Baikisa v J & Z Trading Ltd [2016] PGNC 13; N6181 (12 February 2016)

N6181

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NOS 1167 & 1168 OF 2007

ANITA BAIKISA & ANDREW KURI BAIKISA
Plaintiffs

V

J & Z TRADING LIMITED
Defendant

Madang: Cannings J
2015: 20th July and 5th August,
2016: 12th February

TORTS – Negligence – Plaintiffs' claim that they contracted food poisoning due to consumption of cooked food purchased from defendant's shop – elements of tort of negligence – whether defendant owed duty of care to plaintiffs – whether defendant was negligent – whether defendant's negligence caused plaintiffs' injuries.

The plaintiffs claimed that they purchased fried rice from the defendant's kai bar; that they ate part of it before realising that it was bad; that they suffered food poisoning and as a consequence became violently ill. They sued the defendant, claiming damages for negligence. The defendant filed a defence, denying all allegations of negligence. A trial was conducted on the issue of liability. The plaintiffs produced evidence in support of their allegations but the defendant failed to produce any evidence or to make submissions in response to those of the plaintiffs.

Held:

(1) The facts, as alleged by the plaintiffs, were proven to have occurred: they purchased food from the defendant and became ill soon afterwards; they suffered food poisoning; they were given medical treatment.

(2) To establish a cause of action in negligence a plaintiff must prove the elements of the tort:

(a) the defendant owed a duty of care to the plaintiff;

(b) the defendant breached that duty (acted negligently);

(c) the breach of duty caused damage to the plaintiff; and

(d) the type of damage was not too remote.

(3) Here:

(a) the defendant, a food retailer, owed a duty of care to its customers, including the plaintiffs;

(b) the doctrine of res ipsa loquitur (the thing speaks for itself) applied and it was proven that the defendant was negligent;

(c) the defendant's negligence caused injury to the plaintiffs; and

(d) the types of injuries incurred by the plaintiffs were not too remote.

(4) All elements of the tort of negligence were proven and it was declared that the defendant is liable for negligence.

Cases cited

Burns Philp (New Guinea) Limited v Maxine George (1983) SC259
Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562
Donoghue v Stevenson [1932] AC 562
Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184
Kembo Tirima v Angau Memorial Hospital Board & The State (2005) N2779
Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650
Noki v Barclay Bros [1991] PNGLR 260
Otto Benal Magiten v William Moses (2006) N5008
Paul Perex v PNG Institute of Medical Research (2014) N5614
Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260

STATEMENT OF CLAIM

This was a trial on liability for negligence.

Counsel

B B Wak, for the Plaintiffs
T M Ilaisa, for the Defendant

12th February, 2016

1. CANNINGS J: The question is whether the defendant, J & Z Trading Ltd, is liable in negligence to the plaintiffs, Anita and Andrew Baikisa, who say that they suffered food poisoning as a result of consuming fried rice purchased from the defendant's kai bar.
   
2. The plaintiffs (who are wife and husband) claim that they ate part of the fried rice before realising that it was bad, and it made them violently ill. They have each commenced proceedings against the defendant, claiming damages for negligence. The defendant filed a defence in each case, denying all allegations of negligence. A trial has been conducted in each case on the issue of liability. The plaintiffs produced evidence in support of their allegations but the defendant failed to produce any evidence or to make submissions in response to those of the plaintiffs. There are three issues:
   
   1. What are the facts?
      
   2. Have the plaintiffs established a cause of action in negligence?
      
   3. What orders should be made?
      

WHAT ARE THE FACTS?

3. An affidavit by each plaintiff has been admitted into evidence, together with affidavits by Dr Steven Toraso of the Accident and Emergency Department of Modilon General Hospital. The averments of fact made in those affidavits do not appear to be far-fetched or incredible. The defendant, by adducing no evidence in rebuttal and by making no submissions, has provided no reason for rejecting the sworn testimony provided. I am satisfied that the plaintiffs have proven on the balance of probabilities that the facts averred in their affidavits actually occurred. I therefore make the following findings of fact.

