Supreme Court
Action No. 230 of 1978
22nd July, 1982
Rajasingham, J.

Tort - Negligence - Plaintiff finding toad-fish like jellied object in bottle of beer or stout manufactured by Defendant Company - Application of manufacturer's rule - Onus and standard of proof needed to establish manufacturer's negligence - Onus of proof lies with the Plaintiff and proof of presence of toad-fish like jellied object sufficient to establish a prima facie case of negligence on the part of the manufacturer - Res ipsa loquitur doctrine applicable in cases involving manufacturer's rule - Rebuttal of evidence by Defendant in cases involving manufacturer's rule - Defendant Company showing that its brewing and bottling process was fool-proof - Defendant Company showing that there was a practice in public houses to manually recap opened beverage bottles rejected by some customers and to pass such bottles on to unsuspecting customers - Whether Defendant Company rebutted evidence of negligence on its part by establishing existence of such practice - Plaintiff failing to have toad-fish like jellied object scientifically tested to determine its origin - Effect of Plaintiff's failure.

J U D G M E N T

The Plaintiff in this case claims damages for nausea and physical illness caused by his partly consuming a bottle of stout or beer manufactured by the Defendant company in which the Plaintiff discovered a toad-fish like jellied object. The Plaintiff avers that this object could not have gotten into the bottle of stout or beer if the Defendants had not been negligent in manufacturing and bottling the stout or beer. I shall refer to the drink consumed as a beverage as it is not certain whether it was a bottle of stout as the Plaintiff claims it was, or a bottle of beer as the Plaintiff's witness Marsden says he is certain it was. The Defendants deny that such an object was found in a bottle of beverage manufactured by them and also deny that such an object being in the bottle resulted from their negligence.

The Plaintiff's evidence was brief and quite credible. He stated that at about 5:30 p.m. on the 11th of November, 1978, he went to the Mars Restaurant in Belmopan and ordered a stout. He said he took one sip and then a second and tasted something slimy; I presume he means he felt something slimy in his mouth. He then called the attention of Albert Marsden Jr. the bartender to it and they both went out of the Restaurant as it was dark inside. The Plaintiff says he poured a part of the contents out and a slimy blackish brown thing like a toad-fish fell out of the bottle. He said he vomitted after he saw it, and "railed" up at the bartender and left for his home. He did have the presence of mind to put the slimy thing back in the bottle and take it with him. On the following day he brought the bottle and its contents to his lawyer in Belize City, who in due course filed this Action. No further attempt was made to have the slimy thing examined by a knowledgeable person; it was presumably sufficiently identifiable as the statement of claim states that it was a toad-fish like object. The Plaintiff called the bartender Albert Marsden Jr. as a supporting witness. Marsden described the thing as a greenish tadpole-like slimy thing. The evidence of Marsden supports the essential matters spoken to by the Plaintiff but in certain other areas he seemed to be on the defensive almost as if he had some guilty knowledge which he was at pains to keep to himself. The cross-examination did not appear to contest that such a thing was actually found in the bottle although the pleadings had denied it. The cross-examination of both Marsden and the Plaintiff was aimed at showing that bartenders were in the habit of putting aside bottles opened in error and rejected by the purchaser; these bottles were recapped by hand and served up later to an unsuspecting purchaser. The Plaintiff was frank in admitting that he had seen bottles opened in error being put aside, but his witness Marsden denied he had seen it happen or made such a mistake himself; he seemed to go out of his way to rule out such an error taking place in his bar. He said he alone served at his bar in 1978 even when a dance was being held there and between 100 and 200 people were present. The Plaintiff on the other hand admitted that he had seen females and Marsden's brothers assisting Marsden at the bar. It is intriguing that Marsden went so far out of the way to deny any possibility of such an error occurring at his bar; it makes one wonder whether it happens often at his bar and he is afraid for its reputation or whether he actually knows that it happened in the present case. Unfortunately, Counsel for the Defence did not pursue this avenue of possible motivation for an obvious falsehood.

The Defence called the Managing Director and the operator of the bottling machine. The Managing Director gave a detailed description of the brewing and bottling process. He said the strained brew passes through a high pressure filter consisting of 56 layers of filter sandwiched in diaphamaceous earth or specially treated soil. The brew then goes into production tanks and is piped from there through an outlet four inches above the floor of the tank, thus permitting sediment to settle on the floor of the tank; the pipes convey the brew to the bottling plant. The other simultaneous process is that of washing and bringing the bottles up for filling. The bottles pass through a washer, which washes, scrubs and rinses the bottles in three caustic soda tanks at a temperature of 1500 F. Then they pass through two water tanks at water temperatures of 1500 F. They then pass through water jets spurting water at 40 pounds per square inch and thereafter through two lines of rotating brushes which enter each bottle in turn and rotate at 1200 revolutions per minute. They then pass in front of two inspection lights each manned by two trained inspectors; these men remove any suspect bottle off the conveyor. The bottles are then mechanically filled with no opportunity for extraneous matter to enter them, and immediately crowned or capped. They then pass before another inspection light similarly manned. The purpose of the inspection light is principally to check each bottle for chipping or excess air but also for impurities. The latter understandably occurs very very infrequently in my opinion, because all that can pass through the filtering systems is in all probability only fine sediment. The bottle-washing process both washes and pasteurises the bottles mechanically and leaves no room for human error. Mr. Rivas stated in his evidence that he was presently the supervisor of the bottling section, and had served in various capacities in his time with the company including that of inspector in the bottling section. He had been with the company since 1975 and states that the present system of manufacture was that followed by the Company since he joined it. This was necessitated by the fact that Mr. Fonseca had only joined the company in late 1979. I visited the Defendants factory, accompanied by the Registrar and both Counsel, on very short notice so as to satisfy myself that the system was as "foolproof" as Mr. Fonseca stated it was.

