Personal Injury Claims arising out of Food Poisoning
Introduction
We have all suffered the odd case of an upset stomach following a meal out and accepted it as a fact of life. What about when you suffer serious gastro-enteritis or debilitating diarrhoea which keeps you in bed for several days or even requires hospital treatment? Can you sue?
WHO IS RESPONSIBLE?
Restaurants, takeaways and other commercial sellers of food owe their customers a duty to ensure that they sell food that is fit for consumption. If they breach that duty and cause illness they will be responsible. Most food outlets take out insurance cover against this risk.
HOW CAN I PROVE THAT MY SICKNESS WAS CAUSED BY THE FOOD IN QUESTION?
If you have any of the leftovers get them analysed immediately by the Environmental Health Officer. If the Environmental Health Officer decides to investigate the food outlet they may obtain evidence from there that other food was similarly contaminated or at least incorrectly stored, reheated or treated in any other way.
If other people ate the same meal as you ask them if they suffered in a similar way. Take details of their names and addresses in case they are needed as witnesses.
HOW CAN I BE SURE THAT IT WAS NOT SOME OTHER FOOD THAT CAUSED MY ILLNESS ?
1. Make a detailed record of every single item of food you ate during the previous 24 hours.
2. If you ate the meal with other people who were also ill ask them to carry out a similar exercise.
3. Medical evidence will be necessary to prove that your illness is caused by contaminated food rather than something else like a virus. Make sure that you seek proper medical attention and follow all advice given.
HOW MUCH COMPENSATION WILL I RECEIVE?
Compensation is intended to put you in the position that you would have been in had the incident not occurred. Compensation falls into two categories:
1. General damages
This relates to the distress, pain and suffering and the adverse affect on your life. You may feel that money cannot really compensate you for this, but a monetary award may be the next best thing. Awards are based upon the extent of individual suffering compared to previous similar cases. We will need to obtain a medical report from a qualified medical expert specialising in these types of cases (eg. a gastro-enterologist). The report will need to prove your illness, the extent of your recovery and the most likely cause of the problem.
2. Special Damages
This relates to out of pocket expenses - for example, if you have lost money through time off work, travelling costs or prescription charges. You will have to provide evidence for money lost. Therefore, keep payslips, receipts and detailed records.
HOW MUCH WILL IT COST?
Solicitors charge on an hourly basis so it is difficult to predict precisely how much your claim would cost. However, if you are successful most of your costs should be payable by your opponent providing the general damages (the compensation for pain and suffering) is valued at more than £1,000.
There are several alternative ways of funding your claim.
1. You may already have insurance to pay for legal expenses for this sort of claim. Check on your travel insurance (if it happed while on holiday), your household contents policy or your credit card.
2. You may be eligible for a Conditional Fee Agreement (no win no fee agreement) in which case you will not pay for your solicitors fees if you loses and can take out an insurance premium to cover the other party's costs and disbursements if you lose. Discuss this option with your solicitor. Many policies do not require payment of the premium until the end of the case and if you lose you will not pay as the premium itself if insured.
3. In certain exceptional cases you may be eligible for legal aid. Speak to your solicitor about this.
If your case is valued at less than £1,000 it will be classed as a "small claim" and you can bring a case yourself in your local Small Claims Court. You can ask a solicitor to assist you but the legal costs are not recoverable from your opponent, even if you are successful. To help you, Ashfords have a
Small Claims Pack [399kb] (opens in a new window)
which you can download as a .pdf free of charge. [399kb] (opens in a new window)
HOW LONG WILL IT TAKE?
This depends upon how long you take to recover and also whether or not your opponent admits responsibility (or whether you have to go to Court for a decision). Once a Court case is started, you should get a trial date within 30 weeks.
WHERE CAN I GO FOR HELP?
Ashfords offers a free interview to anyone who considers they might have a claim. We have offices across the South West and can travel to you in certain circumstances.
Ashfords has a Legal Aid Franchise for Personal Injury work and a number of Solicitors who are members of the Solicitors Regulation Authority's Personal Injury Accreditation Scheme.
If you have any queries or require any additional information, please do not hesitate to contact your at Ashfords.
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Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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