The Appellant, sometime in January 2011 at about 09h00, bought a castle lager beer from Titanic Bar in Riverside, Kapiri Mposhi. The bar attendant opened the bottle of beer in his presence and gave him to drink. The Appellant consumed part of the contents and noticed that there were some particles floating in the drink. Thereupon, he immediately informed the bar attendant who sent someone to buy milk, which he drank. The bar attendant also referred him to the Respondent's agent, Santa Flo, from where the whole consignment of beer was bought. The Appellant explained that when he went to the Santa Flo container, the manager denied any responsibility for the contamination but offered to replace the bottle of beer. The Appellant stated that he turned down the offer because he was worried about the particles he had consumed. He thereafter reported the matter to the Police who furnished him with a medical report and he was treated for abdominal pains at Kapiri Mposhi hospital.
The Appellant took his complaint to Kapiri Mposhi Municipal Council who sent the bottle of beer to the Food and Drugs Control laboratory in Lusaka for analysis. The findings issued by the Public Analyst on 10 February 2011, some twelve days after the incident, confirmed that there was foreign matter in the contents of the bottle. The foreign matter was identified as fungal growths. Armed with these findings, the Appellant sued the Respondent claiming damages for personal injuries and consequential losses, damages caused by negligence and breach of statutory duty of care by the Respondent in the manufacturing and bottling of the Castle Lager beverage, amongst other things. During trial, the Respondent's witness, Allan Bwalya (DW1), a Quality Trade Manager, admitted that they received a complaint from the Appellant over the incident, but that the Appellant did not produce the beer bottle to enable the Respondent to identify whether the Castle beer was their product and determine the substances alleged to have been found in the bottle. According to DW1, there were several countries in Africa that manufactured the castle lager brand and some of these products were normally smuggled into the country resulting in many counterfeit products on the market. DW1 also told the Court that they visited Titanic bar and found foreign brands of castle beer. They also found counterfeits of castle beer in various parts of Kapiri Mposhi. The learned trial Judge held that while she did not dispute the findings of the Public Analyst's report, the analyst did not state that the product was that of the Respondent. In her view, the Appellant's failure to go with the bottle to the Respondent made it difficult for the Court to conclude that the product was manufactured by the Respondent. At the end of the day, the learned trial Judge concluded that while all the elements of negligence had been established, the Appellant had not established that the Respondent had manufactured the castle beer in question. This was more so, in the light of DW1's evidence that he had visited Titanic bar where the Appellant had bought the beer and found that some of the products were imported while others were counterfeit. She said that the failure by the Appellant to establish the person who manufactured the beer in question worked in the Respondent's favour. On that basis, she held that the Appellant had failed to prove his case on a balance of probabilities and she accordingly dismissed his action. The Appellant appealed.
Held:
1. The Supreme Court has always been slow to interfere with findings of a trial court that has had the benefit of hearing and seeing the witnesses, unless, of course the Supreme Court is satisfied that the trial court, in its evaluation of the evidence, was wrong in principle or did not take into account certain evidence or did in fact take into account evidence it ought not to have. Wilson Masautso Zulu v Avondale Housing Project Limited (1982) ZR 172 followed.
2. It is trite that for an action in negligence to succeed, it must be shown that the defendant owed a duty of care to the plaintiff; that that duty had been breached; and, that the plaintiff had suffered damage by that breach. The law of negligence also places a duty on a manufacturer of products to take reasonable care.
3. The law of negligence places the burden on the claimant to prove every element of the tort. During the course of a trial, whilst the state of the evidence as to some particular issue was to impose a provisional burden of proof on the defendant to rebut an inference or presumption to which the evidence gives rise, the legal burden of proof continues to rest throughout upon the claimant as the person alleging negligence. This means that the evidence led must allow the court to proceed beyond pure guesswork so as to reach an appropriate legal inference. This provisional burden was properly discharged by the Respondent. In the circumstances, the legal burden still rested on the Appellant to prove that he suffered injury as a result of the Respondent's breach of duty. This burden was not discharged by the Appellant.
4. The findings of foreign matter in the castle beer notwithstanding, the absence or failure by the Appellant to produce the actual bottle containing the fungal matter and the resultant failure to establish if the beer was a product of the Respondent were fatal to the Appellant's case, as these went to the root of the claim. This is more so in the light of uncontroverted evidence by the Respondent that they found foreign brands of castle lager beer in Titanic Bar from which the beer was bought and counterfeit castle lager on the market in Kapiri Mposhi.