delivered by the defendant’s truck the following day.  Plaintiff off loaded the beer and placed it in his warehouse.  Three days later, plaintiff removed the beer from the warehouse and placed it in the refrigerator in the bottle store.  He held two quarts one in each hand and the bottle top in his right hand popped off injuring his right eye in the process.  Plaintiff received medical treatment from eye specialists who concluded that he now suffers from distortion of the cornea which has resulted in him having a corrected vision of 6/12.  It was also his evidence that although the scar has healed it may still alter the corneal curvature in future.

Plaintiff averred that as a result of the accident, he now has an impaired vision necessitating the use of spectacles to improve his eye-sight.  According to the plaintiff after he was injured, he did not bother to look for and secure the lid opting to keep the bottle which he sent to the Government Analyst Laboratory in order to find out the cause of the “explosion.” The results of the examination were that;

“Beer is a naturally carbonated beverage, because carbon-dioxide gas is produced during the fermentation process.

Containers  might explode when shaken because of pressure build up from the carbon dioxide gas.

Bottles originally explode either of bottling too soon before fermentation is complete.  Further tests were not carried out due to the reasons beyond our control.” (my emphasis).  The report is dated 30 October 2012.

Another report by the same laboratory was furnished to the plaintiff on 18 December 2012.

It states;

‘Our submissions to you on the said samples was complete as given.  We were not able to pin-point with certainty why the bottle top popped  (exploded) but to give possible causes being pressure build up due to carbon dioxide gas a by product of the fermentation process which might have been aggravated by shaking, vibration, temperature or continued fermentation after bottling.” (my emphasis).

In his testimony, plaintiff denied that he mishandled or tampered with the sample in any way.  He specifically denied shaking the bottle, adding that it was kept under room temperature .  Asked why he felt defendant was negligent, his comment was;

“They are the manufacturer who is also responsible for the packaging.  I have very little knowledge about how beer is brewed.  They are in a better position to explain how the lid popped up and hit me.  Normally after delivery we just wipe off dust and pack the bottles into the refrigerator but on this occasion the bottles were not dusty.  Therefore they only required to be placed in the refrigerator which I did.”

Although plaintiff insisted that he purchased the offending bottle from the defendant, he however conceded that he had no proof of that fact.  Under cross-examination, the following exchange took place;

Q -	What is that you allege defendant did not do?  What negligence are you alleging?

A -	I am not an expert but I believe there was something done negligently.  I expect the defendant to assist me on what could have gone wrong with that beer bottle.

Q -	It is you who should prove (defendant) Delta acted negligently?

A -	Yes

Q -	What are the particulars of negligence that you allege defendant committed or omitted.

A -	None my Lord, I know nothing”

Plaintiff went on to justify the amounts claimed in the summons after which he called one Piniet Chimurivo who is defendant’s former employee and know plaintiff as a customer and also as the owner of Morningside Bottle Store, a place he used to frequent to drink beer.  He said he was present when plaintiff was injured.  Later he was called by the Loss Control Officer one Mr Moyo who instructed him not to give evidence adverse to the company’s interests.  Further he testified that he believed his colleague a Mr Msindo had taken plaintiff’s order on 23 September 2012.  As regards how plaintiff was injured he said he did not look for or see the lid.  Although plaintiff appeared to be in pain he did not believe that he had been seriously injured.  This is why he left the bottle store shortly thereafter.  He did not report Mr Moyo to management.

After the evidence of this witness plaintiff closed his case prompting the defendant to immediately apply for absolution from the instance.  The application was vigorously opposed by the plaintiff.

The Law

The test as to whether to grant absolution was laid down by PATEL J (as he then was) in the following words;

“…. The test is not whether the evidence for the plaintiff establishes what would finally be required to be established to ascertain judgment.  It is whether the plaintiff has made out a prima facie case against the defendant on the basis of which the court could or might find for the plaintiff.  A reticent defendant should not be allowed to shelter behind the procedure of absolution from the instance.  In practice, the courts are loath to decide upon questions of fact without hearing all the evidence from both sides and have usually inclined towards allowing the case to proceed.  At this stage of the trial, it is not pertinent to evaluate the weight of the evidence adduced or the preponderance, save where such findings are manifest from the evidence already heard.” (my emphasis)

In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR (S) at 343 GUBBAY CJ stated the test as follows;

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.  A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.

