N6649

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1292 OF 2008

STEVEN BILL
FOR AND ON BEHALF OF HIMSELF AND FOUR OTHERS
Plaintiffs

V

RD TUNA CANNERS LIMITED
Defendant

Madang: Cannings, J
2012: 20 November, 
2013:5 April, 
2015:18 August, 
2017: 15 February 

TORTS – negligence – plaintiffs’ claim that they were physically ill and shocked due to sight of contents of can 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 were preparing a meal intended to include the of the contents of the can and were shocked upon before realising that it contained, amongst the expected contents, a foreign object, namely a condom, and that they suffered injury 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. 

Held:

(1)	The facts, as alleged by the plaintiffs, were proven to have occurred: they purchased from a retail outlet an unopened can of tinned fish manufactured by the defendant; they ate part of the contents of the can before realising that it contained a condom, they were shocked and became sick as a consequence.

(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, the manufacturer of a product intended for consumption by consumers, owed a duty of care to the consumers, 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 in negligence.

Cases cited:

Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181 
Burns Philp (New Guinea) Limited v Maxine George (1983) SC259
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

Overseas Case:
Donoghue v Stevenson [1932] AC 562

Counsel:

T M Ilaisa, for the Plaintiffs
Y Wadau, for the Defendant

15th February, 2017

1.	CANNINGS J: The issue in this case is whether the defendant, RD Tuna Canners Ltd, is liable in damages to the plaintiffs, Steven Bill and four others:  Luke Peter, Hendrick James, Hashel Luke and Justin Wake.

2.	The plaintiffs claimed that they purchased from a retail outlet an unopened can of “Diana Tuna” brand of tinned fish that had been manufactured by the defendant, RD Tuna Canners Ltd, that they were preparing a meal intended to include the of the contents of the can and were shocked upon before realising that it contained, amongst the expected contents, a foreign object, namely a condom, and that they suffered injury 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, unbelievable and false. 

3.	The defendant challenges the assertions of fact on which the plaintiffs’ case is based and denies the allegation of negligence. The defendant argues that the plaintiffs’ evidence is unreliable and unbelievable. It claims that its manufacturing and quality assurance processes are of such a high standard as to force the conclusion that the plaintiffs’ evidence is false.

4.	The trial was conducted in 2012. After the close of evidence, before submissions, the Court ordered on 5 April 2013 with the consent of the parties that the proceedings be referred to mediation. Mediation was conducted but it failed and the matter returned to court for submissions in 2015. There are three issues:

1	What are the facts?

2	Have the plaintiffs established a cause of action in negligence?

3	What orders should be made?

1	WHAT ARE THE FACTS?

5.	This issue is dealt with in the following way: first, the competing evidence is outlined; secondly the evidence is set out in detail; thirdly, observations of the evidence are recorded; finally, findings of fact are made.

Outline 

6.	The plaintiffs’ case was based on the affidavits of three of the plaintiffs and oral testimony of those plaintiffs and oral testimony of a person who is not a plaintiff (together with an affidavit by that person), each of whom was subject to cross-examination. The lead plaintiff, Steven Bill, did not give evidence. The defence case was based on the oral testimony of two of the defendant’s employees and the curriculum vitae of their first witness, Ms Fernando. 

Evidence for the plaintiffs 

7.	The plaintiffs’ evidence is summarised in the following table.

No	Name	Description	
1	Luke Peter	A plaintiff, resident of Gov Stoa settlement, Madang 	
Evidence: He resides with his family at Gov Stoa – on 30 March 2007, he went into Madang town with his son Marshall and purchased at the Best Buy supermarket, a can of Diana Tuna tinned fish – that evening, Marshall, with the help of Emrick James and Justin Wake, cooked dinner consisting of rice and the Diana Tuna tinned fish he had purchased earlier that day – dinner was at 7.30 pm.

