Written by: Garbis Kolokossian The short answer: yes. If your food poisoning was caused by negligence and resulted in a serious illness or caused long-term effects, then you may be eligible for compensation. In this article, we’ll cover the ability criteria, process, and compensation types for food poisoning claims.
An estimated 4.1 million food poisoning cases occur annually in Australia — other estimates predict upwards of 5 million. That’s the equivalent of one-sixth of the population facing food poisoning every 12 months.
Most people recover after a few days without any lasting damage. However, some people become seriously ill, with nearly 32,000 hospitalisations and 86 deaths due to food poisoning each year.
If you would like to receive personalised legal advice based on your situation, book a free, no-obligation consultation with one of our personal injury lawyers.
Food poisoning: Symptoms and causes
The average Australian eats out at least once per week — that’s a lot of trust put into cafes, restaurants, and other food establishments. Unfortunately, sometimes various issues can lead to foodborne illness, leaving individuals with the following food poisoning symptoms:
- Abdominal (tummy) cramps
- Nausea
- Vomiting
- Diarrhoea
- Fever
- Headaches.
A variety of factors can lead to food poisoning. Common culprits include:
- Undercooked meat, poultry or seafood
- Contaminated produce
- Improper food handling
- Unsanitary conditions.
Proving that these occurred and that they directly caused harm (foodborne illness or psychological harm) is the foundation of a food poisoning compensation claim. This is because all food establishments have the legal obligation to adopt competent food safety practices — this is referred to as their ‘duty of care.’
Filing a personal injury claim for food poisoning: The eligibility criteria
There are three main steps for proving a duty of care breach. Consider how each of the following steps relates to your circumstance.
1. The food establishment owes you a duty of care
There may be instances where the food establishment doesn’t owe you a duty of care. This may be because you brought your own food to the establishment or were trespassing at the time of the incident. In the vast majority of cases, restaurants and other food establishments do owe you a duty of care.
2. The food establishment breached their duty of care
Establishing that a food supplier breached its duty of care is crucial for a successful claim. A personal injury lawyer can help you gather evidence to demonstrate negligence. This could include:
- Health inspection records, highlighting the establishment’s hygiene standards and any previous violations.
- Employee statements, who may have witnessed unsanitary practices or improper food storage.
- Food samples, where possible, that can be tested to prove contamination and harmful bacteria.
3. The duty of care breach directly led to your injury
A key element in a food poisoning claim is proving a direct link between the food establishments negligence and your illness.
The food establishment’s insurance company may attempt to diminish their liability by attributing your illness to other factors. Potential challenges include:
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- Pre-existing conditions: Any prior health issues might be used to reduce compensation.
- Contributory negligence: Actions like excessive alcohol consumption might be argued as contributing to your illness.
- Alternative causes: The insurer may claim that the food poisoning resulted from factors unrelated to the establishment.
A qualified lawyer can help you build a strong case and protect your case should you fear any of these factors may apply to your circumstances.
If you’ve experienced food poisoning and suspect negligence on the part of a food establishment, consulting with a public liability compensation lawyer is crucial. Before your initial consultation, gather essential evidence such as medical records, photographs of the food, and any receipts.
This information will strengthen your claim and increase your chances of recovering compensation.
If you’re unable to retrieve any evidence prior to your consultation, don’t worry — we advise you to still speak with a lawyer regardless.
Do you want to learn more about filing a compensation claim?
What compensation can you claim?
Food poisoning claims are more likely to succeed when multiple people come forward over the same incident. If several diners ate contaminated food at the same restaurant on a particular evening, for example, establishing negligence and foodborne illness causation is easier.
That’s not to say that a successful individual food poisoning case isn’t possible, but it is important to have competent legal representation and trustworthy advice to ensure a favourable outcome.
During your consultation with a food poisoning lawsuits specialist, they’ll offer you free legal information about what compensation you can claim based on the nature and severity of your injuries.
In general, there are two main categories of compensation: economic damages and non-economic damages.
Economic damages
Economic damages focus on the tangible financial losses you incurred as a result of the food poisoning. This can include:
- Medical bills
- Lost wages if you were unable to work
- Reduced earning capacity, should the illness cause long-term health issues
- Any additional costs related to treatment or recovery.
Non-economic damages
Food poisoning can have a significant impact on your quality of life. Non-economic damages refer to compensation for intangible losses. This may include:
- Pain and suffering
- Emotional distress
- Loss of enjoyment of life
- Wrongful death.
How much compensation will you be awarded?
Determining the exact compensation amount for a food poisoning is complex and depends on a few factors.
Things that might influence the final figure, include:
- Severity of the illness: Generally speaking, the more severe your symptoms and the longer your recovery, the higher your potential compensation.
- Medical expenses: The financial burden of your medical costs will influence the compensation amount you may be awarded. This includes all doctors visits, hospital stays and medications.
- Lost wages: If you missed work due to illness, you may be eligible for compensation for lost income.
For example, this scenario may be considered highly compensable:
A family of four dines at a popular restaurant. Following the meal, all family members experience severe food poisoning, and two of the young family members are hospitalised due to dehydration. The young children in the family suffered particularly severe symptoms, including high fevers and prolonged vomiting. Medical records document a lengthy recovery period, with one child developing long-term gastrointestinal issues.
In this scenario, multiple victims, severe symptoms, and long-term health consequences contribute to a higher potential compensation amount. The family’s claim may focus on the significant financial burden and physical suffering caused by the food poisoning incident.
It’s important to lean on the expertise of your lawyer to assess your case and advise you on an appropriate compensation amount.
Remember, every case is unique, and the final settlement can vary significantly.
Food poisoning compensation by state
Note that each Australian state differs slightly in how it determines how much compensation you’re entitled to.
- If you’re in New South Wales, the Civil Liability Act 2002 (NSW) is the most relevant piece of legislation to you.
- If you’re in Queensland, the Personal Injuries Proceedings Act 2002 is the most relevant piece of legislation to you.
- If you’re in Victoria, the Wrongs Acts 1958 is the most relevant piece of legislation to you.
Broadly speaking, each piece of legislation details the:
- obligations of food establishments — and other entities — under their duty of care.
- criteria for establishing a breach of duty.
- types of damages that affected individuals can claim.
- state-specific procedures for filing a claim.
- assessment of contributory negligence.
- limitations period for bringing a claim.
Other pieces of legislation will likely come into play and your legal team can advise you accordingly.
Food poisoning claims are complex, but your personal injury lawyer is there to assist you in navigating the legal process, ensuring that all necessary evidence is gathered, and advocating for your rights to secure the best possible outcome for your compensation claim.
