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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

My view of Food Poisoning Law in Australia and New Zealand

aus-map.jpgAlthough food poisoning is a prevalent issue in Australia and New Zealand, both countries have taken major legislative efforts over the past decade to better regulate and enforce food and hygiene standards. Although both have similar food regulations, they have different legal regimes that treat food poisoning cases differently. In Australia, food law is dealt with mostly through tortious negligence and statutory claims. These claims were substantially altered through major tort reform in 2002, completed on a state/territory level. In New Zealand, tort law was largely abandoned in the 1970s, and food poisoning cases are mostly dealt with as a regulatory matter; with local health units investigating claims and rewarding small amounts of compensation to victims. Despite these differences in how victims pursue claims, Australia and New Zealand created a joint bilateral Food Standards Authority to develop and administer a common code of regulations, which have been incorporated into local law.

FOOD POISONING IN AUSTRALIA

Australia’s Law and Regulatory Regime

Australia’s legal regime is similar to the United States in that there is a federal government and separate state/territory governments with their own autonomy. Historically, Australia’s tort system was made up of common law precedent and doctrines, like the US. However, following a major tort reform in 2002, Australia’s common law has mostly been overridden by statutes, especially in the areas of negligence and personal injury law.

In 2002, the various state and territory governments within Australia appointed a panel of experts to review the law of negligence, primarily to address the public’s growing concern over unaffordable and unsustainable public liability insurance premiums and damages awards. The panel sought to make key recommendations for legislative reform to tort law with the objective of limiting liability and quantum of damages arising from personal injury and death. A uniform tort scheme was suggested by the panel but was ultimately rejected by state and local governments. Instead, individualized legislation was thereafter enacted by each state/territory, which consequentially created locally nuanced law. These local nuances included slightly differing definitions for laws such as negligence, standards of care, and different food acts.

Although the uniform tort scheme was rejected, a ‘quasi-consistency’ scheme has developed, as states have generally all agreed to narrow the scope of potential liability and reduce damages to confine insurer’s exposure. The major resulting changes to the tort scheme included: (i) circumstances in which damages can be recovered negligence; (ii) the types and quantum of damage that can be recovered; and (iii) further increases in public liability insurance premiums.

Since the tort reform, there has been a major decline in personal injury claims, including a 70-80% reduction of Australian personal injury claims payments on business and household insurance policies. Advocates of the tort reform claim that it has reduced insurance premiums. Skeptics on the other hand claim that the new reform transfers the financial burden of reckless conduct from the at-fault party and its insurer onto the victim, and that there are no economic penalties for businesses that refuse to invest in injury avoidance, while those who invest are penalized by the increased costs.

The reform also covered state public liability laws that govern public liability compensation claims from insurers. As in the general tort reform, these laws differ between states, with slightly different processes required to establish public liability compensation. Compensation also differs from state to state, and damages usually include: lump sum compensation payment (up to $427,000), medical expenses, loss wages, future care requirements, and miscellaneous expenses. Further, victims can no longer receive compensation for mental anguish unless the injury was ‘serious’, which is determined by the courts.

With respect to food regulations specifically, the federal Agency in charge of food handling is administered by the Australia Department of Health and Aging, and is Australia’s version of the F.D.A. Furthermore, each state has its own authority and food act that is based mainly on federal standards. However, similar to the local nuances that have occurred in the general tort reform, certain unique legislation requirements are developing in different state/territory jurisdictions.

Currently, new legislation is springing up across Australia to make food regulation even more stringent than it already is. In Queensland and New South Whales for example, new regulations have come into force this year that include the controversial name and shame process and a mandatory accredited food safety adviser in every food-related business. First, name and shame regulation allows the local authorities to list the names of violators on its website for those premises that receive penalty notices from the local food authorities for serious food offenses within a year. Local authorities are made up of council regulatory officers who enforce the local food authorities’ mandate.

A second regulatory scheme can be seen in new amendments to Queensland’s Food Act, which include a mandatory employment of an accredited food safety adviser in every food-related business. These employed advisors will be fully trained and will have the responsibility of monitoring and training staff to ensure they meet acceptable standards. This strict legislation is still being investigated in New South Whales and is still voluntary at this point, given some concerns over whether local standards comport with federal standards. It is too early to tell how successful this legislation is as a deterrent to food violations, but it has been successful in Victoria, where businesses have been required to have such trained employees for years now.