When the rice was cooked, Marshall opened the tinned fish and served it on to various plates – to his horror, he noticed a condom inside the can of tinned fish – he had a nasty shock – the boys, Marshall, Emrick and Justin, were also shocked and they all vomited – he also got sick thinking about the condom in the can.

He put the can in the fridge and the next day, 31 March 2006, took it and the condom, first to a senior police officer, Inspector Steven Kaupa, at the police station, who advised him to take it to the health inspector, Thomas Kelau – he took the items to the health inspector – then he took them to Modilon General Hospital laboratory for testing. Annexed to his affidavit was an incident report prepared by M G Uloulo, OIC of the pathology department at the hospital [annexure B]. Also annexed are copies of photographs of the can of tinned fish and condom referred to in his affidavit [annexure A]. 

In cross-examination the witness was quizzed by the defendant’s counsel, Mr Wadau, about whether he or his boys ate any of the tinned fish – he (the witness) said that no, he did not eat any but just seeing it gave him a shock and made him physically ill – he and the three boys vomited – none of them ate anything – asked why the can and the condom had not been adduced in evidence, he replied that he had kept them in his fridge at the house for some time, but they started to smell, so he had to throw them out
	
2	Peter Marshall	Not a plaintiff; a witness only, a resident of Gov Stoa	
Evidence: His evidence was similar to that of his father, Luke Peter – he helped to cook the rice – when the can of Diana Tuna was opened, he noticed a condom inside the can – he could not believe it, he was shocked and vomited violently, just thinking about what could have happened if he ate the stuff. 

In cross-examination he stated that he was the one who was serving the rice on to the plates – he saw the condom and decided that he could not eat any of the food.

Judge’s note: this witness was not amongst the list of plaintiffs in the schedule to the statement of claim – the name nearest to that of the witness is “Hashel Luke” – however, the similarity in names was not so close for it to be presumed that “Peter Marshall” and “Hashel Luke” are names of the same person – there was insufficient evidence and submissions, for that finding to be made.  
	
3	Justin Wake	A plaintiff, resident of Gov Stoa 	
Evidence: His evidence was similar to that of Peter Marshall – he helped to cook the rice – when Marshall opened the can of Diana Tuna and scooped out the fish meat, he saw a condom – he vomited twice and felt sick in the head and did not go to school for five days as a result. 

In cross-examination he confirmed that he did not eat any of the tinned fish – no one had any.
	
4	Emrick James	A plaintiff, resident of Gov Stoa	
Evidence: His evidence was similar to that of Justin Wake – he helped to cook the rice – when the can of tinned fish was opened, he saw a condom – he was shocked and almost choked – he vomited four times and did not go to school for two weeks as a result. 

In cross-examination he confirmed that he did not eat any of the tinned fish.

Judge’s note: the name of this witness was not amongst the list of plaintiffs in the schedule to the statement of claim – however, the similarity in the name of the witness, “Emrick James” was so close to the name “Hendrick James” in the schedule for it to be presumed that “Emrick James” and “Hendrick James” are names of the same person.  

Evidence for the defendant

Two witnesses gave evidence for the defendant. Their evidence is summarised in the following table.

No	Name	Description	
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, annexed to her affidavit. 

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. 

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 stated that the defendant has strict quality control and assurance measures in place.

In re-examination she stated that there had been constant improvements in quality control since commencement of operations in 1997 – they are regularly checked and certified by an internationally renowned certifying body, ensuring adherence to global food safety standards. 
	
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.

In cross-examination he stated that good quality control measures had been in place since 1997 when the cannery commenced operation – he agreed that since 2010 quality control had significantly improved – he works in the production phase of the operations, not in quality control.