4. At 2.00 pm on Sunday 11 March 2007 the plaintiffs went to the defendant's kai bar in Yamauan Street, Madang and purchased soft drinks and two portions of takeaway fried rice. They repaired to a spot under a nearby shade tree where they sat down and commenced eating the fried rice. After they had each consumed part of it, Anita noticed that it tasted sour. When she looked at it more closely she saw mould.

5. They both stopped eating and returned to the kai bar, where they complained to the management, in particular to a man called Gesney, about the quality of the rice. Andrew asked when it was cooked but his enquiry was not met with a polite response.

6. The plaintiffs then walked to the nearby Madang Police Station where they lodged a complaint, which was dealt with by Sergeant Toby Kamseboda who immediately accompanied them back to the kai bar. Sergeant Kamseboda conducted an on-the-spot taste-test of the fried rice inside the premises. That it was not fit for human consumption was confirmed by his having to rush outside to spit it out.

7. He then drove the plaintiffs to the home of the local health inspector to report the matter. Later that afternoon the plaintiffs went to their home in Madang but in the evening both felt unwell. They had nausea and diarrhoea and vomited during the night.

8. The next morning, Monday 12 March 2007, the plaintiffs reported the matter to Madang Local-level Government, which led to the Acting Town Manager John Barre writing a letter of concern to the defendant, dated 16 March 2007.

9. The plaintiffs then went to the Accident and Emergency Department of Modilon General Hospital where they were admitted for treatment. Reports by Dr Toraso, who treated them, show that they had the same symptoms: severe abdominal pain, diarrhoea, vomiting and dehydration. They each "had elevated white blood cells which indicated recent gastrointestinal infection". Dr Toraso reports that each was otherwise in a stable condition. He treated them for "acute food poisoning" with high doses of intravenous fluids and antibiotics. They were discharged after 12 hours by which time their condition had stabilised.

10. Dr Toraso did not report on any microbiological examination of the plaintiffs' pekpek and a sample of the fried rice, which would have identified whether the type of bacteria that had infected the plaintiffs (eg salmonella, staphylococcal, streptococcal) was also in the fried rice. This would have assisted the Court in assessing whether consumption of the fried rice led to the plaintiffs' illness. It would have been preferable for the plaintiffs to be cross-examined about anything else they ate earlier in the day that might have been the cause of infection. The defendant might have thrown doubt on the causal connection between the fried rice and the plaintiffs' illness by giving evidence that no one else complained of illness following consumption of the fried rice.

11. All of that was desirable, but not necessary, evidence. The Court must work on the available evidence. Just as in a criminal case, where the standard of proof is 'beyond reasonable doubt' and the prosecution can prove its case by circumstantial evidence, so it is that in a civil case, where the lesser standard of proof of 'on the balance of probabilities' applies, a plaintiff's case can be proven in the same way.

12. I find that, here, based on the circumstantial evidence that has been produced to the Court, the plaintiffs have proven on the balance of probabilities that the fried rice they consumed, which had been purchased from the defendant, was bad and that their consumption of it led to them suffering acute food poisoning.

4. HAVE THE PLAINTIFFS ESTABLISHED A CAUSE OF ACTION IN NEGLIGENCE?

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

(a) the defendant owed a duty of care to the plaintiff;

(b) the defendant breached that duty (ie acted negligently);

(c) the breach of duty caused damage to the plaintiff;

(d) the type of damage was not too remote.

14. See generally J G Fleming, The Law of Torts, 5th edition, LBC Information Services, © 1977, Chapter 6, Negligence: Introduction, pages 104-105. In some cases, I have said that there are five elements, the fifth being that the plaintiff rebut any defences such as contributory negligence and voluntary assumption of risk (eg Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779, Otto Benal Magiten v William Moses (2006) N5008, Paul Perex v PNG Institute of Medical Research (2014) N5614). On reflection I think it is better to treat such defences separately and not regard them as giving rise to an element that must be proven by the plaintiff. In the present cases no such defences were raised by the defendant so it is not necessary to address the question of their rebuttal. Each of the four elements is now addressed in turn.