To summarize, the 2002 tort reforms in Australia have had a major impact on food law and food poisoning cases in Australia, and although once a common law issue, food law is now codified into individualized legislations within each state/territory. Citizens can sue companies and businesses for food poisoning claims under civil liability laws, public liability insurance claims, and stator redress. Additionally, new legislation is being enacted to ensure greater compliance by local businesses to help reduce the likelihood that a business violates food codes.

Some Major Cases In Australia

Every year, Australian Government’s Department of Health and Ageing estimate that there are 5.4 million cases of food poisoning; mainly because people are eating out more, and new strains of food-borne illnesses have emerged. While most cases are relatively mild, there are near 40,000 cases with serious complications, with around 120 causing death annually. That being said, Australia was fourth in the world according to 2008 food safety rankings.

Garibaldi Case (1995): Fifteen years ago about 190 people experienced illnesses linked to eating mettwurst (a type of sausage) contaminated with E. coli O111. Twenty-three children were hospitalized, five children suffered long-term health consequences including transplants, and one child died. The victims sued Garibaldi in the Adelaide District Court for damages and for compensation from the company’s $10 million insurance package. Although most claims have settled, six remain unresolved. Two of the cases involve a disagreement about how much the settlement should be. The remaining four claims relate to children who got sick a month or two after the original cases and the insurance company is contesting damages claims because the strain they had differed slightly from the original victims. The case is adjourned until September.

The Oyster Case: Graham Barclay Oysters Pty Ltd v. Ryan (1996-7; decision 2003): A class action lawsuit was brought by consumers who had contracted Hepatitis A after eating oysters that were harvested in a New South Wales lake that was polluted by human fecal contamination. The applicants alleged that the grower of the oysters, the distributer, the local government authority, and the state government were all liable in negligence for the harm they suffered. The claimants also alleged that the distributers and growers were liable for breaching the Trade Practices Act 1974. The case made it all the way up to the High Court of Australia, which affirmed the appellate court’s finding that neither state nor local authorities owed a duty of care to the consumers. Also, the High Court found in accordance with the appellate court that the harvesting and distribution companies took reasonable care to ensure their oysters were safe, given the unreasonableness of the alternatives.

Cryptosporidium and Giardia parasites (1998): A three-month water supply contamination crisis affected Sydney and region following cases of illness caused by Cryptosporidium and Giardia parasites in some Sydney reservoirs. The final total estimated cost reported by Sydney Water Corporation was $75 million. A legal class action was taken by businesses for loss of business and one law firm reported that they took intake from a hundred individuals who believed they became sick as a result of the water contamination. All the claims have settled.

Dowdell v Knispel Fruit Juices Pty Ltd (2003): Between January and June, 1999 in South Australia, 507 cases of Salmonella Typhimurium phage type 135a (“ST 135a:”) infection seemed to be linked to the consumption of unpasteurized fruit juice sold by Nippy’s Fruit juices. The case became a class action lawsuit in the Federal Court of Australia against the juicer, the grower and the packer. Negligence and breaches in statutory duty were the main issues argued. The main statutory breaches involved provisions in the Trade Practices Act 1975. A settlement scheme was also agreed to providing a structured regime for settling various claims, supported by the juice company, without admitting fault. Over 425 claims were settled with this scheme, and the remaining claims were settled by the judge. The court found that the Defendants were negligent and were strict liable under the statutory charges. The Judge divided up the liability between the various at-fault parties including the interpretation of the insurer’s responsibilities.

Contaminated Pork Rolls in Melbourne (2003): Victims suffered food poisoning from eating pork rolls from Melbourne’ s Thanh Phu restaurant, and was one of Victoria’s biggest food poisoning outbreaks. The Victorian Supreme Court approved the agreed settlement for more than 200 people, who received compensation payouts totaling around $1 million.

