Mombi v RD Tuna Canners Ltd [2017] PGNC 28; N6645 (15 February 2017)

N6645

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1284 OF 2008

JOHN MOMBI
FOR AND ON BEHALF OF HIMSELF AND SEVEN OTHERS
Plaintiffs

V

RD TUNA CANNERS LIMITED
Defendant

Madang: Cannings,J
2012: 20 September, 17, 18 October,

2015: 5 April 2013, 22 July,

2017: 15 February

TORTS – NEGLIGENCE – plaintiffs’ claim that they contracted food poisoning due to consumption of tinned fish, manufactured by defendant, purchased from retail outlet – claim that tinned fish contained foreign object: condom –elements of tort of negligence – whether defendant owed duty of care to plaintiffs – whether defendant was negligent – whether defendant’s negligence caused injury to plaintiffs – whether injuries not too remote.

The plaintiffs claimed that they purchased from a retail outlet an unopened can of tinned fish that had been manufactured by the defendant, that they ate part of the contents of the can before realising that it contained, amongst the expected contents, a foreign object, namely a condom, and that they were shocked and became sick as a consequence. They sued the defendant manufacturer, claiming damages for negligence. The defendant challenged the assertions of fact on which the plaintiffs’ case was based and denied the allegation of negligence. The defendant argued that the plaintiffs’ evidence was unreliable and unbelievable and that its manufacturing and quality assurance processes were of such a high standard as to force the conclusion that the plaintiffs’ evidence was false. A trial was conducted on the issue of liability.

Held:

(1) The facts, as alleged by the plaintiffs, were proven to have occurred: they purchased from a retail outlet an unopened can of tinned fish manufactured by the defendant; they ate part of the contents of the can before realising that it contained a condom, they were shocked and became sick as a consequence.

(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, the manufacturer of a product intended for consumption by consumers, owed a duty of care to the consumers, 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 in negligence.

Cases cited:

Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181
Burns Philp (New Guinea) Limited v Maxine George (1983) SC259
Donoghue v Stevenson [1932] AC 562
Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184
Kembo Tirima v Angau Memorial Hospital Board (2005) N2779
Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650
Michael Tenaram Balbal v The State (2007) SC860
Rimbink Pato v Umbu Pupu [1986] PNGLR 310
Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260
Welsh Samor v The State (2014) SC1398

Counsel:

T M Ilaisa, for the Plaintiffs
Y Wadau, for the Defendant

15^th February, 2017

1. CANNINGS J: The issue in this case is whether the defendant, RD Tuna Canners Ltd, is liable in damages to the plaintiffs, John Mombi and seven others: Agnes Mombi, Regina Mombi, Rosina Mombi, Malai Mombi, Max Mombi, Barry Mombi and Lesa Mombi, all members of his family.
   
2. The plaintiffs claim that they purchased, from a retail outlet, an unopened can of “Diana Tuna” brand of tinned fish that had been manufactured by the defendant, RD Tuna Canners Ltd, that they ate part of the contents of the can before realising that it contained, amongst the expected contents, a foreign object, namely a condom, that they were shocked and became sick as a consequence. They commenced proceedings against the defendant, claiming damages for negligence.
   
3. The defendant challenges the assertions of fact on which the plaintiffs’ case is based and denies the allegation of negligence. The defendant argues that the plaintiffs’ evidence is unreliable and unbelievable. It claims that its manufacturing and quality assurance processes are of such a high standard as to force the conclusion that the plaintiffs’ evidence is false.
   
4. The trial was conducted in 2012. After the close of evidence, before submissions, the Court ordered on 5 April 2013 with the consent of the parties that the proceedings be referred to mediation. Mediation was conducted but it failed and the matter returned to court for submissions in 2015. 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?
      
1. WHAT ARE THE FACTS?
   
5. This issue is dealt within the following way: first, the competing evidence is outlined; secondly the evidence will be set out in detail; thirdly, observations of the evidence are recorded; finally, findings of fact are made.
   

