Food Poisoning and Liability: What the Marwako Court of Appeal Decision Means for Restaurants

Food businesses often operate on a simple assumption that when a customer buys a meal, it is safe to eat. When that assumption fails, the legal consequences can be severe.

A recent decision of Ghana’s Court of Appeal has reaffirmed this principle in the case of Winifred Tse & Others v. Marwako Fast Food Ltd, a dispute arising from an incident of alleged food poisoning at the restaurant’s East Legon branch. The judgment provides an important reminder to restaurants, food vendors, and hospitality businesses about the legal duty they owe customers.

The incident began on 8 May 2022, when Winifred Tse purchased six packs of food from the East Legon branch of Marwako Fast Food Ltd. She later consumed the food together with her siblings, Rodger Bismark Tse and Walter Tse. According to them, shortly after eating the food they experienced severe symptoms including abdominal pain, vomiting, diarrhea, and dehydration. Their condition was serious enough to require medical treatment and hospitalisation. 

Medical reports from Nyaho Medical Centre and Holy Trinity Medical Centre confirmed that they suffered gastroenteritis, commonly associated with food poisoning. 

They, as plaintiffs, subsequently sued the restaurant for negligence. They alleged that the company had served contaminated food and failed to maintain proper sanitary and food-handling conditions.

They sought damages for physical injury, psychological trauma, inconvenience, and special damages amounting to GH¢25,215.48, covering medical expenses, transport, domestic help, and alleged loss of earnings. 

Evidence Presented at Trial

A key piece of evidence in the case was a Food and Drugs Authority (FDA) investigation report.

Following reports of food poisoning, the FDA conducted an inspection of the East Legon branch. The inspection uncovered several serious hygiene and food safety failures, including:

● Absence of temperature monitoring for freezers and refrigerators

● Freezer temperatures far above recommended safety levels

● Improper storage of marinated food

● Lack of documented sanitation and pest control procedures

● Food preparation areas connected directly to staff washrooms

The investigation also detected heavy microbial contamination, suggesting a link to the reported foodborne illness. 

The plaintiffs argued that these regulatory breaches demonstrated that the food sold by the restaurant was unsafe.

Marwako, however, denied liability. The company admitted that food had been sold to the first plaintiff but maintained that the FDA report merely highlighted regulatory concerns rather than proof that contaminated food had been served.

The Circuit Court Decision

On 24 June 2024, the Circuit Court in Adenta found in favour of the plaintiffs.

The court concluded that Marwako had acted negligently in the preparation and sale of food. It held that the restaurant owed a duty of care to its customers and had breached that duty by selling contaminated food.

The court awarded a total of GH¢1,070,215.48, broken down as follows:

GH¢345,000 general damages for each of the three plaintiffs, GH¢25,215.48 special damages and GH¢10,000 costs

This substantial award reflected the trial court’s view that the restaurant’s conduct had caused serious harm.

The Appeal

Marwako appealed the decision, challenging both liability and the amount of damages.

Among its main arguments were that:

● The finding that food served on 8 May 2022 was contaminated was unsupported by the evidence.

● The trial court wrongly concluded that the second and third plaintiffs had consumed the same food purchased by the first plaintiff.

● The duty of care owed to the first plaintiff should not automatically extend to the other two.

● The damages awarded were excessive. 

The Court of Appeal was invited to review the entire record, because of the principle that an appeal is a rehearing of the case on the evidence.

What the Court of Appeal Decided

The Court of Appeal delivered its decision on 12 March 2026, partially allowing the appeal.

1. Contaminated Food Was Proven

The court upheld the finding that the food sold at the East Legon branch on the day in question was contaminated. It accepted the FDA report as credible expert evidence and noted that the documented sanitary failures made it more probable than not that unsafe food had been served. 

2. Only One Plaintiff Proved the Claim

The court, however, found serious evidential inconsistencies in the claims of the second and third plaintiffs.Their medical reports indicated that their symptoms followed the consumption of fast food on dates different from 8 May 2022, contradicting their testimony that they ate the food purchased by the first plaintiff on that date. Because documentary evidence generally carries greater evidential weight than oral testimony, the court held that their claims had not been proven. Their entire claims were therefore set aside. 

3. Liability to the First Plaintiff Was Confirmed

The court affirmed that Marwako owed the first plaintiff a duty to serve food that was safe for human consumption. Drawing from the classic negligence principle in Donoghue v Stevenson, the court emphasised that a restaurant must reasonably foresee that contaminated food can harm customers.It concluded that Marwako breached that duty and was liable to the first plaintiff. 

4. Damages Were Adjusted

While the court maintained the GH¢345,000 general damages awarded to the first plaintiff, it reduced the special damages.

After examining the receipts presented, the court held that many claims had not been strictly proven. Only the following were accepted:

● GH¢2,379 for hospital treatment

● GH¢500 for transportation

Other claims, including loss of earnings and payment for domestic help, were rejected for lack of proof. 

What Businesses and Food Vendors Should 

1. Food Safety Is a Legal Duty

Restaurants owe customers a duty of care to provide food that is safe for consumption. Failure to maintain proper hygiene and food-handling standards can easily lead to liability in negligence.

2. Regulatory Compliance Matters

The FDA inspection report played a decisive role in the case. Regulatory breaches are not merely administrative issues. They can become powerful evidence in court.

3. Poor Operational Practices Can Be Costly

The court described the operational conditions at the restaurant as deeply problematic. Businesses in the hospitality sector should treat sanitation, food storage, and monitoring systems as core operational priorities.

4. Documentation Is Critical in Litigation

While the first plaintiff succeeded, the second and third plaintiffs failed largely because their documentary evidence contradicted their claims.

The case highlights a principle in litigation that documents often carry greater weight than oral testimony.

The Marwako decision is more than a dispute about food poisoning. It reinforces a fundamental principle of consumer protection: businesses that sell food must ensure it is safe.

Food safety is not just good practice. It is a legal obligation and failing to meet it can lead to serious financial and reputational consequences.