Serving Up Liability: Negligence, Res Ipsa Loquitur and Defective Food

The respondent went out to dinner with her husband at a restaurant run by the appellant, and both of them ordered hamburgers. Halfway through her meal she felt something stuck in her throat. She coughed, could not dislodge it and noticed blood, so she went to hospital. X-rays showed a needle-like object lodged in her throat. Attempts to remove it failed, and she spent five days in hospital until the object was no longer visible on the X-rays. She was certain that the object came from the hamburger. However, she could not say whether it was in the bun, the patty or the garnish, or how it got there. She sued the appellant for damages. The trial court found the appellant liable, holding that the facts “spoke for themselves” and that the appellant was at fault for failing to serve her safe food. The appellant appealed to the full bench.

The appellant’s evidence came from its general manager. He testified that the restaurant had never had an incident of this kind before. He also said that all hamburger ingredients were bought from established third-party suppliers, that food safety protocols were in place, and that no metal brushes were used to clean the grills.

Issues

The main issue was whether the respondent had proved that the appellant acted negligently and was therefore liable in delict. The high court had to decide three related questions. The first was whether the trial court was right to rely on the principle known as res ipsa loquitur (“the thing speaks for itself”). The second was whether the evidence showed negligence on the appellant’s part. The third was whether the appellant could be held strictly liable, meaning liable without any fault, for serving food that turned out to be harmful.

Court’s decision and reasons

The high court upheld the appeal and dismissed the respondent’s claim.

On the first question, the court held that the trial court had misapplied res ipsa loquitur. The principle only allows a court to draw an inference of negligence from the circumstances of an incident. It does not create a presumption of negligence, and it does not shift the burden of proof to the defendant. The trial court had wrongly treated the appellant’s failure to explain how the object got into the food as shifting the burden onto the appellant. The burden of proof stayed with the respondent throughout. The principle could not be used to fill gaps in her evidence. The court also held that being in control of the ingredients is not the same as being in control of a foreign object that the appellant did not know was there.

On the second question, the court found that the appellant had not been negligent. The test is whether a reasonable person in the appellant’s position would have foreseen the reasonable possibility of harm and taken reasonable steps to guard against it. The restaurant had never had an incident of this kind, and there were no warning signs. A reasonable restaurateur would therefore not have foreseen that a foreign object would be present in one of the hamburger’s ingredients. Even if the risk had been foreseeable, the court found that nothing more could reasonably have been expected of the appellant. Measures such as X-raying every ingredient or scanning every dish with a metal detector were described as bordering on the absurd. Because the respondent could not show how the object entered the food, there was no basis for a finding of fault.

On the third question, the court held that, under our common law, a seller of a defective product is not strictly liable. The ordinary delictual claim for damages, which requires proof of fault, is an adequate remedy. Imposing strict liability is a matter for the legislature. To the extent that the trial court had in effect held the appellant strictly liable, it erred.

Conclusion

For members of the public, the case shows that finding a foreign object in food does not by itself entitle a diner to damages. Under the common law, the injured person must still prove that the restaurant was negligent, and courts will not assume fault simply because the incident happened.

For general liability insurers, the case is good news for insured food businesses facing common-law negligence claims. It confirms that a clean incident history, reputable suppliers and documented food safety protocols can defeat a claim, and that res ipsa loquitur does not shift the burden of proof onto the insured. Insurers should still stay cautious. The defence in this case relied heavily on the absence of earlier incidents, and a claim properly pleaded under the Consumer Protection Act may not depend on proof of fault at all. Insurers should therefore encourage their insureds to keep thorough records of supplier vetting and kitchen safety procedures, and should continue to price and reserve for product liability exposure.