Is Someone Liable for Your Allergic Reaction?

Allergic Reaction

Food allergies in Australia are on the rise. Over the last 15 years the incidence of food allergies has increased, affecting one in 10 infants and two in 100 adults, according to Allergy & Anaphylaxis Australia.

Common food allergies include egg, cow’s milk, peanuts, tree nuts, sesame, soy, wheat, fish and shellfish. Many children will grow out of their food allergies, however those allergies that continue into adulthood or develop during adulthood can be more serious. Food allergies range from mild to severe, and in some cases they can be life threatening.

While an allergic reaction can be treated, there is no known cure for food allergies which means prevention is key. Food allergy sufferers rely on food labels, and when eating out they place trust in those preparing their food. With the very real possibility of a fatal reaction, it has never been more important for those in the food industry to be clear about the ingredients in their products and the food they are serving. When they fail in this duty, they place lives at risk and may be liable.

Food Standards Code

The food industry in Australia is regulated by Food Standards Australia New Zealand (FSANZ), an independent statutory body. This body produces the Food Standards Code, which, among other things, sets out the labelling requirements for packaged and unpackaged food.

The FSANZ Food Standards Code includes instructions for allergen labelling. Common food allergens such as peanuts, tree nuts, milk, eggs, sesame seeds, fish, shellfish, soy and wheat, must be declared on food labels, even if they are present in small amounts, as components of food additives or processing aids. Failure to correctly label packaged food or advise a customer who asks about allergens means a business is liable if the customer suffers an allergic reaction.

The Food Standards Code also regulates the service of food in restaurants and cafes, outlining the responsibilities of both consumers and staff when it comes to food allergies. The code recognises that both the customer and food service business have a responsibility to prevent an allergic reaction. In the first place, it is the responsibility of the customer to advise staff of their allergy. Once food service staff have been notified of an allergy it is their responsibility to ensure food served to the customer does not contain the known allergen. This will involve checking all ingredients, avoiding cross contamination when the food is prepared, providing alternative options and carefully listening to the customer’s instructions.

Unfortunately most fatalities related to food allergies occur outside the home, which is why food service businesses are also required to have an allergen management plan. If a food service business fails in their responsibility to the customer they may be subject to penalties from FSANZ and liable for the customer’s allergic reaction.

Compensation for an Allergic Reaction

An allergic reaction falls into the broader category of personal injury. A person who suffers an allergic reaction may be entitled to make a personal injury compensation claim against the food producer or service business. The claimant will need to prove that the actions or negligence of the business caused their allergic reaction, leading to physical or psychological harm. The responsibilities set out in the Food Standards Code will be helpful when proving this.

If the claim is successful the injured party will be awarded compensation or damages. Damages may cover medical expenses, loss of income (if the claimant needed time off work), as well as pain and suffering.

Time limits apply to lodging a personal injury claim so it’s important to seek legal advice as soon as possible. The circumstances and laws surrounding food preparation and allergies aren’t always straight-forward and these cases can be complex. The experienced compensation lawyers at Taylor & Scott can provide you with sound legal advice and guide you through the compensation claims process.

We know that the experience of a serious allergic reaction may have been traumatic and emotional for those involved. We approach all cases with understanding and sensitivity.

To meet with a member of our team at a time and place that suits you, fill out an enquiry form or call 1800 600 664.

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