Observations 

Plaintiffs’ evidence

8.	First, only three of the five plaintiffs, Luke Peter, Hendrick James Aka, Emrick James and Justin Wake gave evidence. Two plaintiffs did not give evidence: Steven Bill and Hashel Luke. The Court was not informed of any good reason that they could not give evidence. I have decided that without direct evidence from a plaintiff and without a good explanation for their failure to give direct evidence, it would not be proper to consider making a finding of liability in their favour. Peter Marshall, who gave evidence for the plaintiffs, is not a plaintiff. There was insufficient evidence to find that in fact he was the plaintiff Hashel Luke, so I will not consider making a finding of liability in favour of Peter Marshall. 

9.	Secondly, there is a lack of detail in the plaintiffs’ evidence. For example:

•	There is no receipt or any record of purchase to verify the claim of Luke Peter that the can of Diana Tuna was purchased at the Best Buy store.

•	None of the plaintiffs gave evidence of the size of the can of Diana Tuna. 

•	None of the plaintiffs gave evidence of the details of the production date, batch number or use-by date that were on the can or its label.

10.	Thirdly, there is little corroboration of the plaintiffs’ evidence. I note the following:

•	The report of M G Uloulo, Medical Technologist, Pathology Department, Modilon General Hospital (annexure B to the affidavit of Luke Peter) is, at best, evidence only of a can of tinned fish and a condom being brought to him. The report is hearsay and the author of the report did not give evidence. 

•	The photographs of an opened can and a condom (annexure A to the affidavit of Luke Peter) has no probative value. I uphold Mr Wadau’s submission that the photographs must be ignored. They are just photocopies of photographs; there is no evidence as to who took the photographs and when they were taken. They fail to meet the requirements of Section 75 (affidavit or declaration of maker of print from photographic negative, etc) of the Evidence Act.     

Defendant’s evidence 

11.	I consider that the evidence was of limited probative value as both Ms Fernando and Mr Wangak only gave evidence of the state of things at the time of trial (2012). What was required was evidence of the state of things in 2005 or early 2006 (which is reasonably presumed to be the period within which the tinned fish at the centre of this case would have been manufactured).

12.	Ms Fernando stated that there had been constant quality control improvements since 1997. Mr Wangak stated that quality control had significantly improved since 2010. 

Findings of fact

13.	Because of the deficiencies in the evidence on both sides, the task of making findings of fact has not been straightforward. Ultimately, however, bearing in mind that it is the plaintiffs’ obligation to prove their case, and not the defendant’s obligation to disprove the plaintiffs’ case, I am satisfied that on the balance of probabilities, the plaintiffs’ version of events should be accepted, for the following reasons:

1.	I was impressed by the quality of the plaintiffs’ oral evidence. Those that gave oral evidence were cross-examined vigorously. They were unshaken about what happened. They candidly admitted that none of them had eaten any of the tinned fish. 

2.	I have had regard to the sound demeanour of all plaintiffs in the witness box. In other jurisdictions such as Australia and New Zealand, which now have available a high level of forensic evidence to assist courts in determining contested facts, particularly in criminal cases, searing criticism has been made of judges giving directions to juries that invite them to consider the demeanour of witnesses in deciding who is telling the truth. However, in PNG the situation is different. We rarely decide cases according to forensic evidence. The demeanour of the witness remains an important consideration for the judge, as the tribunal of fact, to take into account when assessing the credibility of a witness and the believability and probative value of his or her evidence (Rimbink Pato v Umbu Pupu [1986] PNGLR 310, Michael Tenaram Balbal v The State (2007) SC860, Welsh Samor v The State (2014) SC1398). I was impressed by the demeanour of the plaintiffs. By that, I mean the way that they gave their evidence: their answers were direct and to the point, they stuck to their stories, they were adamant that this incident happened. They did not appear to be lying. They appeared to be giving an honest account of what happened. 

3.	The evidence of the plaintiffs who gave evidence was consistent.

4.	Though, as I have observed, the plaintiffs’ evidence could have much improved with more detail and corroboration, I do not draw any inferences, adverse to the credibility of the plaintiffs’ evidence, from those shortcomings in the plaintiffs’ case. 