The Plaintiff's claim is based on the so-called "Manufacturer Rule" elucidated in the case of Donoughue v Stevenson (1932 A.C. 562) viz. that a manufacturer of a product which he sells in such a form as to show that he intends it to reach the ultimate consumer in the form in which it left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or bottling of the product will result in an injury to the consumer, owes a duty to the consumer to take reasonable care. This principle entitles the consumer to claim compensation for injury suffered by him by reason of the lack of such care by the manufacturer; the claim is based on negligence. The facts in the present case are almost exactly similar to those in the case of Donoughue v Stevenson. That case, as decided by the House of Lords, established that in those circumstances a cause of action did lie with the consumer for the injury suffered by him by such negligence.

In an action based on negligence, the burden of proving that the Defendant was negligent must normally lie on the Plaintiff; but in a case such as this, although evidence of negligence is necessary, the proof of the presence of the toad-fish like thing in the beverage manufactured by the Defendant which would suggest negligence on the part of the manufacturer, is sufficient to establish a prima facie case of negligence against the Defendant. This is based on a doctrine of law viz. the doctrine of res ipsa loquitur or "the fact speaks for itself;" The thing could not have gotten into the bottle unless someone had been negligent. The presence of a foreign substance in the bottle is only proof of negligence on the part of the manufacturer if it is proved that the bottle is in the same condition as when it left the manufacturer. In the present case the bottle was "crowned" when it left the factory and this is sufficient evidence to raise a prima facie case of negligence against the Defendant company. Just as in the case of the ginger beer bottle in Donoughue v Stevenson the probability of intermediate examination of the beverage by the consumer before actual consumption was very slim. It was consumed directly from the bottle and it is reasonable to conclude that the manufacturer was aware of such a practice.

The Plaintiff has established that a foreign substance was found in the beverage, that it appeared to be in the state in which it left the factory in that the crown appeared intact and that he drank it from the bottle and had no opportunity of intermediate examination. The Plaintiff thus established a prima facie case of negligence against the Defendant.

The Defendant sought to meet this prima facie case against it by showing positively that the company had not been negligent in the manufacture of the beverage and in bottling it and also by showing that the beverage was not solely under its management and control between the time of its manufacture and its consumption, although it may be thought that it was. The Defendant's evidence sought to establish that the process of manufacture would not allow any foreign article of an inch and a quarter to enter its product or to remain in the bottle after inspection at four points. I saw the factory myself and am satisfied that no foreign article of that size could get past the filtering system used by the Defendant nor past the inspections done of the bottle product. In the case of the inspections, I must make the reservation that in the case of stout which is so much darker in colouration, a rather remote possibility of error does exist; but in view of the fine filtration process through which the brew travels and the repeated inspection this possibility becomes an improbability.

The Defendant also sought by cross-examination to establish and, in view of the Plaintiff's own evidence, did establish that a possible source for the introduction of this foreign article was the practice of bartenders to retain bottles opened in error, with the cap manually replaced, for sale to an unsuspecting consumer. I think it established beyond all doubt that such a practice is quite common at public houses and the denial of the witness Marsden only, to my mind, confirms that he was probably guilty of such a practice.

The test facing a Defendant in a case in which the Plaintiff seeks to rely on the doctrine of res ipsa loquitur is to disprove negligence or to attempt to show that the thing could have occurred without negligence on his part, for example through the act or negligence of another; for so long as the inescapable conclusion of negligence on the part of the Defendant is shown to be in fact non-existent, the doctrine of res ipsa loquitur will not apply and the Plaintiff will, in so far as proving negligence is concerned, be right back where he started. This doctrine can only apply where negligence on the part of the Defendant is the only possible, or even a probably conclusion. The doctrine at best enables a Plaintiff to say he has established a prima facie case; not an absolute case, but a rebuttable case. As Evershed M.R. said in Moore v. R. Fox & Sons (1956 1 Q.B. 596) - "If, on a closer analysis of the happening and its circumstances, it does not in truth appear fairly to follow that the proper inference is one of negligence, then the case is not one of res ipsa loquitur."

In the present case the existence of possible alternative means by which the foreign articles could have gotten into the bottle must mean that the case is not one of res ipsa loquitur. The burden of proof thus cannot be said to have been shifted on to the Defendant. Thus, quite apart from the finding I have already made that the process of manufacture appears to me to be unlikely to permit the introduction of such large foreign articles into the beverage, the Plaintiff's case must fail for want of proof of negligence on the part of the Defendant company.

I think I should deal with a matter which was raised by Plaintiff's Counsel, namely that this jelly like thing could have been the result of bacterial action following the introduction of impurities during production. The evidence is that it was a "toad-fish like thing about one and a quarter inch in length" in the words of the Plaintiff or "a tadpole like thing" in the words of the witness Marsden. Furthermore the witness Fonseca, to whom the possibility was put of this being a jelly formed by bacterial action, stated very positively that since all polysaccharin was extracted from the brew by chemical process no jelly or gelatinous matter could form in the final product. However, if the Plaintiff was relying on the chemical formation of such a substance in the sealed bottle, I do not think it unreasonable to say that it was for the Plaintiff to prove it was so formed; for it is only upon proof of the possibility of such chemical reaction that the burden could be shifted, even on the doctrine of res ipsa loquitur, on the Defendant to prove that his manufacturing process would not permit such a jelly to form. The witness Fonseca has done this anyhow by explaining why it could not occur.

I dismiss the Plaintiff's claim with costs.

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