Outline

6. The plaintiffs’ case was based on the affidavits and oral testimony of the eight plaintiffs, each of whom was subject to cross-examination. The defence case was based on the oral testimony of two of the defendant’s employees and two documents, the curriculum vitae of their first witness, Ms Fernando, and a quality assurance certificate.
   

Evidence for the plaintiffs

7. The plaintiffs’ evidence is summarised in the following table.
   

No	Name	Description
1	John Mombi	Principal plaintiff: husband of Agnes Mombi, father of other plaintiffs
Evidence: Resides at Wagol-Pikus Settlement, Madang – on 28 March 2006 [note that the statement of claim pleads that the date of the incident was 27 May 2006] he and his wife, Agnes, went to the Rabtrad Trading supermarket in town and bought a half-dozen pack Diana Tuna tinned fish and went back home. In the afternoon, his daughter Rosina cooked dinner including rice and kumu – Rosina opened the Diana Tuna tinned fish and she, Max and Barry drank the soup from it and she emptied contents into the kumu pot and stirred the pot – Rosina then served rice and the kumu and tinned fish onto eight plates for the family members – she served the kumu on her plate last. While eating, Rosina put her fingers into her mouth and pulled out something that she was having difficulty chewing – it was a condom. Everyone present saw it. They were shocked and started spitting. He told them to rinse their mouths with water. He chewed betel nut to stop himself vomiting. At midnight, Rosina, Barry and Max complained of stomach pain and vomited – at 2.00 am, the children were taken to Modilon General Hospital – Rosina, Max and Barry were put on an IV drip and the others were treated for food poisoning – the doctor discharged them at 6.30 am – the children went to school but returned at midday feeling unwell – they did not return to school for a month and then they lost interest altogether in returning to school. He took the condom to Modilon General Hospital for laboratory tests soon after the incident and annexed to his affidavit the laboratory test report [annexure A]. Also annexed were: a statement by the deputy head teacher of Lutheran Day Primary School that Rosina, “Belly” (presumably another name for Barry) and Max Mombi were students who “left school in 2006 due to being very ill after eating the content of the Diana Tuna tinned fish that contained a condom” [annexure B]; a copy of a photograph of an opened can of tinned fish and a condom [annexure C]; medical notes for Rosina, Barry and Max Mombi [annexures D, E, F]. In cross-examination the witness stated that the condom was discovered at about 7.30 pm – it was dark and the family was eating their dinner by candlelight – Rosina was the last to eat. Once the condom was discovered he put it back in the can and took the can to the hospital, where the laboratory test was done, and it was placed in a refrigerator – he does not know where the can or the condom are now. He (the witness) complained to the defendant company but the company representatives accused him of lying and told him to take the matter to court.
2	Agnes Mombi	Wife of John Mombi, mother of other plaintiffs
Evidence: Her evidence was similar to that of her husband – she stated that the incident occurred on 28 May 2006 [note that the statement of claim pleads that the date of the incident was 27 May 2006 and other plaintiffs state that the relevant date was 28 March 2006] – at their house, she vomited twice, after Rosina discovered the condom. In cross-examination she stated that she saw Rosina empty the tinned fish into the kumu pot – the kumu was aibika and spinach – Rosina cooked the tinned fish and the kumu together – she started cooking under the candlelight at about 7.00 pm – when the food was cooked she (the witness) brought eight plates to Rosina and Rosina served out the food on the plates.
3	Regina Mombi	Eldest daughter of John and Agnes Mombi
Evidence: She is now married with four children – her evidence was similar to that of her father and her mother – she stated that the incident occurred on 28 March 2006 – she added that, at their house, she vomited twice, after Rosina discovered the condom. In cross-examination she stated that she assisted Rosina to cook the greens and looked at them, and observed nothing wrong, before Rosina poured in the tinned fish.
4	Rosina Mombi	Daughter of John and Agnes Mombi
