DR. EDEM KOFI ANYIGBA v. THE COCA COLA BOTTLING COMPANY OF GHANA LTD.
December 20, 2018
COURT OF APPEAL
GHANA
CORAM
- P. K. GYAESAYOR, JA (PRESIDING)
- E. K. AYEBI, JA
- TANKO AMADU, JA
Areas of Law
- Tort Law
- Evidence Law
- Civil Procedure
December 20, 2018
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal (per Gyaesayor, JA, with Ayebi, JA concurring and Amadu, JA agreeing) allowed an appeal by the Coca-Cola Company from a High Court judgment awarding GH20,000 damages to a reconstructive plastic surgeon at Korle-Bu Teaching Hospital. The surgeon, dining with colleagues at the Meddiner Restaurant within the hospital, sipped from a 50cl Coca-Cola opened in his presence and observed a whitish substance floating in the drink. The court affirmed the manufacturer’s duty of care under Donoghue v Stevenson and accepted the presence of contamination, applying res ipsa loquitur to infer negligence because the defendant failed to explain how the foreign matter entered the bottle despite its quality-control regime. However, the plaintiff offered no medical evidence and admitted his “shock” was not medical. Emphasizing that negligence requires proof of damage (The Wagon Mound; Rothwell) and the burden under Evidence Act s.11(1), the court held damages were unsustainable, set aside the award, and ordered a refund of the GH20,000 and costs.
GYAESAYOR, JA
This is an appeal against the decision of the High Court, Accra dated 27th day of March 2017.
The defendant/appellant (hereinafter called the defendant) the Coca-Cola is a registered body corporate under the laws of Ghana and into the production of non-alcoholic beverage popularly called Coca-cola for sale to the general public.
The plaintiff/respondent on the other hand is a reconstruction plastic surgeon in Accra at the Korle-Bu Teaching Hospital.
The plaintiff/respondent in his statement of claim before the High Court, Accra averred that he together with other three colleague doctors visited the Meddiner Restaurant located in the Korle Bu Teaching Hospital Accra for a meal.
The plaintiff placed an order for a bottle of 50cl which was opened for him by the bar attendant in his presence and colleagues. After taking the first sip, he felt a slimy substance in his mouth and also noticed that the drink was flat. He examined the bottle and contents and found a whitish substance floating in the drink.
According to plaintiff/respondent he drew the attention of the bar attendant and the supervisor to witness the spectacle. It is his case that the supervisor promised to report to the defendant for further action.
The consequence of this according to plaintiff is that he suffered shock and abdominal pain which he attributed to the negligence of the defendant. He gave the particulars of negligence as follows; -
a. Manufacturing and selling the said Coca-cola when defendant knew or ought to have known that the same or part thereof contained extraneous or deleterious substances, the consumption of which would cause damage or injury to the consumer.
b. Failing to take any or adequate or necessary precautions in the manufacture of the said Coca-Cola so as to prevent any injurious or deleterious substances being contained therein.
c. Permitting the said Coca Cola to contain injurious or deleterious substances.
d. Failing to take any or adequate measures whether by way of examination, inspection, test or otherwise to ensure that the said Coca-Cola manufactured or sold by defendant contained any injurious or deleterious substances.
e. The plaintiff will further, rely on the doctrine of res ipsa loquitur.
The defendant entered appearance and subsequently filed a statement of defence. The defendant asserted that it maintains a high regime of efficient production system and quality control in the manufacture, storage and distribution of its product