The KFC Villawood Twister Case (2005): Kentucky Fried Chicken is in a court battle with two parents who are seeking $10 million, claiming that their healthy seven-year-old daughter became crippled and brain damaged from salmonella after eating a “Chicken Twister” from a KFC in New South Wales. The latest argument made by the Plaintiffs is that a certain staff at the KFC would drop chicken pieces on the floor, help themselves to food and throw chicken strips at each other as pranks. KFC is denying any links between the “Twister” and the condition of the injured girl, and also argue that there is no proof of purchase (receipt) of the twister being purchased by the plaintiffs. Furthermore, KFC contends that the father of the plaintiff told a local health official that he blamed the poisoning on another source. On a side note, this case came only weeks after other Australian KFC branches (in Miranda and West Hurstville) were given a large fine of $73,125 and convicted of 11 charges of breaches of food hygiene laws. This case is still in court being argued.

Current Warnings and possible Litigious Cases.

1. Hepatitis A in Semi Dried Tomatoes. (5th of May 2009 ) A Warning was issued following a number of cases (totaling 90 this past year with 41 cases the year before) of Hepatitis A in Victoria and South Australia that may be associated with the semi dried tomatoes. Victoria’s Acting Chief Health Officer, said the move is a precautionary one. The health departments of South Australia and Victoria are working closely to identify the source of contamination.

2. Other Notable Warnings: Histamine in Anchovies, Bonsoy Soy Milk: Salmonella in cheese.

FOOD POISONING LAW NEW ZEALAND

New Zealand’s Law and Regulatory Regime

New Zealand went through a major legal transformation in 1967 when a Royal Commission concluded that accident victims needed a secure source of financial support when deprived of their capacity to work. In 1974 New Zealand adopted a government funded program for compensating people with personal injuries (operated by the Accident Compensation Corporation, or ACC), replacing most of its former tort-based system. Tort reform has shifted primarily to a no-fault scheme and people cannot sue for personal injury covered by ACC legislation. However, torts law still exists in New Zealand, covering property damage and exemplary damages. The ACC has since been charged with administering the Accident Compensation Act, which defines an accident as “not [to] include the ingestion of a virus, bacterium, or protozoan.” This means that although the ACC compensation system includes accidents and personal injuries, it does not cover illnesses, including food poisoning.

Food poisoning cases are therefore mostly dealt with as a regulatory matter. Claims are generally investigated by local regional District Health Boards and the New Zealand Food Safety Authority (NZFSA), which is responsible for food regulation in the domestic and export sectors. If violations are severe enough, the offender may be prosecuted by NZFSA under the Food Act 1981 , which governs food safety and enforcement. Regulations are also found in the Food Hygiene Regulations 1974, which sets food handling and registration of business requirements and are enforced by local health authorities. Additionally, the Food (Safety) Regulations of 2002 replaced the 1984 set of regulations. When food safety standards are breached and food poisoning results, the offending party is liable to penalties in the form of fines under the above Act and Regulations. These violations are strictly liable offenses.

Currently, a new set of legislation is being passed in New Zealand’s legislature that would replace the Food Act 1981 and the above regulations. “The Food Bill” creates a single set of rules that incorporate past codes and regulations, along with certain bylaws that have been drafted by local councils to address gaps in the Food Act 1981 regime. Besides more compressive rules, the new Food Bill has improved compliance and enforcement provisions, including broader penalties and sanctions. The Food Bill has passed its first reading on July 22, 2010, and is now with the Primary Production Select Committee for further review.

Generally speaking, when someone experiences food poisoning as a result of consuming food provided by an operator (i.e. restaurant, caterer) in New Zealand, the first step they would take —besides seeking medical help—is to contact a regional Public Health Unit (PHU). The victim can then lodge a complaint with the PHU, and an investigation into the incident may or may not result, and the incident may then be dealt with by the local authorities or by the NZFSA.

Based on the result of an investigation, a number of sanctions are available to the PHU to pursue. For further information on specific sanctions, one should contact the PHUs themselves. In some incidents, a PHU will forward an investigation onto the NZFSA. As noted above, the most serious sanction for a food poisoning incident is prosecution under the Food Act 1981 (soon under the Food Bill). Sometimes, small awards of costs have been ordered by sentencing courts (ie. costs of meals, medical bills for treatment of food poisoning) for affected persons.

