OVERSEAS BREWERIES LTD. vs. ACHEAMPONG [1973]DLCA2340

Date	1973-02-12
Suit No.
Citation No.	[1973]DLCA2340

LASSEY JA

ARCHER J.A.

HAYFRON-BENJAMIN J.

QUASHIE-IDUN FOR THE APPELLANTS.

NO APPEARANCE FOR THE RESPONDENT.

[1973]DLCA2340
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													<main id="main" class="content" style="min-height: 60rem" >OVERSEAS BREWERIES LTD.<o:p></o:p>&nbsp;vs. <o:p></o:p>ACHEAMPONG <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
1 GLR 421<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
12 FEBRUARY 1973.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

QUASHIE-IDUN FOR THE APPELLANTS.<o:p></o:p>

NO APPEARANCE FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LASSEY AND ARCHER JJ.A.,
HAYFRON-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>The
respondent, a legal practitioner resident in Kumasi, bought from a retailer in
Kumasi, a carton of beer manufactured by the appellants in their factory at
Accra. Two days after the purchase, the respondent opened one of the bottles
and consumed half of the contents after he had poured it out into his usual
drinking mug. The respondent smelt not only kerosene from the contents but
tasted kerosene in his mouth and throat after drinking the beer. As a result he
suffered a burning sensation in his mouth, he coughed, vomited and had stomach
upset, frequent stools and a sleepless night. He was given medical attention
and in two days he was fully recovered. The respondent, before reporting his
experience to the appellants, had sent the bottle concerned with part of the
contaminated beer in it to the Pharmacy Department of the University of Science
and Technology, Kumasi, for analysis to ascertain how much kerosene was contained
in the bottle. The Pharmacy Department reported that although the bottle and
its contents smelt of kerosene the quantity in it was not enough to permit
isolation of it by distillation. Thereafter the appellants also collected the
same bottle and its contents for analysis. Later they informed the respondent
that although the beer contained some kerosene, the quantity was not sufficient
to cause injury to the respondent.<o:p></o:p><o:p>&nbsp;</o:p>About a
year later, the respondent sued the appellants claiming general damages for
negligence. After hearing evidence from both parties and after considering the
evidence of the doctor who attended the respondent within a few hours of
drinking the contaminated beer and also the evidence of a pathologist brought
by the appellants to expatiate on the ramifications of kerosene poisoning and
its concomitant effects on human beings, the learned trial judge, on the
application of the appellants, visited the factory where the beer was
manufactured and saw the whole process and the machinery involved.<o:p></o:p><o:p>&nbsp;</o:p>In
delivering his judgment reported sub nom. Acheampong v. Overseas Breweries Ltd.
[1971] 1 G.L.R. 7, the learned trial judge stated at p. 11 that he had no doubt
that the appellants’ mechanical system was reasonably thorough and carefully,
devised. In his words:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;“The mechanical part of the system, however,
seems to me, as it was described to me and as I saw it, a rather efficient
system and the standard of supervision also seemed to me rather high. The
bottles assumed various positions at various stages of the process, including
the vertical position and in my view there is something to be said for the
defendants’ version that it would be impossible for a bottle to go through
these mechanical stages and still retain any appreciable amount of foreign
matter. However, it is not clear to me whether the defendants’ process is
fool-proof enough to clear all traces of kerosene from a contaminated bottle
which had been let through by a careless worker.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge accordingly applied the principle laid down in the leading
case of Donoghue v. Stevenson [1932] A.C. 562, H.L. and held that the
appellants, as manufacturers of the beer, owed a duty of care to the respondent
to ensure that the beer sold to him was not contaminated with kerosene, and
awarded the respondent ¢800.00 general damages for the appellants’ negligence.<o:p></o:p><o:p>&nbsp;</o:p>The
appellants appealed to this court against the judgment and the following
grounds of appeal were argued:<o:p></o:p>