This essay is an attempt to advise Changwa on the area of law under which he can bring an action in view of the facts given in the question. The essay will also attempt to advise Changwa with respect to the person against whom such action can be brought. In order to achieve this end, the essay will pay particular attention to the salient elements he has to establish in the area of law identified, if at all he is to succed in his claim.
The essay will conclude by looking at the likely difficulties Changwa may encounter in succeeding in his claim in the event that he was to bring an action. The advice will be with the aid of decided cases where necessary. Area of Law and the Potential Defendant. In view of the facts given in this case, the name of the area of law under which Changwa can bring an action is in the tort of negligence. Accordingly, he must bring this action firstly against the pub manager for the cockroach found in the food. Secondly, the action must be brought against the manufacturers of the red wine.
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This is so because the pub manager is merely the retailer with no opportunity to temper with the contents of the red wine. The law of negligence dates back as far as 1856 when Lord Baron Alderson in Blyth v Birmingham Water Works Company gave a simple and precise definition of what constitutes negligence in the following terms; Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
It follows therefore that negligence consists of either an act or omission on the part of the defendant. It is trite law that the tort of negligence has three essential elements, which any claimant must prove in order to succeed in his action against the defendant. These three elements are existence of duty of care owed to the claimant, breach of such duty of care by the defendant and lastly the resulting damage to the claimant arising from the breach of the duty of care .
Each of the above elements of the tort of negligence will now be discussed in turn. Existence of duty of care It is now settled law that there exists no all embracing duty owed to the whole world in all circumstances. However, the determining issue is whether a duty of care existed and whether it was owed to the particular plaintiff. The basis of the law of negligence is that the defendant owes the plaintiff a duty of care. It must be mentioned that the duty owed to a claimant is not imposed by contract but is one imposed by the law.
The modern law as regards this aspect of the law of negligence was extensively canvassed in the celebrated case of Donoghue v Stevenson where the House of Lords were confronted with the general question of whether a manufacturer owed a duty of care to the ultimate consumer of his products and they proceeded to hold that he did. In that case, the plaintiff became ill after drinking ginger beer from a bottle which contained a decomposing snail in it. She had not bought the daring herself, so she was unable to rely on a breach of contract.
In this regard, she sued the manufacturers of the beer under the tort of negligence, claiming that they owed her a duty of care. The House of Lord decided the case in the plaintiff’s favour and the case is an authority because of the rule of law laid down by Lord Atkin when he stated thus; 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 or omissions which are called in question This test has been criticised as being too wide but it made it easier for lawyers to argue that there should be liability for negligently causing harm in new situations.
Similarly, in Anns v Merton , the court had the following to say concerning the duty of care; In order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages.
First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises.
Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise In view of the above exposition of the law, it is clear that firstly, the pub manager owes a duty of care to Changwa to ensure that he is not harmed by the food prepared therein.
Secondly, the manufacturer of the red wine ought to have the consumer in contemplation as a person who would likely be affected by the actions of the manufacturer. The above cases show that the manufacturer and not the retailer, owes a duty of care to the consumer in instances where the retailer has no power whatsoever as to the contents or quality of a product. In view of this duty, a manufacturer in the position of the manufacturer of the red wine must take reasonable steps to ensure that the drinks they produce do not contain any impurities which would be harmful to the consumer.
Breach of Duty of Care
A potential defendant will be negligent by falling below the standards of the ordinary reasonable person in his situation, that is, by doing something which the reasonable man would not do or failing to do something which the reasonable man would do. According to the learned authors of English Law , if a duty of care is established as a matter of law, whether or not the defendant was in breach of that duty is a matter of fact. Even if the plaintiff succeeds in showing that the defendant owes a duty of care, it is not sufficient for purposes of negligence unless a breach of that duty is shown .
In deciding whether a defendant has acted negligently, the decision is based on an objective test of what a reasonable man would do. The court will decide if the defendant fell below the standard of the reasonable man. The standard of care expected from this hypothetical character is objective; not taking into account the characteristics or weaknesses of the defendant, as was aptly stated by the court in Nettleship v Weston . However, it must be mentioned that the courts expect people to take only reasonable precautions in guarding against harm to others, and this position of the law was affirmed in Latimer v AEC Ltd .
In assessing what is reasonable under the circumstances, the court will consider the likelihood of harm occurring. The greater the risk of harm, the greater the precautions that will need to be taken, as was held in Miller v Jackson In the instant case, the test would be whether a reasonable person in the position of both the pub manager and the manufacturer of red wine would have neglected to carry out an inspection of their products in order to ensure that the consumer will not be harmed by the contents thereof.
The obvious answer to the above question is not in the affirmative but in the negative. In this regard, Changwa would successfully establish the second element of the tort of negligence against firstly the pub manager and secondly the wine manufacturer, although this in itself is by no means conclusive that the defendants are liable to the plaintiff. At this point, in order to succeed in the tort of negligence, he will then need to establish the third element of the tort of negligence, namely that he suffered damage as a result of the breach of the duty of care by the defendant.
The learned authors of Clerk and Lindsell on Tort assert that it is important for the plaintiff in an action for negligence to prove the resulting damage to him from the breach of the duty of care. This is essentially premised o the fact that negligence is not actionable per se. It is necessary therefore for Changwa in this case, to show that he has suffered some harm, either physical injury, economic harm or psychological harm. This part of the elements of the law of negligence constitutes one of the difficulties that Changwa is likely to encounter in succeeding with the claim.