Evidence: Her evidence was similar to that of her father and her mother – she stated that the incident occurred on 28 March 2006 – at that time she was attending Lutheran Day Primary School. She cooked the food for dinner – when the kumu was cooked, she opened a can of Diana Tuna, drank some of the soup from the can and then passed it to Max and Barry who also drank the soup – she poured the remaining contents into the pot of kumu– the place was already dark – she served the kumu on each plate – she was the last to eat her dinner – after several spoonfuls, she felt in her mouth a rubbery substance, she pulled it out and checked it in the candlelight – her father had a look at it and announced that it was a condom – he was shocked, she was shocked, everyone was shocked – her father asked how the condom got into her mouth and she told him she spooned it from the kumu – she concluded that the condom was from the tinned fish. Her father got the condom and put it inside the empty can and kept it until the next morning – they washed their mouths thoroughly – in the middle of the night, she could not sleep as she had sharp stomach pain – Max and Barry had the same symptoms – she started vomiting – Max and Barry also vomited – her parents became worried so they carried her and her two brothers to Modilon General Hospital. She and her two brothers were put on drips – they were discharged in the morning – she and her two brothers went to school, but they returned home at lunchtime – they did not return to school for the rest of the year as they were regularly sick – she then lost interest in going to school. In cross-examination she stated that she did not detect any bad smell when she opened the can of Diana Tuna – she did not see the condom when she poured the contents of the can into the kumu pot – the water had already boiled when she poured in the contents – she detected the condom when she took her third spoonful of food – she realised that there was plastic in her mouth.
5	Malai Mombi	Son of John and Agnes Mombi
Evidence: His evidence was similar to that of his father and her mother – he stated that the incident occurred on 28 March 2006 – he is older than the three “small ones”, Rosina, Barry and Max – he assisted his parents and other members of the family in taking those three to the hospital after they woke up and started vomiting – he (the witness) was also in pain, from vomiting, but the worst affected were the “small ones” – he ignored his pain, to assist them. In cross-examination he stated that he was close to Rosina when she was cooking, though he did not see what she was cooking – Rosina called him and the others when the food was ready to serve – he was shocked and angry when told about the condom in the kumu pot that Rosina had eaten – he started feeling sick at midnight – he chewed betel nut and drank water to stop himself from vomiting.
6	Max Mombi	Son of John and Agnes Mombi
Evidence: His evidence was similar to that of his father and her mother – he stated that the incident occurred on 28 March 2006 – after Rosina opened the can of tinned fish she drank some of the soup, then she gave the can to him and his brother Barry and they also drank the soup – he and Rosina and Barry got sick, in the night, so their parents took them to hospital and they were put on drips and stayed until the morning – he went to school that morning with Rosina and Barry but they were not feeling well and came home at lunchtime – he lost interest in going to school after the incident as he found it hard to concentrate because he was getting sick, on and off. In cross-examination he stated that before he ate dinner, he was at the house – he was not out playing before dinner.
7	Barry Mombi	Son of John and Agnes Mombi
His evidence was similar to that of his father and her mother – he stated that the incident occurred on 28 March 2006 – after Rosina opened the can of tinned fish she drank some of the soup, then she gave the can to him and his brother Max and they also drank the soup – he and Rosina and Max got sick, in the night, so their parents took them to hospital and they were put on drips and stayed until the morning – he went to school that morning with Rosina and Max but they did not stay long – they were not feeling well and came home at lunchtime – they did not return to school as they were sick – he lost interest in going to school and found it hard to concentrate in class. In cross-examination he stated that before he ate dinner, he was not out playing – he washed his hands before eating dinner.
8	Lesa Mombi	Daughter of John and Agnes Mombi
Evidence: Her evidence was similar to that of her father and her mother – she stated that the incident occurred on 28 March 2006 – all of them who ate the kumu with the condom in it suffered from food poisoning – when the “little ones”, Rosina, Barry and Max, woke up in the middle of the night, vomiting, she also vomited – she went with the whole family to the hospital – she chewed betel nut to stop the vomiting – they stayed at the hospital until 6.30 am. In cross-examination she stated that the food had no bad smell and it tasted good, so she ate it – but she later felt sick and vomited twice.

