Sengi v RD Tuna Canners Ltd [2017] PGNC 29; N6646 (15 February 2017)

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TORTS – NEGLIGENCE – plaintiffs’ claim that they contracted food poisoning due to consumption of tinned fish, manufactured by defendant, purchased from retail outlet – claim that tinned fish contained foreign object: condom –elements of tort of negligence – whether defendant owed duty of care to plaintiffs – whether defendant was negligent – whether defendant’s negligence caused injury to plaintiffs – whether injuries not too remote.

The plaintiffs claimed that they purchased from a retail outlet an unopened can of tinned fish that had been manufactured by the defendant, that they ate part of the contents of the can before realising that it contained, amongst the expected contents, a foreign object, namely a condom, and that they were shocked and became sick as a consequence. They sued the defendant manufacturer, claiming damages for negligence. The defendant challenged the assertions of fact on which the plaintiffs’ case was based and denied the allegation of negligence. The defendant argued that the plaintiffs’ evidence was unreliable and unbelievable and that its manufacturing and quality assurance processes were of such a high standard as to force the conclusion that the plaintiffs’ evidence was false. A trial was conducted on the issue of liability.

Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181
Burns Philp (New Guinea) Limited v Maxine George (1983) SC259
Donoghue v Stevenson [1932] AC 562
Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184
Kembo Tirima v Angau Memorial Hospital Board (2005) N2779
Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650
Michael Tenaram Balbal v The State (2007) SC860
Rimbink Pato v Umbu Pupu [1986] PNGLR 310
Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260
Welsh Samor v The State (2014) SC1398

