Bendike v Mohammed [2007] PGDC 6; DC495 (29 April 2007)

DC495

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 248 OF 2006

BETWEEN

BRIDGIT BENDIKE
BY HER NEXT FRIEND
MOSES KAULI
Complainant

AND

WAHED MOHAMMED
GENERAL MANAGER
First Defendant

AND

CENTRAL SUPERMARKET
KAIBAR

Port Moresby: S GORA
2007: 29 APRIL

Cases Cited
Donoghue v Stevenson [1932] A.C 562

Counsel
By her next friend Moses Kauli for the Complainant
Gilbert Maki, for the Defendant

DECISION

GORA. S This is an action by complainant by her next of friend Moses Kauli seeking compensation from defendants for selling contaminated cooked food whereby upon consumption by the complainant suffered severe vomiting and diahorrea.

2. The facts in brief are that on or about the 28 July, 2005 at about 8:20am the complainant, then five (5) years, now six (6)years old, went into the defendants kaibar fast food shop with her aunt and they bought a cooked fish flour. Upon consuming the said fish flour, the complainant realized that the fish flour had a foul smell, which was awful.

3. The half eaten fish flour was then showed to the Manager of the kaibar Mr. Wahed Mohamed who upon seeing and smelling the said fish flour confirmed and agreed, that the fish flour smelt bad meaning that it was not good.

4. The half eaten fish flour was then taken to Gordons Police Station where they were advised to report the matter to the National Capital District Commission Health Inspectors (NCDC).

5. The issue is whether the defendants were negligent in selling contaminated food to the complainant.

6. The complainant submits that the contaminated fish flour was confirmed by the first defendant who is the Manager of the Second Defendant. It was later confirmed by the duty policeman at Gordons Police Station and also by officials of the NCDC whose office is located at Gordons.

7. The next day it was also confirmed by the NCDC Health Inspectors who then carried out a thorough inspection of the defendants kaibar facilities and premises.

8. Subsequently medical examinations of the complainant showed she suffered from food poisoning hence confirming that she consumed contaminated food.

9. The defendants on the other hand denied that its Manager had confirmed the contaminated fish flour. They argue that fish cooked and sold in their kaibar were imported from New Zealand and that they strictly comply to Health Regulations when preparing cooked food.

10. I have perused the evidence of both parties and note that the complainant relies, on couple of affidavits to support her claim. These are the affidavits of:

a)Moses Kauli her next friend sworn and filed on the 1 of December 2006.

b) Rose Warden, the complainant’s aunt who was with her in the kaibar when they bought the fish flour. Her affidavit was sworn and filed on the 01 December 2006.

c) Lowa Simon, a friend who was with the complainant and her aunt when they pursued the matter with the police, NCDC Health Inspectors and subsequently to the six (6) mile clinic where the complainant was medically examined and treated. Her affidavit was sworn and filed on the 15 March, 2007.

d) Peter Nime, the NCDC officer based at the NCDC office Gordons, to whom the matter was first reported for purposes of NCDC Health Inspector to attend to the matter. His affidavit was sworn and filed on the 15 of March 2007.

11. The defendants on the other hand relied on the affidavits of Abdul Mohammed Wahed the Manager of the Defendant Company who is also a defendant in this matter. The defendants also relied on their defence filed on the 23 March 2006.

12. In support of her evidence, the complainant annexed a letter from the NCDC Health Division dated 4 August 2005. This letter is annexed as "A" in the affidavit of Moses Kauli. This letter is addressed to the Manager of the defendant company and clearly explains that by reason of the complainant’s complaint to their office, the NCDC Health Inspection Division carried out an inspection of the defendants premises and made the following findings:

1. Fresh fish were bought at the open air market for the making of fish flour

2. No provision for aprons for the kitchen staff

3. Hot water system in the kitchen malfunctioning.

13. Following these findings, the NCDC Health Inspectors made the following recommendations:

a) Ensure to order your fresh fish only from the licenced or approved fresh fish buyers.

b) Provide sufficient clean aprons for staff use

c) Hot water system must be provided and be readily available at all times.

14. This letter with findings and recommendations was signed by Robin Yanepa Chief Health Surveyor with a warning that failure to comply will render the company liable for tougher actions.

15. Further to that, the complainant attached a Medical Report dated 01 August 2005. This is annexed as "B" in the affidavit of Moses Kauli sworn and filed on the 01 December 2005. The Medical Report contains Medical officers finding which stated as:
"Sick looking female child, nauseated poor appetite with abdominal pain passing watery stools. Abdominal examinations shows a soft generalized tender abdomen with distension" [Emphasis Mine]

16. The Medical officers remarks in the Report stated:
"Examinations and findings are consistent with food poisoning as from not properly prepared or cook food."