Evidence for the defendant

8. Two witnesses gave evidence for the defendant. Their evidence is summarised in the following table
8. 
   

No	Name	Description
1	Genevieve Fernando	Quality Assurance Manager, RD Tuna Canners
Evidence: She holds a Bachelor of Science in Fisheries from Mindanao State University, Philippines – she has been Quality Assurance Manager at RD Tuna Canners since 2010 – apart from the period 2002 to 2004, she has worked at RD Tuna Canners at its cannery in Madang since 1998, holding the positions of Quality Control Supervisor, Quality Control Manager and Operations Manager – she has worked professionally in the areas of management and quality assurance in seafood processing industries since 1988 – further details of her qualifications and experience are set out in her curriculum vitae [exhibit 1]. She gave detailed and technical oral testimony of the processing and canning operations of the defendant, which has 2,400 employees working 2 x 12-hour shifts daily – RD Tuna Canners has been certified by SGS [a multinational company that provides inspection, verification testing and certification services] as compliant with ISO [International Organisation for Standardisation] standard 9001:2008. This ISO standard is for: “Design, Development and Manufacture of Low Acid Canned Foods (Tuna Products in Oil, Brine, Broth, Flavoured) and Frozen Fish Products (Frozen Precooked Tuna Loins and Flakes) from Receipt of Raw Fish Materials, Ingredients and Packaging Materials.” A copy of the SGS certificate authorised by SGS United Kingdom Ltd, stating that the management systems of RD Tuna Canners Ltd of Madang Papua New Guinea had been assessed and certified as meeting the requirements of ISO 9001:2008, was admitted into evidence as exhibit D2, through the witness. As to its period of application, the certificate states: “This certificate is valid from 15 May 2012 until 14 May 2015 and remains valid subject to satisfactory surveillance audits. Re-certification audit due before 3 May 2015 Issue 2, Certified since 5 August 2009.” Ms Fernando highlighted the strict controls in place to ensure each employee is security-screened and frisked before entering the processing plant – she explained the sanitisation of raw fish that takes place – the canning process (the defendant manufactures its own cans at the Madang facility) – after loining, the fish proceeds on a conveyor belt to a cutter, which cuts the fish into flakes – then to a filling machine, into cans, each can bears an imprinted production date and best-by date – then to a second cooking into ovens for the “retorting” process. If anyone attempted to put a foreign object amongst the fish, it would disrupt the production line and would be detected. In cross-examination she stated that the defendant has a quality control management group, of which she is the head – other members include a chemical engineer and an industrial engineer – there have been quality control improvements since 2006, including the installation of more metal detectors and employing more supervisors than in 2006 – she maintains constant supervision of the processing operation.
2	Danny Wangak	Senior factory supervisor, RD Tuna Canners
Evidence: He has a grade 10 education – he had, at the time of trial (2012), been working for RD Tuna Canners for eight years – the company employs 1,200 workers per shift – 19 supervisors work on each shift – each section in the processing plant has two supervisors – each employee is medically and security checked before entering the processing plant – they are provided with aprons, hair-nets, gum boots and gloves – they must step into chlorinated water and wash their hands with germicidal soap – all employees are strictly supervised – if a condom were placed amongst the fish at the loining stage it would be cut by the cutter and not remain in one piece – if a condom were placed into the can with the fish and the can was sealed, before going into the retorting process when the can is cooked at 117 degrees Celsius, it would melt and disappear. In cross-examination he stated that good quality control measures had been in place since 1997 when the cannery commenced operation – he agreed that since 2007 quality control had significantly improved – he works in the production phase of the operations, not in quality control.

