Making a Claim for Food Poisoning

When you go to a restaurant, café, bar, hotel or any other kind of establishment which serves food you accept that you might not always end up eating something which is of Michelin Star status. What you do expect, however, is that the food, however unimpressive it might be, will at least be safe to eat. If this isn’t the case, and the food or drink you consume results in you developing food poisoning, then you may well have the right to make a claim for compensation.

The legislation which covers this area is the Consumer Protection Act 1987. The law states that any food retailer has to provide food which is free from harmful bacteria, and that if it can be proved that they failed to do so then they face a ‘strict liability’. What this means is that the retailer will be judged, in law, to be liable (i.e. to blame) for your food poisoning even if it can’t be demonstrated that they did anything demonstrably wrong in the preparation of the food.

The mere presence of harmful bacteria, no matter how it came to be there, will usually be enough to make a successful case for negligence and thus compensation. In most cases, the bacteria will in fact be present because the food has not been stored, prepared or cooked properly. The people against whom such a claim can be made include food outlets, the producers of the food, or an importer of any food from outside the UK or EU.

Whilst you may never find out exactly why a particular item of food went on to cause food poisoning, there are certain practices which are closely linked to the problem. In order to protect yourself as much as possible when eating food prepared by a third party, look out for the following:

• Food, particularly meat, which is still raw in parts
• Food which should be chilled but has not been kept below 5C
• Food which has been cooked and kept warm for too long
• Food which has previously been cooked and hasn’t been sufficiently reheated
• Food which has been handled by someone with dirty hands
• Food past its ‘use by’ date
• Different types of food stored too closely together, such as raw meat and vegetables

Foods which are more likely to cause food poisoning if they are not stored, handled or cooked properly include:

• Raw meat
• Raw poultry
• Raw shellfish
• Unpasteurised milk
• Foods which are ‘ready to eat’ such as sliced meats, soft cheeses and pates

The symptoms of food poisoning usually begin to take effect one or two days after the food has been eaten, although it may be as quickly as a few hours or as long as several weeks, depending upon the precise nature of the bacteria in question. The most common symptoms to present in a case of food poisoning are the following:

• Feeling nauseous
• Actually being sick, with the vomit sometimes containing blood
• Painful stomach cramps
• Diarrhoea, again sometimes containing blood
• Headache or fever, chills and general aches and pains

Any claim for compensation following a case of food poisoning will be made on the basis of the pain and suffering caused by the food poisoning and any money lost through immediate expenses such as medical fees, and the loss of earnings if you need to take time off work. A successful case will consist of demonstrating that you were in fact suffering from food poisoning, and that this was caused by the food or drink supplied or prepared by a specific retailer.

Proving that you have been suffering food poisoning will involve seeking independent medical advice, and the sooner you do so after developing symptoms, the better. Not only will this prevent your condition worsening, but it will start to build the body of evidence required to make a successful claim. In some cases, multiple people are affected by food poisoning, as was the case in 2012, when the ocean liner Dawn Princess was hit by the norovirus, leaving 114 passengers and 11 crew members stricken with food poisoning. In a case such as this, establishing blame will be relatively simple, but if you’re alone in being affected then it’s vital to gather as much evidence as possible.

As soon as you realise you’re suffering from food poisoning, contact your local Environmental Health Department, the arm of a local authority responsible for policing food safety and hygiene issues. The contact details for your local officer can be found at https://www.food.gov.uk/about-us/local-authorities

Other pieces of evidence which might prove invaluable when seeking compensation include the accounts of any witnesses or fellow diners, any remains of the food you’ve been able to keep (frozen in order to preserve it), a food diary of the preceding 24 hours to enable you to eliminate other possible causes, receipts from the retailer in question as well as those detailing expenses which have arisen as a result of the food poisoning.

The evidence you provide, allied to any gathered under the statutory powers of an Environmental Health Officer, will be used to seek compensation of which, under the latest legislation you will be allowed to keep a minimum of 75%, having had to pay nothing up front.

Cases of food poisoning which occur when you’re abroad can form the basis of a compensation claim, but such cases are often more complex. Things are simpler if your holiday was a package deal booked through a tour operator. If this is the case, then your compensation claim will be made against the relevant operator, and evidence you should keep will include:

• Photographs or video footage of the hygiene standards in the hotel.
• A food diary of the days leading up to the illness, detailing when, where and what you’ve had to eat and drink.
• Take down contact details of any other tourists who have been affected.
• Inform the hotel and the tour operator of your food poisoning, and insist upon the provision of written confirmation.

If your holiday wasn’t booked through a tour operator then the situation may be more complicated. In particular, many tourists book via a travel agent, assuming this constitutes a package tour, only to discover that the different elements of their holiday – travel, accommodation etc. – were actually booked as separate features. It may still be possible to pursue a claim against an individual hotel or restaurant, but legal advice is imperative since the law around environmental health and the time limits for making such a claim tend to differ from country to country.