In Donoghue v Stevenson , the House of Lords found in favour of the plaintiff because she was able to show that she had suffered a mental or nervous shock after drinking the Ginger Beer in which a decomposed snail was found. It is now categorically clear that breach of duty of care is necessary but in itself and by itself not conclusive that the plaintiff will be entitled to damages. To this effect, resulting damage is essential in this regard. This qualifies the earlier point that negligence is not actionable per se but damage must be proved if a claimant is to succeed.
The Zambian courts have had several instances where they have pronounced themselves on this third aspect or element of the law of negligence. In Zambia Breweries Plc v Reuben Mwanza The respondent, Reuben Mwanza bought a bottle of a castle lager beer at a bottle store and this bottle was opened in his presence. He drunk half of the contents and he then felt as if he was choking and on examination of the bottle he found that it contained a dead lizard. The learned trial judge found as a fact that the appellants were negligent in the manufacture of the castle beer with a dead lizard in it and awarded the respondent K50, 000,000 as damages.
The appellant then appealed against the excessive award of damages. The Supreme Court had the following to say in relation to the issue of damages; We have considered the submissions on this head and we agree that the K50, 000,000 awarded in this area is excessive. In doing so we take into account the conduct of the respondent after discovering a lizard in his beer. Although the respondent stated that he was shocked with the discovery of the lizard, it is shocking to us that when he was offered another beer, he quickly took it and consumed. There was no revolting reaction.
Further, when he went to the Chilenje clinic he never revealed what has caused his "illness" so that proper diagnosis could be given. The reasoning of the court from the above sentiments is to the effect that there was no evidence to show that the claimant had suffered any harm, whether mental or physical thus the award was reduced. The court further stated thus; “the plaintiff has, therefore, a duty to bring credible evidence of illness. The award in this instant case comes to us with a sense of shock as being wrong in principle and on the higher side.
We want to take advantage of this case to point out that in future nothing will be awarded if no proper evidence of a medical nature is conducted. " Similarly, in Continental Restaurant & Casino LTD. v. Arida Mercy Chulu , the court had the following to say as regards the need to prove actual damage in an action for negligence; The important point to stress, however, is that in cases of this nature, the basis of awarding damages is to vindicate the injury suffered by the plaintiff.
The money was to be awarded in the instant case not because there was a cockroach in the soup, but on account of the harm or injury done to the health, mental or physical, of the plaintiff. Thus in the Donoghue case the plaintiff was hospitalised. Mild condition is generally not enough a basis for awarding damages. The plaintiff has, therefore, a duty to bring credible evidence of illness. The award in this instant case comes to us with a sense of shock as being wrong in principle and on the higher side. We want to take advantage of this case to point out that in future nothing will be warded if no proper evidence of a medical nature is conducted. Furthermore, in the case of Michael Chilufya Sata v Zambia Bottlers Limited , claimant found a cockroach in the drink but had not yet taken the drink when the cockroach was discovered. In a claim by the claimant, the Supreme Court of Zambia held to the effect that there was no injury or damage caused to the appellant by the adulterated drink as he did not consume it. Furthermore, the court noted correctly that negligence alone does not give a cause of action; damage alone does not give a cause of action; the two must co-exist.
It therefore follows, that for Changwa to successfully claim damages, he must prove the actual harm suffered with respect to both the food and the red wine.
Conclusion and Advice
In view of the explanation of the law that has bee done above, Changwa will now be advised as follows; In view of the facts given in the question, he would bring an action in the tort of negligence. The person that Changwa should sue is the owner of the restaurant for the fly found in the food. This is so irrespective of the fact that changwa is not the one who bought the food because the duty of care is not contractual but is imposed by the law.
In this vain, the pub owes a duty of care to Changwa. Secondly, Changwa can also bring an action for negligence against Manufacturer of the red wine for the cockroach found in the wine. This is because in cases such as these ones where the retailer has no control on the contents of the wine, recourse is had to the manufacturer, who is under a duty to take reasonable steps to ensure that the drink does not cause harm to the consumers who must be in the reasonable contemplation of the manufacturer. The tort of negligence comprises of three essential ingredients, namely; duty of care, breach of duty of care and the resultant damage, which elements have been discussed in sufficient detail above. In order to succeed in the tort of negligence, the claimant must establish all the three elements. Changwa will easily prove the first two elements of negligence. However, he may encounter problems with the third element in view of the fact that it has not been shown from the question whether he suffered any harm after taking the food which had a fly.
The law on negligence demands that the claimant must substantiate the harm caused by the defendant’s breach of duty. This will be problematic for Changwa in view of the fact that he did not suffer any damage. Secondly, it will be difficult if not impossible for Changwa to substantiate his claim with respect to the red wine because he did not take the wine, thus clearly no harm was suffered by himself. In view of the collated explanations given in this essay, Changwa is advised accordingly.
- Clerk and Lindsell. 2003. Law of Tort, 16th ed Cooke, J. 2003. Law of Tort, 6th ed. Liverpool: Moores University.
- Rogers, W. 1994. Winfield and Jolowicz on Tort, 13th ed. London: Sweet and Maxwell. Smith and Keenan. 1966. English Law, 2nd ed. London: Pitman and Sons Cases referred to Anns v Merton 
- All ER 492 Blyth v Birmingham Water Works Company  11 Exch 781 Continental Restaurant & Casino Ltd. v. Arida Mercy Chulu S. C. Z. No. 28 of 2000 Donoghue v Stevenson  AC 562 Latimer v AEC Ltd  1
- All ER 1302 Michael Chilufya Sata v Zambia Bottlers Limited SCZ No. 1 OF 2003 Miller v Jackson 
- All ER 338 Nettleship v Weston  3 All ER 581 Zambia Breweries Plc v Reuben Mwanza S. C. Z. NO. 39 OF 2000
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