Foreign Objects in Your Food: When Can A Restaurant Be Held Liable?

The judgment provides important guidance on the distinction between the occurrence of an injury and proof of negligence, the burden of proof, the proper application of the maxim res ipsa loquitur (“the facts speak for themselves”), and reaffirms that a Court cannot “rely merely on the maxim to fill in the gaps in the plaintiff’s evidence”.

Background

The matter arose from an incident in October 2020, when the plaintiff “experienced a sensation of discomfort, as though something was lodged in her throat” after eating a hamburger at a restaurant operated by Beyerskloof Wine Bar (the defendant). Subsequent medical examinations revealed “that a needle-like object was stuck in her throat”.

The plaintiff instituted a delictual claim against the defendant for damages, and maintained that the foreign object could only have entered her body through the food served at the restaurant. However, she could not identify the precise part of the hamburger in which the foreign object had been located, nor could she explain how it had been introduced to the hamburger.

The defendant presented evidence of its established health and safety protocols, its use of third-party suppliers to source ingredients, and its practice of using plastic rather than metal brushes to clean and prepare food on its grills. Its general manager also testified that the restaurant had never previously experienced an incident of this nature.

The trial Court found in favour of the plaintiff, holding the defendant liable for such damages the plaintiff may still prove. The trial Court relied considerably on the maxim of res ipsa loquitur, reasoning that the circumstances spoke for themselves and that the defendant failed to provide a satisfactory explanation for the incident.

The defendant appealed against the trial Court’s decision.

On Appeal – An Overview

The Full Bench upheld the defendant’s appeal and dismissed the plaintiff’s claim, finding that the plaintiff failed to discharge the onus of proving negligence, that the trial Court erred on the issue of negligence and conflated the requirements of res ipsa loquitur with the established test for negligence.

The Full Bench emphasised that the maxim of res ipsa loquitur does not automatically establish negligence or shift the burden of proof to the defendant. Although the foreign object was discovered in the plaintiff’s throat after eating the hamburger, this did not, without more, establish that the defendant had acted negligently. The evidence did not sufficiently demonstrate how the foreign object entered the food or that the defendant failed to take reasonable precautions.

The central question was not simply whether the plaintiff suffered an injury, but whether the evidence established that the defendant’s conduct fell short of the standard of care required by law.

Establishing Negligence

The Full Bench reaffirmed that a party claiming delictual damages bears the onus to prove all five elements of a delict, and all five elements must be established before delictual liability can arise. A plaintiff’s ability to demonstrate that harm occurred does not, without more, establish that a defendant is liable for that harm.

The main issue for determination in this matter was negligence. The plaintiff alleged that the defendant failed to ensure that food offered for public use and/or consumption was safe and failed to prevent dangerous and unsafe food from being consumed.

In determining whether a defendant acted negligently, a Court must consider whether a reasonable person in the defendant’s position would have foreseen the reasonable possibility of harm, would have taken reasonable steps to guard against that harm, and whether the defendant failed to take those steps. The inquiry therefore involves both foreseeability and preventability. The fact that harm has occurred does not necessarily establish that the harm was reasonably foreseeable or that the defendant failed to take reasonable precautions. On the evidence before it, the Full Bench concluded that negligence had not been established.

The Full Bench confirmed that the standard of reasonable care does not require a defendant to eliminate every conceivable risk, regardless of its likelihood or the measures required to address it. Negligence must be assessed in the context of the particular facts, the foreseeability of harm, and the reasonableness of the precautions that could have been taken.

“The maxim res ipsa loquitur played a leading role in the court a quo. It should have stayed in the wings”

One of the judgment’s most significant aspects concerns the application of the maxim res ipsa loquitur: “the facts speak for themselves”. The maxim may assist a plaintiff where the circumstances surrounding an incident support an inference of negligence, particularly where no direct evidence explaining how the incident occurred is available. However, the Court emphasised that the maxim does not create a presumption of negligence, nor does it reverse the burden of proof.

“The phrase is merely an argument on the probabilities that the plaintiff, who may have little evidence at his disposal, may use in order to convince the court that the defendant acted negligently … But the defendant may still submit evidence to show that the occurrence in question bears no relation to any negligent conduct on his part.”

The plaintiff retains the onus of proving negligence on a balance of probabilities. The maxim is an aid to reasoning from the available evidence and probabilities – it cannot be used to fill gaps in a plaintiff’s claim where the evidence does not support the necessary inference.

The Full Bench found that the trial Court erred by treating the defendant’s inability to explain exactly how the foreign object entered the hamburger as a basis for shifting the burden of providing an explanation onto the defendant. The trial Court effectively first inferred negligence on the defendant’s part from the occurrence of the incident itself, and then considered whether such inference had been rebutted by the defendant’s explanation. This approach is inconsistent with the applicable legal principles.

The Full Bench emphasised that the evidence must be considered as a whole, together with the probabilities and reasonable inferences arising from it. The ultimate question remains whether the plaintiff discharged the onus of proving negligence, and the trial Court lost sight of the fact that the onus remained on the plaintiff throughout.

Practical Implications

The judgment reinforces important principles for personal injury and public liability claims:

1. No Automatic Liability
   The judgment confirms that a claimant must prove the elements required to establish delictual liability. Evidence that an injury occurred is not necessarily sufficient to establish that a defendant acted negligently.
2. The Burden Of Proof Remains With The Plaintiff
   Res ipsa loquitur does not reverse the onus of proof. A defendant’s inability to explain an incident does not automatically establish negligence or require the defendant to disprove liability. Res ipsa loquitur is an aid to reasoning, not a substitute for evidence.
3. Reasonable Precautions Are Assessed In Context
   The negligence inquiry requires an assessment of both foreseeability and preventability. A defendant is not necessarily negligent merely because additional precautions can be identified after an incident has occurred.

Conclusion

Beyerskloof Wine Bar (Pty) Ltd v Williams serves as an important reminder that personal injury and public liability claims must be assessed on their evidence and the applicable legal principles.

For claimants, the judgment highlights the importance of establishing negligence rather than relying solely on the fact that an injury occurred. For businesses, it illustrates the relevance of reasonable precautions and the evidence available to demonstrate their approach to safety. Importantly, the judgment does not mean that restaurants are exempt from liability for unsafe food. Rather, liability depends on whether the necessary elements of a delictual claim have been established.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.