Insight
October 13, 2026
When a restaurant customer swallowed a needle-like object while eating a hamburger, she required five days of hospital treatment. She institutes a delictual claim against the restaurant, alleging that it negligently failed to ensure that the food was safe for consumption.
In Beyerskloof Wine Bar (Pty) Ltd v Williams [2026] ZAWCHC 593, delivered on 12 October 2026, a Full Bench of the Western Cape High Court upheld the restaurant’s appeal against a finding of liability. The Court held that the customer had not discharged the onus of proving negligence.
Claim and Evidence
On 03 October 2020, Maxine Williams and her husband dined at the restaurant, where she swallowed the object while eating a hamburger. Although X-rays subsequently revealed a needle-like object, the court record contained neither a precise description of it nor medical evidence. Williams could not identify whether it had been in the bun, patty or garnish, or explain how it entered the food.
The parties separated the issues of liability and quantum, and the trial proceeded on liability alone. On 29 May 2025, the trial court found the restaurant liable, relying heavily on res ipsa loquitur, commonly translated as “the thing speaks for itself”.
Delictual Liability and the Test for Negligence
A claimant seeking delictual damages under the common law bears the onus of proving conduct, wrongfulness, fault, causation and harm. In this matter, the appeal turned on fault in the form of negligence.
The negligence enquiry concerns foreseeability and preventability. The claimant must establish that a reasonable person in the defendant’s position would have foreseen the reasonable possibility of injury and loss, would have taken reasonable steps to guard against it, and that the defendant failed to take those steps.
The restaurant’s general manager testified about its health and safety protocols, staff training and checks on deliveries. The restaurant purchased its ingredients from third-party suppliers and did not make the patties or bake the bread. Metal brushes were not used to clean the grills at the relevant time, and a plastic brush was used to baste the patties.
Having considered this evidence, including the absence of previous incidents or warning signs, the Full Bench held that a reasonable person in the restaurant’s position would not have foreseen a foreign object in an unidentified ingredient. Williams had therefore failed to prove that the presence of the object, and the resulting harm, was reasonably foreseeable.
Even assuming foreseeability, the Court held that a reasonable person would not have taken the drastic additional precautions suggested in argument, such as X-raying every ingredient. The assessment of reasonable preventative measures takes account of the likelihood and gravity of the harm, as well as the cost and difficulty of avoiding it.
The Application of res ipsa loquitur
Where the circumstances warrant it, res ipsa loquitur permits an inference of negligence. This maxim does not create a presumption of negligence or shift the onus of proof to the defendant. A claimant relying on it must still prove negligence on a balance of probabilities.
The trial court erred in treating the incident as establishing a prima facie case of negligence and then requiring the restaurant to rebut that case by providing an explanation. The Full Bench held that negligence had to be determined on all the evidence, the probabilities and the inferences properly drawn from them. It also held that control over the hamburger’s ingredients did not establish control over an unidentified foreign object whose presence was unknown.
Williams had not discharged the onus of proving negligence, and the Court accordingly upheld the appeal and dismissed her claim. The costs order included the trial, the relevant applications for leave to appeal and the appeal itself.
Common Law Liability and the Consumer Protection Act
The Court’s discussion of strict liability concerned the common law Aquilian action for delictual damages. Applying the Supreme Court of Appeal’s decision in Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd, it held that imposing strict liability was not justified on the cause of action before it.
Section 61 of the Consumer Protection Act 68 of 2008 provides a separate statutory basis for liability for harm caused by unsafe or defective goods, without requiring proof of negligence. Such liability remains subject to the statutory requirements and defences. The Court did not determine a claim under section 61, and its findings on common law negligence do not exclude liability under that provision.
Responding to a Customer Incident
Businesses should retain evidence of staff training, supplier checks and the implementation of their safety protocols. Following an incident, relevant CCTV footage, photographs and witness accounts should be preserved to assist with investigating the circumstances and assessing any claim.
The Court noted that the relevant grounds of negligence had been pleaded in general terms. A claimant’s case should identify the alleged negligent conduct and the evidence supporting foreseeability, preventability and causation. Early advice should also address any applicable statutory basis for liability.
Barnard’s Litigation team advises businesses and individuals on delictual damages claims, including the evidence required to pursue or defend them. Contact Alicia Govender for advice on a potential claim or your business’s exposure to liability.
