JELR 107534 (HC) 1

CHECK FOR UPDATES

[FIND RATIO DECIDENDI, SIMILAR AND CITING CASES, AND TREATMENTS]

DANIEL HESSE
V.
GUINNESS GHANA BREWERY LTD
(2016) JELR 107534 (HC)

HIGH COURT · SUIT NO. BC/330/2015 · MAY 16, 2016 · GHANA

CORAM

JUSTICE LAURENDA OWUSU

JUDGEMENT

OWUSU, J.

The Plaintiff herein on the 22nd of January 2015 issued out a Writ of Summons against the
Defendant for:

i. General damages for negligence.

ii. Special damages for the medical and psychological trauma suffered by the Plaintiff in the sum
of GH₵30,000.00.

iii. Costs.

iv. Any other relief(s) that the Honourable Court may deem fit.

SUMMARY OF CASE

THE PLAINTIFF’S CASE

The Plaintiff sets out his case by an accompanying Statement of Claim to the Writ of Summons,
an amended Reply, his Witness Statement filed on the 30th of July 2015 and the Witness

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 107534 (HC) 2

Statement of one Dr. Kofi Amaniampong filed on 11th February, 2016.

It is the Plaintiff’s case that on 4th November 2014 he visited a drinking spot at Tema New Town
and bought a can of Malta Guinness. According to him after he had drunk almost half of the
content he felt a solid substance in his mouth and when he brought the drink out of his mouth it
contained clotted substances. His brother- in law who was by then with him took pictures and a
video of same. The video is Exhibit B.

Thereafter, Plaintiff said he felt weak and nauseous and also had a headache and stomach upset
so he asked his brother in law to quickly drive him to Jubail Hospital at Sakumono where he was
examined and a couple of tests run on him. In the course of events he was informed by the
medical staff on duty that the cause of his illness was food poisoning as a result of the canned
Malta Guinness he had drunk.

Plaintiff claimed that the doctor advised that he be detained but he refused because he did not
want to sleep at the hospital. The doctor asked him to drink 1.5 liters of water to cleanse his
system and Plaintiff’s case is that immediately upon doing this the stomach upset aggravated
coupled with vomiting and this continued throughout the night when he was home.

According to him he later found out that all the cans of malt being sold at the same place where
he had earlier on purchased the one he had consumed contained the same clotted substances.

This predicament he claimed caused him emotional trauma, severe abdominal pains for weeks
and sleepless nights as such he could not attend to his private business which suffered greatly.
He maintained that the Defendant was negligent.

THE DEFENDANT’S CASE

The Defendant’s case by its amended Statement of Defence filed on the 8th of February 2016 and
the Witness Statement of its witness, Michael Akman filed on 9th December 2015 is that the
Defendant does not produce canned Malta Guinness at its facility in Achimota but imports canned
Malta Guinness from Togo and Nigeria into Ghana. It claimed that there are equally some other
local companies that also import canned Malta Guinness into Ghana.

In the light of this, Defendant claimed that there was the need for them to see the can of the said
Malta Guinness to know which country it emanates from however the Plaintiff has not presented
them with the can of Malta Guinness he allegedly purchased and consumed to enable them
conduct tests on the can to find out its true state.

Defendant maintained that matters concerning safety and consumer complaints are treated with
utmost importance by them and they have always produced under the highest manufacturing and
quality standards designed to ensure safety and suitability for consumption. They ensure strict
adherence to these standards. Defendant outlined the various steps leading to the production.
They denied that they have been negligent as they are neither the manufacturer nor the importer.

ISSUES SET DOWN FOR TRIAL

1) Whether or not Defendant was negligent in the manufacturing of the can of Malta Guinness.

2) Whether or not Plaintiff suffered some illness after he consumed the Malta Guinness

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 107534 (HC) 3

manufactured by Defendant.

3) Whether or not Plaintiff is entitled to his claim.

ANALYSIS OF THE ISSUES IN THE LIGHT OF THE LAW AND FACTS

∙ Whether or not Defendant was negligent in the manufacturing of the can of Malta
Guinness.

