An employee who contracted salmonella poisoning while working as a kitchen hand at a café has successfully recovered damages against her employer (the owner of the café), but damages were limited in light of the employee’s activities following the illness.
In issue
The key issues in this case included whether the employee established a breach of duty of care by the employer and causation. Additionally, the assessment of damages was a key issue as it was unclear whether the employee had actually suffered the loss claimed (in light of her activities following the illness).
The background
In early February 2017 a number of patrons contracted salmonella poisoning after eating at a café. Following an inspection by The ACT Department of Health, the café was found to have committed numerous breaches of the Food Act 2001 (ACT). Importantly, a sample of frozen cooked chicken was found to contain the same type of salmonella bacteria that each of the patrons of the café had contracted.
An employee claimed that she contracted the same salmonella bacteria while working at the café. She alleged she ‘became critically ill as a result of the poisoning and that the illness left her completely debilitated for a number of months’. She said she suffered ‘from long term physical and psychological effects as a result of her illness’ causing her to suffer loss.
The employee claimed damages in negligence against the employer.
The decision at trial
The employer disputed that it was liable for the employee’s injuries and also challenged the quantum of the damages sought by the employee.
Justice Baker determined that the employer was liable for the employee’s injuries.
The court was satisfied on the balance of probabilities that the employee contracted salmonella whilst handing raw meat and chicken in her employment as a kitchen hand at the café. Being a circumstantial case, the court drew an inference that the employee contracted salmonella poisoning at the café from the available evidence. This evidence included that her duties performed at the relevant time involved handling raw meat and chicken, the food hygiene standards at the café were lacking, a number of other patrons contracted the same salmonella bacteria after eating at the cafe and that a sample of chicken was found to be contaminated with the same salmonella bacteria.
The court found that the employer owed a duty to take reasonable care to avoid the risk of an employee contracting salmonella poisoning during the handling of food, particularly raw meat and chicken. The employer breached its duty by failing to provide hand soap to employees preparing food (particularly employees handling raw meat, fish and chicken) and by failing to take reasonable precautions to ensure the proper refrigeration of such food.
The court was satisfied that causation was established as it found:
- the employee contracted salmonella whilst handing raw meat and chicken in her employment as a kitchen hand at the café; and
- the employer’s breaches of its duty of care were a ‘necessary condition of’ the employee contracting salmonella poisoning and becoming ill. The court had regard to expert evidence that if the precautions (provision of hand soap and proper refrigeration) had been in place, ‘the risk of a food handler contracting salmonella would, necessarily, have been significantly reduced’. It was satisfied that the ‘implementation of those measures would have “so substantially reduced the risk” of contracting salmonella that, on a balance of probabilities, the most probable result is that the plaintiff would not have contracted salmonella…’.
The court did not accept that the employee was ‘as ill as is claimed… or that she has suffered ongoing injuries to the full extent alleged.’ Accordingly, the damages awarded were substantially less than those sought by the employee. Judgment was entered for the employee in the sum of $65,573.34.
Implications for you
This case illustrates the potential for a circumstantial case involving the contraction of an infectious disease to succeed. It is clear that in order to succeed it is not necessary for a plaintiff to establish with absolute certainty:
- precisely how or when a virus/bacteria was contracted; or
- that the defendant’s failure to take precautions caused the injured person to contract the virus/bacteria.
This case also illustrates the potential for a court to restrict damages payable to the plaintiff where there is evidence contradicting the plaintiff’s claims of injury, incapacity and loss.
Source: Lexology
