Anita Baikisa v J & Z Trading Ltd

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 12 February 2016
• Citation: (2016) N6181
• Judgment Number: N6181
• Year: 2016

Full : WS Nos 1167 & 1168 of 2007; Anita Baikisa & Andrew Kuri Baikisa v J & Z Trading Limited (2016) N6181

National Court: Cannings J

Judgment Delivered: 12 February 2016

N6181

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NOS 1167 & 1168 OF 2007

ANITA BAIKISA & ANDREW KURI BAIKISA

Plaintiffs

V

J & Z TRADING LIMITED

Defendant

Madang: Cannings J

2015: 20th July and 5th August,

2016: 12th February

TORTS – Negligence – Plaintiffs’ claim that they contracted food poisoning due to consumption of cooked food purchased from defendant’s shop – elements of tort of negligence – whether defendant owed duty of care to plaintiffs – whether defendant was negligent – whether defendant’s negligence caused plaintiffs’ injuries.

The plaintiffs claimed that they purchased fried rice from the defendant’s kai bar; that they ate part of it before realising that it was bad; that they suffered food poisoning and as a consequence became violently ill. They sued the defendant, claiming damages for negligence. The defendant filed a defence, denying all allegations of negligence. A trial was conducted on the issue of liability. The plaintiffs produced evidence in support of their allegations but the defendant failed to produce any evidence or to make submissions in response to those of the plaintiffs.

Held:

(1) The facts, as alleged by the plaintiffs, were proven to have occurred: they purchased food from the defendant and became ill soon afterwards; they suffered food poisoning; they were given medical treatment.

(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, a food retailer, owed a duty of care to its customers, 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 for negligence.

Cases cited

Burns Philp (New Guinea) Limited v Maxine George (1983) SC259

Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562

Donoghue v Stevenson [1932] AC 562

Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184

Kembo Tirima v Angau Memorial Hospital Board & The State (2005) N2779

Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650

Noki v Barclay Bros [1991] PNGLR 260

Otto Benal Magiten v William Moses (2006) N5008

Paul Perex v PNG Institute of Medical Research (2014) N5614

Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260

STATEMENT OF CLAIM

This was a trial on liability for negligence.

Counsel

B B Wak, for the Plaintiffs

T M Ilaisa, for the Defendant

12th February, 2016

1. CANNINGS J: The question is whether the defendant, J & Z Trading Ltd, is liable in negligence to the plaintiffs, Anita and Andrew Baikisa, who say that they suffered food poisoning as a result of consuming fried rice purchased from the defendant’s kai bar.

2. The plaintiffs (who are wife and husband) claim that they ate part of the fried rice before realising that it was bad, and it made them violently ill. They have each commenced proceedings against the defendant, claiming damages for negligence. The defendant filed a defence in each case, denying all allegations of negligence. A trial has been conducted in each case on the issue of liability. The plaintiffs produced evidence in support of their allegations but the defendant failed to produce any evidence or to make submissions in response to those of the plaintiffs. There are three issues:

i. What are the facts?

ii. Have the plaintiffs established a cause of action in negligence?

iii. What orders should be made?

WHAT ARE THE FACTS?

3. An affidavit by each plaintiff has been admitted into evidence, together with affidavits by Dr Steven Toraso of the Accident and Emergency Department of Modilon General Hospital. The averments of fact made in those affidavits do not appear to be far-fetched or incredible. The defendant, by adducing no evidence in rebuttal and by making no submissions, has provided no reason for rejecting the sworn testimony provided. I am satisfied that the plaintiffs have proven on the balance of probabilities that the facts averred in their affidavits actually occurred. I therefore make the following findings of fact.

4. At 2.00 pm on Sunday 11 March 2007 the plaintiffs went to the defendant’s kai bar in Yamauan Street, Madang and purchased soft drinks and two portions of takeaway fried rice. They repaired to a spot under a nearby shade tree where they sat down and commenced eating the fried rice. After they had each consumed part of it, Anita noticed that it tasted sour. When she looked at it more closely she saw mould.

5. They both stopped eating and returned to the kai bar, where they complained to the management, in particular to a man called Gesney, about the quality of the rice. Andrew asked when it was cooked but his enquiry was not met with a polite response.

6. The plaintiffs then walked to the nearby Madang Police Station where they lodged a complaint, which was dealt with by Sergeant Toby Kamseboda who immediately accompanied them back to the kai bar. Sergeant Kamseboda conducted an on-the-spot taste-test of the fried rice inside the premises. That it was not fit for human consumption was confirmed by his having to rush outside to spit it out.

7. He then drove the plaintiffs to the home of the local health inspector to report the matter. Later that afternoon the plaintiffs went to their home in Madang but in the evening both felt unwell. They had nausea and diarrhoea and vomited during the night.

8. The next morning, Monday 12 March 2007, the plaintiffs reported the matter to Madang Local-level Government, which led to the Acting Town Manager John Barre writing a letter of concern to the defendant, dated 16 March 2007.

9. The plaintiffs then went to the Accident and Emergency Department of Modilon General Hospital where they were admitted for treatment. Reports by Dr Toraso, who treated them, show that they had the same symptoms: severe abdominal pain, diarrhoea, vomiting and dehydration. They each “had elevated white blood cells which indicated recent gastrointestinal infection”. Dr Toraso reports that each was otherwise in a stable condition. He treated them for “acute food poisoning” with high doses of intravenous fluids and antibiotics. They were discharged after 12 hours by which time their condition had stabilised.

10. Dr Toraso did not report on any microbiological examination of the plaintiffs’ pekpek and a sample of the fried rice, which would have identified whether the type of bacteria that had infected the plaintiffs (eg salmonella, staphylococcal, streptococcal) was also in the fried rice. This would have assisted the Court in assessing whether consumption of the fried rice led to the plaintiffs’ illness. It would have been preferable for the plaintiffs to be cross-examined about anything else they ate earlier in the day that might have been the cause of infection. The defendant might have thrown doubt on the causal connection between the fried rice and the plaintiffs’ illness by giving evidence that no one else complained of illness following consumption of the fried rice.

11. All of that was desirable, but not necessary, evidence. The Court must work on the available evidence. Just as in a criminal case, where the standard of proof is ‘beyond reasonable doubt’ and the prosecution can prove its case by circumstantial evidence, so it is that in a civil case, where the lesser standard of proof of ‘on the balance of probabilities’ applies, a plaintiff’s case can be proven in the same way.

12. I find that, here, based on the circumstantial evidence that has been produced to the Court, the plaintiffs have proven on the balance of probabilities that the fried rice they consumed, which had been purchased from the defendant, was bad and that their consumption of it led to them suffering acute food poisoning.

4. HAVE THE PLAINTIFFS ESTABLISHED A CAUSE OF ACTION IN NEGLIGENCE?

13. 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 plaintiff;

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

(c) the breach of duty caused damage to the plaintiff;

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

14. See generally J G Fleming, The Law of Torts, 5th 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...