5.	The defendant fell short of demonstrating that it had a foolproof processing and quality assurance system in place at the relevant time. It was of course under no legal obligation to prove that it had a foolproof system. But if it had produced such evidence, for example by showing, in support of the oral evidence of Ms Fernando and Mr Wangak, that it had been certified as adhering to global food safety standards prior to mid-2007, this would have cast doubt on the veracity of the plaintiffs’ evidence. 

6.	I have considered the possibility that the plaintiffs gave false evidence in an attempt to get money from the defendant through a bogus claim. It is curious that the principal plaintiff, Steven Bill, did not give evidence. However, I rule out the possibility that the evidence of the plaintiffs’ witnesses was fabricated as it would require conjuration and maintenance of a scam involving too many players that would be too difficult to maintain over such a long period, from the first part of 2007 (when the incident took place), through 2008 (when the proceedings were filed), and to 2012 (when the plaintiffs affidavits were sworn and they gave oral evidence).

7.	I take judicial notice of the fact that at least five other similar cases were commenced against RD Tuna Canners in the period from 2008 to 2010. In all cases the plaintiffs claimed that they had purchased a can of Diana Tuna tinned fish and in the process of consuming the contents discovered a condom or its remnants and as a consequence suffered nervous shock and became physically ill.  I heard those cases at the same time as this one (WS 1284/2008, WS 1285/2008, WS 1286/2008, WS 1287/2008 and WS 11/2010). In all cases the plaintiffs are represented by the same lawyers, and the defendant is represented by the same lawyers. Neither side in the present case has asked that any inferences be drawn from this scenario. The plaintiffs did not attempt to run a ‘similar fact evidence’ sort of argument. The defendant did not attempt to run an argument that some sort of grand conspiracy was afoot. So I have, from the existence of the related cases, drawn no inference, adverse to or supportive of the present plaintiffs’ case, which has been dealt with on its merits.

14.	I therefore make the following findings:

1.	On Friday 30 March 2007 Luke Peter of Gov Stoa, Madang town purchased an unopened can of Diana Tuna tinned fish, from a retail outlet in Madang town, the Best Buy retail  store.

2.	The can was manufactured by the defendant at its cannery near Madang and sold by the defendant, probably to an intermediary, with the intention that it be eventually available for sale to consumers, such as Luke Peter, at retail outlets, including the Best Buy store.

3.	That evening, Luke Peter’s son, Peter Marshall, assisted by Peter’s friends, the plaintiffs Hendrick James (aka Emrick James) and Justin Wake, prepared dinner for themselves and Luke Peter, at Gov Stoa. 

4.	Peter Marshall boiled rice in a pot and once it was cooked, he opened the can of Diana Tuna that Luke Peter had purchased earlier that day. He noticed that, together with the fish meat, the can had a condom in it. He was shock, felt unwell and vomited.

5.	Luke Peter, Hendrick James (aka Emrick James) and Justin Wake had a similar reaction. Though none of them ate any of the fish, the sight of the condom shocked them and the thought of eating tinned fish contaminated by a condom, made them feel ill. They all vomited. 

6.	The next day, 31 March 2007, Luke Peter reported the matter to the police, the health inspector and Modilon General Hospital.

2	HAVE THE PLAINTIFFS ESTABLISHED A CAUSE OF ACTION AGAINST THE DEFENDANT?
15.	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 plaintiffs;
(b)	the defendant breached that duty (ie acted negligently);
(c)	the breach of duty caused injury to the plaintiffs;
(d)	the type of injury was not too remote. 

16.	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 such as contributory negligence and voluntary assumption of risk (eg Kembo Tirima v Angau Memorial Hospital Board (2005) N2779). On reflection I think it is better to treat such defences separately and not regard them as giving rise to an element that must be proven by the plaintiff. In the present cases no such defences were raised by the defendant so it is not necessary to address the question of their rebuttal. Each of the four elements is now addressed in turn. 