No	Name		Description
1	David Sengi		Principal plaintiff: youth leader, Giri village, Bogia District, Madang Province.
Evidence: On 20 January 2006 he and other plaintiffs, who are also youths from Giri, were in Madang town, doing shopping – at lunch time they went to the M &S Tsang shop and bought a loaf of bread and a 300-gram can of Diana tinned fish and went to the Bogia bus stop next to Air Niugini office and set on the grass to eat – John Ray opened the can and made sandwiches for the group –John Ray was the last one to eat: after drinking soup from the can, he emptied the remaining contents onto his slice of bread – they were all shocked to see that a condom, which had been sitting at the bottom of the can, was poured on to his slice of bread. They were worried so they rushed across to the police station 200 metres away and reported the matter – they were advised to go to Modilon General Hospital to check whether the tinned fish was contaminated – they got on a PMV bus and went to the hospital – John Ray was already vomiting by the time they arrived – John Ray fainted so they carried him into the hospital – John Ray was checked by a doctor and put on an IV drip – he (the witness) vomited, upon seeing John Ray vomit – he and the others were given tablets to stop vomiting –they were all treated and kept for observation until the afternoon and were discharged with a one-week supply of medicine – he asked the doctor to test the condom and the tinned fish tin – his request resulted in a laboratory test being conducted in the pathology department. Annexed to his affidavit the laboratory test report [annexure A1]. Also annexed were: a copy of some medical notes headed “David Sengi” [annexure A2]; a copy of a photograph of an opened can of tinned fish and a condom [annexure B]. In cross-examination the witness was quizzed by the defendant’s counsel, Mr Wadau, as to how it was possible that eight people were able to consume fish from a can before it was discovered by a ninth person that there was a condom in the can – the witness replied the fish had been “spooned” on to the slices of bread before the condom had been discovered and that the condom had been “sleeping” under the fish at the bottom of the can – it was put to the witness that he and his friends had decided to create a drama by putting a condom into the can, as there was lots of talk going around in 2006 about condoms being found in tinned fish, and they were just putting on an act so they could go to the defendant and claim compensation – the witness rejected those allegations and emphasised that theirs was a genuine complaint – they were shocked and afraid when they saw the condom. Asked where the can of tinned fish was, and why it was not adduced in evidence, the witness replied that they had given it to the Madang Police Station Commander, who had retained it – it has not been seen since.
2	Rex Fasi		A plaintiff – resident of Newtown, Madang
Evidence: His evidence was similar to that of David Sengi – he was in the group that on 20 January 2006 purchased the tinned fish, which contained the condom – he was shocked when John Ray showed them the condom on his slice of bread – he thought he might die if it was meant to poison them – he had stomach ache and wanted to vomit. Annexed to his affidavit was a copy of some medical notes with his name at the top of the notes.
3	Samuel Undonomo		A plaintiff – resident of Giri village, Bogia
Evidence: His evidence was similar to that of David Sengi – he was in the group that on 20 January 2006 purchased the tinned fish, which contained the condom – he was shocked when John Ray showed them the condom on his slice of bread – he vomited after a terrible stomach pain – he thought he was going to die at the hospital. Annexed to his affidavit was a copy of some medical notes with his name at the top of the notes.
4	Kume Ray, Mrs		A plaintiff – resident of Giri village, Bogia
Evidence: Her evidence was similar to that of David Sengi – she was in the group that on 20 January 2006 purchased the tinned fish, which contained the condom – she was shocked when John Ray showed them the condom on his slice of bread – she immediately felt sick and thought she might die – she had stomach pain. Annexed to her affidavit was a copy of some medical notes with her name at the top of the notes. She went to the hospital on Monday 23 January 2006, not with the others who went on Friday 20 January 2006.
5	Jenny Aros		Not a plaintiff – resident of Gov Stoa, Madang town
Evidence: She is a former employee of the defendant – she worked in the packing section of the Madang cannery from 2001 to 2008 – she recalled that there were often problems created by blackouts when the machines that put the fish meat into the cans would break down – the workers would then be required to use their bare hands to put the fish into the cans – some fish would fall on to the floor. In cross-examination it was suggested that she was giving false evidence as the defendant never allowed manual filling of cans – the witness denied giving false evidence and repeated that when the machines stopped, the workers would manually fill the cans, without gloves.
6	John Ray		A plaintiff – resident of Giri village, Bogia
Evidence: His evidence was similar to that of David Sengi – he was in the group that on 20 January 2006 purchased the tinned fish, which contained the condom – he opened the can and made sandwiches for the group – he was the last one to eat: after drinking soup from the can, he emptied the remaining contents on to his slice of bread – he was shocked to see a condom on his bread – he alerted the others – he was vomiting by the time they got to the hospital. In cross-examination he conceded that he was unable to show the court the condom or the can of tinned fish.
7		Mono Ray	A plaintiff – resident of Giri village, Bogia
Evidence: His evidence was similar to that of David Sengi – he was in the group that on 20 January 2006 purchased the tinned fish, which contained the condom – he was shocked when John Ray showed them the condom on his slice of bread – he did not vomit, but was worried to death about his health.
8		Elijah Brian	A plaintiff – resident of Giri village, Bogia
Evidence: His evidence was similar to that of David Sengi – he was in the group that on 20 January 2006 purchased the tinned fish, which contained the condom – he was shocked when John Ray showed them the condom on his slice of bread – he wanted to vomit, but was in a confused state of mind and did not know what to do. Annexed to his affidavit was a copy of some medical notes with his name at the top of the notes.