It is not in dispute that the can of Malta Guinness consumed by the Plaintiff was not manufactured
in Ghana by the Defendant. Exhibit C depicts that the drink was brewed under license by
Guinness Nigeria PLC, 24 Oba Akran Avenue, Ikeja Lagos State. Although the can of drink which
the Plaintiff consumed was not manufactured by the Defendant, did the Defendant owe a duty of
care to the Plaintiff as Plaintiff is alleging? Is the Defendant liable in negligence? Could the
Defendant be held liable for this breach? In NASSER v. MC VROOM [1996-97] SCGLR 468 @
470 the Court held: “In proving negligence in tort, the plaintiff must establish a duty of care owed by
the defendant towards the plaintiff, which duty must arise from the nature of the relationship
between them. Although a relationship of proximity must exist before a duty of care could arise,
the duty must depend on all the circumstances of the case and it must be considered
whether it was just and reasonable to impose a duty……” (Emphasis mine) In the tort of
negligence “duty” is the core ingredient of the tort. Duty is the primary control device which allows
the courts to keep liability for negligence within what they regard as acceptable limits and the
controversies which have centered on the criteria for the existence of a duty reflect differences of
opinion as to the proper ambit of liability for negligence. In the case of ALLASAN KOTOKOLI v.
MORO HAUSA [1967] GLR @ 298, Edusei J quoting LORD WRIGHT IN LONCHGELLY IRON
AND COAL CO. LTD v. M’MULLAN [1934] A. C. 1 @ 25 stated:

“in a strict legal analysis, negligence means more than heedless or careless conduct,
whether in omission or commission. It properly connotes the complex concept of duty,
breach and damage thereby suffered by the person to whom the duty was owing”

The Defendant does not produce canned Malta Guinness in Ghana but admitted that it imports
canned Malta Guinness from Nigeria and Togo. Defendant’s witness admitted under cross
examination that in their advertisements they do not distinguish between products produced in
Ghana and those imported by them and by other persons. These were his answers to questions
asked by counsel for the Plaintiff:

Q: Do you advertise your product?

A: Yes, my lord.

Q: Now in your advertisement, you do not distinguish products that are imported by you and
products that are produced by you in Ghana.

A: Yes, my lord we do not.

Q: You also stated that other persons apart from you import Guinness products including canned
Malta Guinness.

A: Yes, my lord.

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 107534 (HC) 4

Q: In your advertisement you do not distinguish products imported by you and products imported
by other persons. You do not.

A: No, we do not.

Q: Indeed, your company Guinness Ghana has as part of its objectives, the responsibility to
promote the Guinness brand in Ghana. Is that not the case?

A: Yes, my lord.

Q: And this includes products whether imported by you or other persons provided they are
Guinness products.

A: Yes, my lord.

Q: You would agree with me that Guinness as the importer of Guinness products into Ghana and a
sole ambassador of Guinness brand in Ghana are responsible to consumers of Guinness products
in Ghana. Not so?

A: Yes my lord.

Once they import these canned drinks and advertise for purchase, then even though Guinness
Ghana Brewery Ltd is not the manufacturer of these products they still owe a duty of care to
consumers. Consumers in Ghana purchase canned Malta Guinness believing that it is safe for
consumption. Why then should an importer who imports same and guarantees its safety not be
held liable just because it is not the manufacturer?

The ‘foundation’ judgment of DONAGHUE v. STEVENSON [1932] AC @ 562, HL has over the
years been extended depending on the facts of each case. The House of Lords by a majority held
that the manufacturer, the Respondent, owed a duty of care to the Appellant and that the
manufacturer should have foreseen that if he was careless in the process of manufacture,
consumers might suffer and so owed a duty to those consumers.

Liability under DONOGUE v. STEVENSON may extend beyond manufacturers as depicted in

subsequent cases. I refer to the case of ANDREWS v. HOPKINSON [1957] 1 QB @ 229 where a
used car dealer was held liable for injuries caused through his selling an unrepaired car in
dangerous condition. Would the imposition of duty of care on the Defendant be fair, just and
reasonable? By looking at all the circumstances I believe so. Guinness Ghana as the recognized
importer of these canned drinks has the duty of ensuring that the ultimate consumer is satisfied. I
find as a fact that Defendant owed a duty of care and was negligent although they did not
manufacture the Malta Guinness consumed by the Plaintiff.