(a)	Duty of care

17.	In the classic British case of Donoghue v Stevenson [1932] AC 562, the plaintiff, Mrs Donoghue, became ill and suffered shock after discovering the she had consumed, in a café in Scotland, ginger beer that contained a decomposed snail. The ginger beer was purchased from the café proprietor, who had purchased it from the defendant, the ginger beer manufacturer, Mr Stevenson. The question arose whether the plaintiff consumer had a cause of action in negligence against the defendant manufacturer, and that question turned on, “whether the manufacturer owed a duty of care to the plaintiff, a consumer. The case went to the House of Lords and Mrs Donoghue won. The House of Lords decided by a 3:2 majority that Mr Stevenson owed a duty of care to Mrs Donoghue and that she had established a cause of action in negligence. The decision changed the course of the common law. The leading opinion was given by Lord Atkin. 

18.	As to the general concept of duty of care, his Lordship offered the following opinion, which is probably the most often quoted in the history of the common law, at 580: 

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.

19.	As to the circumstances in which a manufacturer owes a duty of care to a consumer, Lord Atkin stated:

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. 

20.	It has been accepted, almost without question, since Donoghue v Stevenson was decided, that it is an integral part of the common law of negligence that the manufacturer of a product will owe a duty of care to the ultimate consumer of the product if the following conditions exist:

•	the manufacturer sells the product in a form showing that the manufacturer intends the product to reach the ultimate consumer in the same form it left the manufacturer;

•	there is no reasonable possibility of intermediate examination of the product;

•	the manufacturer knows that if reasonable care is not taken in manufacturing the product, injury to the consumer’s life or property will be the result.  

21.	Papua New Guinea adopted the above principles of the common law at Independence, which form part of our underlying law. Those principles apply here, and the conditions are satisfied. The only reasonable inferences to be drawn from the facts are that:  

•	the defendant manufactured, then sold, its Diana Tuna brand of tinned fish in a form, in cans, showing that it intended its product to reach consumers, such as the plaintiffs, in the same form it left its cannery;

•	there was no reasonable possibility of intermediate examination of the contents of the cans;

•	the defendant knew that if reasonable care were not taken in manufacturing the product, injury to consumers would result.  

22.	The defendant owed a duty of care to the plaintiffs. The first element of negligence is proven.

(b)	Breach of duty

23.	The question is, whether the defendant breached its duty of care to the plaintiffs? Did the defendant act negligently? Did it fail to take reasonable care? At this point of a negligence trial, if there is a lack of evidence as to how or why some event happened, it is appropriate apply the principle of res ipsa loquitur (the Latin maxim, ‘the thing speaks for itself’). The Court determines the facts and then poses the question: do those proven facts lead to only one conclusion, that the defendant was negligent? If the answer is yes, the defendant is negligent. That is my simplified explanation of the principle. As I said in Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181 (the case of contaminated fried rice purchased from a kai bar in Madang), other Judges have explained it in different ways. 

24.	In Burns Philp (New Guinea) Limited v Maxine George (1983) SC259 McDermott J explained res ipsa loquitur in these terms:

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.

25.	In Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260 Woods J put it this way:

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.

26.	Hartshorn J explained the operation of the principle in Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650:

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

(a)	there is an “absence of explanation” of the occurrence that caused the damage;
(b)	the occurrence was of a kind that does not ordinarily occur without negligence; and

(c)	whatever caused the occurrence was under the control of the defendant. 

27.	I find that the principle of res ipsa loquitur should be invoked in this case. Applying my simplified approach set out above: the proven facts that the defendant manufactured, a can of tinned fish intended for retail sale and human consumption, which contained a condom, leads to only one conclusion: that the defendant was negligent. 