See  Supreme Service Station (Pvt) Ltd v Fox Ogoodridge (Pvt) Ltd 1971 (1) RCR 1 (A) at SD-E, Lounenco v Raja Dry Cleaners Esteam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158 B-E.

Moreover, considering an application for absolution, the court should lean in favour of continuing the case rather than dismissing it.  See Standard Chartered Finance Zimbabwe Ltd v Georgia & Another 1998 (2) ZLR 547 (H) per …. J at 552-553.”

See also Walker v Industrial Equity N.O 1995 (1) ZLR 87 (S).

In the present matter, the defendant’s argument for absolution runs as follows.

The plaintiff has not established a prima facie case.  It is common cause that the plaintiff’s claim is based on the Acquillian Action and as such, so the argument went, plaintiff was required to plead negligence on the part of the defendant.  Further plaintiff was supposed to set out the particulars of negligence- Border Timbers Ltd v ZIMRA 2009 (1) ZLR 131.

The six essentials of the Acquillian Action are;

Voluntary conduct which is

Unlawful (or wrongful)

Capacity

Fault (intention or negligence);

Cansation; and

Loss

Each of these elements must be satisfied.  Defendant argued that plaintiff has not led any evidence that leads to show that defendant acted unlawfully and that it acted negligently.  Despite promising to supply particulars of negligence, plaintiff never did.  Plaintiff’s reliance on the doctrine of res ipsa loquitur is misplaced, so the argument goes.

Plaintiff opposed the application for absolution from the instance on the ground that the doctrine of res ipsa loquitur is applicable in casu and it assists the plaintiff to establish a prima facie case.

It is elementary in our law of delict, that the onus of proving negligence lies upon him who alleges it.  Plaintiff must prove by a pre-ponderance of the evidence that defendant has been negligent.

The Doctrine of Res Ipsa Loquitur

Professor G Feeltoe in his book A Guide To The Zimbabwean Law of Delict (second edition) an page 5 while discussing the principle of res ipsa loquitar as follows;

“This is really a matter of evidence rather than substantive law but it is important in relation to proof of negligence.  Res ipsa loquitar means the occurrence speaks for itself.  In cases where there may be no direct evidence of negligence, the very nature of the circumstances in which the incident occurred would not normally happen if reasonable care had been exercised by the person in control of the object.  It should be carefully noted, however that where evidence as to how the incident or occurrence came about is available, this must be produced and the necessity for the production of such evidence will not be avoided by the invocation of the res ipsa loquitur maxim.” (my emphasis)

Jonathan Burchell – Principles of Delict page 105 while discussing proof of negligence, states;

“The plaintiff bears the burden of establishing facts which prove the elements of Aquillian liability.  In practice, it may be difficult to establish facts which prove that the defendant has been negligent.  In many cases there may not be eyewitnesses to the accident and the plaintiff may have to rely on the drawing of inferences.  One such inference of negligence is that which is referred to as res ipsa loquitur.

The maxim res ipsa loquitur is no magical Latin formula and literally interpreted it means the facts speak for themselves!  The effect of this maxim is that an inference of negligence is drawn from the very occurrence of the accident itself.  No burden of proof is shifted from the plaintiff to the defendant – the defendant may seek to rebut the inference by adducing evidence that he was not negligent but he is not obliged to do so.  However, if the defendant remains silent in the face of an inference of negligence on his part, he takes the risk of judgment being given against him.

In order for the inference of negligence to be drawn, the plaintiff must first prove;

The injury was caused by a thing which was under the control of the defendant

The nature of the occurrence itself leads to an inference of negligence on the part of the defendant or his servants because it is something which usually does not happen without negligence, and

The cause of the occurrence is unknown.