Observations

9. Plaintiffs’ evidence
   

First, evidence of the date of the Mombi family cooking dinner, discovering the condom, being sick and going to hospital, is confusing. The statement of claim pleads 27 May 2006. Agnes Mombi says 28 May 2006. Other plaintiffs say 28 March 2006. The report of M G Uloulo, Medical Technologist, Pathology Department, Modilon General Hospital (annexure A to John Mombi’s affidavit) is dated 5 June 2006; it states (by hearsay) that the can of tinned fish was purchased on 27 May 2006 and that the sample was received by the laboratory on 31 May 2006. The medical notes, which purport to relate to treatment given to Rosina, Barry and Max Mombi at Modilon General Hospital (annexures B, C and D to John Mombi’s affidavit), have different dates marked “28/3/06”, “31/05/06” and “31/5/2005” [sic]). Despite these discrepancies in dates, neither counsel made an issue of it.

10. Secondly, there is a lack of detail in the plaintiffs’ evidence. For example:
    
    • There is no receipt or any record of purchase to verify the claim of John Mombi that the can of Diana Tuna was purchased at the Rabtrad wholesale store.
      
    • None of the plaintiffs gave evidence of the size of the can of Diana Tuna or how many cans were opened and used for cooking the family meal.
      
    • None of the plaintiffs gave evidence of the details of the production date, batch number or use-by date that were on the can or its label.
      
11. Thirdly, there is little corroboration of the plaintiffs’ evidence. I note the following:
    
    • The report of M G Uloulo, Medical Technologist, Pathology Department, Modilon General Hospital (annexure A to John Mombi’s affidavit) is, at best, evidence only of a can of tinned fish and a condom being brought to him. The report is hearsay and the author of the report did not give evidence.
      
    • The photograph of an opened can and a condom (annexure B to John Mombi’s affidavit) has no probative value. I uphold Mr Wadau’s submission that the photograph must be ignored. It is just a photocopy of a photograph, there is no evidence as to who took the photograph and when it was taken. It fails to meet the requirements of Section 75 (affidavit or declaration of maker of print from photographic negative, etc) of the Evidence Act.
      
    • The medical notes which purport to relate to treatment given to Rosina, Barry and Max Mombi at Modilon General Hospital (annexures B, C and D to John Mombi’s affidavit), have different dates marked “28/3/06”, “31/05/06” and “31/5/2005” [sic]. They are copies (not originals) that are barely legible. It is not known who prepared them. There is nothing on them that relates them to any particular person or indicates that they are patient notes relating to treatment at Modilon General Hospital. These medical notes have no probabtive value.
      
    • No evidence has been given by a doctor or nurse or other medical professional who treated Rosina, Barry and Max Mombi at Modilon General Hospital.
      

Defendant’s evidence

12. The evidence was of limited probative value as both Ms Fernando and Mr Wangak only gave evidence of the state of things at the time of trial (2012). What was required was evidence of the state of things in 2005 or early 2006 (which is reasonably presumed to be the period within which the tinned fish at the centre of this case would have been manufactured).
    
13. Ms Fernando stated that there had been quality control improvements since 2006. Mr Wangak stated that quality control had significantly improved since 2007. The SGS certificate of compliance with ISO 9001:2008 is an impressive testimony to quality control and assurance measures in place since 5 August 2009, but says nothing about the state of things in 2005 or early 2006.
    

Findings of fact

14. Because of the deficiencies in the evidence on both sides, the task of making findings of fact has not been straightforward. Ultimately, however, bearing in mind that it is the plaintiffs’ obligation to prove their case, and not the defendant’s obligation to disprove the plaintiffs’ case, I am satisfied that on the balance of probabilities, the plaintiffs’ version of events should be accepted, for the following reasons:
    
    1. I was impressed by the quality of the plaintiffs’ oral evidence. All of them gave oral evidence. All were cross-examined vigorously. All were unshaken about what happened. Three of them (Rosina, Barry and Max Mombi) were very young at the time of the incident (in 2006) and they were giving evidence six years later (in 2012). However, I consider that it was the sort of incident that a young child would remember.
       
