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In case of food poisoning, what are your rights?

Friday November 15 2019

upset stomach

Food poisoning, not to be confused with eating food laced with poison, is a most common cause of an upset stomach. FILE | FOTOSEARCH 

AIDAH WANJIRU
By AIDAH WANJIRU
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It’s a typical evening out with friends at your favourite restaurant and you’ve just finished a delicious meal — a serving of chicken or seafood, cheese, rice and green leafy vegetables.

Unknown to you, these foods are the top most common culprits in food contamination and food-borne infections.

So then it starts: you experience stomach cramps, tingling and pain, you start feeling hot and sweaty and become fidgety in your seat.

Suddenly galaxies and stars are circling in front of your eyes as the lethargy takes over and the first violent wave of nausea hits you.

You hurriedly excuse yourself, keen on not getting embarrassed in such a grandiose setting and dash to the washroom.

The long stretch to the little powder room does not materialise, since you, unable to control your bodily processes, double over and puke on an unlucky waiter’s shoes, to the dismay of fellow diners.

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FOOD POISONING

Surely tiny as it is, the stomach can be one of the most humbling organs.

Food poisoning, not to be confused with eating food laced with poison, is a most common cause of an upset stomach.

It is caused by bacteria and viruses present in food, with certain foods having a higher exposure risk than others.

Potential viruses and bacteria that cause food poisoning include E. coli, hepatitis, botulism, norovirus, listeria, and Shigella.

“I used to suffer from food poisoning every other month until earlier this year when I decided to stop eating out,” Nairobi-based lawyer Diana-Kate Wambui told the Nation.

“I mean clearly from all the episodes I had, food handlers are not maintaining proper standards. No wonder they have those ‘staff only’ door signs.”

FOOD HANDLERS

There is an increasing number of reported cases of food contamination leading to deaths and hospitalisation, a trend that casts doubts on the safety of food in homes and restaurants.

The Kenya Association of Manufacturers’ (KAM) revelation earlier this year that City Hall has not been evaluating food handlers for almost a year and that no public food handler has been issued with a certificate of good health for the same period disheartened Kenyans all the more.

So, just in case you become one of the unlucky diners and you fall victim to bugs in food or drink, the following information could come in handy:

• Can people who suffer from food poisoning sue?

The short answer is yes, you can sue for food poisoning.

However, a lot of questions arise such as what is your legal claim? Who is liable, hence who can be sued? What do you sue for?

Can you actually prove that the restaurant is legally at fault for causing your illness?

And if so, did you suffer quantifiable harm that justifies expending the effort to file a personal injury claim?

• What is the probability of your case being successful?

Realistically, it can be difficult to prove that food from a particular restaurant caused food poisoning.

It becomes harder if a significant amount of time has lapsed between the time you had the meal and the manifestation of symptoms and your taking ill.
This is because of a principle in law called of causation.

Causation is legalese for a common factual link or connection which needs to exist between the conduct of those who caused you harm and the injuries that resulted.

In other words, the question that begs is ‘but for the defendant’s actions, would injury have occurred?’ If the answer is yes, then causation cannot be adduced, and vice versa.

Now, let’s say you, being diligent have evidence— in the form of leftovers in a take-away bag— that might prove the restaurant’s food was contaminated.

Even in such unique instances, where you decide to have the leftovers tested and the lab analysis reveals the presence of harmful bacteria in the food, it’s likely still not conclusive evidence.

This is because if you sue the restaurant, they may claim that you exposed the food to other risks after it left their premises.

• What then is the probability of success in such a suit?

Generally, the probability of success of a suit depends on how strongly you build your case.

You have a better shot at a successful suit if you’re not the only one who was affected or if you’re lucky in some cases, a product recall or a health agency warning may be issued greatly favouring your claim.

In such instances, a class action suit— one instituted by many people aggrieved by the same issue arising from a similar set of facts or a similar series of events— would be best.

In law, personal injury falls under torts.

A tort is an act or omission that gives rise to injury or harm to another person, it is a civil wrong in which courts can impose liability.

In the torts context, "injury" connotes the invasion of any legal right, whereas "harm" is a loss or detriment suffered by the individual.

Tort law’s primary aim is to offer relief to injured parties for harm caused by others, to impose liability on the responsible party and subsequently to deter others from engaging in the same harmful acts.

NEGLIGENCE

In Kenya, the hallmark case on poisoning after consuming a product is Kenya Breweries Limited versus Godfrey Odoyo (2005).

Mr Odoyo fell sick after consuming two of the three Tusker Malt Lager beers he had bought at a local bar at Leader’s Inn Bar in Mathare. He was successful and awarded Sh70,000 in general damages and Sh21,990 for pain and suffering.

For a start you would sue under the tort of negligence. In negligence, three key ingredients need to be satisfied:

  1. That you were owed a duty of care.
  2. That the duty of care was breached.
  3. That you suffered harm or injury as a result of the breach.

The three above captures a principle in law called the ‘neighbourhood principle’ introduced by the popular case of Donoghue versus Stevenson in which a snail in a bottle of ginger-beer changed the law.

• Who then is held liable? Who can be sued?

In a suit founded on a food poisoning claim, all parties involved in the chain of distribution can be held liable.

A restaurant owes you a duty to deliver well cooked food handled under hygienic conditions, your local supermarket owes you a duty to reasonably ensure consumable products they sell are safe for consumption.

This is of particular importance in the wake of rising cases of supermarkets selling expired food products.

A manufactures owe you a duty to ensure their products are free from contamination, are tested and are fit for human consumption whereas the local county authorities offer certification and testing services for all food handlers within their jurisdiction.

STANDARDS

Finally, the market regulator Kenya Bureau of Standards (Kebs) in this instance offers examination and testing of commodities examining the manner in which they may be manufactured, produced, processed or treated.

Liability arises under negligence mentioned above if you can prove that a party that ought to have exercised reasonable care for consumer protection failed to do so.

Secondly, you may sue under strict liability, specifically, product liability if you can prove that the product consumed was defective since this amounts to a breach of warranty from standards set by Kebs.

• What do you need to prove in court?

Apart from the existence of a duty of care owed to you, the burden lies with you after claiming to be poisoned to further prove that;

  1. The food eaten was contaminated.
  2. The contamination caused your illness.

TESTING

Kebs offers testing services in their regional offices located in Kisumu, Nakuru, Eldoret, to name but a few.

Testing depends first on the product e.g. food and agricultural products or electrical and mechanical engineering products, secondly on the number of tests required.

Furthermore, the time taken is dependent on the sample type, the number of tests per sample and the method of analysis. Results are available after 14 days.

What are some practical steps to take in filing a food poisoning lawsuit?

For your claim to be successful, you should ensure you have a watertight case by;

  1. Saving any leftovers from the restaurant or a sample of the product consumed.
  2. Recording how much time has passed from when you ate the food and when you started having symptoms of food poisoning to establish causation.
  3. Keeping a receipt of the meal or product purchased.
  4. Immediately rushing to hospital for treatment and keeping a record of all documents.

Finally hoteliers, restaurant owners and other food handlers can protect themselves through the common “no food from outside is allowed” policy to avoid being blindsided.

Of paramount importance though is ensuring food is well cooked and handled under both locally internationally recognised best practices.