By Garry Hertzberg and Natasha Sonblo of hersalaw.co.za
A night out at a Western Cape wine bar ended in panic, tears, and a hospital stay for Mrs. W all because of a hamburger. Halfway through her meal, she felt a sharp, needle-like object lodge in her throat. Two desperate trips to the bathroom couldn’t dislodge it. She saw blood in the basin, started crying, and overwhelmed by fear, she wet herself.
Her husband paid the bill, and they rushed to the emergency room. X-rays confirmed something sharp was stuck in her throat. An ENT specialist tried to remove it but couldn’t. Surgery had to wait, she’d eaten and drunk wine ,so she was admitted for monitoring and medication. The object wouldn’t budge. After five days in hospital and twice-daily X-rays, it finally passed from her body.
Mrs. W sued, blaming the restaurant for negligence and unsafe food. The restaurant denied it, claiming the object didn’t come from their kitchen. But Mrs. W was adamant: she wasn’t wearing hair clips or pins, and it didn’t come from her husband. As far as she was concerned, it came from one place, the burger.
The Court found that negligence could be inferred under the principle of “res ipsa loquitur” , the facts speak for themselves. To reach this conclusion, the following had to be shown:
The restaurant failed in its duty to serve safe food.
It had control over the equipment and processes used to prepare the hamburger.
It offered no credible explanation for how a foreign object ended up in the meal.
The Court held that Mrs. W had proven all the elements required to establish a delict. The restaurant was found liable and ordered to compensate her, with the amount of damages to be determined later. It was also ordered to pay her legal costs.