17. The defendants on the other hand argued (as per affidavit of A. Wahed dated 23 November 2006) that the NCDC report is hearsay evidence and that the fish they use to make fish flour are imported directly for New Zealand and are kept under required cooling conditions until removed to make fish flour. They argued that there is no evidence that the fish used are bought from open market.

18. In relation to the Medical Report the defendants also argued that Medical report is hearsay. They say there was no laboratory test done on the fish flour concerned and results given.

19. In assessing the evidence of both parties I note that the complainant has produced substantial evidence to show that the defendants were negligent in selling to her a contaminated fish flour whereby after consumption of part of the fish flour, she started vomiting and developed diarrhoea. The contaminated fish flour which had a foul odor/smell was actually witnessed and confirmed by the defendants Manager Mr. Wahed Mohamed at the time it was shown to him on the same day of the alleged, occurrence of the complainant. The same piece of fish flour was also shown to the duty policeman at Gordons Police Station as well as to Mr. Peter Nime of Gordons NCDC office who both confirmed that the said fish flour smelt bad and was rotten. Further to this, Medical Report also confirmed that vomiting and diarrhoea were a result of food poisoning, hence creating a direct link to the contaminated fish flour.

20. The defendants evidence on the other had which is contained only in the affidavit of Wahed Mohamed attempts to answer issues raised in the affidavits supporting the complainants claim. The defendants further contend that the NCDC Health Inspectors Report as well as the Medical report are al hearsay evidence in that they are not supported by any Laboratory test findings. I do not agree with this contention because firstly the Health Inspectors Report was done after a physical inspection of the defendants kai-bar was carried out and relevant findings recorded and recommendations made. All this was done with the full knowledge of the defendants Manager Mr. Wahed Mohamed. So the Health Inspectors Report is based on actual findings from physical inspections carried out and not on hearsay as the defendant argues.

21. Secondly, the Medical Report shows the medical officers findings obtained during the examination of the complainant. The Report also shows that microscopic test were also carried out. In the final remarks of the Report the medical officer concluded that examinations and findings were consistent with food poisoning. Therefore, in my view the said Medical Report is not based on hearsay evidence as suggested by the defendants, but on actual examinations and tests carried out.

22. Although, I find that the complainant failed to produce findings or evidence of proper laboratory test being done on the contaminated fish flour to actually confirm whether the fish flour was contaminated, the existing evidence presented by the complainant is quite overwhelming to suggest that the physical discomforts (i.e. vomiting and diarrhoea) experienced by the complainant were linked to the consumption of the fish flour sold by the defendants. The evidence and the general circumstances surrounding the facts in this issue tend to be more supportive to the complainants claim.

23. In my view, it would have been of some relevance to the defendants defence if evidence was called to show how they prepare fish flour for selling to consumers, the general cleanliness of the preparation area facilities/equipments used in preparations of fish flour, qualifications and experience of those who prepare fish flour, quality of fish and flour used as well as other ingredients applied. Such evidence would have been appropriate to establish that negligence on their part would have been unlikely as regards selling of contaminated food. Defendants were represented by a counsel, but counsel failed to cause appearance for Hearing and so failed not call further evidence.

24. Under the circumstances the complainant has a right to claim damages for negligence and the law on negligence connotes a DUTY of CARE. The principles of Law pertaining to duty of care, are well embedded in our Jurisdiction. One of such principle which has remained a cornerstone is that:

"You must take reasonable care to avoid acts or omissions which you can reasonably for see would be likely to injure your neighbor. Who then in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called into question."

(See Donoghue –vs- Stevenson [1932] A.C. 562)

25. A breach of the duty of care is established if someone coming within the scope within which a duty is usually held to exist, that is, being a neighbour of the person who has suffered damages, does something or omits to do something without the exercise of reasonable care with the result that the other person suffers damages. If there is established that a duty of care exists in certain circumstances, a failure to observe that duty of care by an act of commission or omission amounts to a breach of that duty.

26. Therefore a complainant alleging negligence must show that the damage sustained by him is attributable to the negligent act or omission of the defendant. If no damage is shown to have been sustained a claim in negligence must fail.

27. Having made observations on the evidence of the parties. I am satisfied that the defendants who have a duty towards their customers in relation to the quality of cooked food being sold out had failed to exercise that duty of care when they prepared and sold out the contaminated fish flour to the complainant. The complainant has shown, and I am satisfied on the Balance of Probabilities, that she sustained damages (i.e. physical discomfort from vomiting and diarrhoea) which are attributed to the negligent act or omission of the defendants.

28. Accordingly, I find the defendants negligent and are liable to pay damages to the complainant.

I therefore make the following orders:

1. That the defendants pay to the complainant the sum of K1, 500.00 as damages

2. Defendant is further ordered to pay K300.00 for suffering and discomfort caused.

3. Cost of K300.00 awarded to the complainant.

4. These sums to be paid within one (1) month from the date of this order.

__________________________

By her next friend Moses Kauli, for the Complainant
Malai Lawyers, for the Defendant