    2. I have had regard to the sound demeanour of all plaintiffs in the witness box. In other jurisdictions such as Australia and New Zealand, which now have available a high level of forensic evidence to assist courts in determining contested facts, particularly in criminal cases, searing criticism has been made of judges giving directions to juries that invite them to consider the demeanour of witnesses in deciding who is telling the truth. However, in PNG the situation is different. We rarely decide cases according to forensic evidence. The demeanour of the witness remains an important consideration for the judge, as the tribunal of fact, to take into account when assessing the credibility of a witness and the believability and probative value of his or her evidence (Rimbink Pato v Umbu Pupu [1986] PNGLR 310, Michael Tenaram Balbal v The State (2007) SC860, Welsh Samor v The State (2014) SC1398). I was impressed by the demeanour of the plaintiffs. By that I mean the way that they gave their evidence: their answers were direct and to the point, they stuck to their stories, they were adamant that this incident happened. They did not appear to be lying. They appeared to be giving an honest account of what happened.
       
    3. The evidence of all plaintiffs, other than as to the date of the incident, was consistent.
       
    4. I have concluded that the discrepancies in the date of the incident are immaterial. The evidence was at least consistent that it happened in the first half of 2006. Whether it was 28 March, 27 May or 28 May, is inconsequential. Mr Wadau did not make an issue of the discrepancies in his submissions. It is something that should have been ironed out by the plaintiffs’ lawyers but ultimately the discrepancies in dates have not dissuaded me from accepting the plaintiffs’ evidence.
       
    5. Though, as I have observed, the plaintiffs’ evidence could have much improved with more detail and corroboration, I do not draw any inferences, adverse to the credibility of the plaintiffs’ evidence, from those shortcomings in the plaintiffs’ case.
       
    6. The defendant fell short of demonstrating that it had a foolproof processing and quality assurance system in place at the relevant time. It was of course under no legal obligation to prove that it had a foolproof system. But if it had produced such evidence, for example by showing, in support of the oral evidence of Ms Fernando and Mr Wangak, that it had an SGS certificate for ISO 9001:2008 covering the period prior to mid-2006, this would have cast doubt on the veracity of the plaintiffs’ evidence.
       
    7. I have considered the possibility that all plaintiffs gave false evidence in an attempt to get money from the defendant through a bogus claim. John Mombi is the principal plaintiff and the possibility exists that he conspired with and coached his wife and their six children to give fabricated evidence. I rule out that possibility as it would require conjuration and maintenance of a scam involving too many players that would be too difficult to maintain over such a long period, from the first part of 2006 (when the incident took place), through 2008 (when the proceedings were filed), and 2011 (when the plaintiffs affidavits were sworn) to 2012 (when they gave oral evidence).
       
    8. I take judicial notice of the fact that at least five other similar cases were commenced against RD Tuna Canners in the period from 2008 to 2010. In all cases the plaintiffs claimed that they had purchased a can of Diana Tuna tinned fish and in the process of consuming the contents discovered a condom or its remnants and as a consequence suffered nervous shock and became physically ill. I heard those cases at the same time as this one (WS 1285/2008, WS 1286/2008, WS 1287/2008, WS 1292/2008 and WS 11/2010). In all cases the plaintiffs are represented by the same lawyers, and the defendant is represented by the same lawyers. Neither side in the present case has asked that any inferences be drawn from this scenario. The plaintiffs did not attempt to run a ‘similar fact evidence’ sort of argument. The defendant did not attempt to run an argument that some sort of grand conspiracy was afoot. So I have, from the existence of the related cases, drawn no inference, adverse to or supportive of the present plaintiffs’ case, which has been dealt with on its merits.
       
15. I therefore make the following findings:
    
    1. On a day in the first half of 2006, probably 28 March or 28 May, John and Agnes Mombi purchased several unopened cans of Diana Tuna tinned fish from a retail outlet in Madang town, probably Rabtrad Trading.
       
    2. Those cans were manufactured by the defendant at its cannery near Madang and sold by the defendant, probably to an intermediary, with the intention that they be eventually available for sale to consumers, such as John and Agnes Mombi, at retail outlets, such as Rabtrad Trading.
       
