Victims who can establish they have contracted Listeriosis as a result of eating infected foodstuffs may be able to recover damages either by virtue of the provisions of the Consumer Protection Act, or alternatively by way of a potential delictual claim as the result of negligence.
Kirstie Haslam, partner at DSC Attorneys says the Consumer Protection Act imposes strict liability – i.e. a victim need not establish fault on the part of the manufacturer or other involved parties – for consumers who suffer harm as a result of defective products (in this case the food products), subject to a number of specific exclusions.
Suing in delict refers to a situation where one suffers reasonably foreseeable and avoidable harm as a result of another’s negligent act or omission. Should a delictual claim be pursued, Haslam explains that the victim will still have to establish this element of fault, i.e. that the manufacturer failed in their duty of care in terms of taking the reasonably necessary steps which were required in order to prevent the foodstuffs being infected with the Listeriosis bacteria.
‘In either event, the extent of the damages which can potentially be claimed includes treatment costs, lost income and general damages for pain and suffering and emotional trauma,’ she says.
She continues: ‘Should a breadwinner who had a duty to support dependents and was in fact so supporting them, pass away as a result of contracting Listeriosis, those dependents may have a claim for the lost financial support which they have suffered as a result. In some instances, they may also be able to claim for the emotional trauma suffered as a result of the death of the family member.’
As to who does one sue, Haslam says that the Consumer Protection Act provides that a consumer may sue any party in the chain of supply, which would include the manufacturer, importer, distributor or retailer of the infected foodstuffs.
With regard to what evidence is needed in these cases, Haslam points out that the consumer needs to be able to prove their diagnosis, that it was a result of eating the infected foodstuffs, where and when they purchased the foodstuffs, as well as any losses incurred as a result thereof.
She says that generally people have three years from the date of the cause of action arising to institute a claim by way of the issuing and service of a Summons. ‘In this instance it would be wise to institute action no later than three years after becoming aware that you were infected.’
As to what advice Haslam would give to those affected she comments: ‘It would be advisable for any victim, be it somebody personally infected or a dependent of a deceased victim, to seek legal representation at the earliest possible opportunity. Cases such as these can be complex and require particular expertise to investigate, prepare and prosecute to a successful conclusion.’
In addition to the last-mentioned factors, Haslam says cases such as these can ultimately be a matter of David versus Goliath, i.e. individual victims with limited financial means up against big corporate entities with seemingly limitless resources to fight any claim. ‘Skilled legal representation can help to level the playing field and ensure that you are adequately compensated for your losses,’ she says.