Some noteworthy Cases in New Zealand:

New Zealand has much higher rates of food poisoning than Australia, but because it is not as litigious of a country, actual cases are much less prevalent and are difficult to come by.

Campylobater Food Poisoning: New Zealand has the highest rates of campylobacter food poisoning, which affects nearly 2 percent of the population and is nearly three times higher than the next highest developed country. According to the New Zealand Food Safety Authority (NZFSA), in 2005 there were nearly 14,000 cases of campylobacter poisoning in this country, with 871 hospitalizations, mainly caused by undercooked chicken, unpasteurized milk, chicken liver pate, and infected drinking water.

Others attribute the rise to reporting procedures, contact with animals, and poultry industry hygiene. First, reporting procedures vary widely and campylobacter is not a reported illness in some New Zealand states. Second, animal contact can cause campylobacter in rural areas, and a 2001 study found that it was present in 60 percent of New Zealand’s rivers. Finally, poultry is a staple food in the New Zealander’s diet, and as such, creates an increase likelihood of exposure over other countries that do not eat as much chicken.

Pierson Turkey Case: An owner-operator of a restaurant provided a Christmas Day buffet lunch for 110 diners and served a selection of ham, beef and turkey, some of which was contaminated. NZFSA charged the owner with violations, and ordered him to pay $400 in fines, along with $850 in reparation to victims and $10,414 in costs to the Crown. The restaurant owner appealed against his conviction and appealed to the High Court in February 2009 to make the New Zealand Press Association withdraw its report on the matter. The appeal failed. He then sought leave to appeal the High Court’s decision, but this was declined.

Contaminated Honey Case: A beekeeper in Whangamata was charged under Food Act 1981 for selling food unfit for human consumption after his honey allegedly was toxic and caused convulsions and violent seizures in some people. The beekeeper admitted to selling honeycomb that inadvertently poisoned the victims. The court ordered him to pay $3350 in reparations to some of the victims in addition to $750 in laboratory costs and $450 in solicitor’s fees.

Other Concerns: Regulating Food Imports: contaminated imported foods only account for a small amount of gastrointestinal illnesses, but the Food Safety Authority reviews safety standards of imported goods including: the contamination of oysters from Chile and Korea, tuna from Samoa, and three tons of Egyptian tahini (seasame seed) paste in 2003-4.

JOINT COOPERATION: FOOD STANDARDS AUSTRALIA NEW ZEALAND (FSANZ)

In 1995, Australia and New Zealand signed a joint Food Standards Setting Treaty, which among other things, established the FSANZ, a bi-national government agency to develop and administer the Australia New Zealand Food Standards Code. This Code lists requirements for food, such as additives, food safety, labeling, and GM foods. Enforcement and interpretation of the Code is the responsibly of the local departments and food agencies. Both Australia and New Zealand have codified these standards into their respective food regulatory regimes. The FSANZ is comprised of: one office in each country; a Ministerial Council, which sets policy guidelines for the development of future food standards; a twelve member Board comprised of specialists in different areas; and a Maori Reference group, established in 2008 to provide advice to FSANZ on customary practices and local processes in Maori.

Thanks to David Babcock, Esq., and Erik Steinecker, M.A., J.D. Candidate 2011

REFERENCES

For further information on some of the different nuances, see the report at : http://www.minterellison.com/public/resources/file/ebab3d47ce168ac/RG-TortLawReform_0710.pdf

For a general review of public liability compensation claims, a law firm has spelled it out. See http://www.tomgoudkamp.com/web/page/public_liability

For further information on food recalls in Australia please refer to the FSANZ website http://www.foodstandards.gov.au/consumerinformation/foodrecalls/.

8/1/08 Hospitality Accommodation, Ab 23 2008 WLNR 15624007.