OGILVIE THOMPSON JA in Authur v Bezuidenhout and Mieny 1962 (2) SA 566 (A) summed up the effect of res ipsa loquitur thus;

“The maxim res ipsa loquita; where applicable, gives rise to an inference rather than a presumption.  Nor is the court …… necessarily compelled to draw the inference……  Once the plaintiff proves the occurrence giving rise to the inference of negligence on the part of the defendant, the latter must adduce evidence to the contrary.  He must tell the remainder of the story or take the risk of judgment being given against him.  How far the defendant’s evidence need go to displace the inference of negligence arising from proof of the occurrence complained of by the plaintiff depends on the facts of the particular, case…..  Mere theories or hypothetical suggestion will of course, not avail the defendant…….. That is not, however, to say that the onus rests on the defendant to establish the corecteness of his explanation on a balance of

probabilities.”

In our jurisdiction KORSAH JA ( as he then was) in Boka Enterprises (Pvt) Ltd v Pine 1991 (2) ZLR 308 (SC) held that;

“(1)	Before the invocation of the doctrine of res ipsa loquitur it must be established that whatever caused the accident was in the exclusive control of the defendant.

(2)	To apply the doctrine is to do no more than to shift the burden of proof.  A prima facie case is assured to have been made out which throws upon defendant the task of proving that he was not negligent.

(3)	Firstly the proven facts must be examined to find out whether they give rise to the application of the doctrine.  Secondly, the defence proferred must also be scrutinized to see if it establishes that the defendant was not, in fact, negligent, or that the accident was one which could have occurred without any negligence on the part of the defendant.”

The most interesting phase of a res ipsa case is that the circumstances which give rise to the injury must be such as to lie exclusively within the defendant’s knowledge.  This may be said to be the reason for the rule, and usually takes the form of the instrument or appliance causing the injury being under the defendant’s control and management.  Put differently, the “instrumentality” must have been under the defendant’s exclusive control, otherwise the question of proximate cause complicates the issue and destroys the presumptions because the injury may have been as easily due to the negligence of a third person.  The defendant’s control of the agency causing the injury must be both at the time of the injury and at the time of the negligent acts which it is presumed caused the injury.  It appears from the authorities that the defendant must not only be in control of the item but also in control of the entire situation causing the accident.

So much for the law in this matter as I see it I now apply the law to the facts of this case.  The pertinent facts as shown by the plaintiff’s evidence are that the plaintiff is a businessman who frequently purchased beer for resale from the defendant.  After successfully placing an order with defendant, his consignment was delivered by the defendant’s truck on 25 September 2012 and he kept it in his warehouse for three days.  Later when he was packing the beer in the refrigerator a bottle top from a beer he was holding in his right suddenly popped up injuring his right eye in the process.  The injury was a serious one requiring extensive medical surgery.  He produced the medical reports to show the nature and gravity of the injury.  Further he gave a detailed outline of the expenses incurred and to be met.

In pursuit of proof of negligence by the defendant, plaintiff submitted the bottle minus the top to the Government Analyst Laboratory for examination.  Unfortunately for him, the results were not conclusive as they showed that there could have been many causes for the popping up of the bottle top.  Vibration, temperature, shaking, premature bottling and continued fermentation were put forward as possible causes of the accident.  It is common cause that at the time of the accident the bottle was exclusively under the control of the plaintiff.  Indeed, the plaintiff was in control of the situation at the time of the accident.  While plaintiff strenuously denied any form of interference with the bottle the fact that some of the possible causes of the explosion could have originated from the negligence not of the defendant but that of the plaintiff or his employees is one fatal flaw to his entire case.

The question becomes, if all this evidence is taken together, is it evidence on which a reasonable court might find for the plaintiff?  It seems to me that it is not.  In my view, there is insufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff.  The plaintiff has not made out a case for the defendant to answer.

As regards costs, I do not share Mr Chamunorwa’s view that plaintiff’s persistence with the claim after attaining results from the Government Laboratory shows that his claim is not bona fide.  I take the view that the Plaintiff’s claim cannot be described as frivolous to attract an order of costs at a higher scale.  Plaintiff genuinely believed defendant is the author of his injury and he should not be penalized for seeking a just remedy.

Having regard to all of the foregoing I am of the view that judgment of absolution from the instance is clearly appropriate.

Accordingly, the application for absolution from the instance is hereby granted with costs.

Mutuso, Taruvinga & Mhiribidi, plaintiff’s legal practitioners

Calderwood, Bryce Hendrie & Partners, defendant’s legal practitioners