However, the company’s lawyer said there hadn’t been negligence, nor any breaches of the Consumer Guarantees Act (CGA) and that rather there was an element of negligence on the man’s part – he should have “removed any object that he had detected in the food, rather than attempting to chew it”.
Tribunal referee Cynthia Hawes said in a recently released decision the question was whether the company was liable to compensate the man for damage that resulted from biting on the date pit and, if so, what sum should be ordered.
She said the principal relevant argument related to the CGA, under which a manufacturer must guarantee the goods it produces for consumers are of acceptable quality and fit for their purpose.
“In my view, the [snack] was not of acceptable quality, nor fit for its purpose,” Hawes said.
“I do not think that a reasonable consumer would have purchased such an item knowing that it contained an object that could cause breakage to his or her teeth or dentures. The [snack] put the consumer’s physical safety at risk.”
She also did not think that just because the man bit on the date pit “more than once” meant he was responsible.
“He reasonably expected that the [snack] contained nuts. He should not reasonably have expected to find a hard date pit in the [snack].”
Hawes said given the manufacturer had committed to pay the man $762 for his broken molars, she included that in the order.
“In addition, I consider that [the manufacturer] should pay for [the man’s] broken upper denture. The breakage resulted, as [his] dentist stated, from the date pit.”
She did not, however, include the cost of a new lower denture, as the man had not proved he needed it because of the date pit.
Rather, the man’s dentist had reported a new lower denture was a “desirable option” to improve the man’s “general dental fitness”.
This related more to decay than the date pit so Hawes decided the manufacturer didn’t need to pay for new lower dentures.
She didn’t think the man was entitled to compensation for a breach of contract, which the man tried to claim off the back of correspondence in which he said the manufacturer had accepted liability.
“The copies of correspondence provided to me show [the manufacturer] discussed offers of payment, but at no stage accepted liability to pay the sum that [the man] claimed.”
Hawes said there was no liability, apart from the breaches of the CGA.
Hawes did find that the circumstances of the case, however, meant that “loss or damage” suffered by a consumer could extend to pain, inconvenience, and the resulting physical difficulty in eating pending dental repairs.
She allowed $500 for that.
The cost of repairing the molars was $762; the upper denture was $1226.
The manufacturer was ordered to pay a total of $2488.
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.