28.	It is not necessary for the plaintiffs to prove how the defendant was negligent. Maybe the condom fell into the fish by accident. Maybe a rogue or disgruntled employee placed it in the can to embarrass their employer. None of these things had to be proven as the facts speak for themselves and lead only to the conclusion that the defendant was negligent.

29.	If the approach outlined by McDermott J in Burns Philp is applied: the “accident” (the plaintiffs getting sick and being shocked due to the sight of a condom in their fish) bespeaks (is evidence of) negligence. The accident is such as to raise two inferences: (1) the accident was caused by a breach by somebody of a duty of care to the plaintiffs, and (2) that the defendant (the manufacturer) was that somebody.

30.	If the approach outlined by Woods J in Noki is applied: something went wrong.  The plaintiffs became ill due to consuming and seeing tinned fish containing a condom. In the normal scheme of things that would not happen unless someone was negligent. The thing speaks for itself and common sense says that the person (the defendant) who manufactured the tinned fish must have been negligent. 

31.	If the approach outlined by Hartshorn J in Marshall Lagoon is applied: (a) there is an absence of explanation about how the can of tinned fish came to contain a condom; (b) tinned fish does not ordinarily contain condoms, without negligence; and (c) whatever caused the condom to be in the can was under the control of the defendant. 

32.	The application of all those expositions of the principle of res ipsa loquitur leads to the same conclusion: the defendant breached its duty of care to the plaintiffs. It was negligent. The second element of negligence is proven.

(c)	Causation

33.	This element can be proven by asking the simple question: would the plaintiffs have been sick and shocked but for the negligent conduct of the defendant? (Kembo Tirima v Angau Memorial Hospital Board (2005) N2779). If the answer is ‘no’, the element of causation is established. If the answer is ‘yes’, causation is not established. 

34.	I have already found as a fact that the plaintiffs felt and/or were sick, and shocked, as a result of consuming the tinned fish containing a condom. There is no evidence of anything else being the cause. The answer to the question ‘would the plaintiffs have been sick and shocked but for the negligent conduct of the defendant?’ is no. The third element of negligence is established. 

(d) Remoteness

35.	The remoteness issue is often not regarded as a separate element of the tort of negligence. Sometimes it is brought within the causation element. However, I think it is better regarded as a fourth element. Whether it is dealt with separately or not, plaintiffs must establish that the type of injury for which they are claiming damages was reasonably foreseeable (ie not too remote). As Prentice CJ explained in Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184:

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] 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". 

36.	Here the plaintiffs are claiming, as pleaded in the statement of claim, general damages for stomach disorders and pains, nausea and vomiting and for nervous shock, as well as special damages, damages for economic loss and exemplary damages. They will need to present evidence of these types of damage if the case proceeds to a trial on assessment of damages. However, for present purposes, I am satisfied that all of those types of damage were reasonably foreseeable. They are not too remote. The fourth element of negligence is established.

Conclusion

37.	The plaintiffs Luke Peter, Hendrick (aka Emrick) James and Justin Wake have proven all elements of the tort of negligence. A cause of action has been established.  

3	WHAT ORDERS SHOULD BE MADE?

38.	As this trial was confined to the issue of liability, I will declare that the plaintiffs who have given evidence have each established a cause of action in negligence against the defendant, which is liable in damages. Unless the parties agree to settle the matter, the cases will proceed to an assessment of damages at a separate trial. 

39.	As to costs, the general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

ORDER

(1)	The plaintiffs Luke Peter, Hendrick (aka Emrick) James and Justin Wake have established a cause of action in negligence against the defendant.

(2)	The plaintiffs Steven Bill and Hashel Luke have not established a cause of action in negligence against the defendant and their claims are entirely dismissed. 

(3)	The plaintiffs referred to in order (1) are entitled to damages which shall be subject, in the absence of agreement between the parties, to assessment at a separate trial.

(4)	The parties will bear their own costs of the proceedings to date.

Judgment accordingly,

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