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How to: Deal with a food poisoning scare

RM

Spice caught up with Richard Mitry from Mitry Lawyers to find out how to deal with a food poisoning scare.

Q: The Brisbane Convention and Exhibition Centre recently had a food poisoning scare that is yet to be fully attributed to the venue. How should the venue handle this case if it turns out that the food poisoning was a result of their in-house catering? And what if the food poisoning didn’t originate with them – what is the best approach there?

A: As it is currently uncertain whether the food poisoning is fully attributable to the venue it is best to prepare for two scenarios, both where the food poisoning was the result of in-house catering and where it was not.

In the event that food poisoning did originate with in-house catering, the primary legal concern will be whether there is liability for negligence for personal injury. There are several elements that must be established for negligence, including duty of care, breach of duty, and injury. Once the food poisoning has been attributed to the venue, it will usually be straightforward to establish the necessary duty of care and breach. But realistically, there are very few compensation claims for food poisoning as the third element – injury – is usually not significant enough to warrant pursuing a claim (although many that are suffering through a night of food poisoning would argue otherwise).

Damages may be awarded for medical bills, loss of income and general damages (including pain and suffering, loss of amenities of life, disfigurement), and in the majority of food poisoning cases the potential damages will be too low to make it worthwhile to pursue a claim. As an example of the injury where a claim was pursued, in a prominent case in NSW the plaintiff suffered organ system failures, septic shock, severe brain injury and spastic quadriplegia.

The most important thing that a venue can do in this respect is ensure that they have up-to-date public and product liability insurance. The first step for a venue owner in this scenario should be to contact their insurer and update them as the matter progresses, the insurer will handle any claim, settlement and negotiations on the venue owner’s behalf.

If the food poisoning did not originate with the venue, and there is contrary reporting stating that it did, it would be helpful in terms of public image to release a statement outlining where responsibility lies. The venue will need to be mindful here of the risk of defamation, so care would need to be taken to ensure the accuracy of any public statement.

Additionally, if the venue experiences a financial loss, and it can be directly shown that it was the result of the food poisoning and the responsible party for the food poisoning is determined (and that the venue took reasonable steps to mitigate its loss), it may be possible to pursue a claim directly against the negligent party for compensation for this loss.

 

 

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