    3. On the same day as purchasing the Diana Tuna, John and Agnes Mombi took the cans to their home at Wagol-Fikus, in Madang town.
       
    4. That evening, the task of preparing the evening meal was allocated to one of the Mombis’ six children, Rosina.
       
    5. At about 7.00 pm, as it was getting dark, Rosina boiled in separate pots, some rice and some kumu (aibika and spinach). She then emptied the contents of at least one of the Diana Tuna cans, which her parents had purchased earlier that day, into the kumu pot. She did not see or smell anything untoward.
       
    6. Agnes Mombi handed Rosina eight plates (one for each member of the family) and Rosina put servings of rice and kumu-and-tinned fish on each plate.
       
    7. All members of the family had commenced eating their food by the time that Rosina commenced eating hers.
       
    8. While eating, after several spoonfuls, Rosina felt something rubbery, like plastic, in her mouth. She pulled it out, checked it in the candlelight, which drew the attention of her father, John Mombi, who announced that it was a condom.
       
    9. It was in fact a condom, intact, that was in the tinned fish.
       
    10. All members of the family – the plaintiffs – saw the condom and were shocked. They all stopped eating.
        
    11. The three youngest members of the family (Rosina, Barry and Max) were sent to bed, but they woke up, vomiting, around midnight.
        
    12. All members of the family apart from John Mombi vomited as a result of consuming the food containing the condom. John Mombi felt sick but took betel nut to prevent himself vomiting.
        
    13. All plaintiffs suffered shock upon discovery of the fact that they had consumed tinned fish that contained a condom.
        
    14. Soon afterwards, around 2.00 am, the whole family – all the plaintiffs – went to Modilon General Hospital, about two kilometres from their home, to get medical treatment. They walked there. Rosina, Barry and Max were carried by other family members.
        
    15. On arrival at the hospital, Rosina, Barry and Max, the worst affected, were placed on IV drips and medicated. They were discharged at about 6.30 am.
        
    16. Rosina, Barry and Max went to their school, Lutheran Day Primary, that morning but returned at lunchtime, feeling unwell. They did not return to school.
        

2 HAVE THE PLAINTIFFS ESTABLISHED A CAUSE OF ACTION AGAINST THE DEFENDANT?

16.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 plaintiffs;

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

(c) the breach of duty caused injury to the plaintiffs;

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

17. See generally J G Fleming, The Law of Torts, 5^th 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 v Angau Memorial Hospital Board (2005) N2779). 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

18. In the classic British case of Donoghue v Stevenson [1932] AC 562, the plaintiff, Mrs Donoghue, became ill and suffered shock after discovering that she had consumed, in a café in Scotland, ginger beer that contained a decomposed snail. The ginger beer was purchased from the café proprietor, who had purchased it from the defendant, the ginger beer manufacturer, Mr Stevenson. The question arose whether the plaintiff consumer had a cause of action in negligence against the defendant manufacturer, and that question turned on whether the manufacturer owed a duty of care to the plaintiff, a consumer. The case went to the House of Lords and Mrs Donoghue won. The House of Lords decided by a 3:2 majority that Mr Stevenson owed a duty of care to Mrs Donoghue and that she had established a cause of action in negligence. The decision changed the course of the common law. The leading opinion was given by Lord Atkin.
    
19. As to the general concept of duty of care, his Lordship offered the following opinion, which is probably the most often quoted in the history of the common law, 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.

20. As to the circumstances in which a manufacturer owes a duty of care to a consumer, Lord Atkin stated:
    

If your Lordships accept the view that this pleading discloses a relevant cause of action, you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends 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 preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.

It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense.

21. It has been accepted, almost without question, since Donoghue v Stevenson was decided, that it is an integral part of the common law of negligence that the manufacturer of a product will owe a duty of care to the ultimate consumer of the product if the following conditions exist:
    
    • the manufacturer sells the product in a form showing that the manufacturer intends the product to reach the ultimate consumer in the same form it left the manufacturer;
      
    • there is no reasonable possibility of intermediate examination of the product;
      
    • the manufacturer knows that if reasonable care is not taken in manufacturing the product, injury to the consumer’s life or property will be the result.
      
