Watching the growing “rock melon” cantaloupe Listeria outbreak in Australia (at least 10 sick with 2 dead), brings back bad memories of the 2011 Jensen Farm Cantaloupe Listeria outbreak that sickened nearly 150 with over 30 killed.
Although 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.
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.