Food Poisoning: What Are Your Rights and Do You Have a Claim?

With the outbreak of the foodborne disease listeriosis in 2017, there has been increased focus on food safety all over South Africa.

During the outbreak, 183 people died. The source of the food poisoning was traced mainly to processed polony produced at Tiger Brands Enterprise facilities.

Here we look at general food safety rights, and when food poisoning can be grounds for personal injury claims.

The listeriosis outbreak

Listeriosis is listed as a notifiable medical condition. Since the countrywide outbreak, suspected cases were investigated and confirmed by laboratory tests.

Pathology reports showed a link between each case and the suspected processing facilities. Consumers and families affected by the outbreak could use this evidence in supporting their claims against Tiger Brands in a class action suit.

Experts estimate that victims and families with valid personal injury claims against Tiger Brands could get payments between R100 000 and R2 million.

As a consumer, this may make you wonder when you have the right to make a claim against a restaurant or food retailer for food poisoning.

Food safety: know your rights

Because contaminated, expired and incorrectly prepared or stored food may have a harmful effect on human health, government bodies are in place to regulate food safety and quality legislation in South Africa.

Food retailers must adhere to health and safety regulations. Restaurants, traders and producers must have a valid certificate of acceptability issued by the Department of Environmental Health.

The Consumer Protection Act (CPA) states that product producers, importers and retailers are liable for harm caused by an unsafe product. So, as a consumer you have the right to expect that any goods sold to you is truly safe for consumption.

Food poisoning: do you have grounds for a claim?

It sounds like lodging a personal claim for food poisoning is pretty straightforward. Unfortunately, in reality it’s very difficult to link health effects to specific foodstuffs.

Food poisoning generally presents as vomiting or gastroenteritis, but these conditions can also be caused by other factors.

This means that for a food poisoning claim to be valid, you can’t just get away with a doctor’s note stating you had diarrhoea – you need full pathology results. At the same time, the food in question must show the same contamination as the pathology work to prove the link.

It’s also important to note that the onus lies with the consumer to safely handle, store and prepare food, as governing bodies and retailers can’t be held responsible for personal negligence.

How to prove food poisoning

Most cases of food poisoning are often benign and won’t last for longer than a day or two. However, some cases may be more severe with longer lasting effects. If you suspect something serious:

• Consult a doctor, and ask for a culture or test to identify the cause.
• Take any leftover food (from a doggy bag, for example) with you to the doctor and ask for it to be tested.
• Try to find out if you’re an isolated case – if other members of your family were affected, for example, include a report of their condition. You can also consult restaurant managers or staff, or you can list your case on food poisoning websites that will notify you of other cases reported at the same place.
• If you purchased a product associated with a specific brand, contact that company’s call centre immediately and ask for a food poisoning questionnaire.

Found a link – now what?

If it seems you do have a case, you need to get your calculator. Keep a clear record of all your medical expenses – services as well as medications – because of the incident.

Loss of income due to days off work can also be claimed.