I shall next proceed to address the 2nd issue.

∙ Whether or not Plaintiff suffered some illness after he consumed the Malta Guinness
manufactured by Defendant.

Plaintiff claimed that he suffered injury after he had allegedly consumed the contents of the Malta
Guinness he purchased on 4th November, 2014. He is claiming general damages for negligence
and again claiming special damages of GH₵30,000.00 for the medical and psychological trauma

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 107534 (HC) 5

suffered by him. In paragraph 10 of Plaintiff’s Statement of Claim he averred that he was informed
by the medical staff on duty that the cause of his illness was food poisoning as a result of the
canned Malta Guinness he had drunk. The Plaintiff’s medical report on his condition, Exhibit A,
does not categorically state that Plaintiff suffered some illness when he consumed the drink.
Exhibit A states that upon examination Plaintiff’s cardio respiratory system was normal, his central
nervous system was normal and laboratory tests done were unremarkable although Plaintiff had
reported to the facility with a complaint of headache, general body weakness and nausea. DW1’s
evidence did not assist the court as he only relied on Exhibit A which was prepared by a colleague
doctor.

Defendant does not deny the fact that Plaintiff went to the hospital after taking in that particular
drink. Indeed Exhibit A is ample evidence that Plaintiff went to the hospital after the incident. Why
would the Plaintiff decide to visit the hospital if consuming the drink did not have any effect on
him? The fact that tests conducted on him were unremarkable does not take away the fact that he
felt some fear and agony after taking in the drink. The report states that on examination the
Plaintiff looked anxious and worried. In the case of VICTORIAN RAILWAY COMMISSIONERS v.
COULTAS [1888], 13 App. cases @ 222 the court held that a Plaintiff is entitled to recover where
he is put in fear of immediate physical injury to himself due to the negligence of the Defendant. I
find as a fact that Plaintiff suffered some illness after consuming the Malta Guinness.

∙ Whether or not Plaintiff is entitled to his claim.

The law requires a Plaintiff in an action in negligence to prove damages for the tort to lie. The
Defendant does not deny that some clots were found in the can of Malta Guinness which the
Plaintiff drunk. Indeed Exhibit B, the video of the contents of `this Malta Guinness clearly shows
some clots in the drink. It is however the case of the Defendant that it is not strange to find such
substances in the can and that these substances are not harmful.

In the case of HART v. L&Y (1869) 21 LT 261 @ 263, Bramwell B is quoted as saying: “The
burden of proving negligence is on the Plaintiff who alleges it…… It is for the one who suffers harm
to prove affirmatively that it was due to the negligence of him who caused it.”

The Plaintiff has proved his case and is entitled to compensation.

Special damages for the medical and psychological trauma suffered by the Plaintiff in the sum of
GH₵30,000.00

‘Damages’ is nothing but a sum of money claimed as compensation or awarded by a court as

compensation to the plaintiff for harm, loss or injury suffered. Special damages are special
expenses incurred or monies actually lost. Such damages must be claimed specially and proved
strictly. Plaintiff has failed to prove specifically this expense incurred and is not entitled to it. Same
is thus dismissed.

General damages for negligence.

The Plaintiff is however entitled to substantial or compensatory damages as the Court has found
as a fact that Defendant has been negligent.

Considering the injury sustained, the court hereby awards an amount of Five Thousand Ghana

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 107534 (HC) 6

Cedis (GH₵5,000.000) as compensation which the Court deems a fair and proper assessment.

Costs

I award costs of One Thousand Ghana Cedis (GH₵1,000.00) in favour of the Plaintiff.

(SGD)

JUSTICE LAURENDA OWUSU

JUSTICE OF THE HIGH COURT

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation
JELR 107534 (HC) 7

APPEARANCES

BERNARD AGOTE FOR THE PLAINTIFF; KWASI FREDUA AGYEMAN-DANSO FOR THE
DEFENDANT.

Downloaded from www.judy.legal

The comprehensive database of African case law and
legislation