JELR 107997 (HC) 1

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[FIND RATIO DECIDENDI, SIMILAR AND CITING CASES, AND TREATMENTS]

DR. EDEM ANYIGBA

V.
COCA COLA BOTTLING COMPANY OF GHANA LTD
(2017) JELR 107997 (HC)

HIGH COURT · SUIT NO. AD 18/2013 · MARCH 27, 2017 · GHANA

CORAM

JUSTICE PATIENCE MILLS-TETTEH (MRS.)

JUDGMENT

MILLS-TETTEH (MRS.), J.

Every manufacturer owes a duty of care to its consumers and irrespective of the chain of
distributers between the manufacturer and the end consumer; it is an obligation of the
manufacturer to make sure this duty of care is not breached. It is to the detriment of a
manufacturer if the end product does not get to the consumer in the quality in which it was
produced. It is under this circumstance that the plaintiff herein instituted this action on the 28th
January, 2013, claiming damages for negligence and such other reliefs which may appear just.

THE CASE OF THE PLAINTIFF

The plaintiff, a reconstructive plastic surgeon alleged negligence against the defendant a body
corporate established under the laws of Ghana and engaged in the production of non-alcoholic
beverages. The defendant manufactures among other things Coca Cola drink. It is the case of the
plaintiff that the defendant should manufacture her product with reasonable care such that it might
not result in injury or damage to persons consuming same. According to the plaintiff, on the 10th
of July, 2012, in the company of three colleague doctors, he visited the Meddinner Restaurant
situated within the Korle- Bu Teaching hospital in Accra. At the restaurant he placed an order for a
500cl bottle of Coca Cola manufactured by the defendant. It is the case of the plaintiff that after

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opening the bottle in the presence of his colleagues and sipping some, he felt a slimy substance
in his mouth and also noticed that the drink was flat. A close examination of the bottle revealed a
whitish substance floating in the drink. It is the plaintiff’s case that he immediately brought it to the
notice of the attendant and supervisor. The supervisor informed the plaintiff that the matter will be
reported to the defendant Company for further action. According to the plaintiff, he suffered shock
and abdominal pains and the said injury, loss and or damage were occasioned by reason of
defendant’s negligence and or breach of duty in the production of the Coca Cola drink.

PARTICULARS OF NEGLIGENCE

∙ Manufacturing and selling the said Coca Cola drink when defendant knew or ought to have
known that the same or part thereof contained extraneous deleterious substances the
consumption of which will cause damage or injury to the consumer

∙ Failing to take any or adequate or necessary precautions in the manufacture of the said Coca
Cola drink so as to prevent any injurious or deleterious substances being contained therein

∙ Permitting the said Coca Cola to contain injurious or deleterious substances.

∙ Failing to take any or adequate measures whether by way of inspection, examination or

otherwise to ensure that the said Coca Cola manufactured by the defendant contained no
injurious or deleterious substances.

∙ The plaintiff will further rely on the doctrine of res ipsa loquitor

It is the case of the plaintiff that by a letter dated 20th November, 2012, plaintiff per his solicitors
brought the forgoing to the attention of the defendants and demanded compensation but
defendants have not heeded to the demands hence this action.

CASE OF THE DEFENDANT

Defendant in her statement of defence denied negligence. Defendant stated that she maintained a
high regime of production and quality control in the manufacture and distribution of her products.

It is the case of the defendant that she always implemented her corporate benchmark of only
supplying products of stellar quality to its vast clientele who are members of the general public and
society. The defendant stated that she exercises all reasonable care and consistently undertakes
strict application of quality control checks and filling of all her product bottles. The defendant stated
that based on her enviable quality control history the allegations of the plaintiff are baseless and
without merit.

It is the case of the defendant that upon receiving information of plaintiff’s allegation, she took
possession of the alleged contaminated product and conducted a comprehensive forensic
laboratory test. The defendant stated that the results of the laboratory revealed no production
flaws on the date of manufacture. The defendant further stated that the poor storage of the alleged
contaminated product rendered her impossible to draw any specific conclusion on the plaintiff’s
wild allegation. According to the defendant the attempt by the plaintiff to rely on the doctrine of res
ipsa loquitor is evidence of the plaintiff’s inability to prove the allegations against the defendant.

The defendant stated that he takes duty of care obligation to the public strictly and therefore the

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plaintiff is not entitled to his claim.

ISSUES

o Whether or not there is a whitish substance and whether or not any scientific examination has
been carried out on the alleged whitish substance in the alleged bottle of Coca Cola drink.

o Whether or not defendant was negligent in the production of the bottle of Coca Cola drink.

o Whether or not upon the consumption of the bottle of Coca Cola drink the plaintiff suffered injury.

It is an undeniable fact that a manufacturer of a product which will affect the consumer’s health
wise must take utmost care that the product reaches the consumer in good and fresh state. The
manufacturer therefore has duty of care to the consumer in the process of manufacture and in the
process of distribution so that the product gets to the consumer wholesome. That is the reason a
manufacturer must ensure that there is expiry date on the product to enable the consumer to
compute the shelf life of every product, even those which will not directly affect the health of the
consumer.