22. Papua New Guinea adopted the above principles of the common law at Independence, which form part of our underlying law. Those principles apply here, and the conditions are satisfied. The only reasonable inferences to be drawn from the facts are that:
    
    • the defendant manufactured, then sold, its Diana Tuna brand of tinned fish in a form, in cans, showing that it intended its product to reach consumers, such as the plaintiffs, in the same form it left its cannery;
      
    • there was no reasonable possibility of intermediate examination of the contents of the cans;
      
    • the defendant knew that if reasonable care were not taken in manufacturing the product, injury to consumers would result.
      
23. The defendant owed a duty of care to the plaintiffs. The first element of negligence is proven.
    

(b) Breach of duty

24. 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 is 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. As I said in Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181 (the case of contaminated fried rice purchased from a kai bar in Madang), other Judges have explained it in different ways.
    
25. In Burns Philp (New Guinea) Limited v Maxine George (1983) SC259 McDermott J explained res ipsa loquitur in these terms:
    

The accident must bespeak 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.

26. 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.

27. Hartshorn J explained the operation of the principle in Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650:
    

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.

28. 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 manufactured a can of tinned fish intended for retail sale and human consumption, which contained a condom, leads to only one conclusion: that the defendant was negligent.
    
29. It is not necessary for the plaintiffs to prove how the defendant was negligent. Maybe the condom fell into the fish by accident. Maybe a rogue or disgruntled employee placed it in the can to embarrass their employer. 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.
    
30. If the approach outlined by McDermott J in Burns Philip is applied: the “accident” (the plaintiffs getting sick and being shocked due to consumption of the contaminated tinned fish and/or the sight of a condom in their fish) bespeaks (is evidence of) negligence. The accident is such as to raise two inferences: (1) the accident was caused by a breach by somebody of a duty of care to the plaintiffs, and (2) that the defendant (the manufacturer) was that somebody.
    
31. If the approach outlined by Woods J in Noki is applied: something went wrong. The plaintiffs became ill due to consuming and seeing tinned fish containing a condom. 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 manufactured the tinned fish must have been negligent.
    
32. If the approach outlined by Hartshorn J in Marshall Lagoon is applied: (a) there is an absence of explanation about how the can of tinned fish came to contain a condom; (b) tinned fish does not ordinarily contain condoms, without negligence; and (c) whatever caused the condom to be in the can was under the control of the defendant.
    
33. 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. The second element of negligence is proven.

(c) Causation

34. This element can be proven by asking the simple question: would the plaintiffs have been sick and shocked but for the negligent conduct of the defendant? (Kembo Tirima v Angau Memorial Hospital Board (2005) N2779). If the answer is ‘no’, the element of causation is established. If the answer is ‘yes’, causation is not established.
    

I have already found as a fact that the plaintiffs felt and/or were sick, and shocked, as a result of consuming the tinned fish containing a condom. There is no evidence of anything else being the cause. The answer to the question ‘would the plaintiffs have been sick and shocked but for the negligent conduct of the defendant?’ is no. The third element of negligence is established.

(d) Remoteness

35. 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".

36. Here the plaintiffs are claiming, as pleaded in the statement of claim, general damages for stomach disorders and pains, nausea and vomiting and for nervous shock, as well as special damages, damages for economic loss 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

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

3 WHAT ORDERS SHOULD BE MADE?

38. As this trial was confined to the issue of liability, I will declare that the 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.
    
39. 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) The plaintiffs (namely John Mombi, Agnes Mombi, Regina Mombi, Rosina Mombi, Malai Mombi, Max Mombi, Barry Mombi and Lesa Mombi) have established a cause of action in negligence against the defendant (namely RD Tuna Canners Ltd).

(2) The plaintiffs are 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 the plaintiffs, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly,

_____________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiffs

Young Wadau Lawyers: Lawyers for the Defendant