11/9/08 Canberra Times (Pg. Unavail. Online) 2008 WLNR 21380170

8/1/08 Hospitality Accommodation (Ab 23 2008) WLNR 15624007

http://home.iprimus.com.au/foo7/badfood.html#15

More information is available at http://www.abc.net.au/news/stories/2010/06/21/2932535.htm

Graham Barclay Oysters Pty Ltd v Ryan 211 CLR 540; 77 ALJR 183; 125 LGERA 1; 194 ALR 337

More information is available at: http://home.iprimus.com.au/foo7/badfood.html

2003 WL 21921167 [2003]

More Info available at: http://abc.gov.au/news/stories/2003/08/12/922366.htm

More information is available at: http://www.theaustralian.com.au/kfc-in-10m-battle-over-brain-damage/story-e6frfkwi-1225699460410. See also http://www.smh.com.au/nsw/kfc-staff-tell-of-food-fights-poor-hygiene-20100804-11foh.html

More information on current warnings is available at: http://www.mtr.sa.gov.au/webdata/resources/files/SA_Food_Handler_Update_Issue_2_2008.pdf; See also http://www.foodstandards.gov.au/_srcfiles/FSN%20Winter%20edition%20FINAL.pdf

For more Information on making a claim, see http://www.acc.co.nz/making-a-claim/am-i-covered/index.htm

§25(1)(ba) of the Accident Compensation Act.

For more information on the New Zealand Food Safety Authority, see http://www.nzfsa.govt.nz/index.htm.

Food Act of 1981, available at http://www.legislation.govt.nz/act/public/1981/0045/latest/DLM48687.html

Food Hygiene Regulations 1974, available at http://www.legislation.govt.nz/regulation/public/1974/0169/latest/DLM42658.html

Food (Safety) Regulations 2002, available at http://www.legislation.govt.nz/regulation/public/2002/0396/latest/DLM174558.html

A pdf version of the new Food Bill is available at: http://www.legislation.govt.nz/bill/government/2010/0160/latest/DLM2995803.html?search=ts_bill_food_resel&p=1

Doug Ririnui, consumer Enquires Coordinator for NZFSA Communications, via email correspondence 08-26-10

For more information, see http://www.moh.govt.nz/moh.nsf/indexmh/healthsystem-phu

Doug Ririnui, supra note 23.

For general information, see http://newzeelend.wordpress.com/category/campylobacter-food-poisoning/: 2003 numbers showed that New Zealand’s rate of 368 cases for every 100,000 people was almost five times Australia’s rate in 2002 and almost 10 times the rate in Canada. 2004 Agence France-Presse, 9/25/04 AGFRP 04:30:00

Simon Colin, Heath: No one knows why we get so many stomach bugs, 9/25/04 NEWZLHR A01.

For more information, see http://bites.ksu.edu/blog/138634/09/05/05/new-zealand-food-safety-authority-nails-restaurant-no-one-wins-when-people-barf. For a note on the High Court’s decision, see http://www.google.com/url?sa=t&source=web&cd=4&ved=0CCMQFjAD&url=http%3A%2F%2Fwww.adls.org.nz%2Ffiledownload%3Fid%3D6fc38950-10f3-4df9-b3a2-278eed8ed737&ei=Z6phTIfhIcSrcfSgjY0J&usg=AFQjCNFTlkMxjtkwb6Xne-_EhAzoDw0OHA

For more information, see http://www.safety2life.com/17894.html

2/15/04 N.Z. Press Ass’n 00:00:00

The Agreement Between The Government of Australia and the Government of New Zealand concerning a Joint Food Standards System, available at http://www.nzfsa.govt.nz/labelling-composition/publications/treaty/treaty.pdf

The FSANZ website is available at http://www.foodstandards.gov.au/

The outcomes of Board meetings are summarized and available on FSANZ’s website: see http://www.foodstandards.gov.au/scienceandeducation/aboutfsanz/theboard/boardmeetingoutcomes/

For more information on Nga Kaitohutohu Kounga Kai, see, http://www.foodstandards.gov.au/scienceandeducation/aboutfsanz/maorireferencegroup/

  • Hi – i heard Bill speak at the NZFSA conference and thought he was OK. We are doing our bit by training and testing people in their own language – 10languages so far. It would be good if the ocassional kick arse lawyer came wading in to town to sort things out, but in the meantime ACC and the taxpayer picking up the bill keeps us all a bit complacent. I say instant fines for doggy shop behaviour might be as good as they were in getting us to put on our safety belts. We could start a “Dob in the dodgy restaurant” campaign.

  • Just OK?

  • Your article is very interesting, giving a lot of inspiration especially for this novice.
    Thank you for sharing with us, keep your great work and good luck.