Food Poisoning and Consumer Rights

When you consume a food product bought from a grocery store or prepared at a restaurant, the last of your concerns should be getting sick. Everyone expects to be served food and drinks that are safe for consumption. However, aside from pre-existing allergies, it is not uncommon for people to fall ill after eating food prepared by restaurants or purchased from markets and grocery stores. Enduring a serious bout of food poisoning is not an enjoyable experience.  In some cases, the effects of food poisoning are short-lived and fairly minor, but in others, a victim may become extremely ill and require hospitalization or in serious cases, food contamination can have fatal effects.  Food-related businesses have a responsibility to prepare and serve safe products for consumption, and lawsuits sometimes arise when food handlers did not take reasonable steps to keep people safe.

Concerns of who will be held liable often arise in food poisoning lawsuits. Restaurants owners and food manufacturers may be found liable for the damages incurred by consumers who fall ill due to negligence in their food preparation or handling. The Ontario Ministry of Health sets policies for safe food handling practices, promotes public awareness, surveys and investigates food handlers, and responds to public complaints and food handling issues.  This mandate includes investigating and acting on complaints of suspected or confirmed food poisoning. The Ministry also seeks to prevent and reduce food-borne illness by responding to floods, power outages and other situations that could potentially result in food or water contamination. Further, the MInistry investigates instances of suspected or confirmed food poisoning.

What is Food Poisoning?

Food poisoning, also referred to as “food-borne illness”, is defined as a sickness that is caused by harmful viruses, parasites and bacteria that can be found in food. Typical effects of food poisoning include vomiting, diarrhea, and abdominal pain. Food poisoning can be life-threatening and commonly affects many people around the world. Children, the elderly and people with pre-existing health conditions are more likely to suffer serious effects or death from food poisoning.  Many cases of food poisoning resolve on their own but medical attention is often needed in more serious cases.

Most cases of food poisoning last from 1 to 2 days. Food poisoning is sometimes mistaken for the stomach flu, and both can result in severe dehydration, which is a dangerous outcome that can cause death for vulnerable victims.  However, bacteria and other pathogens that cause food poisoning, unlike the flu, can sometimes result in permanent damage to a person’s digestive tract or respiratory illness.

According to the Canadian Food Inspection Agency, the government of Canada approximates 4 million cases of food poisoning every year in Canada. Below are common causes of food poisoning:

• Campylobacter jejuni: 

Campylobacter jejuni (C. Jejuni) is a bacteria that is found in the intestines of meats such as poultry, cattle, pigs, wild birds, rodents, and even household pets such as cats and dogs. The bacteria thrives in untreated surface water and manure. Campylobacter jejuni is one of the most common causes of food poisoning in Canada and the United States.

• Botulism (Clostridium botulinum): 

Bacterial spores cause botulism or Clostridium botulinum, which are commonly found in soil and is widespread in nature. These bacterial spores need oxygen to grow. Botulism is an illness that is caused by nerve poison and results when someone consumes foods containing the botulism toxin.  Botulism is extremely dangerous and often fatal.

• Pathogen (Clostridium perfringens): 

Symptoms from pathogen or Clostridium perfringens include increased gas, fatigue, nausea, watery diarrhea, and severe abdominal pain. This bacterium typically grows in foods that have high levels of starch or protein, which includes cooked beans, gravy, and meat products.

• Escherichia coli (E.coli): 

E. coli are bacteria that are commonly found in the intestines of poultry, cattle and other animals often consumed by Canadians. Many forms of E. coli are harmless to humans, but others carry genes that can cause infections, in some cases, life threatening.  The E. coli bacteria can be transferred throughout a meat product during food processing, but raw fruits and vegetables can also be contaminated from improperly composted manure or contaminated water.

• Cronobacter: 

Cronobacter is a bacteria that is found in the environment and is commonly associated with food-related illness but it rarely causes serious infections.

Negligence in Food Preparation

Most cases of food poisoning, such as botulism, can be prevented by proper food preparation.  This includes adequately cooking food such as meats to at least 85 degrees Centigrade for 5 Minutes or more. Processing plants are required to adhere to strict standards, for example, with respect to cleaning their equipment, adequate refrigeration, and discarding potentially contaminated products.  Food handlers must properly wash food that is to be eaten uncooked. Also, anyone involved in food handling must take steps to avoid cross-contamination during the preparation process.

Lawsuits arising from cases of food poisoning can be an issue of product liability and/or negligence. Contaminated food is essentially a “defective” product that may have been improperly handled, prepared or contaminated, and subsequently sold or served to the public. Possible causes of action may include any of the following:

• Strict Liability

Strict liability laws help to relieve the burden of proving that the manufacturer or supplier of a food product that is contaminated did not use the proper degree of care in making and/or distributing the product that you ate. This serves as an advantage to a plaintiff in a food poisoning lawsuit.

• Negligence

A legitimate legal basis for your claim includes negligence. When a manufacturer or distributer of a food product acts in negligence, it means that the food handler/seller did not execute the proper degree of reasonable care in making or distributing the food that made you ill.

Anyone handling food for commercial consumption can be liable if they failed to take reasonable care in the preparation or handling of food.  Businesses can also be strictly liable for a defective food production or a breach in warranty. If a manufacturer, distributer or restaurant is found to be liable in a food poisoning lawsuit, they can be required to compensate a seriously injured person for their damages. Common damages in this type of lawsuit include loss of wages while the person was ill or recovering, any financial costs arising from the illness, and an award for pain and suffering. In cases of large or widespread outbreaks of food poisoning, class action lawsuits are commonly filed for a group of victims.

Next Steps if you suffered serious symptoms resulting from food poisoning

Proving that you suffered injury or illness due to food poisoning requires proving both causation and injury (i.e. providing evidence that the food you consumed was contaminated and that this contamination caused you to fall ill).   In order to accomplish this, a claimant must identify the specific food that made them sick.  This is more difficult when there is a delay in time between when the food was eaten and when you began suffering symptoms, and also if there are several potential sources of contamination.  For example, if you ate at different restaurants for lunch and dinner, proving causation will be more problematic.  One strategy that can substantiate that an illness was caused by the contaminated food is to have a stool sample tested for food related pathogens.  Victims of severe food poisoning should always seek medical treatment to prevent a potentially life-threatening outcome.

Food poisoning is a common problem that is experienced by many, but cases of minor food poisoning symptoms where a person recovers within a day have little basis for an injury claim.  On the other hand, if contaminated food results in serious symptoms and financial losses or even death for a loved one, the injured person and/or family members should seek legal counsel.  An experienced attorney at Injury Lawyers of Ontario (ILO) can advise you on your legal rights and whether you have a strong case for compensation.  In many instances, if one person suffered a serious case of food poisoning, then there will have been other victims as well, and multiple cases of food poisoning can further substantiate causation for your claim.