1	Genevieve Fernando		Quality Assurance Manager, RD Tuna Canners
Evidence: She holds a Bachelor of Science in Fisheries from Mindanao State University, Philippines – she has been Quality Assurance Manager at RD Tuna Canners since 2010 – apart from the period 2002 to 2004, she has worked at RD Tuna Canners at its cannery in Madang since 1998, holding the positions of Quality Control Supervisor, Quality Control Manager and Operations Manager – she has worked professionally in the areas of management and quality assurance in seafood processing industries since 1988 – further details of her qualifications and experience are set out in her curriculum vitae [exhibit 1]. She gave detailed and technical oral testimony of the processing and canning operations of the defendant, which has 2,400 employees working 2 x 12-hour shifts daily – RD Tuna Canners has been certified by SGS [a multinational company that provides inspection, verification testing and certification services] as compliant with ISO [International Organisation for Standardisation] standard 22000:2010. This ISO standard is for: “Design, Development and Manufacture of Low Acid Canned Foods (Tuna Products in Oil, Brine, Broth, Flavoured) and Frozen Fish Products (Frozen Precooked Tuna Loins and Flakes) from Receipt of Raw Fish Materials, Ingredients and Packaging Materials to Dispatch of Finished Goods. [Food Sector: C2 Fish Products/E1 Stable Products” A copy of the SGS certificate authorised by SGS United Kingdom Ltd, stating that the management systems of RD Tuna Canners Ltd of Madang Papua New Guinea had been assessed and certified as meeting the requirements of ISO 22000:2010, was admitted into evidence as exhibit D2, through the witness. As to its period of application, the certificate states: “This certificate is valid from 15 May 2012 until 14 May 2015 and remains valid subject to satisfactory surveillance audits. Re-certification audit due before 3 May 2015 Issue 2, Certified since May 2012.” Ms Fernando highlighted the strict controls in place to ensure each employee is security-screened and frisked before entering the processing plant – she explained the sanitisation of raw fish that takes place – the canning process (the defendant manufactures its own cans at the Madang facility) – after loining, the fish proceeds on a conveyor belt to a cutter, which cuts the fish into flakes – then to a filling machine, into cans, each can bears an imprinted production date and best-by date – then to a second cooking into ovens for the “retorting” process. If anyone attempted to put a foreign object amongst the fish, it would disrupt the production line and would be detected. In cross-examination she conceded that in 2006 the defendant did not have an SGS certificate for ISO 22000:2010 – however, ever since the defendant commenced production at its Madang cannery, strict quality control and assurance measures have been in place – the defendant has been exporting its products as far as Europe.
2		Danny Wangak	Senior factory supervisor, RD Tuna Canners
Evidence: He had, at the time of trial (2012), been working for RD Tuna Canners for 15 years – the company employs 1,200 workers per shift – 19 supervisors work on each shift – each section in the processing plant has two supervisors – each employee is medically and security checked before entering the processing plant – they are provided with aprons, hair-nets, gum boots and gloves – they must step into chlorinated water and wash their hands with germicidal soap – all employees are strictly supervised – if a condom were placed amongst the fish at the loining stage it would be cut by the cutter and not remain in one piece – if a condom were placed into the can with the fish and the can was sealed, before going into the retorting process when the can is cooked at 117 degrees Celsius, it would melt and disappear – quality assurance is world class. In cross-examination he denied the allegations in the evidence of Jenny Aros that the workers would sometimes use their bare hands to put fish into the cans, including fish meat that had fallen on to the floor.

The SGS certificate of compliance with ISO 22000:2010 is an impressive testimony to quality control and assurance measures in place since May 2012, but says nothing about the state of things in 2005 or early 2006.

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question.

If your Lordships accept the view that this pleading discloses a relevant cause of action, you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.

It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense.

The accident must bespeak the defendant's negligence and be such as to raise two inferences: (1) that the accident was caused by a breach by somebody of a duty of care to the plaintiff, and (2) that the defendant was that somebody.

Res ipsa loquitur is no more than a rule of evidence based on common sense which raises a presumption of fact in the absence of any other evidence of explanation that the defendant has been negligent. It suggests that because something went wrong and in the normal scheme of things such would not go wrong unless someone was negligent but no negligence can be found here nevertheless the thing speaks for itself and common sense says there must have been negligence.

The principle of res ipsa loquitur may be invoked when three elements are established:

This consideration flows from the judgment of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (“The Wagon Mound”) [1961] UKPC 1; [1961] AC 388. In that case the general principle laid down was that "the essential factor in determining liability for the consequence of a tortious act ... is whether the damage is of such a kind as a reasonable man should have foreseen".

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Thomas More Ilaisa Lawyers : Lawyers for the Plaintiffs
Young Wadau Lawyers : Lawyers for the Defendant

National Court of Papua New Guinea

Sengi v RD Tuna Canners Ltd [2017] PGNC 29; N6646 (15 February 2017)