(a) Duty of care

15. To determine whether the defendant, a seller of cooked food, owed a duty of care to its customers, such as the plaintiffs, it is useful to apply the classic dictum of Lord Atkin in Donoghue v Stevenson [1932] AC 562, at 580:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question.

16. Put another way:

• you owe a duty to take care, to your neighbour;
• your neighbour is any person who is so likely to be affected by what you are doing, that a reasonable person in your position would, while doing what you are doing, be thinking about that person (or class of persons).
  

17. In Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562 Thompson AJ pithily explained the concept of duty of care in these terms:

A person who undertakes an activity or creates a situation which could reasonably harm another person, such as driving a car or giving financial advice, owes a duty of care to the other person. Conversely, where a person has not undertaken the activity or created the situation, he owes no duty of care.

18. Applying those principles to the present case: any reasonable person who is selling cooked food, whether they have cooked it themselves or purchased it from another person, would be thinking about the people who are likely to consume the food. The seller will know that the consumer is likely to be affected by the quality of the food and whether the food is, on the one hand, fresh, wholesome and nutritious, or, on the other hand, stale or contaminated. The reasonable person selling food will know that if they do not take reasonable care it is likely that the consumer of the food will be harmed. The consumer is the food seller's neighbour. The food seller owes a duty of care to the consumer. Here, the defendant, a food seller, owed a duty of care to the consumers of that food, including the plaintiffs. The first element of negligence is proven.

(b) Breach of duty

19. The question is whether the defendant breached its duty of care to the plaintiffs. Did the defendant act negligently? Did it fail to take reasonable care? At this point of a negligence trial, if there is a lack of evidence as to how or why some event happened, it can be appropriate apply the principle of res ipsa loquitur (the Latin maxim, 'the thing speaks for itself'). The Court determines the facts and then poses the question: do those proven facts lead to only one conclusion, that the defendant was negligent? If the answer is yes, the defendant is negligent. That is my simplified explanation of the principle. Other Judges have explained it in different ways. I provide three examples.

20. In Burns Philp (New Guinea) Limited v Maxine George (1983) SC259 McDermott J explained res ipsa loquitur in these terms:

The accident must speak the defendant's negligence and be such as to raise two inferences: (1) that the accident was caused by a breach by somebody of a duty of care to the plaintiff, and (2) that the defendant was that somebody.

21. In Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260 Woods J put it this way:

Res ipsa loquitur is no more than a rule of evidence based on common sense which raises a presumption of fact in the absence of any other evidence of explanation that the defendant has been negligent. It suggests that because something went wrong and in the normal scheme of things such would not go wrong unless someone was negligent but no negligence can be found here nevertheless the thing speaks for itself and common sense says there must have been negligence.

22. Hartshorn J explained the operation of the principle in Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650 by reference to decisions of the High Court of Australia:

The principle of res ipsa loquitur may be invoked when three elements are established:

(a) there is an "absence of explanation" of the occurrence that caused the damage;
(b) the occurrence was of a kind that does not ordinarily occur without negligence; and
(c) whatever caused the occurrence was under the control of the defendant.

Res ipsa loquitur is the process of inferential reasoning from which negligence may be inferred rather than being a distinct rule of law. The High Court of Australia in Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493 and Schellenberg v Tunnel Holdings Pty Ltd (2000) CLR 121, noted that the burden of proof stays with the plaintiff. It is necessary for the court to determine whether the burden of proof has been discharged even if the three elements of the principle are established. In Anchor Products (supra), Windeyer J at p 50 said: "To say that an act speaks for itself does not mean that if no evidence is given for the defendant the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances."

23. I find that the principle of res ipsa loquitur should be invoked in this case. Applying my simplified approach set out above: the proven facts that the defendant sold bad fried rice to the plaintiffs, which they consumed, making them ill, leads to only one conclusion: that the defendant was negligent.

24. It is not necessary for the plaintiffs to prove how the defendant was negligent. Maybe the rice was cooked a day or two previously and re-heated, without in the interim being refrigerated. Maybe some of its ingredients such as meat or eggs were stale. Maybe it was handled by unclean human hands. Maybe flies or other vermin infiltrated it. Maybe the defendant's kitchen was not clean. Maybe the rice had been dropped on the floor. Maybe the defendant's shop assistant did not carefully examine the rice, and did not see the mould on it. None of these things had to be proven as the facts speak for themselves and lead only to the conclusion that the defendant was negligent.

