By Gaby Grammeno Contributor
The 15-year-old worker, who was about to begin Year 11 at school, was engaged as a casual kitchen hand in a Canberra café in early 2017. Not long after starting work, she was hospitalised with Salmonella Typhimurium.
Six of the café’s patrons and a waitress also fell ill with salmonella poisoning after eating there. The ACT Department of Health was notified and inspected the premises, measuring temperatures and collecting a sample of frozen cooked chicken. On the basis of what the inspector observed, he issued a prohibition order and shut down the café immediately.
The chicken sample was later found to contain the same type of salmonella bacteria that poisoned the kitchen hand and the patrons.
The kitchen hand alleged that she contracted the illness while working at the café at this time. She said she became critically ill as a result of the poisoning, that the illness left her completely debilitated for a number of months and that she now suffers from long-term physical and psychological effects as a result.
She claimed damages in negligence against her employer, the owner of the café at the time, contending that her illness had adversely affected her schooling and reduced her capacity to work. She sought general compensation for her physical illness, ongoing ill health and psychological harm (including the development of a food phobia), domestic assistance, out-of-pocket expenses, and loss of past and future income.
The case was heard in the Supreme Court of the Australian Capital Territory.
In court
The café owner disputed liability, claiming that the kitchen hand could not establish, on the balance of probabilities, that she got salmonella poisoning from the café. He rejected her allegations that the café’s negligent conduct was to blame, that the risk was foreseeable and not insignificant and that the business failed to take the precautions a reasonable person would have taken to avoid the salmonella risk.
With regard to damages, the café owner contended that the kitchen hand was only seriously ill for about two weeks, not months as she claimed, noting that during the period she said she was critically unwell and bedridden, she was arrested for shoplifting, drug possession and associating with other offenders.
The public health officer from ACT Health who inspected the café and took samples observed that:
- there was no soap or paper towels in the dispensers, and no hand sanitiser was available
- there was no sanitiser to enable large equipment or surfaces to be sanitised
- surfaces showed a buildup of grease, waste and dust
- the cool room and other fridges were not under temperature control
- fresh chicken in the cool room was stored at a temperature of 9.5 degrees Celsius, which was not consistent with the requirements of the Food Standards Code (it should have been less than 5 degrees). The temperature of most other items in the cool room and other refrigerators was well above 5 degrees
- the café’s thermometer was unopened, still in its plastic packaging.
The café was found to have committed numerous breaches of the Food Act 2001 (ACT). The café owner was prosecuted for selling unsafe food, failing to comply with the Food Standards Code and failing to renew the business registration. He pleaded guilty to all three offences, was convicted in the ACT Magistrates Court in August 2018 and ordered to pay fines totalling $4,500.
In the present case, Judge Belinda Baker found the kitchen hand had contracted salmonella poisoning through handling raw meat and chicken at the café and suffered a food aversion as a result, due to the defendant’s negligence. The risk of contracting salmonella poisoning in the course of her employment was foreseeable and not insignificant – one of the café’s patrons who was also poisoned with salmonella told the court she had to have a large portion of her stomach removed.
Judge Baker was satisfied that the café had breached its duty of care by failing to take reasonable precautions to ensure that food was properly refrigerated, and by failing to provide its staff with soap to wash their hands. Its failure had caused the kitchen hand’s poisoning.
Judge Baker found that the café was liable, but that the kitchen hand had not been as ill as she claimed, nor had she suffered ongoing injuries including psychological effects to the full extent alleged. Accordingly, the damages to be awarded were substantially less than she sought.
Judge Baker ordered the café to pay the worker $35,000 for general damages, and smaller sums for economic loss, domestic assistance and out-of-pocket expenses, totalling over $65,573.34, as well as her costs in bringing the case.
What it means for employers
Disregard of proper food safety practices can result in serious harm, and even death. The case highlights the need for businesses serving food to ensure compliance with food safety laws.
