"Who is Liable if a Customer Gets Sick?", Vancouver Sun

by Janice and George Mucalov

In Canada, we believe our food is safe. We don't expect to get sick from such an innocuous activity as eating. So, many of us were shocked when five people contracted Hepatitis A from eating food bought at Capers, a local institution. Then there was the additional scare that some patrons of a Vancouver restaurant might also get sick from contaminated lemon wedges in their drinks.

The question is - is Capers likely to be legally liable?

The answer may lie in part in an old landmark English case involving a Scottish shop assistant, May Donoghue.

In 1928, Mrs. Donoghue and a friend stopped at a cafe in the small town of Paisley outside of Glasgow. Her friend ordered ice-cream and ginger beer (a soft drink) for Mrs. Donoghue and poured the drink over Mrs. Donoghue's ice-cream.

But the fateful bottle contained a decomposed snail, which Mrs. Donoghue only discovered after finishing half her drink. She got sick as a result, and sued the soft drink manufacturer for gastro-enteritis, nervous shock and depression.

The case went all the way up to the English House of Lords, the top court of the land, which ultimately decided that the manufacturer was liable for negligence.

In the judgment, Lord Atkin laid down the fundamental principle for deciding if a party is negligent: "The [moral] rule that you are to love your neighbour becomes in law, you must not injure your neighbour... You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." He went on to explain that "neighbour" in law means people so closely affected that it should have been reasonably foreseeable they would be injured by the act or omission in question.

So, to establish that Capers was negligent, the Hep A victims would have to show that this test has been met - that Capers owed them a duty of care and failed in that duty by not taking reasonable care to prevent their customers from getting sick.

What duty does a restaurant or food store owe its customers? As you'd expect, our courts demand an extremely high standard of care.

The leading Canadian case involves a group of guests at a wedding reception who contracted typhoid fever after eating contaminated food supplied by the caterer. An employee who helped prepare the food was found to be a "typhoid carrier"; the medical evidence established that she passed along the disease by not washing her hands sufficiently.

The judge said: "Generally, the law of negligence requires a restaurant operator to exercise a care proportionate to the serious consequences which may result from a lack of care. He is necessarily bound to ensure that the food prepared and served by him is fit for human consumption and may be eaten without causing sickness or endangering life by reason of its condition."

Was it reasonably foreseeable that customers might get sick if one of Capers' food handlers were to have an infectious disease? Was that the cause of the customers' illness? What precautions should Capers have taken? Should their food handlers have been immunized against Hep A? Does it matter if other restaurants or food stores don't insist on this as standard practice?

These are some of the questions a court faced with the issue would need to answer.

But the matter wouldn't end there. Even if the Hep A victims proved Capers took insufficient care, they would still have to show they suffered "damages" or losses - be it lost wages for time off work, or pain and discomfort from being ill. If they recover within a few weeks or months, any award of damages likely wouldn't be huge. But if they suffer long-lasting problems - which can happen with Hep A - their damages could be more substantial.

In addition to negligence, there are other hooks on which to hang a finding of liability for food poisoning. If the Capers' victims bought and paid for the food themselves (as opposed to eating something bought by their spouse or friend), they may also have a claim based on breach of contract.

In the meantime, we might well ask if all restaurants and grocery stores should require their chefs, food handlers and servers to be tested for and immunized against potentially lethal and contagious bugs - before anyone else gets sick. And food suppliers will want to look at preventive measures and also closely review their liability insurance.

© Copyright by Janice and George Mucalov

A version of this column was first published in the Vancouver Sun. The column provides information only and must not be relied on for legal advice. Consult your lawyer if you need legal advice.