25. If the approach outlined by McDermott J in Burns Philp is applied: the "accident" (the plaintiff's suffering food poisoning due to consumption of the fried rice purchased from the defendant's kai bar bespeaks (is evidence of) negligence.

26. The accident is such as to raise two inferences:

(1) that the accident was caused by a breach by somebody of a duty of care to the plaintiffs, and

(2) that the defendant (or one of its workers) was that somebody.

27. If the approach outlined by Woods J in Noki is applied: something went wrong. The plaintiffs became ill due to consuming fried rice. In the normal scheme of things that would not happen unless someone was negligent. The thing speaks for itself and common sense says that the person (the defendant) who sold the fried rice to the plaintiffs must have been negligent.

28. If the approach outlined by Hartshorn J in Marshall Lagoon is applied:

(a) there is an absence of explanation about how the fried rice came to be in the condition it was in;

(b) fried rice does not ordinarily get sold in such a poor condition, without negligence; and

(c) whatever caused the fried rice to be in such a condition was under the control of the defendant.

29. The application of all those expositions of the principle of res ipsa loquitur leads to the same conclusion: the defendant breached its duty of care to the plaintiffs. It was negligent. It failed to take reasonable care of its neighbours. The second element of negligence is proven.

(c) Causation

30. This element can be proven by asking the simple question: would the plaintiffs have suffered food poisoning but for the negligent conduct of the defendant? (Kembo Tirima v Angau Memorial Hospital Board & The State (2005) N2779). If the answer is 'no', the element of causation is established. If the answer is 'yes', causation is not established. The Court would be saying that, though the defendant was negligent, the evidence suggests that the plaintiffs would have suffered food poisoning anyway.

31. I have already found as a fact that it was the consumption of the fried rice that led to the plaintiffs suffering food poisoning. There is no evidence of anything else being the cause. The answer to the question 'would the plaintiffs have suffered food poisoning but for the negligent conduct of the defendant?' is no. The third element of negligence is established.

(d) Remoteness

32. The remoteness issue is often not regarded as a separate element of the tort of negligence. Sometimes it is brought within the causation element. However, I think it is better regarded as a fourth element. Whether it is dealt with separately or not, plaintiffs must establish that the type of injury for which they are claiming damages was reasonably foreseeable (ie not too remote). As Prentice CJ explained in Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184:

This consideration flows from the judgment of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd ("The Wagon Mound") [1961] UKPC 1; [1961] AC 388. In that case the general principle laid down was that "the essential factor in determining liability for the consequence of a tortious act ... is whether the damage is of such a kind as a reasonable man should have foreseen".

33. Here the plaintiffs are claiming, as pleaded in the statement of claim, general damages for pain, suffering and loss of amenities of life, economic losses, special damages and exemplary damages. They will need to present evidence of these types of damage if the case proceeds to a trial on assessment of damages. However, for present purposes, I am satisfied that all of those types of damage were reasonably foreseeable. They are not too remote. The fourth element of negligence is established.

Conclusion

34. The plaintiffs have proven all elements of the tort of negligence. A cause of action has been established.

WHAT ORDERS SHOULD BE MADE?

35. As this trial was confined to the issue of liability, I will declare that plaintiffs have each established a cause of action in negligence against the defendant, which is liable in damages. Unless the parties agree to settle the matter, the cases will proceed to an assessment of damages at a separate trial.

36. As to costs, the general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

ORDER

(1) Each plaintiff has established a cause of action in negligence against the defendant.

(2) Each plaintiff is entitled to damages which shall be subject, in the absence of agreement between the parties, to assessment at a separate trial.

(3) Costs of the proceedings shall be paid by the defendant to each plaintiff, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.

________________________________________________________________
Kunai & Co Lawyers: Lawyers for the Plaintiffs
Thomas More Ilaisa Lawyers: Lawyers for the Defendant