Singo Manda bought 4 bottles of Mazoe juice from Pick n Pay, this drink was manufactured and packaged by Caissons bottlers of Lusaka. Singo Manda and his children had opened and drunk from one of the juice bottles. However, they noticed that one of the juice bottles that was not yet opened thereby not yet consumed contained a dead snail in it.
Knowing that you are a business law student, Mr Singo Manda comes to you for advice on whether he has a claim for damages for personal injury as a result of the dead snail in the bottle.
The tort of negligence refers to a breach of a legal duty of care which results in damage to the plaintiff. The elements of liability in tort of negligence are;
The loss must not be too remote and must be able to raise a defense to the claimant's actions.
In Caparo Industries v Dickman (1990) case a duty of care owed to a person can be by a 3 stage test. These are;
In Bourhill v Young (1943) a cliamant's claim of duty of care was denied due to no-proximity between the claimant and defendant. In Macfarlane v Tayside Health Board was denied a duty of care.
In this case Mr Musonda Chimba can prove that the manufacturer owes him and his children a duty of care. That duty was breached when a drink with a dead snail was sold to him. However it does not cause any loss to Mr Musonda Chimba and the loss caused is too remote to prove any actual loss. Since Mr Musonda Chimba and his family had neither opened the bottle nor consumed of its contents their claim for loss or injury may be too remote and thus unfair and unjustifiable to impose liability on the manufacturer.