You can sue that restaurant for serving you contaminated food

It is a typical evening out with friends at your favourite restaurant and you have just finished a delicious meal, a serving of chicken or seafood, cheese, rice and green leafy vegetables.

And then it starts: stomach cramps, tingling and pain, you start feeling hot and sweaty.

Suddenly, galaxies and stars are circling in front of your eyes as the lethargy takes over and the first violent wave of nausea hits you.

This is what happens to the hundreds of Kenyans who have fallen victim to food poisoning. The lucky ones are treated and discharged, the unlucky ones die.

Such cases have cast doubts on how safe the food we eat really is. Recent revelations by the Kenya Association of Manufacturers (Kam) that City Hall has not been evaluating food handlers for almost a year, further raised suspicion among Kenyans.

CERTIFICATION

The fact that no public food handler has been issued with a certificate of health for the same period disheartened Kenyans all the more.

“I used to suffer from food poisoning every other month until earlier this year when I decided to stop eating out. It was clear from all the episodes I had that many food handlers are not maintaining proper standards. No wonder they have those ‘staff only’ door signs,” Diana-Kate Wambui told the Nation evidently upset.

The most recent incident happened in Ruirii village, Nyeri County, where four people died after a bride-price negotiation ceremony turned tragic in a suspected case of food poisoning.

Among the dead was the groom’s mother while 10 others were admitted to different hospitals with cholera-like symptoms, according to Nyeri Director of Health Services Nelson Muriu.

LEGAL CLAIM

Now that we all appreciate how humbling and embarrassing a case of food poisoning can be, did you know that you can sue the hotel or restaurant in which you had a meal that resulted in poisoning?

Lincoln Kamau Wachigo, an advocate, sheds light on how you can go about building your case.

“A lot of questions arise such as, what is your legal claim? Who is liable, hence who can be sued? What do you sue for?” He says.

Mr Wachigo adds that to prove a particular restaurant is legally at fault for causing your illness may be difficult due to the legal principle of causation.

“Realistically, it can be difficult to prove that food from a particular restaurant caused food poisoning. It becomes harder if a lot of time has passed from the time you had the meal to the time you are taken ill because of causation,” he points out.

The burden is therefore upon the sick person to prove that it was food from a specific restaurant that caused the illness.

But how do you prove this especially if you ate in more than one place?

EVIDENCE

Dr Edward Maina, a physician at MP Shah Hospital, says that digestion takes three hours, so being observant enough to note when the symptoms start would be a good place to begin.

Another way to get ahead of the situation, the doctor says, is by being diligent enough to have kept leftovers of the food, which will be the evidence presented in court after testing that the food was indeed contaminated.

“Even in such unique instances, where you decide to have the leftovers tested and the lab analysis reveals the presence of harmful bacteria in the food, it’s likely still not conclusive evidence. This is because if you sue the restaurant, they may claim that you exposed the food to other risks after it left their premises,” Dr Maina said.

What then is the probability of success in a food poisoning case? “Generally, the probability of success of a suit depends on how strongly you build your case. You have a better shot at a successful suit if you’re not the only one who was affected or if you’re lucky in some cases, a product recall or a health agency warning may be issued greatly favouring your claim,” Mr Kamau answered.

How then do you proceed?

According to him, a class action suit - which is a suit instituted by many people affected by the same issue and arising from a similar set of facts or a similar series of events.

“In law, personal injury falls under torts. A tort is an act or omission that gives rise to injury or harm to another person; it is a civil wrong in which courts can impose liability. In the torts context, "injury" connotes the invasion of any legal right, whereas "harm" is a loss or detriment suffered by the individual,” Mr Kamau opined.

On how to build a formidable case, the lawyer explains that you would sue under the tort, specifically the tort of negligence.

You would need to prove three key ingredients: that you were owed a duty of care; that the duty of cared was breached, and that as a result you suffered harm or injury.

The three requirements, explains Mr Kamau, are the limbs of a principle in law called the ‘neighbourhood principle’, which was introduced by the popular case of Donoghue versus Stevenson (1932) UK, in which a snail in a bottle of ginger-beer changed the law.

So, what do you need to prove in court?

In this case, the plaintiff, Mrs Donoghue, found a snail in an opaque bottle of ginger ale beer after she had drunk half the content.

Judge Atkin, who ruled in her favour, set a precedent in law making the moral rule "love your neighbour…” into law.

Further, he settled the question on who a neighbour is in law, a person closely and directly affected by your actions enough to be affected by your acts or omissions.

Apart from the existence of a duty of care owed to you, the burden lies with you after claiming to be poisoned to further prove that the food eaten was contaminated and that that contamination caused your illness.

Has anyone ever succeeded in a food poisoning case in Kenya though?

“In Kenya, the hallmark case on poisoning is Kenya Breweries Limited versus Godfrey Odoyo (2005). In this case, Mr Odoyo fell sick after consuming two of the three Tusker Malt Lager beer he had bought at a local bar in Mathare. He was successful and awarded Sh70,000 in general damages and Sh21,990 for pain and suffering,” Mr Kamau says.

LIABILITY

“In a food poisoning claim, all parties involved in the chain of distribution can be held liable,” Mr Kamau posited.

This includes manufacturers, retailers, the local authorities and all other stakeholders involved.

According to the lawyer, a restaurant owes you a duty to deliver well-cooked food handled under hygienic conditions.

Your local supermarket owes you a duty to reasonably ensure consumable products they sell are safe for consumption.

Mr Kamau added that this is of particular importance since the recent increase of cases in which supermarkets are selling expired food products.

“A manufacture owes you a duty to ensure their products are free from contamination, are tested and are fit for human consumption; whereas the local county authorities offer certification and testing services for all food handlers within their jurisdiction,” he said.

Finally, the market regulator, Kenya Bureau of Standards (Kebs), in this instance, offers examination and testing of commodities, examining the manner in which they may be manufactured, produced, processed or treated.

“Hoteliers, restaurant owners and other food handlers can protect themselves through enforcing the “no food from outside is allowed” policy to avoid being blindsided. Of importance though is ensuring food is well-cooked and handled under both locally internationally recognised best practices,”.