If you or a loved one have become a victim of E. coli or a similar food poisoning incident, it is important to contact an experienced Oshawa or Ajax lawyer to determine if you have a claim. Between getting treatment, missed work and out-of-pocket expenses, you may be entitled to compensation and support.
HOW DO FOOD POISONING CLAIMS WORK?
Food poisoning claims are a subset of product liability claims. The test for establishing a food poisoning claim varies. Some types of food poisoning are covered by strict product liability legislation and sometimes a food poisoning claim may rely on the breach of an express or implied warrantee. If the food in question is not covered by legislation or a warrantee, then you must prove that the manufacturer or supplier of the food was negligent.
In order to be successful in a negligence claim, it is necessary to demonstrate that the manufacturer or supplier owed a duty of care to you. Then the conduct of the supplier or manufacturer must have fallen below the standard of care required, such as allowing meat to be left out at room temperature. Next, you must establish causation that the negligent behaviour (e.g., failure to properly store the meat) is what caused the food poisoning and that the relationship is not too remote. Finally, the you must establish that you suffered actual damage as a result of the food poisoning such as pain and suffering, lost wages from missing work, treatment costs, etc.
FOOD POISONING CLAIMS IN PRACTICE
In Richards v. McDonalds Restaurants, 2007 SKQB 460 (CanLII), the plaintiff Yvonne Richards brought a claim against McDonalds for suffering from gastroenteritis after eating a ‘Big Mac’ hamburger at a McDonalds restaurant.
The parties agreed that McDonalds owed Ms. Richards a duty of care and that if the ‘Big Mac’ has poisoned her that would fall below the standard of care required under the circumstances. The main area of dispute was whether the ‘Big Mac’ had actually caused Ms. Richards’ gastroenteritis.
Ms. Richards’ evidence was that she had a bagel in the morning and nothing else before eating at McDonalds at 4:00 P.M.. Prior to going to McDonalds, she had no previous gastrointestinal issues. Later that evening she began to feel ill. It worsened throughout the night and her symptoms included nausea, vomiting, diarrhea, fever, chills and abdominal cramps. She went to the emergency room where she was treated for Gastro Enteritis which the treating doctor advised was “very likely the result of food poisoning.”
The defendant lawyer argued that the processes and procedures in place at McDonalds would prevent the type of food poisoning the Ms. Richards allegedly suffered from and brought expert evidence that proposed six alternative pathogens.
Unlike in a criminal trial where the prosecutor must prove guilt beyond a reasonable doubt, in a civil trial the claimant must prove his or her claim on a balance of probabilities. On a balance of probabilities means that the plaintiff must prove that it is more likely than not that the act caused the plaintiff’s damages. The judge held that as Ms. Richards needs only to convince the court that it is more likely than not, but for the ingestion of the Big Mac, that her illness would not have otherwise occurred; she had met her burden of proof.
As Ms. Richards was unable to prove any special damages or out-of-pocket expenses, the judge awarded compensation for general damages only for the pain and suffering Ms. Richards endured as a result of the food poisoning.
McDonalds did appeal this decision to Saskatchewan’s highest court, which upheld the judge’s decision.
WHAT SHOULD YOU DO NEXT?
If you or a loved one become a victim of E. coli or a similar food poisoning incident, it is important to contact experienced legal counsel to determine if you have a claim. You may have a claim for compensation and support if you needed and obtained treatment, missed time from work and incurred out-of-pocket expenses.
At Kitchen Simeson Bellivau LLP, we have extensive experience helping innocent injured victims pursue claims for damages incurred from accidents, defective products and poisoning. Alastair H. Simeson is one of our lawyers with nearly 35 years of experience. Contact our Ajax area and Oshawa lawyers today to schedule a consultation on your specific case at 905-579-5302. A lawyer familiar with Lindsay, Whitby, Port Hope, Bowmanville, Cobourg and the surrounding area will be happy to hear your case and serve you at our firm.