DELTA BEVERAGES v RUTSITO 2013 (2) ZLR 298 (S)

Flynote

Delict — actio legis Aquilia — negligence — harm giving rise to claim for damages — limits to forms of harm giving rise to damages — mental distress — need for plaintiff to have suffered recognised psychiatric complaint requiring treatment — duty of care — when duty of care exists — need to show that harm was reasonably foreseeable and that a reasonable person would have guarded against such harm — claim — need to allege negligence and set out particulars

Headnote

The respondent (plaintiff in the court a quo) issued summons claiming payment of damages and costs of suit. The basis of his claim was that he had consumed a contaminated Coca-Cola and that further inspection of the bottle had revealed "a rusting iron nail and blackish foreign substances." In his declaration, he alleged that the appellant, as the manufacturer of the beverage in question, owed him and the general public a duty of care to ensure that the product was safe, clean and fit for human consumption and that the appellant had breached that duty by producing the contaminated drink. In the alternative, he alleged that the appellant had "negligently allowed the production and selling of contaminated Coke" which he consumed. In the result he sought damages in the sum mentioned for what he termed "distress and anxiety."

It was not shown whether the particular bottle was produced by the appellant or by another associated bottling company. The respondent agreed during cross examination in the court a quo that no psychiatric condition resulted. The medical report produced before the court showed that there were no pathogens in the sample that was analysed. No harm requiring medical treatment was proved. Indeed no medical evidence was called to confirm whether he had suffered any nervous shock as suggested. The respondent in evidence admitted that the only outcome of the event was that he had become more cautious about drinking bottled beverages. An application for absolution having failed, the appellant appealed.

Held, that a claim for damages in respect of pain and suffering strictly constitutes more than a head in a general Aquilian action; it is in origin a separate remedy. It aims at compensating the victim for all pain, suffering, shock and discomfort suffered by him as a result of the wrongful act. It includes both physical and mental pain and suffering and both past and future pain and suffering. Moreover, account must be taken, not only of the pain and suffering suffered as a direct consequence of the inflicting of the injuries, but also of pain and suffering associated with surgical operations and other curative treatment reasonably undergone by the plaintiff in respect of such injuries.

Held, further, that damage is the detrimental impact upon any patrimonial or personality interest deemed worthy of protection by the law. The concept of damage is not unlimited in scope. It does not include every form of harm whatsoever and indeed some forms of harm are excluded. Only harm in respect of legally recognised patrimonial and non-patrimonial interests of a person qualifies as damage. This may be the reason why losses and harm such as inconvenience, disappointment, fear or frustration are not compensable in terms of the Aquilian action. Mere mental distress, injured feelings, inconvenience or annoyance cannot support an award of Aquilian damages. Damages cannot be claimed for transient nervous distress which does not lead on to a recognised psychiatric complaint requiring treatment.

Held, further, that with regard to whether negligence had been shown, the expression "duty of care" is used in two separate and distinct senses. The first is in connection with negligence: a person is said to have breached the duty of care (i.e. to have been negligent) when he fails to foresee and guard against harm which the reasonable person would have foreseen and guarded against. The second is in connection with wrongfulness: although the reasonable man would have foreseen and guarded against harm, the defendant is not liable as the law does not recognise any duty of care to avoid causing that sort of harm (i.e. the conduct was not wrongful or, to put it another way, there was no recognised legal duty to avoid causing harm by negligent conduct). In other words, in determining whether or not a person was negligent, there is need to determine whether harm was reasonably foreseeable and, if so, whether the reasonable person would have guarded against such harm. As no particulars of the negligence alleged were set out or proved, there was no basis upon which the appellant could have been placed on its defence. In an Aquilian action in which a plaintiff claims damages, whether for patrimonial or non-patrimonial loss, it is incumbent upon him to plead negligence on the part of the defendant and to set out the particulars of such negligence. Where such particulars are not set out, the defendant is embarrassed in his defence, as he cannot know the basis on which liability is claimed. It is not enough to allege negligence and fail to give particulars of such negligence. A defendant is entitled to know the outline of the case that a plaintiff will try to make against him.

Held, further, that the liability of a beverage manufacturer or brewery is not absolute. If the steps it took to avoid contamination were reasonable, in the sense that nothing more could reasonably have been done, then it would not be liable, because it would not have been negligent. It was for the respondent to prove that the manufacturing processes of the appellant were deficient in particular respects. Only then could the appellant have been placed on its defence. No such evidence was led.

Held, further, that absolution should accordingly have been granted.