The onus is therefore on the plaintiff to prove that the defendant broke this duty of care she owed
the consumer. There must either be facts established which will lead to the presumption of
negligence by res ipsa loquitor as stated in the case of ACHEAMPOG v. OVERSEAS
BREWERIES LTD [1971]GLR 7. “The duty as laid down is to take reasonable care in the
manufacture of the product and it is the failure to take care that will render him liable to the
consumer who is injured.

Negligence therefore has to be established against the manufacturer before ability is established
and the method of proof is the same as any other case of negligence. The mere presence of
foreign or deleterious matter is not per se enough and negligence has to be established either by
way of presumption of negligence with res ipsa loquitor, or where facts are established which gives
to an inference of negligence.”

The defendant on the other hand must prove non negligence, as in the case of MAYNE v.
SILVERMERE CLEANERS LTD [1939] 1 ALLER 693 when dermatitis was contracted on wearing
a suit just cleaned by the defendants, it was held the burden was on the defendant to prove no
negligence.

ISSUES AS RELATED TO THE FACTS HEREIN:

o WHETHER OR NOT THERE IS A WHITISH SUBSTANCE AND WHETHER OR NOT ANY

SCIENTIFIC EXAMINATION HAS BEEN CARRIED OUT ON THE ALLEGED WHITISH
SUBSTANCE IN THE ALLEGED BOTTLE OF COCA COLA DRINK.

In the case herein there was no dispute with respect to the presence of whitish foreign substance
in the drink. The plaintiff successfully proved that there was a foreign matter in the drink sold to
him. It was a case of res ipso loquitor. The defendant saw the substance and admitted its
presence in the drink manufactured by her.

THE ISSUE AS TO WHETHER THE DEFENDANT WAS NEGLIGENT IN THE PRODUCTION OF

THE DRINK:

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In the case of ABOAGYE v. KUMASI BREWERY LTD [1964] GLR 242 where the plaintiff found a
rotten palm nut in the beer bottle after he had drank three quarters of the content, the court had to
decide on three questions ;

1. Was the nut in the beer

2. Was this caused by negligence of the defendant

3. Did the plaintiff become sick as a result of drinking the beer?

The plaintiff must prove the above on preponderance of probabilities as stated in Evidence Act
section 12(1) and it is that,: “….the burden of persuasion requires proof of a preponderance of the
probabilities” Preponderance of probabilities here means, that degree of certainty or belief in the
mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more
probable than its non existence.

The plaintiff as well as his two witnesses Pw1 Dr. Kwame Darko and the manager of the Medinner
Restaurant testified of a foreign substance in the drink and the defendant admitted same.

Even though the defendant sought to deny that this was caused by her negligence the evidence
points to lapses on the production line of the defendant. The defendant did not live up to that duty
of care he owed the plaintiff. The foreign substance in the drink created a presumption of
negligence. The manufacturer’s liability, principle is based on control of the production process of
the product by the manufacturer, according to Lord Macmillan in Donoghue v. Stevenson. [1932]
AC562 Donoghue’s case thus covers such negligent acts as occur in the actual manufacture of
the products.

The defendant stated under cross examination that they have human sighters who look through the
bottle to detect any foreign material in the filled bottle before it goes out. Human perfection is not
guaranteed so there could be a lapse which amounts to negligence on the part of the defendant.
Plaintiff therefore in proving that the whitish substance was present proved also that the defendant
who owed him a duty of care broke that duty and therefore was negligent.

Plaintiff produced no documentary proof of his bodily injury consequent upon his consumption of
the drink with the whitish substance. Plaintiff stated that he had shock and abdominal pain.
Anyone who swallows a foreign matter in a drink will experience some trauma even if there is no
evidence of physical injury. Any whitish substance which is not supposed to be taken internally will
cause injury when taken internally and for anyone to imagine that one has swallowed a foreign
substance is traumatic.

WHETHER OR NOT UPON THE COMSUMPTION OF THE BOTTLE OF THE COCA COLA
PLAINTIFF SUFFERED ANY INJURY

The plaintiff stated in evidence that a week after the incident, the defendant requested that he
undergoes blood screening after which he will compensated but he refused because he was busy
at work, and there had been a considerable lapse of time from the day the incident occurred and
the phase of nausea he experienced soon after the incident had subsided. That did not nullify the
fact of some injury to his body by the unexpected swallowing of a foreign substance into his body.

The plaintiff stated that he suffered shock and severe abdominal pains but he did not tender any

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medical report to prove such physical injury. Such emotional injury will flow from the circumstances
of this incident. It is naturally traumatic for anyone who realizes that a substance which ought not
to be swallowed has indeed gone down the throat into the stomach.

So far as the Coca cola Company has admitted the presence of a foreign body in the Coca cola
drink and had intended based on the medical results to pay damages to the defendant, Coca Cola
Company has breached its duty of care to the end consumer and the Coca cola

Company is liable to damages which naturally flows from injuries which such a foreign matter will
cause to the physical body.

Judgment is therefore hereby entered in favour of the plaintiff, GHC20,000.0 damages awarded to
the plaintiff herein with costs of GHC 2,000.0 against the defendant.

(SGD.)

PATIENCE MILLS-TETTEH (MRS.)

(JUSTICE OF THE HIGH COURT)

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APPEARANCES

MAAME SARPONG HOLDING BRIEF FOR BRIGHT OKYERE AGYEKUM FOR

PLAINTIFF; EBO LAING FOR DEFENDANT.

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