BY JARED JUMA
Majority of us will relate closely with this example or scenario. You are sipping water from a bottle you carried from home or from a supermarket. You have been sipping it all day and you need to enter a restaurant when suddenly the personnel at security desk decline to allow you in with it. “We don’t allow drinks from outside mum,” you are politely reminded.
At times, there is very little quantity of the liquid remaining in the bottle, an amount you can even flush down your throat in a single gulp but they will disallow your entry with it in to the joint. How unreasonable? Considering that they may allow you to finish it at entrance than enter with it in a container. You may wonder. Well, this tradition traces back to common law decision made way back in 1932 by the House of Lords in an appeal of the celebrated case of Donoghue v Stevenson.
On the evening of Sunday 26 August 1928, during the Glasgow Trades Holiday, Mrs. May Donoghue took a train to Paisley, Renfrewshire where she went to the Wellmeadow Café. A friend, who was with her ordered a pear and ice for herself and a Scotsman ice cream float, a mix of ice cream and ginger beer, for Donoghue. The owner of the café, Francis Minghella, brought over a tumbler of ice cream and poured ginger beer on it from a brown and opaque bottle labeled “D. Stevenson”. Furthermore, although the bottle was labelled as Stevenson’s, it was later suggested that it is possible it did not originally belong to him.
Bottles were often reused, and in the process occasionally returned to the incorrect manufacturer. Moreover, Stevenson initially claimed he did not issue bottles matching the description provided by Donoghue. Donoghue drank some of the ice cream float. However, when Donoghue’s friend poured the remaining ginger beer into the tumbler, a decomposed snail also floated out of the bottle. Donoghue claimed that she felt ill from this sight, complaining of abdominal pain. She consulted a doctor on the next day and she was admitted for treatment”. On 16 September she was subsequently diagnosed with severe gastroenteritis and shock. Subsequently she sued the ginger beer manufacturer, David Stevenson, who ran a company producing both ginger beer and lemonade.
Donoghue v Stevenson [1932] UKHL 100 became a foundation decision in Scots and English tort law by the House of Lords. It created the modern concept of negligence, by setting out general principles whereby one person would owe a duty of care to another person even without a contract being proven. The Judges in the case instead went for some three components; the neighbor principle, duty of care and negligence.
The House of Lords held that the manufacturer owed a duty of care to her, which was breached by negligence. Justice Artkins held that was reasonably foreseeable that failure to ensure the product’s safety would lead to harm of consumers.
Prior to Donoghue v Stevenson, liability for personal injury in tort usually depending upon showing physical damage inflicted directly (trespass to the person) or indirectly (trespass on the case).
Being made ill by consuming a noxious substance did not qualify as either, so the orthodox view was that Mrs Donoghue had no sustainable claim in law. However, the decision fundamentally created a new type of liability in law, which did not depend upon any previously recognised category of tortuous claims.
Ideally, one would have proffered a suit of this nature as against the food joint or the eatery as the case may be. It has been suggested by many analysts that had the snail been found from a cup of tea, then the Wellmeadow Café would have been sued. But after the evolutionary case of Letang v Cooper [1965] 1 QB 232 it was held that actions should not be jointly pleaded in trespass and negligence, but in negligence alone. Many people prefer to sue the big industry players. The logic is pretty obvious; they have deep pockets as opposed to the small time traders who may close shop out of punitive damage settlement.
That partly was the wisdom in the case, closer home, of Kenya Breweries Limited v Godfrey Odoyo, Nairobi Civil Appeal number 127 of 2007. At around 11pm on the night of June 23, 2000 Mr Godfrey Odoyo went to the Leaders Inn Bar in Mathare within Nairobi City. He asked for his favourite beer, Tusker Malt Lager. The barman said there were only three bottles left. He ordered all three. They were brought to his table unopened. He drank the first bottle, happily. As he sipped through the second bottle, almost half-way through it, he noticed black particles were inside the surface of the glass bottle.
He shook the bottle to see if it would dissolve. It did not. He then examined the unopened bottle and noticed similar particles in it too. He rushed to the bathroom to clean his mouth and while there he began to throw up. He vomited for about 10 minutes. It was almost midnight. He rushed to the Amani Medical Centre, a health clinic in his neighborhood, taking with him both the opened and the unopened bottle of beer. Upon his arrival at the clinic he continued throwing up and began to suffer from diarrhea. He was treated, given medicine and discharged some eight hours later. When he got better, Odoyo submitted the unopened beer bottle to the Kenya Bureau of Standards (KBS) for examination and analysis. KBS found that the beer contained foreign particles; that it did not comply with the required specifications and that it was not fit for human consumption.”
On the basis of the above facts, the lower court gave Judgment against Kenya Breweries Limited and in favour of Mr. Odoyo. Aggrieved with the decision, Kenya Breweries preceded with the appeal.
The two Judges of Court of Appeal Namely Visram and Bosire still found the beer manufacturer to be liable. Justice Nyamu however dissented and it is his dissenting judgment recorded in the Court of Appeal that ventilates the principles behind “food and drink from outside” doctrine.
According to the dissenting view of Justice Nyamu, it was established that Odoyo had actually eaten Nyama Choma in Mathari and could have come to the Pub with “food from outside”. Justce Nyamu, going further sought to distinguish the case in that the third bottle found with foreign particles and which was presented to Kenya Bureau of Standards (now KEEBS) is not the one that Odoyo had taken and so there was no nexus between the impugned bottles and Odoyo’s ill health.
Many legal analysts have always held that Donoghue was a bad law. Many in fact have contended that David Stevenson could have been right that there was either no snail or if any then Donoghue could have carried it into the venue, Weilmedow café. It is upon this logic that many restaurants started being vigilant with food and beverages from outside. Just being watchful against expanded interpretation of the law of trespass to the person.
Next time therefore, should you endear to enter a restaurant and you are asked to leave the drink or food at the reception, just know you are a victim of Donoghue v Stephenson law.
