when do food poisoning and food allergies become a personal injury claim?
while most cases of food poisoning or allergic reactions resolve on their own, some lead to serious, even life-threatening, consequences
4 minute read
according to the government of canada, one in eight people (4 million canadians) get sick each year from contaminated food. more than 11,500 hospitalizations and 240 deaths occur each year due to food-related illnesses.
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few things are more unsettling than sitting down to a meal and becoming violently ill as a result. while most cases of food poisoning or allergic reactions resolve on their own, some lead to serious, even life-threatening, consequences. when that happens, many people wonder—can i bring a personal injury claim?
when food poisoning may lead to a claim
food poisoning cases can be severe and leave people ill and unable to work. you may be entitled to compensation, however you must prove negligence and that what you ate caused your illness.
a restaurant, food manufacturer or other facility involved in the supply and/or preparation of your food can be held liable.
however, it will need to be proven that the restaurant was negligent and also demonstrate that a ‘duty of care’ was owed to their customer.
it would also have to be established that actual damage was suffered as a result of the food poisoning, such as pain and suffering and extended medical treatment costs.
food poisoning may not seem to be a significant health and social problem, but the numbers may surprise you.
according to the government of canada, one in eight people (four million canadians) get sick each year from contaminated food. more than 11,500 hospitalizations and 240 deaths occur each year due to food-related illnesses.
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the most common culprits causing food poisoning in canada in 2016 were norovirus, listeria and salmonella. norovirus is the leading cause of food-borne illnesses and hospitalizations, sending 1,180 to hospital and causing 21 deaths in 2016.
listeria sent 150 to hospital in 2016, but caused 35 deaths, while salmonella caused 925 hospitalizations and 17 deaths.
the fourth leading cause of food-related illnesses in canada is e.coli, which won’t surprise anyone who recalls the concerning news stories of severe illness among daycare children at calgary facilities in september of 2023.
the e. coli outbreak, believed to be tied to beef meat loaf, caused 448 infections, and sent 38 children to hospital, with some needing dialysis and some children now facing lifelong health consequences from the illness.
the calgary catering company at the centre of a daycare e. coli outbreak was handed a $10,000 fine, after representatives pleaded guilty to operating without a food services business licence.
some parents of the affected children have retained a law firm to take up a class action lawsuit against the catering firm. the lawsuit charges that “as a result of negligent, unsanitary and unsafe food storage, preparation and handling practices,” their children suffered food poisoning due to e. coli infection.
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allergic reactions and liability
food allergies are another serious health danger, and can cause anaphylactic shock or death, with the most common allergens being peanuts, tree nuts, sesame seeds, milk, eggs and fish.
a restaurant may be held liable if it failed to disclose allergens after being asked directly, if it misrepresented ingredients in a menu item, or if it failed to take reasonable precautions after being informed of a customer’s allergy.
another high-profile legal case involves a man who is suing walt disney parks and resorts and raglan road irish pub after his wife died suddenly after eating at the restaurant. the lawsuit alleges the waitstaff was negligent and was aware of his wife’s severe food allergies.
his wife, a doctor, was allergic to nuts and dairy and it was alleged that the waiter guaranteed that certain foods could be made allergen-free. after leaving the restaurant, she began suffering from a severe acute allergic reaction and collapsed. despite self-administering an epi-pen, she died from anaphylaxis due to elevated levels of dairy and nut in her system, the lawsuit says, attributing the information to a medical examiner’s investigation.
to be successful, any lawsuit would need to prove that the restaurant was negligent and also demonstrate that a ‘duty of care’ was owed to their customer. it will also have to be established that actual damage was suffered as a result of the food poisoning, such as pain and suffering, extended medical treatment costs and other related costs.
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of course, laws in the united states differ from those in canada, and there are few such lawsuits in canada, where the onus is on the individual to inform a restaurant about severe allergies.
right now in canada, a customer needs to make the restaurant aware of their allergies, as ultimately your health is your responsibility. generally, the restaurant will not be held liable for an allergy it was unaware of.
it’s important to note that not every case of food poisoning or allergic reaction will qualify as a personal injury claim, but when serious harm occurs due to another party’s carelessness, you may have the right to seek compensation. the key is demonstrating that the contamination or exposure resulted from a breach of duty and directly caused your injury.
nainesh kotak is the founder of kotak personal injury law, a firm focusing on protecting their client’s rights to justice and obtaining the compensation their clients deserve. he was past chair of the long-term disability section of the ontario trial lawyers’ association.
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